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songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FARMERS UNION CENTRAL EXCHANGE et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION and the United States of America, Williams Pipe Line Co., Explorer Pipeline Co., Intervenors. No. 76-2138. United States Court of Appeals, District of Columbia Circuit. Argued April 5, 1978. Decided June 27, 1978. Rehearing Denied July 25, 1978. Certiorari Denied Nov. 27, 1978. See 99 S.Ct. 596. John M. Cleary, Washington, D. C., with whom Frederic L. Wood, Washington, D. C., was on the brief, for petitioners. Ron M. Landsman, Atty., Dept. of Justice, Washington, D. C., with whom John J. Powers, III, Atty., Dept. of Justice, Washington, D. C., was on the brief, for respondent, the United States. Christine N. Kohl, Atty., I. C. C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel and Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., were on the brief, for I. C. C. J. Paul Douglas, Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., was on the pleadings, for respondent, Federal Energy Regulatory Commission. Robert G. Bleakney, Jr., Boston, Mass., with whom David M. Schwartz and Robert L. Calhoun, Washington, D. C., were on the brief, for intervenor, Williams Pipe Line Co. Donald W. Markham, Washington, D. C., with whom Jonathan B. Hill, Washington, D. C., was on the brief, for intervenor, Explorer Pipeline Co. Hanford O’Hara, Atty., I. C. C., Washington, D. C., entered an appearance for I. C. C. Robert B. Nicholson and Andrea Limmer, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States. Before McGOWAN, LEVENTHAL and WILKEY, Circuit Judges. Substituted as respondent agency in place of the Interstate Commerce Commission by virtue of Public Law 95-91, § 402(b), 91 Stat. 584 (August 4, 1977) and Executive Order No. 12009, 42 Fed.Reg. 46267 (September 15, 1977). Opinion for the Court filed by McGOW-AN, Circuit Judge. McGOWAN, Circuit Judge: Petitioners, a group of oil shippers, challenge an order of the Interstate Commerce Commission (ICC) sustaining (1) increased rates filed by intervenor Williams Pipe Line Co. (Williams) and (2) joint rates initiated by Williams and intervenor Explorer Pipeline Co. (Explorer), as against claims that the former are unreasonably excessive, see 49 U.S.C. § l(5)(a), and the latter are discriminatory, see id. § 2, and illegally preferential, see id. § 3(1). This review proceeding is unique in that, while pending before us awaiting briefing and oral argument, jurisdiction over the rates in question was transferred by Congress from the ICC to the Federal Energy Regulatory Commission (FERC), and the latter has been substituted for the ICC as the respondent agency. FERC has advised this court that it takes no position with respect to the merits of the order under attack, and urges us rather to forego adjudication on the merits in favor of a remand of the case to it so that it can formulate, independently to the ICC, the regulatory principles it finds to be suitable for application in this new area of responsibility committed to it. The United States, a statutory respondent, purporting to see deficiencies in the ICC’s decision, supports FERC’s remand request. The court, now having had the benefit of full briefing and oral argument of the merits by all parties except FERC, has concluded, to the extent and for the reasons hereinafter appearing, to remand the case to FERC for determination by it, under its new authority, of the compatibility of the subject rates with 49 U.S.C. § l(5)(a), and, in light of its findings thereon, for examination of the preference issue under id. § 3(1). As to the existence of discrimination, however, petitioners’ failure properly to raise the issue before the ICC mandates our affirmance of that agency’s decision insofar as it is based on id. § 2. I Williams, an independent common carrier, is a relatively new entrant in the oil pipeline transmission industry, having begun doing business in 1966 with the purchase of Great Lakes Pipe Line Co. (Great Lakes). It acquired the physical assets of Great Lakes from eight petroleum producer-owners for $287.6 million — the highest among the competitive bids received. The pipeline system thus acquired serves a large portion of the Midwest, with connections in such producing and refining cities as Tulsa, Fargo, Lincoln, and Topeka, and in such consuming cities as East St. Louis, Chicago, and Minneapolis. By interconnecting with intervenor Explorer Pipeline Co. (Explorer) at Tulsa, Williams also may connect refineries located along the Gulf Coast of Texas and Louisiana with consumers in the Midwest. Petitioners are a group of oil producers and refiners located primarily in the Great Plains area who historically have used the Great Lakes-Williams pipeline system to transport their petroleum products to the Midwest. In late 1971 and early 1972, Williams informed them that it was raising its rates by approximately 15 percent (or 3 cents a barrel) across the board. At the same time as it generally increased its rates, Williams, together with Explorer, initiated joint rates for through service from the Gulf Coast to the Midwest. These joint rates are uniformly 9.5 cents a barrel lower than the combination of Williams’ and Explorer’s local rates. Shortly after the appropriate tariffs were filed with the ICC, petitioners made them the subject of complaints under the provisions of the Interstate Commerce Act which, inter alia, regulates oil pipeline rates, 49 U.S.C. § l(l)(b). Petitioners’ protests led the ICC to initiate investigations into the lawfulness of both sets of rates, although the disputed rates have remained in effect without suspension since their inception, pending the outcome of these proceedings. Although many claims were originally raised by the parties, the course of administrative consideration has left three major issues of import on appeal. First, petitioners argue that Williams’ rate increases for the transportation of oil in the area formerly served by Great Lakes are unreasonable under id. § l(5)(a), because they are derived from an inflated valuation rate base and allow an excessive rate of return on that rate base (10%); and further because certain operating expenses and tax allowances used by Williams in computing its rates were unreasonable. Second, petitioners claim that by charging them local rates to transport their oil from the Great Plains to the Midwest while charging the Gulf Coast shippers less (per mile) — under the joint Williams-Explorer rates — to transport their oil to the same destinations, intervenors are giving the Gulf Coast shippers an unjust preference. Id. § 3(1). Finally, petitioners argue that by unevenly dividing the joint rate revenues with Explorer, Williams is giving the eight Gulf Coast shippers that jointly own Explorer a discriminatory rebate. Id. § 2. Petitioners asked the ICC to order Williams to lower — and Williams and Explorer to readjust — the rates in question, and to pay reparations plus interest, costs, and attorneys’ fees. Petitioners do not contest the propriety of the procedures used by the ICC in adjudicating their complaints. The administrative law judge announced his decision favorable to Williams on June 6, 1974, after holding several days of formal hearings in 1972 and 1973 and after considering copious written submissions. Petroleum Products, Williams Bros. Pipe Line Co. (unpublished initial decision) [hereinafter referred to as Initial Decision and cited to Joint Appendix (JA)]. Exceptions were filed by the petitioners on both sets of issues, thereby entitling them to consideration by a three-commissioner division of the ICC. On the basis of the record as well as the exceptions and replies filed by the parties, the division, one commissioner dissenting, accepted the findings of the administrative law judge. Petroleum Products, Williams Bros. Pipe Line Co., 355 I.C.C. 102, 126 (1975) [hereinafter referred to as Williams I], Petitioners next asked the entire Commission to reconsider the case, arguing that it involved “matters of general transportation importance” — the standard that must be met to secure reconsideration by the full Commission. Although asserting that the issues did not rise to the requisite level of importance, the full Commission felt that reconsideration of the record, as supplemented by written submissions by the parties, was merited “because of the relative dearth of precedent concerning petroleum pipeline rates, and in view of the substantial sums of money at issue....” Petroleum Products, Williams Bros. Pipe Line Co., 355 I.C.C. 479, 481 (1976) [hereinafter referred to as Williams II]. In an opinion filed December 3, 1976, the full Commission, one commissioner dissenting and two not participating, affirmed the findings of the administrative law judge and the division, id., and petitioners sought direct review by this court. II A. In 1906, the Interstate Commerce Act of Feb. 4, 1887, c. 104, 24 Stat. 379, was amended by the Hepburn Act to include companies engaged in the “transportation of oil. by pipe line” among the common carriers subject to regulation thereunder. Act of June 29, 1906, c. 3591, § 1, 34 Stat. 584. Yet, while pipeline companies joined railroads, and were later joined by motor carriers, as regulatory subjects of the Interstate Commerce Act, those companies never faced the degree of regulation to which the vehicular common carriers were subject. Thus, while under the same duty as railroads and/or motor carriers to furnish or allow continuous transportation, 49 U.S.C. §§ 1(1), 1(4), 7, to establish, file, and publish reasonable, nondiscriminatory rates subject to ICC approval, id. §§ 1(5), 3(1), 4(1), 6, 15(1), to avoid certain pooling relationships, id. § 5(1), to file certain financial reports, and to use certain accounting procedures subject to ICC specifications, id. §§ 20(1), (2), (4), (5), pipeline companies have none of the special obligations imposed upon the vehicular regulatees under the Act concerning acquisitions, mergers, corporate affiliates, uniform cost and revenue accounting, issuance of securities, and corporate or financial reorganizations. Id. §§ 5(2)-(13), 20(3), 20a, 20b, 20c. For this reason, we may infer a congressional intent to allow a freer play of competitive forces among oil pipeline companies than in other common carrier industries and, as such, we should be especially loath uncritically to import public utilities notions into this area without taking note of the degree of regulation and of the nature of the regulated business. See J. Bonbright, Principles of Public Utility Rates 4-5 (1961). Consequently, beyond the general outlines of the Interstate Commerce Act, and the specific provisions therein dealing with ratemaking, see notes 2, 6 & 7 supra, we have little to rely on in constructing a theory of oil pipeline ratemaking. Although the Act, as amended by the Valuation Act, 37 Stat. 701 (1913), does provide the ICC with the wherewithal to gather the information necessary to determine the “valuation” of railroads and oil pipeline companies, 49 U.S.C. § 19a, see note 3 supra, we see nothing in the Valuation Act that requires the agency to translate its valuation authority into a mandatory approach to ratemaking or that makes a valuation approach inevitably reasonable. . ICC precedent provides little additional guidance as to appropriate ratemaking methodology for the oil pipeline industry. In the four published opinions in which it has heretofore discussed oil pipeline rate-making, the ICC adopted the valuation rate base without discussion, or even explicit recognition, of alternative bases. Reduced Pipe Line Rates and Gathering Charges, 243 I.C.C. 115 (1940) [hereinafter Reduced Rates I], reopened, 272 I.C.C. 375 (1948) [hereinafter Reduced Rates II]; Petroleum Rail Shippers’ Ass’n v. Alton & So. R. R., 243 I.C.C. 589 (1941); Minnelusa Oil Corp. v. Continental Pipe Line Co., 258 I.C.C. 41 (1944). Nonetheless, the ICC’s use in the 1940’s of the “fair value” method is not hard to explain — and in that explanation lies an important reason to reexamine the continued viability of the decisions announced during that era. The ICC’s primary experience with rate-making prior to the 1940’s involved railroads, as to which a landmark Supreme Court case had appeared to mandate the fair value method of ratemaking. Smyth v. Ames, 169 U.S. 466, 546-47,18 S.Ct. 418, 42 L.Ed. 819 (1898); see note 8 supra. See also St. Louis & O’Fallon Ry. Co. v. United States, 279 U.S. 461, 49 S.Ct. 384, 73 L.Ed. 798 (1929). Subsequently, the Supreme Court’s endorsement on this method was extended to other areas. E. g., Southwestern Bell Tel. Co. v. Missouri Pub. Serv. Comm’n, 262 U.S. 276, 43 S.Ct. 544, 67 L.Ed. 981 (1923). Although under the impetus of Justice Brandéis’ concurring opinion in the last-cited case, id. at 289-312, 43 S.Ct. 544, the Supreme Court during the 1930’s began to countenance experimentation with other ratemaking approaches, e. g., Railroad Comm’n of California v. Pacific Gas Co., 302 U.S. 388, 399, 58 S.Ct. 334, 82 L.Ed. 319 (1938), by this time the ICC had established a firm practice of using the valuation method. E. g., Petroleum Rail Shippers, supra. Thus, the ICC practice, reflected in the four pipeline rate cases cited earlier, of using a valuation rate base had become ensconced in that agency’s decision by 1944, when the Supreme Court decisively reversed its field and became openly critical of talismanic reliance on “fair value.” FPC v. Hope Natural Gas Co., 320 U.S. 591, 601, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Moreover, between the time that Hope’s implications became clear and the ICC’s consideration of this case, that agency did not have occasion to discuss the principles of oil pipeline ratemaking. As such, we are left to draw our conclusions about this case based on a series of ICC opinions that arose in a ratemaking environment that has since been dramatically altered by the Supreme Court. In addition to the significant changes in the relevant legal environment since the ICC’s 1940’s decisions, important economic transformations have occurred. First, that agency’s only actual comparison in the 1940’s of the “valuation” of pipeline assets and the actual investment therein “as carried on [the pipeline companies’] books” (i. e., apparently, original cost) shows that in a majority of cases “the valuations] found by the Commission were materially lower than the carriers’ investment....” Reduced Rates I, supra, 243 I.C.C.. at 138 (emphasis added). This 1940’s situation is in marked contrast to that experienced in today’s inflationary economy wherein valuation typically exceeds investment by a substantial amount. Second, based on rather detailed analyses of economic conditions facing the industry in the 1940’s, the Commission’s 1940’s decisions determined that oil pipeline rates should allow carriers to recover operating expenses plus no more than either an 8 percent return on value for transmission of crude oil or crude oil plus refined petroleum products, Reduced Rates II, supra, 272 I. C.C. at 376, 384 (rates upheld actually producing 7.6 percent rate of return); Min-nelusa, supra, 258 I.C.C. at 54; Reduced Rates I, supra, 243 I.C.C. at 142, or a 10 percent return on value for transmission of gasoline. Petroleum Rail Shippers, supra, 243 I.C.C. at 663. The ICC pointed out that by 1940’s standards these rates of returns were somewhat larger... than. would be reasonable to expect would be applied in industries of a more stable character, where the volume of traffic is more accurately predictable. Minnelusa, supra, 258 I.C.C. at 54, accord, Petroleum Rail Shippers, supra, 243 I.C.C. at 661-62; Reduced Rates I, supra, 243 I.C.C. at 142. In the Commission’s estimation, these “somewhat larger” rates of return were justified on the one hand by the need to attract capital to the oil pipeline industry despite the higher-than-normal risks faced by carriers of petroleum products, and especially of gasoline, and on the other hand, by the need to keep rates low enough to forestall the dangers of oligopolistic control of the oil pipeline industry by the big producers. Other factors considered by the ICC were the possibility of price fixing and a history of “enormous” profits, the cost effects of greatly increased taxation during the 1930’s, the increased demand for oil products, the improved technology of pipeline transmission precipitated by World War II, and the prediction that economic forces would cause rates to drop regardless of ICC action. Notably, aside from brief discussions of increased labor costs, the ICC’s decisions make clear that operating costs other than taxes were relatively free from inflationary (or deflationary) influences from 1937 to 1947. To the extent that economic conditions facing the oil pipeline industry have changed since 1948 — and, in light of the modern onslaught of inflation, petroleum shortages, and reliance on imports, as well as the maturing of the industry itself, we may readily assume they have — the conclusions of the ICC in its earlier cases as to appropriate rates of return are equally as much artifacts of a bygone era as is its reliance then on a valuation rate base. Finally, the ICC’s 1940’s cases recede even further into the background when it is realized that the ICC has been replaced by FERC as the government agency charged with watching over oil pipeline rates. The transfer of authority to FERC occurred during the pendency of this petition pursuant to the Department of Energy Organization Act (the DOE Act), Pub.L.No.95 — 91, § 402(b), 91 Stat. 584 (1977), effectuated, Executive Order No. 12009, 42 Fed.Reg. 46267 (Sept. 15, 1977), implemented, 42 Fed. Reg. 55534 (Oct. 17, 1977). Although, the DOE Act provides that litigation commenced before the transfer shall continue, with “appeals taken, and judgments rendered... as if this Act had not been enacted,” as regards the substantive administrative law applicable in this case, the transfer further unsettles the foundations on which we must adjudicate this petition. Thus, it removes the stabilizing influence of the courts’ usual desire to afford an administrative agency some latitude over time to develop its own approach to the regulatory tasks delegated to it by Congress. See Permian Basin Area Rate Cases, 390 U.S. 747, 790, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). Here, the transfer of authority has deprived us of even the possibility of endorsing ICC’s attempt to develop such an approach, and, in fact, has created the likelihood that anything we say will inhibit FERC from freely developing its approach in the future. That FERC has refused to adopt the IGC’s position in this case, and — joined by the Antitrust Division of the Department of Justice — has asked that the case be remanded to it, illustrates this problem. This background should explain our reluctance to embark on the first federal judicial foray into the area of oil pipeline ratemak-ing. In this endeavor, beyond the statute’s admonition that rates be “just and reasonable,” we must rely almost entirely on the ICC’s opinions in this case. Moreover, as the next section demonstrates, those opinions are characterized by analytical difficulties that undermine their usefulness in resolving the overall reasonableness of the assailed rates. B. The parties have joined issue over the ICC’s treatment of five criteria they deem crucial to the reasonableness of Williams’ rate increases: rate base, rate of return, depreciation costs, tax treatment, and certain items of operating expenses. See notes 2-5 supra and accompanying text. In reaching our conclusion that the ICC’s decisions present problems that impel us to remand the reasonableness issue to its successor, FERC, we find it necessary to dwell on only the first three of these criteria. Despite petitioners’ insistence on original cost less depreciation of all of Williams’ assets used in transmitting oil (i. e., $101.1 million), and Williams’ somewhat tentative advocacy of purchase price ($287.6 million) as the appropriate rate base, the ICC used a “valuation” base. Williams I, supra, 351 I.C.C. at 108. This is calculated to be $167.6 million, id., based primarily on two factors listed in the Valuation Act, 49 U.S.C. § 19a — original cost, and the cost of reproduction new. All three decisions based their analyses of the rates on the percent return they allowed on valuation, so that the importance to all three of the valuation rate base cannot be gainsaid. Most prominent among the three opinions’ explanations of the use of the “fair value” method was that as the “traditional,” “customar[y],” and “well-established practice” of the ICC in oil pipeline cases, valuation ratemaking has “withstood the test of time.” Initial Decision, supra, JA at 1608; see id. at 1605; Williams I, supra, 351 I.C.C. 105, 107, 113, 114; Williams II, supra, 355 I.C.C. at 485. In support of this “tradition,” however, the opinions (when they cite any support at all) list only (1) the 1940’s oil pipeline cases discussed above, (2) the Commission’s history of computing valuations under the Valuation Act, and (3) the fact that the Commission’s mandatory accounting procedures for pipelines, see Uniform System of Accounts for Pipeline Companies, 337 I.C.C. 518, 523 (1970), are geared to the use of a valuation rate base. See Initial Decision, supra, JA at 1605, 1608; Williams I, supra, 351 I.C.C. at 107, 113. As our previous discussion indicates, however, these three indicia of a tradition of fair value ratemaking are weak and outmoded. Both the oil pipeline precedents and the history of valuation computations under the Valuation Act are in large measure products of a bygone era of ratemaking ushered in by the Supreme Court in Smyth v. Ames in 1898 and ushered out by that same body in Hope Natural Gas in 1944. See notes 8-10 supra and accompanying text. To the extent that the ICC’s accounting rules derive their valuation focus from the 1940’s precedents and the Valuation Act, see Uniform System of Accounts, supra, 337 I.C.C. at 523, they, too, are subject to this same criticism. Moreover, each of the three indicia suffers from infirmities of its own. First, even if we assume under Hope that valuation ratemaking might be capable of producing a viable “end result,” there is no assurance in the Commission’s 1940’s precedents — born as they were of peculiar post-depression, World War II, and post-War economic conditions — that such a result will occur in the 1970’s. Second, the Commission itself has seen fit to abandon its so-called tradition of valuation computation and ratemaking based thereon in the railroad area, which is equally subject to the Valuation Act. See note 9 supra. Finally, the ICC decision setting forth pipeline accounting rules states explicitly that it is concerned... with accounting rules which are not necessarily dispositive of the manner in which expenditures will be treated in a proceeding to determine the reasonable level of particular rates. Uniform System of Accounts, supra, 337 I.C.C. at 523. This last-quoted caveat should hardly have to be express. After all, it is rates, not bookkeeping, that the statute requires to be reasonable, and there is no assurance of record, at least, that reasonable accounting measures translate automatically into reasonable rates. In sum, we are not persuaded by the Commission’s conclusion that “consistency and fairness” dictate resurrection of the “fair value” method last used thirty years ago. Williams II, supra, 355 I.C.C. at 484. To the extent that the method was wrongly grounded in the law at that time, it is no better off now. To the extent that it may have been rightly grounded in the economics of that day, the ICC has provided us with no reason to believe that three decades have not changed the situation. And, to the extent that Williams, having nothing else to depend on but the earlier cases, justifiably relied on them in adopting its rates, see id., the solution is not to perpetrate that reliance but to end it prospectively, without allowing reparations based on its occurrence in the past. Aside from the above arguments, the three ICC opinions mentioned but one other justification for the “fair value” method: the need for a ratemaking theory responsive to inflation. We have no quarrel with the ICC’s aspirations on this score. The Supreme Court has indicated that rates must be high enough to allow the regulatee to attract capital, and investors will be unlikely to invest if their earnings will not keep abreast of, and have some chance of exceeding, the rate of inflation. See FPC v. Hope Natural Gas Co., supra, 320 U.S. at 603, 64 S.Ct. 281. Nonetheless, the ICC’s failure to assess the actual effects of inflation on Williams’ ability to attract capital, and its apparent “double counting” of concerns about inflation, see pp.---of 189 U.S.App.D.C., pp. 420-421 of 584 F.2d, infra, cast a shadow over its conclusion that a valuation rate base properly reflects inflation. We find the ICC’s discussion of rate of return equally problematical. Here the total emphasis is on the 1940’s precedents: because 8-10 percent was a viable return for carriers of petroleum products from 1940 to 1948, it is said, so must it be today. Even more so than the choice of a reasonable rate base methodology, a “reasonable rate of return” determination must be the product of the economic moment. As noted earlier, the ICC’s choice in the 1940’s of the 8 and 10 percent figures turned on such “hazards” as the infancy of the gasoline industry, the likelihood of disruptive discoveries of new oil fields and the unidimen-sional nature of the product market served by pipeline carriers, as well as on such factors as unduly high profits in the past, high taxes, and a rapidly expanding economy relatively free of inflation. See notes 12-20 supra and accompanying text. Absent some accompanying assessment of how this complex of relevant factors has changed in thirty years, the ICC’s reliance on its antiquated precedents in determining a reasonable rate of return differs little from a rule that would require modern automobile accident damages to conform to those awarded by juries in 1940. Finally, we come to the depreciation charges allowed Williams as a cost that it may recoup through its rates. Just prior to Williams’ purchase of Great Lakes, it secured a Commission opinion that the Commission’s accounting instructions for pipeline carrier property accounts, 49 C.F.R. § 1204-3-1 et seq., applied to the purchase. JA at 202, 205. Under those instructions, Williams recorded its full purchase price of $287.6 million in its property account. Although the ICC informed Williams that this opinion did “not prejudice the Commission’s continuing rights and responsibilities with regard to rate determinations that may come before it,” JA at 205, Williams used this same method of valuing its wasting assets when calculating depreciation expenses for ratemaking purposes. Allowing this revaluation, for ratemaking as well as accounting purposes, of the Great Lakes-Williams property not only greatly increased depreciation charges from that point forward, but it also withdrew any recognition that rate payers had already been charged almost $100 million for depreciation by Great Lakes. In upholding this operating expense calculation, the Commission did little more than (1) note the calculation’s congruence with its reporting and accounting rules, especially as discussed in Uniform System of Accounts, supra, and (2) point out the inability of petitioner’s recommended original cost approach to keep pace with inflated property values. Williams II, supra, 355 I.C.C. at 489. Once again, we cannot countenance the ICC’s current unexplained insistence on irrevocably hitching its ratemaking theory to its accounting rules. This linkage is especially troublesome because, when it wrote those rules, the Commission expressly denied them any such controlling impact on rates. See p. - of 189 U.S.App.D.C., p. 418 of 584 F.2d supra. It supported that express denial of linkage with a reminder that the ICC traditionally did not tie rates to “investment as shown on the carriers’ books, but rather [to]. valuations [computed] pursuant to the [Valuation Act].” Uniform System of Accounts, supra, 337 I.C.C. at 523. Hence, we are left with the additional unexplained anomaly of a valuation rate base coexisting with a purchase price depreciation base— hardly an “accepted... practice [].” The final irrationality is that the depreciation basis used, unlike original cost, valuation, and other possible approaches, allows depreciation charges, and thus the rates, to change dramatically from one day to the next — so long as a purchase of the assets intercedes — even though the cost of the carriers’ public service has not actually changed. It is true that occasional acquisitions of carriers at prices deemed currently reasonable might serve as a mechanism for accurately reflecting inflation’s impact on the value of such enterprises. We have our doubts, however, about either the desirability of encouraging acquisitions solely for this purpose, or of depending on their unpredictable occurrence to serve this function. In any case, the ICC in this case purports to have recognized inflation in figuring rate base (and perhaps even rate of return, see Williams II, supra, 355 I.C.C. at 487), so that a further inflation adjustment by way of increased depreciation charges would seem precipitous and itself unduly inflationary. See p. - of 189 U.S.App.D.C., p. 419 of 584 F.2d, supra. The foregoing discussion illustrates our unease with the ICC’s findings regarding rate base, rate of return, and depreciation costs. Those three criteria, in turn, are important enough that doubts as to them must infect our view of the Commission’s ultimate finding of reasonableness. Nonetheless, were this a normal case, the limited scope of review under which we operate in these proceedings might require us to look beyond ICC’s rationale to the record itself, before we would be prepared to disapprove the Commission’s ultimate holding. See, e. g., Permian Basin, supra, 390 U.S. at 766-67, 88 S.Ct. 1344 (rate must be upheld if total effect is reasonable); FPC v. Hope Natural Gas Co., supra, 320 U.S. at 603, 64 S.Ct. 281 (rate must be upheld, even if subject to theoretical “infirmities,” if “end result” is reasonable); The Second National Natural Gas Rate Cases, No. 76-2000, et al., slip op. at 18 (D.C.Cir. June 16, 1977) (“basic. requirement [is] that there be support in the public record for what is done.”). But this is not a normal ratemaking case — in large measure because we are at something of a loss to know what to look for should we resort to the public record. The lack of viable precedents in this area and thus of some semblance of established ratemaking theory undercuts any confidence we have that we can make a “reasonableness” determination in the absence of some significant assistance from the agency formerly charged with making that determination in the first instance. Moreover, the record appears to be incomplete in certain significant respects. See note 27 supra. What clinches our decision to remand on the reasonableness issue, however, is the fact that the agency now charged with that responsibility, FERC, has requested a remand so that it may begin its regulatory duties in this area with a clean slate. While “infirmities” in an agency’s methodology may not prevent us from affirming its otherwise supportable “reasonable Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. In the Matter of BOWEN TRANSPORTS, INC., an Illinois Corporation, Debtor. CENTRAL NATIONAL BANK OF MATTOON, a National Banking Association, Plaintiff-Appellant, v. BOWEN TRANSPORTS, INC., an Illinois Corporation, Defendant-Appellee. No. 76-1508. United States Court of Appeals, Seventh Circuit. Argued Dec. 3, 1976. Decided March 16, 1977. Jack E. Horsley, Stephen L. Corn, Mattoon, Ill., for plaintiff-appellant. Clyde Meachum, Danville, Ill., for defendant-appellee. Before BAUER and WOOD, Circuit Judges, and GRANT, Senior District Judge. Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation. HARLINGTON WOOD, Jr., Circuit Judge. This case involved an appeal from a district court ruling which affirmed an order by the referee in bankruptcy sustaining the objections of Bowen Transports, Inc., to a claim filed by the Central National Bank of Mattoon in the amount of $38,886.95. The central question on appeal is whether the referee in bankruptcy and the lower court properly concluded that the Central National Bank of Mattoon is not a creditor of Bowen Transports, Inc. For the following reasons we believe that the objections of Bowen Transports, Inc., to the Central National Bank’s claim were properly sustained. I Briefly, the facts are as follows: Appellant Central National Bank of Mattoon (hereinafter referred to as the Bank) filed claims in two separate Chapter XI proceedings against two corporations. One corporation, Appellee Bowen Transports, Inc. (hereinafter referred to as the Illinois corporation), was organized in Illinois. The other corporation, Bowen Transports, Inc. of Illinois (hereinafter referred to as the Delaware corporation), was organized in Delaware. The Illinois corporation was successful in obtaining approval from its creditors and the referee in bankruptcy for a Chapter XI Plan of Arrangement. The Delaware corporation did not succeed in its Chapter XI proceeding and was adjudged bankrupt. At all times relevant to the case at bar Bowen Investment Corporation owned all of the stock of the Delaware corporation. Similarly, the Illinois corporation’s stock was being purchased by Bowen Investment Corporation on an installment contract. Bowen Investment Corporation possessed the voting rights of the stock of the Illinois corporation. The stock of Bowen Investment Corporation was owned entirely by H. G. Bowen and his wife Martha Bowen. In addition, H. G. Bowen, Martha Bowen and son P. G. Bowen all served as the officers and directors in Bowen Investment Corporation, the Delaware corporation and the Illinois corporation. Prior to August, 1970, the Illinois corporation was a common carrier engaged in interstate trucking. The Illinois corporation in August, 1970, sold its interstate certificate and nearly all of its motor vehicle equipment to Coastal Tank Lines, Inc., (hereinafter referred to as Coastal) on an installment contract. At the time the proceedings in the present case were initiated, Coastal still owed the Illinois corporation on the installment contract. Subsequent to this sale the primary business engaged in by the Illinois corporation was collection of rentals from Coastal and payment of financing on the trucks sold to Coastal. The Illinois corporation also rented equipment to the Delaware corporation. The rental of equipment helped to offset money loaned by the Delaware corporation to the Illinois corporation to help the Illinois corporation meet its financial obligations. The Delaware corporation operated trucks in interstate commerce up to and including February 9, 1973, the date it was adjudged bankrupt. The Bank extended loans to the two corporations evidenced by promissory notes executed between April and September, 1971. On April 9, 1971, a note made payable to the order of the Bank was executed by H. G. Bowen as president and Martha Bowen as secretary of Bowen Transports, Inc. of Illinois, the Delaware corporation. The note was subsequently assigned to the Small Business Administration. Seven additional notes were executed in a like manner between April 9, 1970, and July 20, 1970. An additional note executed in favor of the Bank was a note signed on September 17,1971, by Bowen Transports, Inc., the Illinois corporation. That note has been paid and is not contested. All nine notes contained provisions for confession of judgment. In January 1972, the Bank caused judgments to be confessed against the Illinois corporation in Circuit Court of Coles County, Illinois, on all nine notes. In February, 1972, the Bank filed an amended complaint and caused the judgment against the Illinois corporation to be amended. The amended judgment operated against the Illinois corporation only on the September 17, 1971, note. The Delaware corporation was held responsible under the amended judgment on the other eight notes. Thereafter, the Bank initiated supplementary proceedings for the discovery of assets pursuant to Ill.Rev.Stat., Ch. 110 § 73. The Bank contended that it was entitled to reach the Illinois corporation’s assets (principally the funds due from Coastal on the installment contract) to satisfy the judgment against the Delaware corporation as well as the judgment against the Illinois corporation. On June 9, 1972, the Circuit Court judge entered an order which provided in part that the proceeds from the Coastal contract be assigned to the Circuit Clerk until further order by the Circuit Court. On June 28, 1976, the proceeds from the Coastal installment contract were assigned to the Circuit Clerk, Coles County, Illinois. Prior to further disposition by the state ' court, both corporations filed for arrangements under Chapter XI of the Bankruptcy Act. The bankruptcy court issued a restraining order which prohibited the Bank from proceeding further in state court. The referee in bankruptcy ruled that except for the note signed by the Illinois corporation on September 17, 1971, the Illinois corporation is not indebted to either the Bank or the Small Business Administration. Thus, the referee disallowed the Bank’s claim on the remaining eight notes against the Illinois corporation. The district court on appeal affirmed the denial of the Bank’s claim. The Bank first contends that the Circuit Court of Coles County created a lien on behalf of the Bank on the funds owed the Illinois corporation by Coastal which allows satisfaction of the judgment on the eight notes executed by the Delaware corporation. The Bank argues that this lien under the principles of res judicata should have been given effect by the referee and the district court. The Bank next suggests that its claim was improperly dismissed since the Illinois corporation was the maker of a note dated July 20, 1971, in the principal amount of $25,000. In addition, the Bank argues that the doctrine of piercing the corporate veil should be applied so that the indebtedness of the Delaware corporation would be regarded as the indebtedness of the Illinois corporation. The Bank further contends that the referee committed error in prohibiting the introduction into evidence of a transcript of testimony given at the state supplementary proceedings. Finally, the Bank asserts that the referee’s findings are clearly erroneous. b 1. Lien on funds owed Illinois corporation, Subsequent to entry of judgment against the Illinois corporation on the note executed 0n September 17, 1971, and judgment against the Delaware corporation on the eight notes executed between April and July, 1970, the Bank initiated supplementary proceedings pursuant to Ill.Rev.Stat., Ch. 110 § 73, for discovery of assets. On June 9, 1972, the circuit judge entered an order in the supplementary proceeding which provided in part that proceeds due the Illinois corporation from the Coastal installment contract be assigned to the circuit clerk until further order by the court. In addition, the circuit judge entered findings of fact on June 28,1972, in which he stated in part that proceeds from the Coastal contract and equipment owned by both corporations were used indiscriminately for the benefit of both the Illinois and Delaware corporations. The Bank asserts that the June 9, 1972, order, the findings of fact, and the assignment of the Coastal contract proceeds reflects the creation by the state court of a lien on the Coastal contract proceeds on behalf of the Bank to satisfy the debt created by the Delaware corporation. Defendant argues that the referee was obligated under the principles of res judicata to honor this lien in the bankruptcy proceedings. We do not agree, however, that the state court created a lien on behalf of the Bank against the proceeds of the Coastal installment contract to satisfy the debt created by the notes signed by the Delaware corporation. 3. That the following factual findings are hereby determined upon by the Court: Supplementary proceedings pursuant to Ill.Rev.Stat, Ch. 110 § 73, are designed to provide a statutory basis for a judgment creditor to discover a debtor’s property and apply it in satisfaction of a judgment. Supplementary proceedings “derive their support from the main judgment, and if the main judgment fails the right to collect in such proceedings must also fail.” Alsen v. Stoner, 114 Ill.App.2d 216, 224-5, 252 N.E.2d 488, 493 (2d Dist. 1969). In the present case the Bank contends that the state judge in the supplementary proceeding created a lien on behalf of the Bank against the proceeds of the Coastal installment contract owed to the Illinois corporation to satisfy the debt created by the Delaware corporation. However, the judgment on the eight notes executed by the Delaware corporation runs only against the Delaware corporation. In effect, the Bank is asserting that the state court in the supplementary proceeding modified the judgment against the Delaware corporation to permit satisfaction from the Illinois corporation’s assets. Section 73 does not, however, give a judge the power to alter a judgment presented to him. See Strojny v. Egeland, 132 Ill.App.2d 779, 270 N.E.2d 231 (1st Dist. 1971). In addition, this court cannot find any evidence indicating that a lien was in fact created. The state judge neither used the term “lien” nor allocated proceeds from the Coastal installment contract. At most, the order entered by the state judge preserved assets pending further determination. For the foregoing reasons, we do not believe that the referee was obligated by the principles of res judicata to allow the Bank to satisfy its judgment against the Delaware corporation through recovery against assets of the Illinois corporation. 2. Maker of the July 20, 1971, note. Both the referee and the district court concluded that the Illinois corporation was not the maker of the eight notes which are the basis for the state judgment against the Delaware corporation. The Bank now argues that the July 20, 1971, note was executed by the Illinois corporation. Neither the points raised by the Bank in its brief nor an examination of the note convinces us that the Illinois corporation signed this note. This is especially so in light of the amendment of the complaint by the Bank in state court which caused an amended judgment to be entered against the Illinois corporation on the September 17, 1971, note alone, rather than on all nine notes. This amendment must have been undertaken by the Bank in recognition of the fact that with the exception of the September 17 note, the other eight notes had been signed by the Delaware corporation. 3. Piercing the corporate veil. The Bank asserts that justice requires the court to pierce the corporate veil separating the Illinois and Delaware corporations and find that the assets and liabilities of one are the assets and liabilities of the other. Some of the factors upon which the Bank relies in support of its position are: 1) common officers and directors were in charge of both corporations; 2) the same individuals owned stock in both corporations; 3) the corporate names were used interchangeably; 4) funds were used indiscriminately by the corporations; and 5) consolidated tax returns were filed by the corporations. The Illinois corporation first argues in response that the doctrine of piercing the corporate veil should not be applied since application of that doctrine is limited to corporations which have a parent-subsidiary relationship. That relationship is not present between the Delaware corporation and the Illinois corporation. Even if the court held that the doctrine can apply absent a parent-subsidiary relationship, the Illinois corporation asserts that additional prerequisites for piercing the corporate veil have not been satisfied. The referee rejected the Bank’s assertion that piercing the corporate veil was proper. The referee ruled: 20. The two corporations, Bowen Transports, Inc., an Illinois corporation, and Bowen Transports, Inc., of Illinois, a Delaware corporation, were two separate and distinct entities and although the names cause confusion, the doctrine of “piercing the corporate veil” does not apply. The district court affirmed the referee’s ruling. The fiction of corporate entity will be disregarded when required in the interest of justice. Kavanaugh v. Ford Motor Company, 353 F.2d 710 (7th Cir. 1965); Allied Chemical Corporation v. Randall, 321 F.2d 320 (7th Cir. 1963). The doctrine of piercing the corporate veil as articulated by this court in Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157, 160 (7th Cir. 1963), requires proof of three elements: . control by the parent to such a degree that the subsidiary has become its mere instrumentality; fraud or wrong by the parent through its subsidiary, e.g., torts, violation of a statute or stripping the subsidiary of its assets; and unjust loss or injury to the claimant, such as insolvency of the subsidiary. See also, Allegheny Airlines, Inc. v. United States, 504 F.2d 104, 112 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 470; Bernardin, Inc. v. Midland Oil Corporation, 520 F.2d 771, 774 (7th Cir. 1975). We do not believe that the equitable doctrine of piercing the corporate veil is limited to the parent-subsidiary relationship. The separate corporateness of affiliated corporations owned by the same parent may be equally disregarded under the proper circumstances. See Liability of a Parent or Affiliate, 71 Harv.L.Rev. 1122, 1131 (1958): Henn, Law of Corporations § 148 (2d ed. 1970). We do not believe, however, that the elements set forth in Roscoe Turner are met in the present case. First, although stock control and common directors and officers are generally prerequisites for application of the doctrine permitting the corporate veil to be pierced, that is not by itself sufficient to bring the doctrine into operation. Roscoe Turner, 324 F.2d at 161. “Actual domination, rather than the opportunity to exercise control, must be shown.” Williams v. McAllister Bros., Inc., 534 F.2d 19 (2d Cir. 1976). Thus, although the Delaware corporation was owned by Bowen Investment Corporation and the Illinois corporation was being purchased by the Bowen Investment Corporation, this fact by itself does not justify piercing the corporate veil. Similarly, although officers and directors in Bowen Investment Corporation, the Illinois corporation and the Delaware corporation were identical, this would not justify application of the doctrine. We cannot say that the referee’s findings of fact that the corporations acted as separate and independent entities is clearly erroneous. Charles Hayes, who supervised the bookkeeping for both the Illinois and Delaware corporations, stated that separate corporate records were maintained. Hayes also testified that financial transactions between the corporations were recorded in the respective corporate ledgers. Hayes further stated that the proceeds of the loans to the Delaware corporation which are here in issue were used by the Delaware corporation to purchase new rolling stock and motor vehicle equipment. Hayes testified that the Illinois corporation did not receive any proceeds from these loans. In addition, we do not believe that evidence introduced in the bankruptcy proceeding demonstrates that corporate funds were intermingled or used indiscriminately. Neither do we believe that the evidence demonstrates that the Delaware corporation’s assets were stripped in order to benefit the Illinois corporation. In light of the foregoing, we believe that the referee and the district court properly refused to pierce the corporate veil. 3. Exclusion of the transcript of testimony from citation proceedings. The Bank asserts that the referee committed error in excluding a transcript of the state court supplementary proceedings from evidence. The Bank, however, failed to raise this asserted error on appeal before the district judge. This claim cannot be urged on appeal since it was not presented in the district court. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Cannon v. U.S. Acoustics Corp., 532 F.2d 1118 (7th Cir. 1976); 2A Collier on Bankruptcy ¶ 25.30, 1020-1 (14th ed. 1974). The Bank further argues that it was precluded from raising this point before the district court because the lower court failed to grant its request for argument. This assertion does not, however, convince this court that we should resolve matters not passed upon below. First, the district court was not required to grant oral argument in considering an appeal from the referee’s ruling. 13 Collier on Bankruptcy ¶ 809.03 (14th ed. 1974). In addition, the Bank’s Petition for Review of Referee’s Order filed with the district court does not raise as a ground for appeal the exclusion of the state supplementary proceedings transcript. 4. Findings of fact. We cannot say based upon our examination of the record that the findings of fact made by the referee and approved by the district judge are clearly erroneous. CONCLUSION For the foregoing reasons we hereby affirm the decision of the lower court. AFFIRMED. . The original name of Bowen Transports, Inc., was Cushman Transports, Inc. The corporate name was changed to Bowen Transports, Inc., on February 25, 1970. . As additional security for their loans to the Delaware corporation the Bank and the Small Business Administration took personal notes on guarantees from H. G. Bowen, Martha Bowen and Bowen Investment Corporation. . The Small Business Administration did not join in the appeal by the Bank to the district court. . Since the supplementary proceeding occurred in 1972, we assume in the absence of any ' indication from the parties that IU.Rev.Stat, Ch. 110, § 73 applied as it was written prior to the 1973 amendment. The statute provided: (1) A judgment creditor, or his successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from execution, a deduction order or garnishment, and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment or decree. A supplementary proceeding shall be commenced by the service of a citation issued by the clerk. The procedure for conducting supplemental proceedings shall be prescribed by rules. It is not a prerequisite to the commencement of a supplementary proceeding that an execution has been returned wholly or partly unsatisfied. (2) When assets or income of the judgment debtor not exempt from execution, a deduction order or garnishment are discovered, the court may, by appropriate order, judgment or decree: (a) Compel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part, money, choses in action, property or effects in his possession or control, so discovered, capable of delivery and to which his title or right of possession is not substantially disputed. (b) Compel the judgment debtor to pay to the judgment creditor or apply on the judgment, in installments, a portion of his income, however or whenever earned or acquired, as the court may deem proper, having due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him, as well as any payments required to be made by prior order of court or under wage assignments outstanding. The court may modify an order for installment payments, from time to time, upon application of either party upon notice to the other. (c) Compel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement. (d) Enter any order upon or judgment against the person cited that could be entered in any garnishment proceeding. (e) Compel any person cited to execute an assignment of any chose in action or a conveyance of title to real or personal property, in the same manner and to the same extent as a court of chancery could do in any proceeding by a judgment creditor to enforce payment of a judgment or in aid of execution. (f) Authorize the judgment creditor to maintain an action against any person or corporation that, it appears upon proof satisfactory to the court, is indebted to the judgment debtor, for the recovery of the debt, forbid the transfer or other disposition of the debt until an action can be commenced and prosecuted to judgment, direct that the papers or proof in the possession or control of the debtor and necessary in the prosecution of the action be delivered to the creditor or impounded in court, and provide for the disposition of any moneys in excess of the sum required to pay the judgment creditor’s judgment and costs allowed by the court. (3) All property ordered to be delivered up shall, except as otherwise provided in this section, be delivered to the sheriff to be by him collected or sold at public sale and the proceeds thereof applied towards the payment of costs and the satisfaction of the judgment. (4) (a) The citation may prohibit the party to whom it is directed from making or suffering any transfer or other disposition of, or interfering with, any property not exempt from execution, a deduction order or garnishment, belonging to the judgment debtor or to which he may be entitled or which may thereafter be acquired by or become due to him, and from paying over or otherwise disposing of any moneys not so exempt which are due or to become due to the judgment debtor, until the further order of the court of the termination of the proceeding, whichever occurs first. The third party may not be obliged to withhold the payment of any moneys beyond double the amount of the judgment or decree sought to be enforced by the judgment creditor. The court may punish any party who violates the restraining provision of a citation as and for a contempt, or if he is a third party may enter judgment against him in the amount of the unpaid portion of the judgment and costs allowable under this section, or in the amount of the value of the property transferred, whichever is lesser. (b) The court may enjoin any person, whether or not a party to the supplementary proceeding, from making or suffering any transfer or other disposition of, or interference with, the property of the judgment debt- or, or the property or debt concerning which any person is required to attend and be examined until further direction in the premises. The injunction order shall remain in effect until vacated by the court or until the proceeding is terminated, whichever first occurs. (5) If it appears that any property, chose in action, credit or effect discovered, or any interest therein, is claimed by any person other than the judgment debtor, the court shall, as in garnishment proceedings, permit or require the claimant to appear and maintain his right. The rights of the person cited (other than the judgment debtor) and the rights of any adverse claimant shall be asserted and determined pursuant to the law relating to garnishment proceedings. (6) Costs in proceedings authorized by this section shall be allowed, assessed and paid in accordance with rules. (7) Appeal may be taken from any final order, judgment or decree in like manner as in other civil proceedings. (8) This section is in addition to and does not affect enforcement of judgments or decrees or proceedings supplementary thereto, by any other methods now or hereafter provided by law. (9) This section does not grant the power to any court to order installment or other payments from, or compel the sale, delivery, surrender, assignment or conveyance of any property exempt by statute from execution, a deduction order, garnishment, attachment, sequestration, process or other levy or seizure. (10) An order, judgment, decree, citation or injunction under this section that relates to a security which is transferable as provided in Section 8-320 of the Uniform Commercial Code may issue only against the judgment debtor, against a person which carries on its books an account in the name of the judgment debtor in which an interest in that security is reflected or against the person to whom the judgment debtor has pledged that security. . The Circuit Judge’s order stated in part: * * * * # * IT IS HEREBY ORDERED: # Sfc jfc jfc sfc * 2. That BOWEN TRANSPORTS, INC., an Illinois Corporation, by one of its officers assign the proceeds to be paid, subject to a prior monthly equipment rental, pursuant to a contract between BOWEN TRANSPORTS, INC., an Illinois Corporation, and COASTAL TANK LINES, INC., a Corporation, dated on or about the 21st day of August, 1970, to JOSEPH F. SNYDER, Circuit Clerk, Coles County, Illinois, until further order of this Court or post a bond in favor of the CENTRAL NATIONAL BANK OF MATTOON in the amount of Forty Thousand Dollars ($40,-000) and a bond in favor of THE CHARLESTON NATIONAL BANK in the amount of Twenty-Three Thousand Four Hundred Fifty-Seven Dollars ($23,457) by 12:00 o’clock a. m. (noon), June 13, 1972. 3. That said assignment of contract proceeds be made on or before 12:00 o’clock a. m. (noon), June 13, 1972. Upon failure of said BOWEN TRANSPORTS, INC., an Illinois Corporation, and its officers to make said assignment or post said bonds, then PAUL B. SMITH, Sheriff of Coles County, Illinois, shall execute said assignment for said corporation. Said assignment shall be made in open Court or in the office of JOSEPH F. SNYDER, Circuit Clerk, Coles County, Illinois. 4. That said JOSEPH F. SNYDER, Circuit Clerk, collect the proceeds of said contract and disburse said proceeds as hereafter ordered by this Court. m * * # $ . The findings of fact submitted by the circuit court judge were as follows: FINDINGS OF FACT In connection with the consolidated hearing on Citations to Discover Assets, the Court having heard the evidence, makes the following findings of fact: 1. That H. G. BOWEN, President of BOWEN TRANSPORTS, INC., an Illinois Corporation, and BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation, has caused the proceeds of the Contract between BOWEN TRANSPORTS, INC., an Illinois Corporation, and COASTAL TANK LINES, INC., a Corporation, to be allocated and used indiscriminately for the benefits of and to the accounts of BOWEN TRANSPORTS, INC., an Illinois Corporation, and BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation, as required by the needs of said BOWEN TRANSPORTS, INC., an Illinois Corporation, and BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation, has been and is used interchangeably between said corporations as the needs of said corporations require. a. That the original corporation was BOWEN TRANSPORTS, INC., a Delaware Corporation, and the name of said corporation was changed to BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation on March 3, 1970. b. That CUSHMAN TRANSPORTS, INC., an Illinois Corporation, was purchased by H. G. BOWEN sometime prior to March 3, 1970, and the name of said Corporation was thereafter changed to BOWEN TRANSPORTS, INC., an Illinois Corporation, on March 3, 1970. c. That included among the purposes of the change in names of said corporation was to give CUSHMAN the benefit of any goodwill of BOWEN TRANSPORTS, INC., a Delaware Corporation. 4. That BOWEN TRANSPORTS, INC., an Illinois Corporation, and BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation, have both been represented by an officer or officers of said corporation in interchanges with the CENTRAL NATIONAL BANK OF MATTOON and THE CHARLESTON NATIONAL BANK as BOWEN TRANSPORTS, INC. indiscriminately without distinguishing between said corporations and the assets and identities of said corporations, respectively, have been and were represented to said Banks as being assets to support various applications for loans from said corporations, respectively, without discriminating between said corporations, and BOWEN TRANSPORTS, INC., an Illinois Corporation and BOWEN TRANSPORTS, INC. OF ILLINOIS, a Delaware Corporation, were and have been so represented to said Banks to be of the same identity and the same credit responsibilities for the purposes of securing an extension of credit and the loan of money. Both Banks have relied upon said representation. . The assignment provided: ASSIGNMENT KNOW ALL MEN BY THESE PRESENTS that the undersigned, BOWEN TRANSPORTS, INC., an Illinois Corporation, pursuant to an Order of the Circuit Court of Coles County, Illinois, entered in consolidated cause No. 72-L-29 and 72-L-44, hereby assigns to Joseph F. Snyder, Circuit Clerk, Coles County, Illinois, subject to a prior Assignment to Central National Bank in Chicago of $4,347.76 of each monthly equipment rental, all of its right, title and interest in and to the balance of monies due and to become due under the contract made between the undersigned Corporation and COASTAL TANK LINES, INC., a Corporation, dated on or about the 21st day of August, 1970, until further order of the Circuit Court, Coles County, Illinois. IN WITNESS WHEREOF, the undersigned has caused its name to be signed to these presents, pursuant to Court Order, by Paul B. Smith, Sheriff, Coles County, Illinois, this 28th day of June, 1972. BOWEN TRANSPORTS, INC., an Illinois Corporation By [s] Paul B. Smith Paul B. Smith, Sheriff Coles County, Illinois. . As indicated in n.2, supra, the Delaware corporation loaned money to the Illinois corporation. The Illinois corporation’s debt was offset in part through rental of equipment to the Delaware corporation. Nothing in the evidence indicates that the Illinois corporation improperly took financial advantage of the Delaware corporation or in any manner stripped the Delaware corporation of its assets. In fact, Mr. Hayes testified that H. G. Bowen told him at one point that since the Delaware corporation was using equipment owned by the Illinois corporation, this “should be on the ledger.” Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_sentence	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". PITTSBURGH RAILWAYS COMPANY, a Pennsylvania corporation, Appellant, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a New York corporation. No. 13311. United States Court of Appeals Third Circuit. Argued March 10, 1961. Decided April 3, 1961. Clyde A. Armstrong, Pittsburgh, Pa., (Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for appellant. David B. Buerger, Pittsburgh, Pa., (Donald L. McCaskey, William Y. Rodewald, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., on the brief), for appellee. Before GOODRICH, McLAUGHLIN and FORMAN, Circuit Judges. GOODRICH, Circuit Judge. This is an appeal from a summary judgment entered for the defendant in a contract case. The parties are in federal court by reason of diversity only; the plaintiff is a Pennsylvania corporation and the defendant a New York corporation. The trial judge, in an opinion which carefully analyzed the transactions between the parties, found as a fact that there was “no genuine issue as to any material facts” and, therefore, entered summary judgment. It should be added, also, that the plaintiff in his brief concedes that “ * * * there is no dispute as to the facts and circumstances before the lower court and before this court on appeal.” The controversy arose out of improvements being made in the “point” area in the City of Pittsburgh. The defendant, The Equitable Life Assurance Society of the United States (Equitable), financed the erection of three large buildings in this part of the redevelopment of the area. Equitable entered into an agreement with the Urban Redevelopment Authority in which one of the conditions was that Equitable would arrange with the appropriate public utility companies for the reconstruction of all facilities within the project. This affected the plaintiff, Pittsburgh Railways Company (Railways), in two particulars. It was necessary back in 1950 to remove tracks and provide a temporary facility for the trolley course which ran across the area in which the new buildings were to be erected. This was arranged by an agreement whereby temporary facilities were installed on nearby private property. Following that a new permanent loop arrangement had to be effected. The dispute in the district court and before us was between Railways and Equitable as to who would bear the cost of the permanent arrangement. On June 21, 1950, there was a conference at which Mr. Weins, Executive Vice President of Equitable, told the conferees who were representatives of various utility companies operating in the area that Equitable did not acknowledge any legal responsibility but offered to share part of the cost. On July 3, 1950, Mr. C. D. Palmer, then “Commercial Manager,” later President of Railways, wrote a letter to Mr. Weins telling him that they had been advised by counsel that Equitable .should bear all the costs, both the temporary and permanent facilities. He followed this up with another letter on July 10, 1950, giving Mr. Weins an estimate of the cost. Equitable did not answer either of these letters. The next step, and this is the vital one, was taken in a letter written by Mr. Palmer, again to Mr. Weins, on July 19, 1950. He told Equitable that it was expected to reimburse Railways for the installation and removal of the temporary facilities. Then he said, speaking for the trustees of Railways, that “The Trustees are willing to postpone a determination of the costs that should be borne by Equitable for the permanent facilities * * * until such time as ultimate decision is made as to the form of transit service in this area * * * ” Then he added, “with the understanding that the postponement of the consideration of this question will be without prejudice to the rights of the Trustees or their successor or successors when the question of the allocation of these' costs is ultimately taken up for consideration and determination.” To this Equitable replied by telegram saying, “Proposal submitted in your letter of July 19 concerning costs of changes in tracks is accepted.” Out of these three letters Railways claims that Equitable became liable for the cost of both the temporary and permanent transportation arrangements. It says that the postponement only had to do with the ultimate ascertainment of the cost of the permanent construction. The temporary part of the business between the parties is out of the case. Equitable has paid all the expenses with regard to it. It is quite clear to us that the district court was right and that Railways is wrong. The letter of July 19th, to us, is quite clear that there was an out-and-out demand for payment of the temporary facilities and a postponement of the question of permanent facilities. The letter did not say, as did the letter of July 3rd, that Equitable i,s to pay all the cost of the permanent facilities. Instead, it said that Railways is willing to postpone the determination of the costs that “should be borne.” In other words, this subject of costs had been dickered about beginning with the June 21st meeting. Equitable had made an offer which Railways refused. The matter of the temporary facilities had to be settled right away. Equitable did .settle by its acceptance and has since paid the costs. What the trustees were doing in this letter of July 19th was trying to get the temporary matter settled forthwith and to postpone the larger matter until later. This is, we say, the proper interpretation of what the parties did. It is well settled, as the district court points out, that the practical interpretation of an agreement by the parties is helpful in determining what they meant by their agreement. Fox v. Johnson & Wimsatt, 1942, 75 U.S.App.D.C. 211, 127 F.2d 729; Commonwealth to Use of Herzog v. Henry W. Horst Co., 1950, 364 Pa. 403, 72 A.2d 131. What Mr. Palmer thought Equitable had committed itself to is shown pretty clearly in the minutes of the meeting of his board of directors on February 28, 1951. The minutes say that Mr. Palmer reported to his board that while Equitable “had agreed to pay the cost of the temporary relocation of * * facilities * * * the Company had no assurance that Equitable would assume all or any part of the cost of the permanent relocation of street railway facilities.” The directors, by resolution, told the officers to take such steps as they thought necessary to have the cost of the permanent facilities paid by Equitable. Following this Mr. Palmer wrote Mr. Weins in April of 1951 asking for “prompt agreement in relation to this matter,” the matter being the permanent facilities. Again on July 31, 1952, Mr. Palmer wrote Mr. Weins that “in view of the period of time during which the matter of the proper allocation of costs between your Company and this Company has been under consideration” he would like to review the entire question at an early date. All of this shows what is already set out; that the matter of payment of expenses for the permanent work was unsettled and Mr. Palmer is recognizing this fact two years after Railways now claims Equitable assumed responsibility for it. The district judge was clearly right in entering summary judgment. The conclusion from the letters is to us unmistakable. It is backed up by the subsequent statement of Mr. Palmer to his directors and his further letters to Mr. Weins. There is nothing on which a jury could be allowed to speculate as to the meaning of the parties. It should be kept in mind, too, that the construction of documents and other writings has from time beyond which the memory of man runneth not to the contrary been a matter for the judge. Wigmore, Evidence, § 2556 (3d ed. 1940); Williston, Contracts, § 616 (rev. ed. 1936); Corbin, Contracts, § 554 (1960); Daniels Co., Contractors, Inc. v. Nevling, 1956, 385 Pa. 276, 122 A.2d 814. The judgment of the district court will be affirmed. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
sc_respondentstate	59	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. BROWN et al. v. THOMSON, SECRETARY OF STATE OF WYOMING, et al. No. 82-65. Argued March 21, 1983 Decided June 22, 1983 Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and Rehnquist, Stevens, and O’Connor, JJ., joined. O’Connor, J., filed a concurring opinion, in which Stevens, J., joined, post, p. 848. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Blackmun, JJ., joined, post, p. 850. Sue Davidson argued the cause and filed a brief for appellants. Randall T. Cox, Assistant Attorney General of Wyoming, argued the cause pro hac vice for appellees Thyra Thomson et al. With him on the brief were A. G. McClintock, Attorney General, and Peter J. Mulvaney, Deputy Attorney General. Richard Barrett filed a brief for appellees James L. Thomson et al. Justice Powell delivered the opinion of the Court. The issue is whether the State of Wyoming violated the Equal Protection Clause by allocating one of the 64 seats in its House of Representatives to a county the population of which is considerably lower than the average population per state representative. I Since Wyoming became a State in 1890, its legislature has consisted of a Senate and a House of Representatives. The State’s Constitution provides that each of the State’s counties “shall constitute a senatorial and representative district” and that “[e]ach county shall have at least one senator and one representative.” The senators and representatives are required to be “apportioned among the said counties as nearly as may be according to the number of their inhabitants.” Wyo. Const., Art. 3, §3. The State has had 23 counties since 1922. Because the apportionment of the Wyoming House has been challenged three times in the past 20 years, some background is helpful. In 1963 voters from the six most populous counties filed suit in the District Court for the District of Wyoming challenging the apportionment of the State’s 25 senators and 61 representatives. The three-judge District Court held that the apportionment of the Senate — one senator allocated to each of the State’s 23 counties, with the two largest counties having two senators — so far departed from the principle of population equality that it was unconstitutional. Schaefer v. Thomson, 240 F. Supp. 247, 251-252 (Wyo. 1964), supplemented, 251 F. Supp. 450 (1965), aff’d sub nom. Harrison v. Schaefer, 383 U. S. 269 (1966). But the court upheid the apportionment of the State House of Representatives. The State’s constitutional requirement that each county shall have at least one representative had produced deviations from population equality: the average deviation from the ideal number of residents per representative was 16%, while the maximum percentage deviation between largest and smallest number of residents per representative was 90%. See 1 App. Exhibits 16. The District Court held that these population disparities were justifiable as “the result of an honest attempt, based on legitimate considerations, to effectuate a rational and practical policy for the house of representatives under conditions as they exist in Wyoming.” 240 F. Supp., at 251. The 1971 reapportionment of the House was similar to that in 1963, with an average deviation of 15% and a maximum deviation of 86%. 1 App. Exhibits 18. Another constitutional challenge was brought in the District Court. The three-judge court again upheld the apportionment of the House, observing that only “five minimal adjustments” had been made since 1963, with three districts gaining a representative and two districts losing a representative because of population shifts. Thompson v. Thomson, 344 F. Supp. 1378, 1380 (Wyo. 1972). The present case is a challenge to Wyoming’s 1981 statute reapportioning its House of Representatives in accordance with the requirements of Art. 3, § 3, of the State Constitution. Wyo. Stat. §28-2-109 (Supp. 1983). The 1980 census placed Wyoming’s population at 469,557. The statute provided for 64 representatives, meaning that the ideal apportionment would be 7,337 persons per representative. Each county was given one representative, including the six counties the population of which fell below 7,337. The deviations from population equality were similar to those in prior decades, with an average deviation of 16% and a maximum deviation of 89%. See 1 App. Exhibits 19-20. The issue in this case concerns only Niobrara County, the State’s least populous county. Its population of 2,924 is less than half of the ideal district of 7,337. Accordingly, the general statutory formula would have dictated that its population for purposes of representation be rounded down to zero. See § 28 — 2—109(a)(ii). This would have deprived Niobrara County of its own representative for the first time since it became a county in 1913. The state legislature found, however, that “the opportunity for oppression of the people of this state or any of them is greater if any county is deprived a representative in the legislature than if each is guaranteed at least one (1) representative.” It therefore followed the State Constitution’s requirement and expressly provided that a county would receive a representative even if the statutory formula rounded the county’s population to zero. § 28 — 2—109(a)(iii). Niobrara County thus was given one seat in a 64-seat House. The legislature also provided that if this representation for Niobrara County were held unconstitutional, it would be combined with a neighboring county in a single representative district. The House then would consist of 63 representatives. § 28-2-109(a)(iv). Appellants, members of the state League of Women Voters and residents of seven counties in which the population per representative is greater than the state average, filed this lawsuit in the District Court for the District of Wyoming. They alleged that “[b]y granting Niobrara County a representative to which it is not statutorily entitled, the voting privileges of Plaintiffs and other citizens and electors of Wyoming similarly situated have been improperly and illegally diluted in violation of the 14th Amendment. . . .” App. 3-4. They sought declaratory and injunctive relief that would prevent the State from giving a separate representative to Nio-brara County, thus implementing the alternative plan calling for 63 representatives. The three-judge District Court upheld the constitutionality of the statute. 536 F. Supp. 780 (1982). The court noted that the narrow issue presented was the alleged discriminatory effect of a single county’s representative, and concluded, citing expert testimony, that “the ‘dilution’ of the plaintiffs’ votes is de minimis when Niobrara County has its own representative.” Id., at 783. The court also found that Wyoming’s policy of granting a representative to each county was rational and, indeed, particularly well suited to the special needs of Wyoming. Id., at 784. We noted probable jurisdiction, 459 U. S. 819 (1982), and now affirm. HH H-1 A In Reynolds v. Sims, 377 U. S. 533, 568 (1964), the Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” This holding requires only “that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable,” for “it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters.” Id., at 577. See Gaffney v. Cummings, 412 U. S. 735, 745-748 (1973) (describing various difficulties in measurement of population). We have recognized that some deviations from population equality may be necessary to permit the States to pursue other legitimate objectives such as “maintain[ing] the integrity of various political subdivisions” and “providing] for compact districts of contiguous territory.” Reynolds, supra, at 578. As the Court stated in Gaffney, “[a]n unrealistic overemphasis on raw population figures, a mere nose count in the districts, may submerge these other considerations and itself furnish a ready tool for ignoring factors that in day-to-day operation are important to an acceptable representation and apportionment arrangement.” 412 U. S., at 749. In view of these considerations, we have held that “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Id., at 745. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. See, e. g., Connor v. Finch, 431 U. S. 407, 418 (1977); White v. Regester, 412 U. S. 755, 764 (1973). A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State. See Swann v. Adams, 385 U. S. 440, 444 (1967) (“De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy”). The ultimate inquiry, therefore, is whether the legislature’s plan “may reasonably be said to advance [a] rational state policy” and, if so, “whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.” Mahan v. Howell, 410 U. S. 315, 328 (1973). B In this case there is no question that Niobrara County’s deviation from population equality — 60% below the mean — is more than minor. There also can be no question that Wyoming’s constitutional policy — followed since statehood — of using counties as representative districts and ensuring that each county has one representative is supported by substantial and legitimate state concerns. In Abate v. Mundt, 403 U. S. 182, 185 (1971), the Court held that “a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality.” See Mahan v. Howell, supra, at 329. Indeed, the Court in Reynolds v. Sims, supra, singled out preservation of political subdivisions as a clearly legitimate policy. See 377 U. S., at 580-581. Moreover, it is undisputed that Wyoming has applied this factor in a manner “free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U. S. 695, 710 (1964). The State’s policy of preserving county boundaries is based on the State Constitution, has been followed for decades, and has been applied consistently throughout the State. As the District Court found, this policy has particular force, given the peculiar size and population of the State and the nature of its governmental structure. See n. 5, supra; 536 F. Supp., at 784. In addition, population equality is the sole other criterion used, and the State’s apportionment formula ensures that population deviations are no greater than necessary to preserve counties as representative districts. See Mahan v. Howell, supra, at 326 (evidence is clear that the plan “ ‘produces the minimum deviation above and below the norm, keeping intact political boundaries’ ”). Finally, there is no evidence of “a built-in bias tending to favor particular political interests or geographic areas.” Abate v. Mundt, supra, at 187. As Judge Doyle stated below: “[T]here is not the slightest sign of any group of people being discriminated against here. There is no indication that the larger cities or towns are being discriminated against; on the contrary, Cheyenne, Laramie, Casper, Sheridan, are not shown to have suffered in the slightest . . . degree. There has been no preference for the cattle-raising or agricultural areas as such.” 536 F. Supp., at 788 (specially concurring). In short, this case presents an unusually strong example of an apportionment plan the population variations of which are entirely the result of the consistent and nondiscriminatory application of a legitimate state policy. This does not mean that population deviations of any magnitude necessarily are acceptable. Even a neutral and consistently applied criterion such as use of counties as representative districts can frustrate Reynolds’ mandate of fair and effective representation if the population disparities are excessively high. “[A] State’s policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.” Mahan v. Howell, supra, at 326. It remains true, however, as the Court in Reynolds noted, that consideration must be given “to the character as well as the degree of deviations from a strict population basis.” 377 U. S., at 581. The consistency of application and the neutrality of effect of the nonpopulation criteria must be considered along with the size of the population disparities in determining whether a state legislative apportionment plan contravenes the Equal Protection Clause. C Here we are not required to decide whether Wyoming’s nondiscriminatory adherence to county boundaries justifies the population deviations that exist throughout Wyoming’s representative districts. Appellants deliberately have limited their challenge to the alleged dilution of their voting power resulting from the one representative given to Nio-brara County. The issue therefore is not whether a 16% average deviation and an 89% maximum deviation, considering the state apportionment plan as a whole, are constitutionally permissible. Rather, the issue is whether Wyoming’s policy of preserving county boundaries justifies the additional deviations from population equality resulting from the provision of representation to Niobrara County. It scarcely can be denied that in terms of actual effect on appellants’ voting power, it matters little whether the 63-member or 64-member House is used. The District Court noted, for example, that the seven counties in which appellants reside will elect 28 representatives under either plan. The only difference, therefore, is whether they elect 43.75% of the legislature (28 of 64 members) or 44.44% of the legislature (28 of 63 members). 536 F. Supp., at 783. The District Court aptly described this difference as “de minimis.” Ibid. We do not suggest that a State is free to create and allocate an additional representative seat in any way it chooses simply because that additional seat will have little or no effect on the remainder of the State’s voters. The allocation of a representative to a particular political subdivision still may violate the Equal Protection Clause if it greatly exceeds the population variations existing in the rest of the State and if the State provides no legitimate justifications for the creation of that seat. Here, however, considerable population variations will remain even if Niobrara County’s representative is eliminated. Under the 63-member plan, the average deviation per representative would be 13% and the maximum deviation would be 66%. See 1 App. Exhibits 22. These statistics make clear that the grant of a representative to Niobrara County is not a significant cause of the population deviations that exist in Wyoming. Moreover, we believe that the differences between the two plans are justified on the basis of Wyoming’s longstanding and legitimate policy of preserving county boundaries. See swpra, at 841, n. 5, and 843-844. Particularly where there is no “taint of arbitrariness or discrimination,” Roman v. Sincock, 377 U. S., at 710, substantial deference is to be accorded the political decisions of the people of a State acting through their elected representatives. Here it is noteworthy that by enacting the 64-member plan the State ensured that its policy of preserving county boundaries applies nondiscriminatorily. The effect of the 63-member plan would be to deprive the voters of Niobrara County of their own representative, even though the remainder of the House of Representatives would be constituted so as to facilitate representation of the interests of each county. See 536 F. Supp., at 784; id., at 786 (Doyle, J., specially concurring). In these circumstances, we are not persuaded that Wyoming has violated the Fourteenth Amendment by permitting Nio-brara County to have its own representative. The judgment of the District Court is Affirmed. Article 3, § 3, of the Wyoming Constitution provides in relevant part: “Each county shall constitute a senatorial and representative district; the senate and house of representatives shall be composed of members elected by the legal voters of the counties respectively, every two (2) years. They shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. Each county shall have at least one senator and one representative; but at no time shall the number of members of the house of representatives be less than twice nor greater than three times the number of members of the senate.” An example of the disparity in population was that Laramie County, the most populous county in the State, had two senators for its 60,149 people, whereas Teton County, the least populous county in the State, had one senator for its 3,062 people. See Schaefer v. Thomson, 240 F. Supp., at 250, n. 3. Wyoming Stat. §28-2-109 (Supp. 1982) provides in relevant part: “(a) The ratios for the apportionment of senators and representatives are fixed as follows: “(ii) The ratio for the apportionment of the representatives is the smallest number of people per representative which when divided into the population in each representative district as shown by'the official results of the 1980 federal decennial census with fractions rounded to the nearest whole number results in a house with sixty-three (63) representatives; “(iii) If the number of representatives for any county is rounded to zero (0) under the formula in paragraph (a)(ii) of this section, that county shall be given one (1) representative which is in addition to the sixty-three (63) representatives provided by paragraph (a)(ii) of this section; “(iv) If the provisions of paragraph (a)(iii) of this section are found to be unconstitutional or have an unconstitutional result, then Niobrara county shall be joined to Goshen county in a single representative district and the house of representatives shall be apportioned as provided by paragraph (a)(ii) of this section.” The legislature made the following findings: “It is hereby declared the policy of this state is to preserve the integrity of county boundaries as election districts for the house of representatives. The legislature has considered the present population, needs, and other characteristics of each county. The legislature finds that the needs of each county are unique and the interests of each county must be guaranteed a voice in the legislature. The legislature therefore, will utilize the provisions of article 3, section 3, of the Wyoming constitution as the determining standard in the reapportionment of the Wyoming house of representatives which guarantees each county at least one (1) representative. The legislature finds that the opportunity for oppression of the people of this state or any of them is greater if any county is deprived a representative in the legislature than if each is guaranteed at least one (1) representative. The legislature finds that the dilution of the power of counties which join together in making these declarations is trivial when weighed against the need to maintain the integrity of county boundaries. The legislature also finds that it is not practical or necessary to increase the size of the legislature beyond the provisions of this act in order to meet its obligations to apportion in accordance with constitutional requirements consistent with this declaration.” 1981 Wyo. Sess. Laws, ch. 76, §3. The District Court stated: “Wyoming as a state is unique among her sister states. A small population is encompassed by a large area. Counties have always been a major form of government in the State. Each county has its own special economic and social needs. The needs of the people are different and distinctive. Given the fact that the representatives from the combined counties of Niobrara and Goshen would probably come from the larger county, i. e., Goshen, the interests of the people of Niobrara County would be virtually unprotected. “The people within each county have many interests in common such as public facilities, government administration, and work and personal problems. Under the facts of this action, to deny these people their own representative borders on abridging their right to be represented in the determination of their futures. “In Wyoming, the counties are the primary administrative agencies of the State government. It has historically been the policy of the State that counties remain in this position. “The taxing powers of counties are limited by the Constitution and some State statutes. Supplemental monies are distributed to the counties in accordance with appropriations designated by the State Legislature. It comes as no surprise that the financial requirements of each county are different. Without representation of their own in the State House of Representatives, the people of Niobrara County could well be forgotten.” 536 F. Supp., at 784. In contrast, many of our prior decisions invalidating state apportionment plans were based on the lack of proof that deviations from population equality were the result of a good-faith application of legitimate districting criteria. See, e. g., Chapman v. Meier, 420 U. S. 1, 25 (1975) (“It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines. . . . Furthermore, a plan devised by [the Special Master] demonstrates that. . . the policy of maintaining township lines [does not] preven[t] attaining a significantly lower population variance”); Kilgarlin v. Hill, 386 U. S. 120, 124 (1967) (per curiam) (District Court did not “demonstrate why or how respect for the integrity of county lines required the particular deviations” or “articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations”); Swann v. Adams, 385 U. S. 440, 445-446 (1967) (no evidence presented that would justify the population disparities). As the Reynolds Court explained: “Carried too far, a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result, in many States, in a total subversion of the equal-protection principle in that legislative body. This would be especially true in a State where the number of counties is large and many of them are sparsely populated, and the number of seats in the legislative body being apportioned does not significantly exceed the number of counties.” 377 U. S., at 581. See also Connor v. Finch, 431 U. S. 407, 419 (1977) (“[T]he policy against breaking county boundary lines is virtually impossible of accomplishment in a State where population is unevenly distributed among 82 counties, from which 52 Senators and 122 House members are to be elected”). This discussion in Reynolds is illustrated by the senatorial districts in Wyoming that were invalidated in 1963. Each county in the State had one senator, while the two largest counties had two. Because county population varied substantially, extremely large disparities in population per senator resulted. The six most populous counties, with approximately 65% of the State’s population, had eight senators, whereas the six least populous counties, with approximately 8% of the population, had six senators. See Schaefer v. Thomson, 240 F. Supp., at 251, n. 5. The Wyoming House of Representatives presents a different case because the number of representatives is substantially larger than the number of counties. Counsel for appellants, who represent the state League of Women Voters, explained at oral argument: “[A] referendum had been passed by the League of Women Voters which authorized the attack of only that one portion of the reapportionment plan. It was felt by the membership or by the leadership of that group that no broader authority would ever be given because of the political ramifications and arguments that would be presented by the membership in attacking or considering . . . that broader authority.” Tr. of Oral Arg. 8. The dissent suggests that we are required to pass upon the constitutionality of the apportionment of the entire Wyoming House of Representatives. See post, at 857-859 (Brennan, J., dissenting). Although in some prior cases challenging the apportionment of one legislative house the Court has addressed the constitutionality of the other house’s apportionment as well, we never have held that a court is required to do so. For example, in Gaffney v. Cummings, 412 U. S. 735 (1973), we considered only the apportionment of the Connecticut General Assembly, noting expressly that the “Senate plan was not challenged in the District Court” and that “[a]ppellees do not challenge the Senate districts on the ground of their population deviations.” Id., at 739, n. 5. In this case, we see no reason why appellants should not be bound by the choices they made when filing this lawsuit. Similarly, appellees note that under the 64-member plan, 46.65% of the State’s voters theoretically could elect 51.56% of the representatives. Under the 63-member plan, 46.65% of the population could elect 50.79% of the representatives. See 1 App. Exhibits 32-33. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_decisiondirection	A	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. MacDOUGALL et al. v. GREEN, GOVERNOR OF ILLINOIS, et al. No. 348. Argued October 18, 1948. Decided October 21, 1948. John J. Abt and Richard F. Watt argued the cause for appellants. With them on the brief were Earl B. Dickerson and Edmund Hatfield. William C. Wines, Assistant Attorney General of Illinois, argued the cause for Green, Governor, et al., appel-lees. With him on the brief were George F. Barrett, Attorney General, and Raymond S. Sarnow, Assistant Attorney General. Melvin F. Winger sky argued the cause for Flynn, County Clerk, et al., appellees. With him on the brief was Gordon B. Nash. PeR Curiam. This action was brought before a three-judge court convened in the Northern District of Illinois under 28 U. S. C. § 2281 and § 2284. The object of the action is an injunction against the enforcement of a provision which, in 1935, was added to a statute of Illinois and which requires that a petition to form and to nominate candidates for a new political party be signed by at least 25,000 qualified voters, “Provided, that included in the aggregate total of twenty-five thousand (25,000) signatures are the signatures of two hundred (200) qualified voters from each of at least fifty (50) counties within the State.” Ill. Rev. Stat. c. 46, § 10 — 2 (1947). Appellants are the “Progressive Party,” its nominees for United States Senator, Presidential Electors, and State offices, and several Illinois voters. Appellees are the Governor, the Auditor of Public Accounts, and the Secretary of State of Illinois, members of the Boards of Election Commissioners of various cities, and the County Clerks of various counties. The District Court found want of jurisdiction and denied the injunction. 80 F. Supp. 725. Appellants invoke the jurisdiction of this Court under 28 U. S. C. § 1253. The action arises from the finding of the State Officers Electoral Board that appellants had not obtained the requisite number of signatures from the requisite number of counties and its consequent ruling that their nominating petition was “not sufficient in law to entitle the said candidates’ names to appear on the ballot.” The appellants’ claim to equitable relief against this ruling is based upon the peculiar distribution of population among Illinois’ 102 counties. They allege that 52% of the State’s registered voters are residents of Cook County alone, 87 % are residents of the 49 most populous counties, and only 13% reside in the 53 least populous counties. Under these circumstances, they say, the Illinois statute is so discriminatory in its application as to amount to a violation of the due-process, equal-protection, and privileges- and-immunities clauses of the Fourteenth Amendment, as well as Article I, §§ 2 and 4, Article II, § 1, and the Seventeenth Amendment of the Constitution of the United States. It is clear that the requirement of two hundred signatures from at least fifty counties gives to the voters of the less populous counties of Illinois the power completely to block the nomination of candidates whose support is confined to geographically limited areas. But the State is entitled to deem this power not disproportionate: of 25,000 signatures required, only 9,800, or 39%, need be distributed; the remaining 61% may be obtained from a single county. And Cook County, the largest, contains not more than 52% of the State’s voters. It is allowable State policy to require that candidates for state-wide office should have support not limited to a concentrated locality. This is not a unique policy. See New York Laws 1896, c. 909, § 57, now N. Y. Elec. Law § 137 (4); 113 Laws of Ohio 349, Gen. Code § 4785-91 (1929), now Ohio Code Ann. (Cum. Supp. 1947) §4785-91; Mass. Acts, 1943, c. 334, § 2, now Mass. Ann. Laws c. 53, § 6 (1945). To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. Thus, the Constitution protects the interests of the smaller against the greater by giving in the Senate entirely unequal representation to populations. It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former. The Constitution — a practical instrument of government— makes no such demands on the States. Colegrove v. Green, 328 U. S. 549, and Colegrove v. Barrett, 330 U. S. 804. On the record before us, we need not pass upon purely local questions, also urged by appellants, having no federal constitutional aspect. Judgment affirmed. Mr. Justice Rutledge. In its facts and legal issues this case is closely analogous to Colegrove v. Green, 328 U. S. 549. It presents serious constitutional questions crucial to the validity of Illinois election procedures and their application to the imminently impending general election. That a bare majority of this Court resolve them one way and three others hold opposing views only emphasizes their substantial character and supreme importance. These qualities are not diminished by the fact that the Attorney General of Illinois, appearing for the three members of the so-called “State Certifying Board,” has conceded in his brief the validity of appellants' position and at the bar of this Court has confessed error in the decision of the District Court. Nor is it insignificant or irrelevant that the application of the statutory procedures made by the state officials in practical effect denies to a substantial body of qualified voters the right to exercise their suffrage in behalf of candidates of their choice. Forced by the exigencies of their situation, appellants have invoked federal equity jurisdiction in vindication of their rights. They seek injunctive relief, in effect, to compel placing the names of their candidates upon the ballot for the general election to be held on November 2. For present purposes we may assume that appellants have acted with all possible dispatch. Even so, we find ourselves confronted on the eve of the election with the alternatives of denying the relief sought or of directing the issuance of an injunction. This choice, in my opinion, presents the crucial question and the only one necessarily or properly now to be decided. Beyond the constitutional questions it poses delicate problems concerning the propriety of granting the relief in the prevailing circumstances. Even if we assume that appellants’ constitutional rights have been violated, the questions arise whether, in those circumstances, the equity arm of the. federal courts can now be extended to give effective relief; and whether the relief, if given, might not do more harm than good, might not indeed either disrupt the Illinois election altogether or disfranchise more persons than have been disfranchised by the application of the questioned Illinois procedures. Every reason existing in Colegrove v. Green, supra, which seemed to me compelling to require this Court to decline to exercise its equity jurisdiction and to decide the constitutional questions is present here. See the opinion concurring in the result, 328 U. S. at 564. Indeed the circumstances are more exigent and therefore more compelling to that conclusion. We are on the eve of the national election. But twelve days remain. Necessarily some of these would be consumed in remanding the cause to the District Court and in its consideration, formulation and issuance of an injunction in essentially specific terms. The ballots, as certified by the state officials, are in process of printing and distribution. Absentee ballots have been distributed. Illinois is one of the more populous states. Millions of ballots will be required, not only in the state but in Cook County alone. It is true that, on the short record before us and in the necessarily brief time available for preparing both the record and the briefs, appellees who oppose granting the relief have not made an absolutely conclusive factual showing that new ballots, containing the names of appellants’ candidates, could not possibly be printed and distributed for use at the election. But they suggest with good reason that this could not be done. The task would be gigantic. Even with the mobilization of every possible resource, it is gravely doubtful that it could be accomplished. The risk would be very large that it could not be done. Even if it could for all except absentee voters, they would be disfranchised. Issuance of the injunction sought would invalidate the ballots already prepared, including the absentee ballots, and those now in course of preparation. The sum of these considerations, without regard to others not now necessary to state, forces me to conclude that the relief sought could be had at this late stage in the electoral process only at the gravest risk of disrupting that process completely in Illinois or of disfranchising Illinois voters in perhaps much greater numbers than those whose interests appellants represent. That is a risk which, in my judgment, federal courts of equity should not undertake and indeed are not free to undertake within the historic limits of their equity jurisdiction. Accordingly, I express no opinion concerning the constitutional and other questions presented. As in Colegrove v. Green, supra, I think the case is one in which, for the reasons stated, this Court may properly, and should, decline to exercise its jurisdiction in equity. Accordingly, but solely for this reason, I agree that the judgment refusing injunctive relief should be affirmed. The State Certifying Board is composed of the Governor, the Auditor of Public Accounts and the Secretary of State, and petitions for the formation of new state-wide political parties are filed with this board. (Ill. Rev. Stat. c. 46 [1947] §§ 10 — 2, 10 — 4.) On the filing of timely objection to such petitions, the certifying board transmits the petitions and the objections to the State Officers Electoral Board, which is not a party to this action. After passing on the objection, the State Officers Electoral Board informs the State Certifying Board of its ruling, and the certifying board is required to “abide by and comply with the ruling so made to all intents and purposes.” (Ill. Rev. Stat. c. 46 [1947] § 10 — 10.) Where objection is not made, or where it is made and overruled, the new party and the names of its candidates are certified by the State Certifying Board to the several county clerks; the clerks or the local boards of election commissioners, both groups being parties to this action, thereupon are required to print ballots containing the names of the candidates thus certified. (Ill. Rev. Stat. c. 46 [1947] § 10 — 14.) Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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. Madeline G. CHASTAIN, as Executrix of the Estate of Homer L. Chastain, Jr., Plaintiff-Appellee, v. The KELLY-SPRINGFIELD TIRE COMPANY, a corporation and the Goodyear Tire & Rubber Company, a corporation, Defendants-Appellants. No. 83-7226. United States Court of Appeals, Eleventh Circuit. June 7, 1984. L. Vastine Stabler, Jr., Frank D. McPhillips, Birmingham, Ala., for defendants-appellants. Joe R. Whatley, Birmingham, Ala., for plaintiff-appellee. Before RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge. JOHNSON, Circuit Judge: In 1965 plaintiff Homer L. Chastain, Jr., went to work for Duke Tire & Rubber Company as a commissioned salesman selling tires in the North Alabama region. In order to increase sales and distribution of its tires in this region, Star Rubber Company acquired the assets of Duke in 1966. After the acquisition, Duke became merged into Star. Star is a division of Kelly-Springfield Tire Company, which is in turn a subsidiary of Goodyear. Charles Sides was an assistant to the executive vice-president for sales at Kelly-Springfield and negotiated directly with G.T. Duke, the owner of Duke, during the acquisition. Early in the negotiations, Sides testified that Mr. Duke expressed a desire to provide his commissioned salesmen, including the plaintiff, with long-term employment with Star. The final written agreement between Star and Duke contained no mention of any long-term or guaranteed employment for the commissioned salesmen; it did, however, contain a provision guaranteeing employment for Mr. Duke and his son for ten years. In July of 1966, Sides; Jack Lewin, the president of Star; Mr. Duke; and Gene Stuart, plaintiffs immediate supervisor at Duke, met with the commissioned salesmen of Duke at the Tech Motel in Atlanta, Georgia. It is undisputed that the purpose of this meeting was to reassure the Duke commissioned salesmen that they could continue working for Star on a commissioned basis after the merger of Duke and Star. Mr. Duke told the salesmen that he had sold the company, but that they “were all taken care of,” and that “it was the intent of this arrangement that the commissioned agents would not be dismissed or leave the company; that they would be continued.” Both Sides and Lewin reiterated this effect of the acquisition on the salemen’s jobs. In this context, Sides then made the statement that is the basis of this appeal. According to plaintiff, Sides told the salesmen that “our jobs was [sic] secure; that we would continue on like we had been ... [i]f we did our job, kept our noses clean, didn’t make waves and not sell to Goodyear and Kelly accounts.” Jerry Cotton, another salesman present at the meeting, testified that Sides stated that after the merger “our commissioned sales jobs were secured as long as we did our jobs, and did not go against company policy, such as selling accounts of, trying to sell accounts of Goodyear or Kelly or other things in the policy, such as that.” Sides testified that he made this statement at the meeting, but was never questioned about and never offered the salesmen a lifetime contract of employment with Star. Stuart testified that he knew of no promise of lifetime employment made to the plaintiff and that if there had been such a promise he would have known about it. Plaintiff continued working for Star after the merger, and testified that he did so in reliance solely on Sides’ statement at the 1966 meeting as an offer of a lifetime employment. Although plaintiff did not testify that he sought or was offered a job with another tire company, he testified that opportunities were available and that he stayed with Star due to the promise of lifetime employment. Further, plaintiff testified that in reliance on this promise he did not sell to Goodyear or Kelly accounts, and that he spent his own money promoting Star’s business, such as buying lunches for customers, paying for signs that advertised Star tires, purchasing promotional items for customers and paying warranty claims. Plaintiff acknowledged, however, on cross-examination that his four percent commission with Star was understood to include compensation for expenses he incurred in generating and promoting sales, and that he understood that the commission rate he received could be changed from time to time. In response to increased competition in the tire market, Star reorganized its marketing districts for its salesmen in 1980 and 1981. Star also stopped paying its salesmen on a commissioned basis and all of its salesmen now are salaried. In November of 1981 plaintiff was informed by Star that he was being terminated in one month. Of the four of the eight original Duke salesmen still with Star in 1981, two remained as salaried employees, and the plaintiff and one other were terminated. Plaintiff filed suit against Kelly-Springfield and Goodyear in the United States District Court for the Northern District of Alabama. Plaintiffs original complaint was framed in four counts and predicated primarily upon diversity jurisdiction. Pertinent to this appeal, plaintiff was granted leave to amend the complaint to add Count Six, framed as a claim under promissory estoppel theory which plaintiff claimed arose when he relied on the promise of lifetime employment in accepting the job with Star. In a ruling not contested on this appeal, Goodyear was dismissed as a party to the action on motion for summary judgment and summary judgment granted in Kelly-Springfield’s favor on all but Count One, alleging that the defendants had been unjustly enriched by profiting from the business which plaintiff had built up, and Count Six of the complaint. On the morning of trial, plaintiff was granted leave to amend his complaint to add Count Seven, framed as a claim for breach of an express oral contract of lifetime employment. Kelly-Springfield’s motion for directed verdict was granted by the district court as to Count One, but denied on Counts Six and Seven which were submitted to the jury. The jury returned a general verdict in favor of the plaintiff for $170,000.00. The district court denied Kelly-Springfield’s motion for judgment notwithstanding the verdict or in the alternative for a new trial. Kelly-Springfield timely appealed to this Court. Plaintiff died on May 20, 1983, and his executrix, Madeline Chastain, was substituted as the appellee in this appeal. This appeal presents a single issue: was the statement made by Sides at the 1966 meeting sufficient as a matter of Alabama law to constitute an offer of lifetime or permanent employment? Holding that it was not, we reverse the district court’s denial of Kelly-Springfield’s motion for directed verdict. It is axiomatic that a contract for lifetime employment must contain the essential element of an offer of lifetime employment. In this case it is undisputed that Sides’ above-quoted statement at the 1966 meeting is the language constituting such a claimed offer of lifetime employment. Therefore, our sole inquiry is whether this language can, under Alabama law, satisfy the essential element of an offer of lifetime employment in order to support such a contract. Under Alabama law, an offer expressly stating that the employment is “permanent” or for “life” will support a contract for the same. Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982); Scott v. Lane, 409 So.2d 791 (Ala.1982); National Union Life Insurance Co. v. Ingram, 275 Ala. 310, 154 So.2d 666 (1963); Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). However, “an oral employment contract that neither includes, nor specifies, any particular term, length or duration of employment is considered an employment at will contract.” Bates, 418 So.2d at 905. The Alabama Supreme Court has “consistently held that employment contracts without a fixed term of employment are terminable at the will of either party and may be terminated for good cause, bad cause, or no cause at all.” Id. In Kitsos v. Mobile Gas Service Corp., 431 So.2d 1150 (Ala.1983), the Alabama Supreme Court expressly refused to abandon the employment at will doctrine when the essential elements of a lifetime employment contract failed. It is undisputed that there was no evidence presented at trial that Sides used the terms “lifetime” or “permanent” employment during the course of the 1966 meeting and the statement relied upon by plaintiff contains no such language. The alleged offer in this case contains no express language specifying the particular term, period or duration of the offered employment. Therefore, unless Sides’ statement to the effect that the commissioned sales jobs were secure “as long as we did our jobs, and did not go against company policy” can be construed as specifying a fixed promised term of employment, the offer in this case must be held to be terminable at will and not an offer for lifetime or permanent employment. Plaintiff relies on Alabama Mills, supra, for such a construction of Sides’ statement. In Alabama Mills, the plaintiff was working for the Department of Public Works when offered a job with the defendant. According to the plaintiff, the defendant’s representative “told me that if I would go with him he would guarantee me a regular job just as long as I wanted a job with him.” 186 So. at 701. Plaintiff was later terminated by the defendant and brought suit claiming a breach of a lifetime employment contract. On appeal, the defendant argued, inter alia, that this promise was too indefinite to be operative. Although reversing the judgment for the plaintiff on the grounds that plaintiff had failed to prove consideration for such a promise and that the representative had actual authority to bind the defendant to such a contract, the Alabama Supreme Court recognized that, subject to certain implied conditions, an offer of employment for as long as the employee desired was an offer of permanent employment. The court defined permanent employment as follows: [W]e will endeavor to find an exact meaning of such a contract as stated in plaintiff's testimony. A leading case upon that subject is Carnig v. Carr, 167 Mass. 544, 46 N.E. 117 ... It was said that what they meant by a permanent employment was so long as defendant was engaged in the same nature of business and needed the service of such an employee, and plaintiff was able and willing to do it satisfactorily and gave no cause for his discharge. So construed, it was said the contract was capable of enforcement. .... “[Pjermanent” employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. Id. at 701, 702. The court held that: If [an employee] has purchased a contract by which his employer leaves the period of duration to him, it resembles the purchase of other sorts of option rights, subject to the limitation impliedly included that the employer shall continue in such business and need the things to be done, which the employee is to do. In other words, such employee must have a preference over others in doing that sort of work. Id. at 702. Plaintiff’s reliance on Alabama Mills is misplaced; the offer in Alabama Mills is distinct from Sides’ statement in several aspects which are dispositive of the present appeal. First, we note the obvious: Sides’ statement did not promise employment to the commissioned salesmen “as long as they wanted,” or “as long as they desired.” Instead, according to the plaintiff, Sides told the salesmen that their “jobs was [sic] secure; that we would continue on like we had been ... [i]f we did our jobs, kept our noses clean, didn’t make waves and not sell to Goodyear and Kelly accounts.” Although since 1939 the Alabama Supreme Court has twice reiterated the Alabama Mills holding that an offer of permanent employment may be made by an offer of employment for as long as the employee desires, on both occasions the court did not address the issue of whether language apart from an express statement that the employment was for as long as the employee desires will suffice. We decline to speculate whether the Alabama Supreme Court would extend Alabama Mills to the present case because we hold that both the context in which the present statement was made and the statement’s lack of a clear and unequivocal offer of permanent employment or employment for as long as the salesmen desired are further crucial factors distinguishing this case from Alabama Mills. It is again axiomatic that language claimed to constitute an offer for a binding contract must be considered in the context in which it was made. In Alabama Mills, it is clear that the offer of employment for as long as the plaintiff desired was made in the course of inducing plaintiff to leave his current job and accept employment with the defendant. Unlike Alabama Mills, it is undisputed that the claimed offer of lifetime employment in the present case was made in the course of a meeting with the primary purpose of reassuring the Duke commissioned salesmen that they would continue working for the defendant after the merger and that they would continue working on a commissioned, as opposed to a salaried, basis. Both Sides and Stuart testified that it was their understanding at the meeting that Sides’ statement meant only that Kelly-Springfield was pleased to have the salesmen join the new company, expected them to continue working as they had for Duke, and expected them to abide by the defendant’s company policies. Stuart testified that no one from Duke was guaranteed lifetime employment before or after the merger, and plaintiff acknowledged that he was not offered a contract for lifetime employment with Duke. Therefore, we hold that a critical factor distinguishing this case from Alabama Mills is the context in which the claimed offer of employment was made: unlike Alabama Mills, it is clear that the present offer was not made in the course of discussing or negotiating an employment contract between the plaintiff and the defendant, but instead was made in the context of reassuring the Duke salesmen “that we would continue on like we had been” after the merger. Further, the Alabama Mills court recognized that a “contract such as plaintiff claims is of an extraordinary type, requiring an independent substantial valuable consideration, and that authority to make it must be clear and not to be lightly inferred.” 186 So. at 704. As a corollary to this principle, it follows that an offer for lifetime employment must be expressed in clear and unequivocal terms before a court will conclude that an employer intended to enter into such a weighty obligation. In the present case, it is clear that Sides’ statement, unlike that in Alabama Mills, does not represent a clear and unequivocal intent to offer lifetime employment or employment for as long as the plaintiff desired. Although not binding on an Alabama court, Brown v. Safeway Stores, Inc., 190 F.Supp. 295 (E.D.N.Y.1965), is a case involving a factual situation close to that in the present appeal. The plaintiff in Brown was a district supervisor for a retail food chain, Reeves, Inc., that merged into the defendant. Shortly after the merger, Safeway's division manager called a meeting of all of the Reeves’ supervisors and, according to the plaintiff, told them that “he wanted us and he needed us to stay with him, and that there would always be a job for each one of us.” Id. at 297. According to another supervisor present, the manager stated that “if we were good men, we didn’t have to worry about a job, there would always be a job for us.” Id. at 298 n. 3. Several months later, another Safeway manager called a meeting of Reeves’ supervisors and told them that “we would have jobs as long as we wanted them, ‘as long as we lived’ was the expression that he used.” Id. at 297 n. 1. Finally, the plaintiff testified to another conference he had with a Safeway manager, in which he was advised that “you eventually have nothing to worry about. You will always be one of us.” Id. at 297-98. Applying New York law, the district court rejected plaintiff’s claim that these statements constituted a binding offer of lifetime employment: Contracts of life employment or permanent employment ... are extraordinary and unusual. The meetings were not called for the purpose of discussing or negotiating the term of the employment contract, or wages, or other conditions of employment ... The intention to make an offer of life employment or any unusual offer of employment, as gleaned by the plaintiff, must be clear and unequivocal. A casual remark made at a meeting, a phrase plucked out of context, is too fragile a base on which to rest such a heavy obligation inherent in such a contract. Id. at 299; see also Page v. Carolina Coach Co., 667 F.2d 1156, 1157-58 (7th Cir.1982) (per curiam) (statement that plaintiff was a good employee and would move up in the company if he continued to do his job, held a casual remark that “could not reasonably be interpreted as a promise of lifetime employment, but rather only as words of encouragement. ”). We find no principled basis for distinguishing between the result reached by the Brown court’s straightforward application of the general contract principles that an alleged offer must be considered in context and that a contract of lifetime employment is extraordinary and unusual and that of an Alabama court applying these same principles. For these reasons, we hold that in the absence of any proof of a promise of lifetime or permanent employment the district court erred in denying Kelly-Springfield’s motion for a directed verdict on Count Seven of the complaint, plaintiff’s claim for breach of an express oral contract of lifetime employment. Cf. Wilson v. Vulcan Rivet & Bolt Corp., 439 So.2d 65, 67 (Ala.1983). Finally, since we hold that there was no promise of lifetime employment in this case, it necessarily follows that the district court erred in denying Kelly-Springfield’s motion for directed verdict on Count Six of the complaint, plaintiffs promissory estoppel theory. Since there was no promise on which a legally binding contract of permanent employment could be based, promissory estoppel theory may not be utilized to supply the lack. [Although equitable estoppel might transform an otherwise non-binding agreement into a legally binding contract, this Court has held that the principle of promissory or equitable estoppel cannot be utilized to create primary contractual liability where none would otherwise exist____ [I]n Ivey v. Dixon Investment Co., 283 Ala. 590, 219 So.2d 639 (1969), this Court stated, “[A]n estoppel cannot operate to create binding effect against a party under circumstances which would not sustain a contract if one had been made.” Bates, 418 So.2d at 905 (citations omitted). The judgment of the district court entered in favor of the plaintiff is REVERSED and the case is REMANDED for the entry of judgment in favor of the defendant. . Record Vol. II at 74. . Id. Vol. Ill at 399. . Id. Vol. II at 225. . Id. at 74. . The first three counts of the complaint, grounded in diversity jurisdiction, alleged theories of unjust enrichment, conversion and the tort of outrage arising from plaintiffs termination. Count Four alleged a violation of both Sections 1 and 2 of the Sherman Act. Count Five, added by amendment, alleged that plaintiff was the third party beneficiary of the contract between Star and Duke for the acquisition of Duke, which plaintiff claimed provided for lifetime employment for the commissioned salesmen of Duke. . Because we hold that no offer of permanent employment was made to the plaintiff, we do not reach Kelly-Springfield’s further arguments that there was no evidence of consideration to support such a promise, that Sides lacked actual authority to bind Star to such a promise, that Kelly-Springfield did not ratify or was estopped from denying such a promise, and that the district court erred in admitting the testimony of plaintiff’s expert witness concerning his prior commissions as a basis for awarding damages. . In Scott V. Lane, 409 So.2d 791 (Ala.1982), plaintiff alleged that the defendants induced her to leave her job and work for them by offering to employ her "as a nurse-anesthetist for the Defendants for as long as the plaintiff should wish to continue said employment with the Defendants.” Id. at 791 n. 1. Although quoting extensively from Alabama Mills, including the definition of permanent employment, the sole issue addressed by the Alabama Supreme Court in reversing the trial court’s dismissal of plaintiff’s cause of action for the breach of an express oral contract of permanent employment was whether there was sufficient consideration for such a promise. In Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982), the court noted that if "there is a promise of permanent employment or employment for as long as the employee wishes, the relinquishment of prior employment may constitute sufficient consideration to bind the promisor.” Id. at 906. The court held, however, that since "it is undisputed that there was no understanding, agreement or promise whatsoever” between the plaintiff and defendant "regarding the term, length or duration of her employment,” id., "this ... is not a case of permanent employment or employment of a definite duration or employment for as long as [plaintiff] desired.” Id. Although the plaintiff in Bates further claimed that “her employment meets the definition of permanent employment set forth in Alabama Mills," id., quoting the language relied upon by the plaintiff in the present case, the Bates court did not reach this issue, holding instead that the “implicit term of the employment contract that the employee would remain employed only if the employer had need of the employee’s services,” id., was not met in this case since the plaintiff was terminated because the defendant did not need her services. We note Kelly-Springfield's Bates argument that because it is undisputed that after 1981 it eliminated commissioned salesmen’s jobs, even if plaintiff was promised lifetime employment as a commissioned salesman, the implicit term of the contract that the plaintiff would be employed only if the defendant had need of his services prohibits enforcing this contract. Because we hold that no offer of permanent employment was made by Sides we do not address this argument. 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_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. J. Rupert MASON, Appellant, v. SUMMER LAKE IRRIGATION DISTRICT and Pueblo Trading Co., Appellees. No. 13776. United States Court of Appeals Ninth Circuit. Nov. 10, 1954. J. Rupert Mason, in pro. per. Griffith, Phillips & Coughlin, James K. Buell, Portland, Or., Theodore R. Cohn, Lakeview, Or., George H. Fraser, Cleveland C. Cory, Hugh L. Biggs, Hart, Spencer, McCulloch, Roekwood & Davies, Portland, Or., for appellees. Before HEALY, POPE and CHAMBERS, Circuit Judges. PER CURIAM. The appellant appeals from a decree of the District Court which was entered January 23, 1953, and urges as grounds therefor points and contentions which were heard and disposed of in West Coast Life Ins. Co. v. Merced Irr. Dist., 9 Cir., 114 F.2d 654; Thomas v. El Dorado Irr. Dist., 9 Cir., 126 F.2d 922; Mason v. El Dorado Irr. Dist., 9 Cir., 144 F.2d 189; Mason v. Banta Carbona Irr. Dist., 9 Cir., 149 F.2d 49; United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137; and Mason v. Paradise Irr. Dist., 326 U.S. 536, 66 S.Ct. 290, 90 L.Ed. 287. No new points or contentions are present here. The same appellant was the Mason named in three of the cases cited. Upon the authority of these cases, the decision and judgment of the District Court is affirmed. Indeed, the appeal is so unsubstantial and frivolous as to suggest that it was taken merely for delay. The court has seriously considered awarding damages against the appellant for the delay, as provided in Title 28 U.S.C.A. § 1912. Cf. Slaker v. O’Connor, 278 U.S. 188, 191, 49 S.Ct. 158, 73 L.Ed. 258; In re Midland United Co., 3 Cir., 141 F.2d 692; Massachusetts Bonding & Insurance Co. v. Feutz, 8 Cir., 182 F.2d 752; Fern Gold Mining Co. v. Murphy, 9 Cir., 7 F.2d 613. Here the persons entitled thereto have been deprived of the $54,000 paid into court for approximately a year and a half. They have lost the use of that sum and their damages are substantial. Yet because the court has heretofore failed to apply § 1912 in many cases where it might have been invoked, we have decided to hold our hand here, letting this reference to the statute serve as notice of the possibility that it may be applied in the future. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_authoritydecision	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. LYNG, SECRETARY OF AGRICULTURE, et al. v. PAYNE et al. No. 84-1948. Argued March 24, 1986 Decided June 17, 1986 O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 943. Bruce N. Kuhlik argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Getter, Robert E. Kopp, and Richard A. Olderman. Theodore L. Tripp, Jr., argued the cause and filed a brief for respondents. Justice O’Connor delivered the opinion of the Court. Federal law vests in the Secretary of Agriculture the authority to make emergency loans to farmers who suffer economic losses as a result of a natural disaster. See Consolidated Farm and Rural Development Act (Act), §§321-330, 75 Stat. 311, as amended, 7 U. S. C. §§1961-1971. Pursuant to an agency rule, the Secretary required loan applicants suffering from disasters occurring between December 26, 1972, and April 20, 1973, to file their applications by April 2, 1974. 39 Fed. Reg. 7569 (1974) (later codified at 7 CFR § 1832.82(a) (1975)). That rule embodied a statutory command to keep the loan program open at least until that date. Pub. L. 93-237, 87 Stat. 1025. The question presented is whether a federal court has the remedial authority to reopen this long-terminated loan program on the basis of its finding that the Secretary, in alleged violation of another rule, failed adequately to notify affected farmers of the program’s availability and terms. M In early April 1973 torrential rams struck 13 counties m the northern part of Florida. Initial estimates, which were later sharply reduced, projected that resulting crop and property losses would be in excess of $3 million. In light of the scope of these anticipated losses, on May 26, 1973, President Nixon declared the region a major disaster area. 38 Fed. Reg. 14800 (1973). See Disaster Relief Act of 1970, Pub. L. 91-606, 84 Stat. 1744 (repealed or transferred 1974). As a result of this declaration, the Secretary of Agriculture came under a statutory obligation to “make loans” to qualifying individuals in the region. 7 U. S. C. § 1961(b) (1970 ed., Supp. III). At the time of the declaration, the federal disaster relief program, like much of the rest of the Federal Government, had become embroiled in a budgetary dispute between the Executive and Legislative Branches. In 1972, Congress had passed Pub. L. 92-385, 86 Stat. 554, which authorized emergency loans under terms far more generous than those available under later versions of the Act. Under the 1972 law as implemented by the Secretary, loans carried a 1% interest rate and were not conditioned upon the unavailability of alternative sources of credit. In addition, the Secretary was directed to forgive outright up to $5,000 of the principal of the loan. On December 27, 1972, as part of a larger, administrationwide effort to control what were viewed as excessive congressional appropriations, the Secretary directed that regional Farmers Home Administration (FmHA) officials effectively cease processing loan applications. See generally Berends v. Butz, 357 F. Supp. 143 (Minn. 1973); Impoundment of Appropriated Funds by the President: Joint Hearings before the Ad Hoc Subcommittee on Impoundment of Funds of the Senate Committee on Government Operations of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 532 (1973). Aware that the “forgiveness features and low interest rates provided for by Public Law 92-385” had contributed to the unilateral executive decision to curtail the program, Congress attempted to resolve the crisis by repealing those provisions. S. Rep. No. 93-85, p. 1 (1973). Public Law 93-24, 87 Stat. 24, which became effective on April 20, 1973, set the interest rate on emergency loans at 5%, limited the availability of loans to those unable to obtain credit from other sources, and eliminated entirely the provision that had previously allowed for cancellation of a portion of the principal. A grandfather clause provided that the terms of the earlier act, Pub. L. 92-385, would remain applicable to disasters designated between January 1 and December 27, 1972. Left unclear, however, was the status of disasters occurring during the 4-month period between December 27, 1972, and April 20,1973, the effective date of Pub. L. 93-24. Congress resolved this uncertainty by passing Pub. L. 93-237, the provision at the center of this case. Section 4 of the new Act provided that, “[notwithstanding the provisions of Public Law 93-24,” loans “with respect to natural disasters which occurred” during this interim period would be governed by the more generous terms of Pub. L. 92-385. In addition, § 10(c) provided that the deadline for applying for a loan would be extended 90 days beyond the date of the enactment of Pub. L. 93-237. This 90-day extension supplanted the established regulatory policy of the Secretary to accept loan applications for crop losses only if filed within nine months of the formal disaster declaration. (For physical losses the deadline was 60 days.) According to the Conference Report, the purpose of the extension was to make sure that the FmHA’s “administratively set deadlines” took into account the confusion among farmers concerning the numerous changes in federal disaster relief law in the recent past. S. Conf. Rep. No. 93-363, p. 6 (1973). The bill was signed into law on January 2,1974. Thus, the congressionally mandated 90-day period for loans under Pub. L. 93-237 expired on April 2, 1974. The Florida flood coincided with this period of confusion in the administration of federal disaster relief. Between May 26, 1973 (the date the disaster was declared), and January 2, 1974 (the date Pub. L. 93-237 became law), the loan program was administered pursuant to the terms of Pub. L. 93-24. Accordingly, during this initial loan period, farmers had nine months, or until February 26,1974, to submit applications for emergency loans. At the time of the May 26, 1973, Presidential disaster declaration, and throughout the initial loan period, FmHA rules required the agency to follow certain procedures designed to notify potential borrowers of the availability of disaster relief. 7 CFR § 1832.3(a)(1) (1973). In addition to a general obligation to “make such public announcements as appear appropriate,” the regulations required the FmHA County Supervisor to inform various local officials and “agricultural lenders” of “the assistance available under [the] program.” Ibid,. It is undisputed that during the initial loan period no applications were filed. On February 15, 1974, approximately six weeks after the enactment of Pub. L. 93-237, the FmHA issued instructions to its staff concerning the implementation of the new emergency loan program. App. to Pet. for Cert. 48a. Shortly thereafter, the Secretary published these instructions without material change in the Federal Register. 39 Fed. Reg. 7569 (1974) (later codified at 7 CFR §§ 1832.81-1832.92 (1975)). The Federal Register publication set out in detail the terms and conditions of the new program, including the 1% interest rate, the $5,000 forgiveness provision, and the absence of any requirement that the applicant demonstrate the unavailability of other credit. 39 Fed. Reg. 7571 (1974). The regulation also specified that “the termination date for acceptance of applications . . . will be April 2, 1974.” Id., at 7570. Also included in the staff instructions were directions that “State Directors and County Supervisors . . . inform the news media, including newspapers, radio, and television in the affected counties of the provisions of P. L. 93-237.” App. to Pet. for Cert. 49a (later published as § 1832.82(a) of the “Special Emergency Loan Policies . . . Implementing Applicable Provisions of Public Law 93-237,” 39 Fed. Reg. 7569 (1974)). Attached to the instructions was a suggested news release. App. to Pet. for Cert. 50a-51a. The release explained that farmers who had not yet received an emergency loan could apply for such a loan at the local FmHA office. Although not setting out the details of the new program, the model release did state that “loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974.” Id., at 51a. Consistent with these instructions, the State FmHA director forwarded the sample news release to local agency offices. Those offices in turn sent copies to the local media, and, on at least two occasions, the releases were carried in newspapers in the north Florida disaster area. Record, Defendants’ Exhibits 10-12. During this second loan period, that is, the period between the enactment of Pub. L. 93-237 and the expiration of the 90-day deadline on April 2, 1974, no more than four farmers from the Florida disaster area applied for emergency loans. On August 19, 1976, respondent Payne, a north Florida farmer, instituted the present action in the United States District Court for the Middle District of Florida. Although he had received actual notice of the special 1974 emergency loan program, he sought to represent a class of approximately 2,500 farmers who had been eligible for loans under that program but, because of lack of notice, had not been aware of their eligibility. Contending that the FmHA’s failure to publicize the program more fully violated the agency’s own regulations and deprived them of property without due process of law, respondents sought an injunction directing the FmHA to reopen the loan program under the terms prevailing during the period “up to and including April 2, 1974.” Complaint 6. The District Court certified the class and granted the requested relief. In a variety of different ways, the court found, the FmHA had failed to give adequate notice of the availability of loans. Most of the notice deficiencies specifically found by the court occurred during the initial loan period. It found, for example, that a number of farmers had left a June 1973 meeting with the incorrect impression that they were ineligible for loans, that FmHA officials knew of this misimpression, and that they failed to correct it. The court also found that press releases describing the terms of both the initial and new loan programs were incomplete. Finally, the court determined that, in violation of the specific requirements of 7 CFR § 1832.3(a)(1) (1973), the FmHA had failed to notify various state and county officials of the availability of emergency loans. The District Court did not allude to the specific notice requirements promulgated by the agency in connection with the implementation of Pub. L. 93-237. See 39 Fed. Reg. 7569 (1974) (§ 1832.82(a)). Apparently assuming, however, that the earlier notice requirements contained in 7 CFR § 1832.3(a)(1) (1973) continued to apply during the new loan period, the court held that the agency’s failure to adhere to these requirements required it to reopen the new loan program for a 60-day period extending from April 15, 1981, to June 15, 1981. In particular, the court premised the remedy on the FmHA’s failure “to make such public announcements as appear appropriate.” Ibid. The Court of Appeals for the Eleventh Circuit affirmed, but on different grounds. Payne v. Block, 714 F. 2d 1510 (1983). It accepted the District Court’s various findings concerning the FmHA’s failure to comply with the notice requirements set out in 7 CFR § 1832.3(a)(1) (1973). Those findings, however, “pertain[ed] only peripherally” to its decision to affirm. 714 F. 2d, at 1519. Regardless of any violations of 7 CFR § 1832.3(a)(1), the court concluded, the FmHA had failed to comply with its self-imposed obligation to notify the public of the new loan program. The agency had announced in the Federal Register that it would “inform the news media ... of the provisions of P. L. 93-237.” 39 Fed. Reg. 7570 (1974) (§ 1832.82(a)). This it had not done, the court believed, because the news releases announcing the new loan program had failed to explain its generous terms. In view of the established proposition that agencies are duty bound to adhere to their own procedures, the court held, the most appropriate remedy for the violation was an injunction directing the agency to reopen the loan program. In reaching this conclusion, the Court of Appeals rejected the Government’s argument that the April 2, 1974, application deadline was required by an Act of Congress and, therefore, beyond the authority of the District Court to expand. In the court’s view, Pub. L. 93-237 had merely required the FmHA to extend its administratively set deadline for 90 days. Nothing in the Act, however, divested the agency of discretion to extend it further. The Secretary sought review in this Court, and we granted the petition for certiorari, vacated the judgment below, and remanded for reconsideration in light of our decision in Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51 (1984). Block v. Payne, 469 U. S. 807 (1984). In Community Health Services, the Court held that, even assuming that principles of equitable estoppel ever applied against the Government, “a private party surely cannot prevail [on that theory] without at least demonstrating that the traditional elements of estoppel are present.” 467 U. S., at 61. The Court of Appeals, observing that petitioners’ liability was premised not on a theory of equitable estoppel but on the agency’s failure to follow its own regulations, adhered to its prior views and reinstated its decision. Block v. Payne, 751 F. 2d 1191 (1985). Because the decision below exposes the Federal Government to substantial potential liability and because its reasoning implicates important questions about a federal court’s remedial powers, we again granted certiorari. Block v. Payne, 474 U. S. 815 (1985). We now reverse. 1 — 1 1 — 1 The Secretary s principal argument in this Court is that the remedy granted below shares all of the essential characteristics of an equitable estoppel against the Government and, accordingly, should be analyzed on those terms. We acknowledge that the practical effect of the injunction requiring the reopening of the loan program is to estop the FmHA from relying on the validly promulgated regulatory deadline as a basis for refusing to process further loan applications. And we readily agree that, had respondents sought relief on an equitable estoppel theory, they could not prevail. As we observed only recently, even assuming that the Government is ever subject to estoppel, a “private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present.” Heckler v. Community Health Services of Crawford County, Inc., 467 U. S., at 61. An essential element of any estoppel is detrimental reliance on the adverse party’s misrepresentations, id., at 69 (citing 3 J. Pomeroy, Equity Jurisprudence § 805, p. 192 (S. Symons ed. 1941)); and neither the named plaintiffs, much less the 2,500 members of the class they represent, have sought to demonstrate such reliance. Moreover, the only misconduct specifically found by the District Court was the failure to give effective notice of information that, at least with respect to the second loan period, was concededly published in the Federal Register. Our cases leave no doubt that “failure to fully publicize the rights . . . accorded” by an Act of Congress does not “give rise to an estoppel against the Government.” INS v. Hibi, 414 U. S. 5, 8-9 (1973) (per curiam). See also Heckler v. Community Health Services of Crawford County, Inc., supra, at 63 (“[T]hose who deal with the Government are expected to know the law”); Federal Crop Ins. Corp. v. Merrill, 332 U. S. 380, 384 (1947). As the Court of Appeals correctly observed, however, respondents’ inability to satisfy the stringent requirements of common-law estoppel does not independently decide the case. Indeed, beginning with their initial complaint and throughout the course of the litigation, respondents have never sought to rely on estoppel as a basis for recovery. Their theory instead, and the theory on which the lower courts granted the injunction, is that the Administrative Procedure Act (APA), 5 U. S. C. § 551 et seq., authorizes this kind of relief to remedy the FmHA’s alleged failure to comply with its duly promulgated notice regulations. It may well be that some of the same concerns that limit the application of equitable estoppel against the Government bear on the appropriateness of awarding other remedies that have a close substantive resemblance to an estoppel. We reject, however, petitioners’ suggestion that any remedy that can be analogized to an equitable estoppel is necessarily invalid, regardless of the source of the cause of action, unless the plaintiff succeeds in proving all the elements of common-law estoppel. Cf. Honda v. Clark, 386 U. S. 484, 494-495 (1967). Indeed, any other rule has the potential for divesting the courts of the remedial authority specifically envisioned by Congress under the APA. If, for example, a farmer had filed a loan application prior to the expiration of the loan deadline and a court determined that the denial of the application after the deadline’s expiration was “arbitrary, capricious [and] not in accordance with law,” 5 U. S. C. §706(2)(A), the appropriate remedy under the APA would be to direct that the application be granted or reconsidered. Although this would, in a sense, estop the Government from applying the deadline, we have never suggested that the applicant would be under an obligation to satisfy the requirements of proving an equitable estoppel to obtain the relief specifically available under the APA. The question before us then is not whether the Secretary should be estopped from applying the deadline, but whether the relief afforded by the District Court was appropriate under the APA. Respondents contend that the notice regulations, having been promulgated pursuant to the Secretary’s delegated rulemaking authority, had the force and effect of law and therefore were binding on the agency. To remedy this noncompliance, they suggest, the District Court had the authority under 5 U. S. C. § 706 to “compe[l] ‘action unlawfully withheld’ [notice] and ‘set aside agency action’ [application of the deadline] found to be ‘without observance of procedures required by law.’” Brief for Respondents 21 (quoting 5 U. S. C. §706) (bracketed material in original). To prevail on this theory, respondents must clear at least three substantial hurdles. At the outset, not all agency publications are of binding force, Schweiker v. Hansen, 450 U. S. 785, 789 (1981); and it remains to be shown that the notice provisions, which began life as unpublished staff instructions, are the kind of agency law the violation of which is remediable at all. Second, an agency’s power is no greater than that delegated to it by Congress. Thus, even assuming that Pub. L. 93-237 left the Secretary some discretion to extend the 90-day deadline beyond April 2, 1974, it would hardly be an abuse of that discretion to refuse to do so many years after the disaster had receded if such an extension would be inconsistent with the intent of Congress. Finally, the “agency action” respondents seek to have set aside is the “application of the deadline.” Yet, with the exception of respondent Payne, who clearly has no standing, there is no allegation that any member of the class has ever applied for a loan. Although the APA includes “failure to act” in its definition of reviewable agency action, 5 U. S. C. § 551(13), it is far from clear that relief under the APA is appropriate when the allegedly aggrieved party has failed entirely to present its claim to the agency. Cf. Mathews v. Eldridge, 424 U. S. 319, 328 (1976). We need not, however, definitively resolve any of these issues. Nor need we confront the Secretary’s broader contention that it is in all instances inappropriate for a court, reviewing for agency compliance with the APA, to set aside one validly promulgated regulation to remedy an alleged violation of another entirely independent one. An essential predicate of the relief granted below is that the FmHA in fact failed to comply with its own rules. As we now explain, the Court of Appeals’ conclusion that the FmHA violated its self-imposed obligation to give notice of the loan program is insupportable. The Court of Appeals relied exclusively on the FmHA’s purported violation of § 1832.82(a), the'new notice provision, to uphold the injunction directing the Secretary to reopen the loan program. Although the agency did issue press releases, the court reasoned, its failure to describe the generous terms of the new program breached its regulatory obligation to “‘inform the news media ... of the provisions of P. L. No. 93-237.’” 714 F. 2d, at 1520, quoting 39 Fed. Reg. 7570 (1974) (emphasis supplied by Court of Appeals). This reasoning is demonstrably incorrect. Public Law 93-237 itself said nothing at all about the availability of a reduced interest rate, the possibility of partial forgiveness of the loan principal, or the elimination of the requirement that credit be unavailable from other sources. It merely stated that “[notwithstanding the provisions of Public Law 93-24,” loans with respect to disasters occurring prior to April 20, 1973, would be administered under Pub. L. 92-385. Thus, the statement in the news release that “loan applications will be taken under the terms of a new law (P. L. 93-237) enacted January 2, 1974,” though not a model of clarity, was no less informative than were the “provisions” of the Act the release was endeavoring to describe. App. to Pet. for Cert. 51a; 7 CFR § 1832.82(a) (1975). Moreover, the Court of Appeals’ holding runs roughshod over the established proposition that an agency’s construction of its own regulations is entitled to substantial deference. United States v. Larionoff, 431 U. S. 864, 872 (1977); Udall v. Tallman, 380 U. S. 1, 16-17 (1965). The publicity directive that was later codified at 7 CFR § 1832.82(a) (1975) was originally issued as a staff instruction designed to describe the procedures for implementing Pub. L. 93-237. App. to Pet. for Cert. 48a-49a. Accompanying the instruction was a sample press release identical in all pertinent respects to those sent to the media in the area of the Florida disaster. Id., at 50a-51a. Because the suggested release obviously reflected the agency’s contemporaneous understanding of the scope of the publicity directive, it is logically untenable to suggest that the agency violated the directive by issuing press releases modeled explicitly on the sample. The Court of Appeals specifically disclaimed any reliance on 7 CFR § 1832.3(a)(1) (1973), the Secretary’s previous publicity directive, to support its affirmance of the District Court’s judgment. As they are entitled to do, however, respondents now defend that judgment on the alternative theory that the agency’s violation of this earlier notice provision warranted the remedy of an injunction reopening the loan program. We find this theory no more supportable than that relied on by the Court of Appeals. As an initial matter, any violations of this regulation that occurred during the first loan period are plainly irrelevant. Starting with their complaint, and throughout the course of this lengthy litigation, respondents have sought to have the loan program reopened under the more generous terms available under Pub. L. 93-237: And such was the relief granted by the District Court. App. to Pet. for Cert. 45a. As a simple matter of causation, any failure to inform respondents about the old loan program cannot support the remedy of requiring the FmHA to process loan applications under the “terms and benefits” available under the new one. Ibid. Nor do we believe that any noncompliance with the terms of 7 CFR § 1832.3 during the second loan period would justify the District Court’s remedy. Although the District Court did find that this provision had been violated during the initial loan period, it is far from clear from the face of its opinion that it found any such violations during the second period. Even assuming such findings, however, we agree with the conclusion of the Court of Appeals for the Ninth Circuit that the notice provisions of 7 CFR § 1832.3 were no longer applicable during the period after the enactment of Pub. L. 93-237, at least with respect to disasters declared prior to the date the new law came into force. See Emergency Disaster Loan Assn., Inc. v. Block, 653 F. 2d 1267, 1270 (1981). By its terms, § 1832.3(a) requires only notice of the loan program in place at the time of the Presidential disaster declaration. See also §1832.92 (1975) (describing §1832.3 as setting out procedures for reporting natural disaster designations). Accordingly, its plain language casts serious doubt on respondents’ assumption that it was also intended to serve as a means of giving notice of midcourse changes in the terms of the loan program long after the disaster had been declared. Any ambiguity about the regulation’s reach is dispelled by the history of Pub. L. 93-237 itself. As the Court of Appeals recognized, Congress was acutely aware of confusion in the administration of the Nation’s disaster relief laws when it enacted Pub. L. 93-237. 714 F. 2d, at 1516-1517. S. Conf. Rep. No. 93-363, p. 6 (1973). A central objective of the new Act was to correct this confusion by clarifying the credit terms available during this period and by requiring the Secretary to extend the application deadline to compensate for prior “uncertainties]” in the law. Ibid. Consistent with that objective, the Secretary announced in the Federal Register the new procedures the agency would follow to “implement] applicable provisions of Public Law 93-237.” 39 Fed. Reg. 7569 (1974). These procedures, which included the notice provision later codified at 7 CFR § 1832.82(a), were designed to “supplement] and modif[y]” the procedures that had been in place under the old regime, including 7 CFR § 1832.3(a). While this language is ambiguous, the regulatory history strongly suggests that in adopting notice procedures specifically geared to the new law, the Secretary intended for those procedures to be the principal mechanism for spreading the word about Pub. L. 93-237 in areas in which a disaster had already been declared. Aware of Congress’ belief that prior efforts to implement the old program had failed, this history suggests, the Secretary sought to take a different tack to assure effective implementation of the new one — notification of the media pursuant to § 1832.82. This interpretation is confirmed by § 1832.92, also adopted as part of the FmHA’s efforts to implement Pub. L. 93-237. 39 Fed. Reg. 7575 (1974). There, the Secretary specifically provided that for any “new” disaster designations, notice should be given pursuant to § 1832.3. There is no mention whatever of § 1832.3 in the balance of the regulations dealing with disasters that had already been declared at the time the regulation was published. A fair inference from this omission is that for disasters, such as the Florida flood, that had already been declared at the time of the enactment of Pub. L. 93-237, the Secretary intended that § 1832.82(a), rather than § 1832.3, provide the appropriate mechanism for notifying affected farmers about the new loan program. Accordingly, any failure to follow the old notice provisions during the second loan period was entirely consistent with the Secretary’s intended approach and provides no permissible basis for ordering the new program reopened. HH HH I — I We conclude, therefore, that the lower courts erred m holding that the Secretary’s conduct violated the only notice procedures relevant to the implementation of Pub. L. 93-237. Accordingly, even assuming, arguendo, that reopening the loan program would have been an appropriate remedy had the relevant regulations been violated, awarding that relief was clearly improper in light of the FmHA’s compliance with its own procedures. Nor can the relief be supported on the theory, not addressed by either court below, that inadequate notice of the loan program deprived respondents of property without due process of law. We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment. Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 320, n. 8 (1985). Even on the assumption that they do, however, the notice published in the Federal Register, as well as that afforded by the Secretary in full compliance with his own procedures, was more than ample to satisfy any due process concerns. See 44 U. S. C. §1507 (Publication in Federal Register “is sufficient to give notice of the contents of the document to a person subject to or affected by it”). Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Title 7 CFR § 1832.3 (1973) provides in pertinent part: “(a) [W]here there is a Presidential major disaster declaration, the National Office will notify the State Director and the Finance Office of the name of the counties . . . eligible for Federal assistance under the declaration, and the period during which [emergency] loans will be made based on the major disaster. The State Director will notify the appropriate County Supervisors immediately, and instruct them to make [emergency] loans available .... The State Director will also notify the State USDA Defense Board Chairman and will make such public announcements as appear appropriate. “(1) Immediately upon receiving notice about counties under his jurisdiction, the County Supervisor will notify the appropriate County USDA Defense Board Chairman and make such public announcements as appear appropriate about the availability of [loans]. Also, the County Supervisor will explain to other agricultural lenders in the area the assistance available under this program.” Pursuant to 6 U. S. C. §§553(b)(B) and (d)(3), the agency dispensed with notice and comment, explaining that any delay in implementing the provisions of Pub. L. 93-237 would be contrary to the public interest. 39 Fed. Reg. 7569 (1974). The publicity directions, but not the model news release, were later published in the Federal Register, id., at 7570, and the Code of Federal Regulations, 7 CFR § 1832.82(a) (1975). The District Court also directed the FmHA to give appropriate notice of the loan program. The Secretary concedes that compelling notice was within the remedial authority of the court if, in fact, adequate notice had not been given previously. The issue is, in any event, moot since all members of respondent class now clearly have notice of the provisions of Pub. L. 93-237. The Secretary has abandoned his claim that the statute itself expressly disabled the Secretary from extending the deadline beyond April 2, 1974. See S. Conf. Rep. No. 93-363, p. 6 (1973) (describing Pub. L. No. 93-237 as requiring the Secretary to “extend” the “administratively set deadlin[e]” by 90 days). Because Payne had actual notice of the new loan program and actually applied for a loan, the Secretary argued in the Court of Appeals that Payne lacked standing to complain that the publicity was inadequate. The Court of Appeals granted a limited remand, and the District Court entered an amended final judgment naming as class representative another class member who allegedly had not received notice of the program. App. to Pet. for Cert. 46a-47a. Justice Stevens makes much of the fact that the new regulation was not issued until February 27, 1974, several weeks after Pub. L. 93-237 was signed into law. In his view, this delay violated the command of § 1832.3(a) to provide notice “immediately.” This reasoning is flawed in several respects. First, it entirely ignores our conclusion that, by its terms, § 1832.3 was simply inapplicable to the new loan program. Second, even if somehow applicable, § 1832.3 requires the State Director to provide “immediat[e]” notification to County Supervisors only after he himself has received notice from the “National Office”; and it is undisputed that the Secretary did not issue staff instructions until February 15, 1974. Finally, it is far from clear that a time lag of a mere few weeks between the enactment of a new law and the issuance of implementing regulations fails to qualify as “immediate” action within the meaning of the pertinent regulation. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
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. FEDERAL TRADE COMMISSION v. MINNEAPOLIS-HONEYWELL REGULATOR CO. No. 11. Argued October 15-16, 1952. Decided December 22, 1952. Acting Solicitor General Stern argued the cause for petitioner. With him on the brief were Acting Assistant Attorney General Clapp, Daniel M. Friedman, W. T. Kelley and Robert B. Dawkins. Albert R. Connelly argued the cause for respondent. With him on the brief was Will Freeman. Mr. Chief Justice Vinson delivered the opinion of the Court. The initial question in this case is one of jurisdiction— whether the petition for certiorari was filed within the period allowed by law. We hold that it was not. The cause grows out of a proceeding initiated by petitioner, the Federal Trade Commission, in 1943. At that time, the Commission issued a three-count complaint against respondent. Count I charged a violation of § 5 of the Federal Trade Commission Act; Count II charged a violation of § 3 of the Clayton Act; Count III dealt with an alleged violation of § 2 (a) of the Clayton Act as amended by the Robinson-Patman Act. A protracted administrative proceeding followed. The Commission finally determined against respondent on all three counts, and it issued a cease and desist order, in three parts, covering each of the three violations. Respondent petitioned the Court of Appeals for the Seventh Circuit to review and set aside this order. The Commission sought enforcement of all parts of its order in a cross-petition. Respondent abandoned completely its attack on Parts I and II of the order. In briefs and in oral argument, respondent made it clear that the legality of Part III was the only contested issue before the Court of Appeals. Neither party briefed or argued any question arising out of Parts I and II. On July 5, 1951, the Court of Appeals announced its decision. The opinion stated that since respondent did not “challenge Parts I and II of the order based on the first two counts of the complaint we shall make no further reference to them.” The court then went .on to hold that Part III of petitioner’s order could not be sustained by substantial evidence and should be reversed. 191 F. 2d 786. On the same day, the court entered its judgment, the pertinent portion reading as follows: “. . . it is ordered and adjudged by this Court that Part III of the decision of the Federal Trade Commission entered in this cause on January 14, 1948, be, and the same is hereby, Reversed, and Count III of the complaint upon which it is based be, and the same is hereby Dismissed.” The Court of Appeals requires petitions for rehearing to be filed “within 15 days after entry of judgment.” The Commission filed no such petition. On August 21, 1951, long after the expiration of this 15-day period, and after a certified copy of said judgment, in lieu of mandate, was issued, the Commission filed a memorandum with the court which reads in part as follows: “On July 5, 1951 the Court entered its opinion and judgment reversing Part III of the decision of the Federal Trade Commission dated January 14, 1948 and dismissing Count III of the complaint upon which it is based. No disposition has been made of the Cross-Petition filed by the Commission for affirmance and enforcement of the entire decision. The Commission takes the position that its Cross-Petition should be in part sustained, i. e., to the extent that the Court should make and enter herein a decree affirming Parts I and II of the Commission’s order to cease and desist and commanding Minneapolis-Honeywell Regulator Company to obey the same and comply therewith. . . . “11. In its briefs filed herein the petitioner abandoned its attack upon Parts I and II of the order and challenged only the validity of Part III of the order (see page 1 of petitioner’s brief dated March 15, 1951). Thus, petitioner concedes the validity of Parts I and II of the order and does not contest the prayer of the Commission’s Cross-Petition and brief with respect to the affirmance and enforcement of Parts I and II of the order.” Clearly, by this memorandum the Commission sought no alteration of the judgment relative to Part III; in fact, it acknowledged the entry of judgment reversing Part III on July 5, 1951. It did not even claim it to be a petition for rehearing. It was submitted that Parts I and II of the order were uncontested, and “In conclusion . . . submitted that the Court should make and enter ... a decree affirming and enforcing Parts I and II of the Commission’s order to cease and desist.” On September 18, 1951, the Court of Appeals issued what it called its “Final Decree.” Again the court “ordered, adjudged and decreed” that Part III of the Commission’s order “is hereby reversed and Count III of the complaint upon which it is based be and the same is hereby dismissed.” The court then went on to affirm Parts I and II, and it entered a judgment providing for their enforcement, after reciting again that there was no contest over this phase of the order. On December 14, 1951, the Commission filed its petition for certiorari. Obviously, the petition was out of time unless the ninety-day filing period began to run anew from the second judgment entered on September 18, 1951. In our order granting certiorari, 342 U. S. 940, we asked counsel to discuss the “timeliness of the application for the writ.” Petitioner refers us to cases which have held that when a court considers on its merits an untimely petition for. a rehearing, or an untimely motion to amend matters of substance in a judgment, the time for appeal may begin to run anew from the date on which the court disposed of the untimely application. Petitioner apparently would equate its memorandum of August 21, 1951, with an untimely petition for a rehearing affecting Part III. But certainly its language and every inference therein is to the contrary. When petitioner filed its memorandum, the time for seeking a rehearing had long since expired. Moreover, the memorandum was labeled neither as a petition for a rehearing nor as a motion to amend the previous judgment, and in no manner did it purport to seek such relief. On the contrary, the Commission indicated that it was quite content to let the Court of Appeals’ decision of July 5 stand undisturbed. Since we cannot treat the memorandum of August 21 as petitioner would have us treat it, we cannot hold that the time for filing a petition for certiorari was enlarged simply because this paper may have prompted the court below to take some further action which had no effect on the merits of the decision that we are now asked to review in the petition for certiorari. Petitioner tells us that the application must be deemed to be in time because “when a court actually changes its judgment, the time to appeal or petition begins to run anew irrespective of whether a petition for rehearing has been filed.” We think petitioner’s interpretation of our decisions is too liberal. While it may be true that the Court of Appeals had the power to supersede the judgment of July 5 with a new one,, it is also true, as that court itself has recognized, that the time within which a losing party must seek review cannot be enlarged just because the lower court in its discretion thinks it should be enlarged. Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality. The judgment of September 18, which petitioner now seeks to have us review, does not meet this test. It reiterated, without change, everything which had been decided on July 5. Since the one controversy between the parties related only to the matters which had been adjudicated on July 5, we cannot ascribe any significance, as far as timeliness is concerned, to the later judgment. Petitioner puts great emphasis on the fact that the judgment of September 18 was labeled a “Final Decree” by the Court of Appeals, whereas the word “Final” was missing from the judgment entered on July 5. But we think the question of whether the time for petitioning for certiorari was to be enlarged cannot turn on the adjective which the court below chose to use in the caption of its second judgment. Indeed, the judgment of July 5 was for all purposes final. It put to rest the questions which the parties had litigated in the Court of Appeals. It was neither “tentative, informal nor incomplete.” Consequently, we cannot accept the Commission's view that a decision against it on the time question will constitute an invitation to other litigants to seek piecemeal review in this Court in the future. Thus, while we do not mean to encourage applications for piecemeal review by today’s decision, we do mean to encourage applicants to this Court to take heed of another principle — the principle that litigation must at some definite point be brought to an' end. It is a principle reflected in the statutes which limit our appellate jurisdiction to those cases where review is sought within a prescribed period. Those statutes are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review. Accordingly, the writ of certiorari is Dismissed. 28 U. S. C. §2101 (e). 38 Stat. 719, 15 U. S. C. § 45. 38 Stat. 731, 15 ü. S. C. §14. 38 Stat. 730, as amended, 49 Stat. 1526, 15 U. S. C. § 13 (a). Pfister v. Finance Corp., 317 U. S. 144, 149 (1942); Bowman v. Loperena, 311 U. S. 262, 266 (1940); Wayne United Gas Co. v. Owens-Illinois Co., 300 U. S. 131, 137-138 (1937). Brief for petitioner, p. 43. 28 U. S. C. §452; see Zimmern v. United States, 298 U. S. 167 (1936). See Fine v. Paramount Pictures, 181 F. 2d 300, 304 (1950). Department of Banking v. Pink, 317 U. S. 264 (1942); Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399 (1923); Credit Co., Ltd. v. Arkansas Central R. Co., 128 U. S. 258 (1888). See Zimmern v. United States, 298 U. S. 167, 169 (1936); compare Department of Banking v. Pink, supra. Compare Federal Power Commission v. Idaho Power Co., 344 U. S. 17 (1952). Compare Rubber Co. v. Goodyear, 6 Wall. 153 (1868) (appeal allowed from a second decree, restating most provisions of the first because the first decree, at the time of entry, was only regarded by the parties and the court as tentative); Memphis v. Brown, 94 U. S. 715 (1877) (appeal allowed from second judgment on the ground that the second made material changes in the first). See United States v. Hark, 320 U. S. 531, 533-534 (1944); Hill v. Hawes, 320 U. S. 520, 523 (1944). The suggestion is made that the September 18 judgment injected a new controversy into the litigation — the question of whether the Court of Appeals had the power to affirm and enforce the Commission’s order after it had cross-petitioned for such relief. Cf. Federal Trade Commission v. Ruberoid Co., 343 U. S. 470 (1952). But if the respondent had sought to contest that issue, it could have done so from the start, by raising objections to enforcement of all parts of the Commission’s cross-petition. Instead, respondent refused to contest these'parts of the Commission’s order. Having done so, it removed the question involved in the Ruberoid case from this case. See Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 514 (1950). See Matton Steamboat Co. v. Murphy, 319 U. S. 412, 415 (1943). 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_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 RURE ASSOCIATES, INC., Plaintiff-Appellant, v. DiNARDI CONSTRUCTION CORP., Hartford Accident and Indemnity Company, and the Board of Education of Bay Shore Union Free School District, Defendants, Hartford Accident and Indemnity Company, and the Board of Education of Bay Shore Union Free School District, Defendants-Appellees. No. 227, Docket 90-7399. United States Court of Appeals, Second Circuit. Argued Oct. 3, 1990. Decided Nov. 5, 1990. Gordon P.R. Posner, Mineóla, N.Y. (Steven G. Rubin, Mineóla, N.Y., of counsel) for plaintiff-appellant Rure Associates, Inc. Daniel Greenberg, Northport, N.Y. (Mark S. Kosak, Ingerman, Smith, Green-berg, Gross, Richmond, Heidelberger & Reich, Northport, N.Y., of counsel) for defendant-appellee the Board of Edue. of Bay Shore Union Free School Dist. Joseph D. Stim, Huntington, N.Y. (Stim & Warmuth, Huntington, N.Y.) for defendant-appellee Hartford Accident and Indent. Co. Before CARDAMONE, Circuit Judge, and POLLACK, Senior District Judge., Honorable Milton Pollack, Senior United States District Judge for the Southern District of New York, sitting by designation. The third member of the panel, Honorable Roger J. Miner, recused himself after oral argument. MILTON POLLACK, Senior District Judge. In this diversity case, Plaintiff Rure Associates, Inc. (“Rure”), a subcontractor, appeals from two partial summary judgments against it rendered in the Eastern District of New York, which (1) dismissed as untimely its complaints asserting a mechanic’s lien and a claim of an assumption of liability made against Defendant Board of Education of Bay Shore Union Free School District (“School District”), and (2) dismissed as untimely its claims under a payment bond issued to the contractor by Defendant Hartford Accident and Indemnity Company (“Hartford”). For the reasons appearing hereinafter, the judgments below exonerating defendants from direct personal liability are affirmed and the judgment dismissing the mechanic’s lien against the property of the School District is reversed and that claim is remanded. Background Defendant DiNardi Construction Corp. (“DiNardi”) entered into a primary contract with the School District for alterations to Bay Shore High School. Hartford supplied a labor and material payment bond for the project under which DiNardi, the contractor, was principal. In July 1984 Rure entered into a subcontract with DiNardi to provide aluminum doors and windows under DiNardi’s primary contract with the School District. The subcontract was fixed in the amount of $853,271.00. In March 1986, the School District discharged DiNardi because of alleged poor workmanship. Rure allegedly performed $681,641.00 worth of its work until DiNardi was terminated. As a result of the termination, DiNardi allegedly breached the subcontract with Rure; Rure claims it is owed $182,-141.27. Subsequent to DiNardi’s discharge, the School District undertook to have the project completed by another contractor. Before thirty days had elapsed after the completion and acceptance of the project, Rure asserted its direct claims and mechanic’s lien for work performed. Rure’s first claim is against DiNardi for breach of the subcontract (this is not in controversy on this appeal). Rure’s second claim is against Hartford under the payment bond issued to the contractor. Rure’s third claim is on a mechanic’s lien on the public improvement project of the School District. Rure’s fourth claim asserts that the payment bond of Hartford covers the mechanic’s lien filed against the School District. Rure’s fifth claim asserts a direct claim for nonpayment against the School District under the theory that the School District assumed DiNardi’s liabilities and obligations, including liability for the work Rure had completed. The School District moved to dismiss Rure’s third and fifth claims against it and Hartford moved to dismiss the second and fourth claims against it. By order dated April 4, 1989, the district court converted all motions to motions for summary judgment. The District Court’s Decision Fifth Claim The district court dismissed the subcontractor’s direct claim against the School District for untimeliness in the filing of the notice of its claim. N.Y. Education Law § 3813 (McKinney 1981) requires that a notice of claim be filed with the School District “within three months after the accrual of such claim.” The district court held that Rure’s claim accrued when DiNardi was discharged on March 24, 1986, rather than when the project was completed by the subsequent contractor. The notice of the subcontractor’s direct claim, filed more than two years after termination of the original contractor on June 22, 1988, was therefore held to be untimely. Third Claim The district court dismissed the mechanic’s lien against the School District on the ground that Rure could not maintain a mechanic’s lien action against the School District unless it had a direct claim against the School District or alternatively on the ground that the mechanic’s lien was untimely filed under N.Y. Lien Law. Second and Fourth Claims The district court dismissed the direct claims against Hartford under the payment bond on the ground that the action was untimely commenced. Under Paragraph 3(b) of the payment bond furnished to the contractor, Rure was obliged to commence his action against Hartford within one year “following the date on which the Principal ceased work on said CONTRACT,____” (emphasis in original), and Rure failed to meet this time limitation. Discussion Fifth Claim — Direct Claim Against the School District N.Y. Education Law § 3813 requires a claimant to file a notice of claim so as to afford a school district an opportunity to investigate a claim against it. Board of Education of Enlarged Ogdensburg City School District v. Wager Construction Corp., 37 N.Y.2d 283, 290, 372 N.Y.S.2d 45, 49, 333 N.E.2d 353 (1975). Section 3813 requires that such notice be filed by a claimant with the School District, “within three months after the accrual of such claim.” The district court ruled that “any claim subcontractor-Rure possessed against the School District accrued at latest on March 24, 1986 [when the subcontractor left the jobsite subsequent to DiNardi’s termination on March 14, 1986].” Rure contends that his claim against the School District accrued when the project was fully completed by the second primary contractor. In order for Rure to pursue a direct action against the School District, Rure posed two mutually exclusive alternatives: (1) that the School District stands in the shoes of DiNardi under a theory that the School District assumed the liabilities and obligations of DiNardi; or (2) that Rure stands in the shoes of DiNardi through a derivative claim. The validity of the chosen alternative depends upon the establishment of both (a) timeliness and (b) assumption of status. Under the first alternative, Rure’s claim is time-barred. A claim accrues when damages are ascertainable. Acme Skillman Construction Corp. v. Board of Education of New York, 106 A.D.2d 533, 533, 483 N.Y.S.2d 357, 358 (N.Y.App.Div.1984), appeal denied, 65 N.Y.2d 609, 494 N.Y.S.2d 1029, 484 N.E.2d 672 (1985). Rure’s damages against DiNardi became ascertainable when Rure left the jobsite on March 24, 1986; consequently, its notice of claim filed on June 22, 1988 was untimely. Since timeliness was not established, we need not reach the issue whether there was an assumption of DiNardi’s contractual obligations by the School District. With respect to the derivative claim, Rure does not cite any authority supporting such an argument; it failed to support this alternative as a theory on which a direct claim may be pursued. For the above stated reasons, we affirm the district court’s decision dismissing Rure’s fifth claim against the School District. Third Claim — the Mechanic’s Lien Claim Under New York law, a subcontractor must establish that there is money due to a general contractor from an owner based on a primary contract, for the subcontractor to recover under a mechanic’s lien against the owner. Brainard v. County of Kings, 155 N.Y. 538, 544-45, 50 N.E. 263, 264-65 (1898); Van Clief v. Van Vechten, 130 N.Y. 571, 577, 29 N.E. 1017, 1018 (1892); Falco Construction Corp. v. P & F Trucking, Inc., 158 A.D.2d 510, 551 N.Y.S.2d 273, 274 (N.Y.App.Div.1990); Bunce v. Fahey, 73 A.D.2d 632, 632, 423 N.Y.S.2d 58, 59 (N.Y.App.Div.1979); Lorber v. Eskof Real Estate, Inc., 21 Misc.2d 308, 311, 194 N.Y. S.2d 766, 769 (N.Y.Sup.Ct.1959). Although there is a contrary allegation in the brief of the School District, for the purpose of an appeal of a summary judgment against Rure, we must assume the facts Rure alleged in its complaint, i.e., that the School District owed DiNardi at least $182,141.27. The district court held that the existence of a direct claim against the School District is a prerequisite to foreclosure of a valid mechanic’s lien. This is not a correct statement of New York law. Under New York law, a subcontractor can proceed on a mechanic’s lien if there is money due and owing to the general contractor under the primary contract regardless of the existence of contractual privity between subcontractor and the owner. Rainbow Electric Co. v. Bloom, 132 A.D.2d 539, 517 N.Y.S.2d 273 (N.Y.App.Div.1987) (Electrical subcontractor was entitled to recover on its mechanic’s lien against owners despite absence of contractual privity.); Hartman v. Travis, 81 A.D.2d 692, 693, 438 N.Y.S.2d 633, 634 (N.Y.App.Div.1981) (Under Lien Law § 3, governing mechanics’ liens on real property, resort to a mechanic’s lien is permitted absent any contractual privity.). However, consent of the owner for the performance of the labor or the furnishing of materials by the subcontractor is necessary to proceed on a mechanic’s lien. N.Y. Lien Law § 3 (McKinney Supp.1990). Consent can be implied. Where the circumstances are such that an owner may be said to have consented so far as the contractor is concerned, the owner is deemed also to have consented to the furnishing of labor and materials to the contractor with the latter’s consent. See Wheeler v. Scofield, 67 N.Y. 311, 314 (1876). The parties do not argue whether there was or was not a consent. The district court also erred in holding that Rure did not timely file a notice of mechanic’s lien pursuant to New York State Lien Law. The court held that the “question of whether the notice of the mechanics’ lien was filed properly is irrelevant. As discussed above [referring to the section of the opinion discussing Education Law § 3813], Rure cannot maintain an action against the School District for the monies it is allegedly owed.” It therefore appears that the district court believed that the provisions of the Education Law somehow restrained Rure’s exercise of its rights under the Lien Law. The two statutes are addressed to entirely different policies. The Lien Law, which was enacted in 1909, protects small firms and their laborers against nonpayment for their services, and provides a direct cause of action against the property upon which the services were rendered. The Education Law, on the other hand, was intended to protect school districts by giving them definite and ascertainable notice of claims against them. The passage of the Education Law in 1947 cannot be said to have restricted a subcontractor’s rights under the Lien Law. While § 3813 provides that “[n]o action or special proceeding, for any cause whatever ... relating to district property or property of schools ... or claim against the district or any such school, or involving the rights or interests of any district or any such school” shall be prosecuted unless the plaintiff has given notice of his claim within three months of its accrual, we do not interpret the term “claim” to include mechanics’ liens. Mechanics’ liens are filed against property, not school districts. They are not therefore the sort of tort or contract claim to which § 3813 was addressed. The policies of neither statutes are frustrated by this construction. The Lien Law allows a subcontractor thirty days from the acceptance of a project to file a lien, and the School District is able to have definite and ascertainable notice of the lien within thirty days after any construction project is completed and accepted. Cf. Newburgh Nursery, Inc. v. Board of Education of Central School District No. 2, 41 Misc.2d 997, 247 N.Y.S.2d 74 (N.Y.Sup.Ct.1964) (compliance with § 3813 is not a prerequisite to commencement of action to foreclose a mechanic’s lien on public improvements, and notice under § 3813 is not required in addition to notice of lien). N.Y.Lien Law § 12 (McKinney Supp.1990) states in relevant part that a notice of a mechanic’s lien on public improvement has to be filed “within thirty days after [the] completion and acceptance” of the work by the state or by the public corporation. There is a dispute as to when and if “completion” of the work occurred. The School District argues that for the purpose of § 12, the thirty-day period began to run from the date DiNardi was discharged. In Bader v. City of New York, 51 Misc. 358, 101 N.Y.S. 351 (N.Y. Sup.Ct.1906), however, under facts similar to the present case, the court concluded that where the contractor for a public improvement abandoned the contract and it was completed by the city through another contractor at the expense of the original contractor, the thirty-day period for the filing of a notice of lien by a subcontractor for work under contract with the original contractor began to run from the completion of the work by the city and not from the time of the abandonment by the original contractor. 51 Misc. at 360-61, 101 N.Y.S. at 353. This is precisely the situation in the present case wherein the School District hired another contractor to complete the work and has attempted to charge back to DiNardi an alleged overrun to complete. Moreover, under the primary contract, the amount of money due to DiNardi from the School District to which Rure’s mechanic’s lien claim attaches cannot be ascertained until the completion of the work. Under Article 14.2.1 of the primary contract, if a contractor (DiNardi) is terminated for cause the contractor may be entitled to further payment, but not “until the Work is finished.” (emphasis in original). Indeed, under Article 14.2.2, the work must be finished in order to determine if the contractor even has a claim, for the contractor is only entitled to the unpaid balance of the contract less the cost to the School District of finishing the work. The School District cites Ferran Concrete Co. v. Avon Electrical Supplies Corp., 128 A.D.2d 527, 512 N.Y.S.2d 459 (N.Y.App.Div.1987), claiming it overruled Bader. However, Ferran is a different case. In that case, the owner terminated the contract for its own convenience and the project ceased entirely on that date. The court in Ferran merely ruled that since the work on the project had ceased, the public improvement was completed within the meaning of Lien Law § 12. In Ferran, the money due to the contractor became ascertainable on the date of the termination. Consequently, we reverse the district court’s decision discharging of record the alleged lien and dismissing Rure’s third claim thereon and remand that claim for further proceedings in accordance with this opinion. Second and Fourth Claims — Claims on the Payment Bond Paragraph 3(b) of the payment bond in favor of the contractor states in relevant part that “[n]o action shall be commenced hereunder by any claimant ... [ajfter the expiration of one (1) year following the date on which Principal ceased work on said CONTRACT.” (emphasis in original). The district court held that DiNardi, the principal under the payment bond, was terminated in March 1986 and subsequent to that date neither DiNardi nor Rure performed any further work under the contract, so no action could be commenced after the expiration of one year following that date. Thus, Rure’s filing of its notice of claim against Hartford on September 28, 1988 came too late. Trying to defeat the plain language of the payment bond, Rure argues that, by undertaking to complete the construction work, the School District stands in the shoes of DiNardi, the principal. Rure relies heavily on a single case, Wilson v. Moon, 240 A.D. 440, 270 N.Y.S. 859 (N.Y.App.Div.), aff'd, 265 N.Y. 640, 193 N.E. 423 (1934) in which the court held that the contractor’s surety, upon taking over of the contract for construction after contractor’s default, stood in the contractor’s shoes, so that all moneys earned by the surety in completing the primary contract were subject to claims of laborers and materialmen, regardless of whether cost of completion was greater than the amount received from the Board of Education. Rure contends that the present case parallels this situation and consequently that the School District stands in DiNardi’s shoes. The situations, however, are not parallel at all. First, unlike Wilson, here the primary contract was formally terminated. Second, unlike the surety in Wilson, the School District did not promise to assume an obligation to pay lienable claims of laborers and materialmen. Third, what Rure is asserting is that the School District stands on both sides of the primary contract and must pay money to itself to which the subcontractor’s claim attaches. Rure also argues, citing Paragraph 4 of the payment bond, that the payment bond covers mechanics’ liens and that if a mechanic’s lien is filed within the time limitation for liens; then the contractual bond limitation does not control. Paragraph 4 of the bond states: The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanics’ liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. However, this provision is solely for the benefit of Hartford. It permits reduction under the bond, if Hartford elects to pay a mechanic’s lien, even though the lienor did not present it as a claim against the bond and even though Hartford is not obligated to pay it. It does not set an exception to Paragraph 3(b) with respect to a mechanic’s lien. Finally, Rure’s contention, that the date when payment under a claimant’s subcontract becomes due has been liberally construed, is totally off the point. The issue here is not the date when payment under the subcontract becomes due but when the “Principal ceased work on said CONTRACT.” We accordingly affirm the district court’s decision dismissing Rure’s second and fourth claims against Hartford. Affirmed in part, and reversed and remanded IN PART. . The reasoning for the district court’s holding was: “Rure cannot maintain an action against the School District for the monies it is allegedly owed [because it was not timely filed]. Without a direct cause of action, Rure may not maintain a mechanics' lien against the School District. See New York State Lien Law § 21(7).’’ N.Y.Lien Law § 21(7) (McKinney 1966) states in relevant part: Where it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed, or where the notice of lien is invalid by reason of failure to comply with the provisions of section twelve of this article, or where it appears from the public records that such notice has not been filed in accordance with the provisions of section twelve of this article, the contractor or any other party in interest, may apply to the supreme court of this state, or to any justice thereof, or to the county judge of the county in which the notice of lien is filed, for an order summarily discharging of record the alleged lien____ The application must be made upon a verified petition accompanied by other written proof showing a proper case therefor, and upon the approval of the application by the court, justice or judge, an order shall be made discharging the alleged lien of record. (emphasis added.) . Rure argued the first alternative in its appeal brief. Rure, however, argues in its reply brief that since its direct cause of action against the School District is derived from DiNardi’s claim against the School District for the money due and owing under the primary contract, its alleged direct claim against the School District will only become ascertainable when DiNardi’s claim against the School District becomes ascertainable. According to Article 14.2.1 of the primary contract (Joint Appendix p. 124) which states in relevant part that no payment is due from the School District "until the Work is finished,” the alleged DiNardi claim accrues when the work is completed. Therefore, Rure argues, the three-month period began to run from the date the work was completed by the School District and thus it did timely file its claim. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. SAINT FRANCIS COLLEGE et al. v. AL-KHAZRAJI, aka ALLAN No. 85-2169. Argued February 25, 1987 Decided May 18, 1987 White, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, post, p. 614. Nick S. Fisfis argued the cause and filed a brief for petitioners. Caroline Mitchell argued the cause for respondent. With her on the brief were Julius LeVonne Chambers and Eric Schnapper . Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Ameriean-Arab Anti-Discrimination Committee by James G. Abourezk; for the Anti-Defamation League of B’nai B’rith et al. by Gregg H. Levy, Mitchell F. Dolin, Meyer Eisenberg, David Brody, Edward N. heavy, Steven M. Freeman, Jill L. Kahn, Robert S. Rifkind, Samuel Rabinove, Richard T. Foltin, Eileen Kaufman, Harold R. Tyler, James Robertson, Norman Redlich, William L. Robinson, Judith A. Winston, Joseph A. Morris, and Grover G. Hankins; and for the Mexican American Legal Defense and Educational Fund et al. by Barry Sullivan, William D. Snapp, Antonia Hernandez, E. Richard Larson, and Kenneth Kimerling. Justice White delivered the opinion of the Court. Respondent, a citizen of the United States born in Iraq, was an associate professor at St. Francis College, one of the petitioners here. In January 1978, he applied for tenure; the Board of Trustees denied his request on February 23, 1978. He accepted a 1-year, nonrenewable contract and sought administrative reconsideration of the tenure decision, which was denied on February 6, 1979. He worked his last day at the college on May 26, 1979. In June 1979, he filed complaints with the Pennsylvania Human Relations Commission and the Equal Employment Opportunities Commission. The state agency dismissed his claim and the EEOC issued a right-to-sue letter on August 6, 1980. On October 30, 1980, respondent filed a pro se complaint in the District Court alleging a violation of Title VII of the Civil Rights Act of 1964 and claiming discrimination based on national origin, religion, and/or race. Amended complaints were filed, adding claims under 42 U. S. C. §§1981, 1983, 1985(3), 1986, and state law. The District Court dismissed the §§ 1986 and 1985(3) and Title VII claims as untimely but held that the §§ 1981 and 1983 claims were not barred by the Pennsylvania 6-year statute of limitations. The court at that time also ruled that because the complaint alleged denial of tenure because respondent was of the Arabian race, an action under § 1981 could be maintained. Defendants’ motion for summary judgment came up before a different judge, who construed the pleadings as asserting only discrimination on the basis of national origin and religion, which § 1981 did not cover. Even if racial discrimination was deemed to have been alleged, the District Court ruled that § 1981 does not reach claims of discrimination based on Arabian ancestry. The Court of Appeals rejected petitioners’ claim that the § 1981 claim had not been timely filed. Under the Court of Appeals’ holding in Goodman v. Lukens Steel Co., 777 F. 2d 113 (1985), that the Pennsylvania 2-year statute of limitations governed §1981 cases, respondent’s suit would have been barred. The Court of Appeals, however, relying on Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), held that Goodman should not be retroactively applied and that this suit was timely under its pre-Goodman cases which had borrowed the State’s 6-year statute. Reaching the merits, the Court of Appeals held that respondent had alleged discrimination based on race and that although under current racial classifications Arabs are Caucasians, respondent could maintain his § 1981 claim. Congress, when it passed what is now § 1981, had not limited its protections to those who today would be considered members of a race different from the race of the defendant. Rather, the legislative history of the section indicated that Congress intended to embrace “at the least, membership in a group that is ethnically and physiognomically distinctive.” 784 F. 2d 505, 517 (1986). Section 1981, “at a minimum,” reaches “discrimination directed against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” Ibid. Because respondent had not had full discovery and the record was not sufficient to determine whether he had been subjected to the sort of prejudice § 1981 would redress, respondent was to be given the opportunity to prove his case. We granted certiorari, 479 U. S. 812 (1986), limited to the statute of limitations issue and the question whether a person of Arabian ancestry was protected from racial discrimination under § 1981, and now affirm the judgment of the Court of Appeals. 1 — ( We agree with the Court of Appeals that respondent’s claim was not time barred. Wilson v. Garcia, 471 U. S. 261 (1985), required that in selecting the applicable state statute of limitations in § 1983 cases, the lower federal courts should choose the state statute applicable to other personal injury-torts. Thereafter, the Third Circuit in Goodman held that Wilson applies to § 1981 cases as well and that the Pennsylvania 2-year statute should apply. The Court of Appeals in this case, however, held that when respondent filed his suit, which was prior to Wilson v. Garcia, it was clearly established in the Third Circuit that a § 1981 plaintiff had six years to bring an action and that Goodman should not be applied retroactively to bar respondent’s suit. Insofar as what the prevailing law was in the Third Circuit, we have no reason to disagree with the Court of Appeals. Under controlling precedent in that Circuit, respondent had six years to file his suit, and it was filed well within that time. See 784 F. 2d, at 512-513. We also assume but do not decide that Wilson v. Garcia controls the selection of the applicable state statute of limitations in § 1981 cases. The Court of Appeals, however, correctly held that its decision in Goodman should not be retroactively applied to bar respondent’s action in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Durham Housing Authority, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). But Chevron Oil Co. v. Huson, supra, counsels against retroactive application of statute of limitations decisions in certain circumstances. There, the Court held that its decision specifying the applicable state statute of limitations should be applied only prospectively because it overruled clearly established Circuit precedent on which the complaining party was entitled to rely, because retroactive application would be inconsistent with the purpose of the underlying substantive statute, and because such application would be manifestly inequitable. The Court of Appeals found these same factors were present in this case and foreclosed retroactive application of its decision in Goodman. We perceive no good reason for not applying Chevron where Wilson has required a Court of Appeals to overrule its prior cases. Nor has petitioner persuaded us that there was any error in the application of Chevron in the circumstances existing in this case. II Section 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac-tions of every kind, and to no other.” Although § 1981 does not itself use the word “race,” the Court has construed the section to forbid all “racial” discrimination in the making of private as well as public contracts. Runyon v. McCrary, 427 U. S. 160, 168, 174-175 (1976). Petitioner college, although a private institution, was therefore subject to this statutory command. There is no disagreement among the parties on these propositions. The issue is whether respondent has alleged racial discrimination within the meaning of § 1981. Petitioners contend that respondent is a Caucasian and cannot allege the kind of discrimination § 1981 forbids. Con-cededly, McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 (1976), held that white persons could maintain a § 1981 suit; but that suit involved alleged discrimination against a white person in favor of a black, and petitioner submits that the section does not encompass claims of discrimination by one Caucasian against another. We are quite sure that the Court of Appeals properly rejected this position. Petitioner’s submission rests on the assumption that all those who might be deemed Caucasians today were thought to be of the same race when § 1981 became law in the 19th century; and it may be that a variety of ethnic groups, including Arabs, are now considered to be within the Caucasian race. The understanding of “race” in the 19th century, however, was different. Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law. In the middle years of the 19th century, dictionaries commonly referred to race as a “continued series of descendants from a parent who is called the stock,” N. Webster, An American Dictionary of the English Language 666' (New York 1830) (emphasis in original), “[t]he lineage of a family,” 2 N. Webster, A Dictionary of the English Language 411 (New Haven 1841), or “descendants of a common ancestor,” J. Donald, Chambers’ Etymological Dictionary of the English Language 415 (London 1871). The 1887 edition of Webster’s expanded the definition somewhat: “The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock.” N. Webster, Dictionary of the English Language 589 (W. Wheeler ed. 1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races, 8 The Century Dictionary and Cyclopedia 4926 (1911), or to race as involving divisions of mankind based upon different physical characteristics. Webster’s Collegiate Dictionary 794 (3d ed. 1916). Even so, modern dictionaries still include among the definitions of race “a family, tribe, people, or nation belonging to the same stock.” Webster’s Third New International Dictionary 1870 (1971); Webster’s Ninth New Collegiate Dictionary 969 (1986). Encyclopedias of the 19th century also described race in terms of ethnic groups, which is a narrower concept of race than petitioners urge. Encyclopedia Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews, 6 id., at 209. The 1863 version of the New American Cyclopaedia divided the Arabs into a number of subsidiary races, vol. 1, p. 739; represented the Hebrews as of the Semitic race, 9 id., at 27, and identified numerous other groups as constituting races, including Swedes, 15 id., at 216, Norwegians, 12 id., at 410, Germans, 8 id., at 200, Greeks, 8 id., at 438, Finns, 7 id., at 513, Italians, 9 id., at 644-645 (referring to mixture of different races), Spanish, 14 id., at 804, Mongolians, 11 id., at 651, Russians, 14 id., at 226, and the like. The Ninth edition of the Encyclopedia Britannica also referred to Arabs, vol. 2, p. 245 (1878), Jews, 13 id., at 685 (1881), and other ethnic groups such as Germans, 10 id., at 473 (1879), Hungarians, 12 id., at 365 (1880), and Greeks, 11 id., at 83 (1880), as separate races. These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that for the purposes of § 1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race. We would expect the legislative history of § 1981, which the Court held in Runyon v. McCrary had its source in the Civil Rights Act of 1866, 14 Stat. 27, as well as the Voting Rights Act of 1870, 16 Stat. 140, 144, to reflect this common understanding, which it surely does. The debates are replete with references to the Scandinavian races, Cong. Globe, 39th Cong., 1st Sess., 499 (1866) (remarks of Sen. Cowan), as well as the Chinese, id., at 523 (remarks of Sen. Davis), Latin, id., at 238 (remarks of Rep. Kasson during debate of home rule for the District of Columbia), Spanish, id., at 251 (remarks of Sen. Davis during debate of District of Columbia suffrage), and Anglo-Saxon races, id., at 542 (remarks of Rep. Dawson). Jews, ibid., Mexicans, see ibid, (remarks of Rep. Dawson), blacks, passim, and Mongolians, id., at 498 (remarks of Sen. Cowan), were similarly categorized. Gypsies were referred to as a race. Ibid, (remarks of Sen. Cowan). Likewise, the Germans: “Who will say that Ohio can pass a law enacting that no man of the German race . . . shall ever own any property in Ohio, or shall ever make a contract in Ohio, or ever inherit property in Ohio, or ever come into Ohio to live, or even to work? If Ohio may pass such a law, and exclude a German citizen . . . because he is of the German nationality or race, then may every other State do so.” Id., at 1294 (remarks of Sen. Shellabarger). There was a reference to the Caucasian race, but it appears to have been referring to people of European ancestry. Id., at 523 (remarks of Sen. Davis). The history of the 1870 Act reflects similar understanding of what groups Congress intended to protect from intentional discrimination. It is clear, for example, that the civil rights sections of the 1870 Act provided protection for immigrant groups such as the Chinese. This view was expressed in the Senate. Cong. Globe, 41st Cong., 2d Sess., 1536, 3658, 3808 (1870). In the' House, Representative Bingham described § 16 of the Act, part of the authority for § 1981, as declaring “that the States shall not hereafter discriminate against the immigrant from China and in favor of the immigrant from Prussia, nor against the immigrant from France and in favor of the immigrant from Ireland.” Id., at 3871. Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. The Court of Appeals was thus quite right in holding that § 1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection. If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was bora an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981. The judgment of the Court of Appeals is accordingly affirmed. It is so ordered. The § 1983 claim was dismissed for want of state action. The pendent state claims were also dismissed. The Court of Appeals thus rejected petitioners’ claim that respondent’s complaint alleged only national origin and religious discrimination, assertedly not reached by § 1981. The Court of Appeals also held that the individual members of the tenure committee were subject to liability under § 1981. The District Court was also to reconsider its dismissal of the pendent state claims. There is a common popular understanding that there are three major human races — Caucasoid, Mongoloid, and Negroid. Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature. S. Molnar, Human Variation (2d ed. 1983); S. Gould, The Mismeasure of Man (1981); M. Banton & J. Harwood, The Race Concept (1975); A. Montagu, Man’s Most Dangerous Myth (1974); A. Montagu, Statement on Race (3d ed. 1972); Science and the Concept of Race (M. Mead, T. Dobzhansky, E. Tobach, & R. Light eds. 1968); A. Montagu, The Concept of Race (1964); R. Benedict, Race and Racism (1942); Littlefield, Lieberman, & Reynolds, Redefining Race: The Potential Demise of a Concept in Physical Anthropology, 23 Current Anthropology 641 (1982); Biological Aspects of Race, 17 Int’l Soc. Sci. J. 71 (1965); Washburn, The Study of Race, 65 American Anthropologist 521 (1963). We note that under prior cases, discrimination by States on the basis of ancestry violates the Equal Protection Clause of the Fourteenth Amendment. Hernandez v. Texas, 347 U. S. 476, 479 (1954); Oyama v. California, 332 U. S. 633, 646 (1948); Hirabayashi v. United States, 320 U. S. 81, 100 (1943). See also Hurd v. Hodge, 334 U. S. 24, 32 (1948). Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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. Francis E. JACKSON, Appellant, v. UNITED STATES of America, Appellee. No. 18144. United States Court of Appeals District of Columbia Circuit. Argued Jan. 14, 1964. Decided Feb. 20, 1964. Mr. James E. Hogan, Washington, D. C. (appointed by this court), for appellant. Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee. Before Bazelon, Chief Judge, and Bastian and Burger, Circuit Judges. PER CURIAM. Appellant was convicted on three counts of violation of narcotics laws; three concurrent sentences were imposed. At trial the principal defense was that appellant was not guilty by reason of insanity. Various errors in the conduct of the trial are asserted and we find that they are without merit save as to one contention, i. e., the claim of undue intervention in the trial by the judge in a manner prejudicial to the defendant. The appellant’s brief of necessity takes utterances and questions of the trial judge out of context and there is no way to evaluate his claims of undue and prejudicial intervention except by an examination of the entire transcript of the trial, which we have done, in order to be sure that we “guard against the magnification on appeal of instances which were of little importance in their setting.” Even a close examination of a transcript cannot, as everyone experienced in litigation knows, truly reflect the trial itself. Sometimes a trial judge intercedes because of seeming inadequacy of examination or cross-examination of witnesses by counsel; sometimes to draw more information from reluctant witnesses or experts who are either inarticulate, less than candid or not adequately interrogated. This is permissible, of course. At best it is difficult on appellate review to appraise the impact of intervention by the presiding judge and determine whether his participation exceeded permissible bounds. However this transcript reveals what seem to us an inordinate number of instances of extensive ■examination and cross-examination of witnesses and comments by the court. Fairly read, no single comment or question, or line of questioning, can be regarded as prejudicial, but the cumulative impact of all the trial judge's activist participation could well have been prejudicial at the very least and could have led jurors to give undue weight to points treated by the judge. In this case the responses elicited by the judge were largely adverse to appellant. In itself this does not render the judicial intervention impermissible but in it were the ■seeds of tilting the balance against the .accused and casting the judge, in the eyes of some jurors, on the side of the prosecution. This risk is always present when a presiding judge undertakes ■to interrogate witnesses at length. If a trial judge has definite ideas as to what lines of inquiry ought to be pursued, he is free to call both counsel to the bench, •or in chambers and suggest what he ■wants done. That the judge may be able to examine witnesses more skillfully or •develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function. There are and can be no hard and fast rules as to how much questioning a judge may or should engage in because what would be appropriate in one setting would be otherwise in another. •One obvious general rule is that, since the judge is something more than a moderator, but always a neutral umpire, the interrogation of witnesses is ordinarily best left to counsel, who presumably have an intimate familiarity with the case. A presiding judge can control the trial without participating actively in examination of witnesses. In a non-jury case, as in an appellate court, needless or active interrogation by judges, although not always helpful, is rarely prejudicial. But in a jury case, a trial judge should exercise restraint and caution because of the possible prejudicial .consequences of the presider’s intervention. Cf. United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962). On the whole record we cannot say, with that degree of assurance required in a criminal case, that the activities of the trial judge may not have prejudiced the defendant, notwithstanding the strong evidence presented against him. Accordingly there must be a new trial. Reversed and remanded for a new trial. . Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942). 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_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Kent EARNHARDT, et al., Plaintiffs, Appellees, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellants. Kent EARNHARDT, Plaintiff, Appellant, v. The COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees. Nos. 84-1055, 84-1105. United States Court of Appeals, First Circuit. Argued June 7, 1984. Decided Sept. 17, 1984. Carlos V. Garcia Gutierrez, Santurce, P.R., for Kent Earnhardt, et al. Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., with whom Miguel A. Pagan, Deputy Sol. Gen., Dept, of Justice, San Juan, P.R., was on brief, for The Commonwealth of Puerto Rico, et al. Before BOWNES and BREYER, Circuit Judges, and DOYLE, Senior District Judge. Of the Western District of Wisconsin, sitting by designation. BOWNES, Circuit Judge. In this Title VII discriminatory discharge case, based on 42 U.S.C. § 2000e, plaintiff, Dr. Kent Earnhardt (Earnhardt), convinced the district court that his employment with the Commonwealth of Puerto Rico was terminated because of invidious national origin discrimination and the court awarded him his lost salary as damages. Defendant Commonwealth of Puerto Rico (Commonwealth) appeals, maintaining that the district court, 582 F.Supp. 25, erred in concluding the plaintiff was fired as a result of discriminatory animus. Plaintiff Earnhardt cross-appeals the denial of a Federal Rule of Civil Procedure 59(e) motion to amend the back pay judgment to include prejudgment interest and a liquidated sum for loss of fringe benefits. The court’s subsidiary findings of fact and its ultimate determination of liability are amply supported by the evidence. Because the findings rest on a strong evidentiary base, we rehearse only the factual highlights. Earnhardt, who was born in the continental United States, was hired by the Commonwealth of Puerto Rico Health Department (Department) by contract dated October 24, 1975. The decision to hire Earnhardt was made by Dr. Antonio Silva Iglecia (Silva), who at that time was Assistant Secretary of Health for the Family Planning Division. The contract, under which he was to work ninety-five hours per month, expired on June 30, 1976. Shortly before that date, the contract was renewed for an additional year. In September 1976, the new contract was amended to allow for prorated sick leave and vacation time. During his tenure with the Department, Earnhardt worked closely with Silva, preparing speeches and other policy statements. He represented Silva and the Department at an international conference on population and worked on various research projects. Earnhardt subsequently became subdirector of the Planning and Development Division under Sandra Quinones Lopez (Quinones) in July of 1976. Earnhardt’s contract was terminated later that year by a memorandum dated December 20, 1976, stating that clause 11 of the contract was the basis for the termination. Clause 11 provided that either party had the right to terminate the contract on thirty days’ notice, No reason was given to Earnhardt for the contract termination; Silva testified that he had invoked clause 11 so that the termination would not have to be justified by specific reasons. The district court found as follows. Earnhardt, the only continental American working in the Family Planning Program, was frequently reminded of this by being addressed as “gringo” by his supervisors and co-workers rather than by his name. He was criticized upon occasion for being “muy Americano” (“very American”). “There existed in the workplace a sense that ‘Americans’ were outsiders, and that Earnhardt was one of them.” Earnhardt’s supervisor, Silva, who signed the termination memorandum, was “overly sensitive to professional differences of opinion when they came from ‘Americans.’ ” This was evidenced by a memorandum couched in ethnic terms from Silva responding to a critique by a team of evaluators from the U.S. Department of Health, Education, and Welfare and by comments Silva made to Earnhardt. The Commonwealth contends that low productivity was the cause of Earnhardt’s termination rather than any discriminatory animus of his supervisors and co-workers. We agree with the district court that this profferred reason is not credible: “The overall impression we get from the memorandums submitted [into] evidence is that the plaintiff was a worker whose goal was to get on with his work and accomplish it in the most efficient manner possible.” The district court further found that some work rules were applied strictly and inflexibly to the plaintiff in contrast to the flexible application afforded Puerto Rican and Latin American employees in the Division. Moreover, defendant’s own evidence was inconsistent on the reason for the firing. Silva testified that the reason Earnhardt was fired at this particular time lay in the incumbent government’s desire to turn over to the incoming administration, to which it had lost the election, only the best employees in the division. Yet there is no evidence that any other employee was terminated, or, for that matter, even evaluated at this time. The district court found that Earnhardt’s discharge was in direct violation of a Puerto Rican law which forbids Commonwealth agencies from effectuating any change in the personnel status of any employee during the sixty days before and sixty days after a general election. See 3 L.P.R.A. § 1337; see also Ortiz v. Alcade de Aguadillo, 107 D.P.R. 819 (1978). It was during this sixty-day period that Earnhardt received his termination notice. Our review of the record convinces us that the district court’s findings were not only not clearly erroneous, but were clearly correct. We, therefore, turn to the plaintiff’s cross-appeal, which questions the summary denial of liquidated fringe benefits and prejudgment interest despite the judgment in his favor. Plaintiffs Cross-Appeal Earnhardt submitted a timely Rule 59(e) motion, Fed.R.Civ.P. 59(e), to amend the judgment to include within the back pay award prejudgment interest and liquidated fringe benefits, and to fix a sum certain as the amount of judgment. In his proposed findings and judgment submitted to the court after trial, Earnhardt had omitted these requests and petitioned solely for the value of his employment contract with the Commonwealth, at the rate of $850 per month, which was awarded him. Earnhardt’s 59(e) motion was denied. Where a district court rejects a motion to alter or amend a judgment, the standard of review is whether there was an abuse of discretion. Robinson v. Watts Detective Agency, 685 F.2d 729, 743 (1st Cir.1982). Although the district court gave no reason for the denial of the motion, it was not required to do so under the rules and we must assume that the motion received careful consideration. The determination of the amount of damages is, absent legal error, a matter for the finder of fact. It cannot be said that either prejudgment interest or an award for lost fringe benefits must, as a matter of law, be part of the damages awarded in a Title VII case. The question of whether they are necessary to make a plaintiff whole is within the discretion of the district court. This is especially so when the request for such an award comes as an afterthought by the plaintiff. The district court did not abuse its discretion in denying the Rule 59(e) motion. The judgment of the district court is affirmed in all respects. 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_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Plaintiff-Appellee, v. Frank C. MAROLDA, Defendant-Appellant. No. 80-1641. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 1981. Decided June 15, 1981. Allen Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bouchier & Fredkin, San Jose, Cal., for defendant-appellant. Peter D. Isakoff, Atty., Dept, of Justice, Washington, D. C., argued for plaintiff-appellee; William C. Bryson, Atty., Dept, of Justice, Washington, D. C., on brief. Before WRIGHT and CANBY, Circuit Judges, and TAKASUGI, District Judge. Of the Central District of California. EUGENE A. WRIGHT, Circuit Judge: I Marolda was convicted after trial by jury of embezzling from a labor union, 29 U.S.C. § 501(c). On his first appeal, he argued that: (1) the definition of the offense in instructions to the jury excluded statutory elements; (2) there was a prejudicial variance between the offense as set forth in the indictment and as defined in the instructions; and (3) the evidence was insufficient to support a conviction. We reversed, addressing only the second issue: We need not resolve the question of the statutory elements here because a prejudicial variance between the offense as charged in the indictment and that defined by the court’s instructions requires reversal. Should the government choose to retry Marolda, it will have to prove the offense as charged in the indictment. United States v. Marolda, 615 F.2d 867, 870 (9th Cir. 1980). One element found in the indictment and omitted from the instructions was that Marolda used a gasoline credit card “without benefit to [the Union].” Id. at 868 n.2. Our opinion made no mention of Marolda’s sufficiency of the evidence argument. When the case returned to district court, Marolda moved to dismiss on double jeopardy grounds, contending there had been insufficient evidence to prove an absence of union benefit. The court denied the motion for two reasons. First, it held that, because the conviction had been reversed for . trial error but not for evidentiary insufficiency, retrial would not subject Marolda to double jeopardy. Second, there had been sufficient evidence from which the jury could have inferred an absence of union benefit. II Marolda argues, and the government concedes, that, if the evidence was insufficient to support a conviction at the first trial, double jeopardy bars retrial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Bodey, 607 F.2d 265 (9th Cir. 1979). The “government must present sufficient evidence the first time to get a second chance.” Id. at 268. This is not a case in which the trial error leading to reversal may have prejudiced the prosecution. Cf. United States v. Harmon, 632 F.2d 812 (9th Cir. 1980) (per curiam) (reversal for erroneous admission of evidence). The government does not argue that additional evidence would have been presented, or that different trial strategy would have been pursued, had reversible error not been committed. III The law of the case is that the government had to prove lack of union benefit at the first trial. 615 F.2d at 870-72. In testing for sufficiency of the evidence, the question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A “mere modicum” of evidence, making the existence of an element of the crime slightly more probable than it would be without the evidence, by itself is not sufficient. Id. at 320, 99 S.Ct. at 2790. Marolda was installed as the president of a newly formed local in October 1975. There was evidence that the executive board adopted a policy of providing a fixed, monthly automobile allowance to its officers, and terminated the practice of charging purchases on credit cards. Marolda continued to use his credit card to purchase gasoline for approximately two years. During this time, he used the card to purchase gas for his wife’s and his brother’s cars, as well as his own. On several occasions he filled two tanks of gas in one day, and in one instance filled three tanks in two days. Executive board members testified that Marolda used his wife’s and brother’s cars on union business when his car was being repaired. They stated that he took many long trips on union business. Their testimony was not contradicted or impeached. After reviewing the entire record, we find no direct evidence that Marolda purchased gas for non-union purposes. Nor, in light of all the evidence, could this rationally be inferred beyond a reasonable doubt. We conclude that the evidence was insufficient. The motion to dismiss should have been granted. REVERSED. 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_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. RODESCH v. KIRKPATRICK COAL CO. No. 5239. Circuit Court o£ Appeals, Sixth Circuit. June 13, 1930. Canada, Williams & Russell, of Memphis, Tenn., for appellant. R. G. Brown, Abe D. Waldauer, and Chas. L. Glascock, all of Memphis, Tenn., for appellee. Before DENISON, KNAPPEN, and SI-MONS, Circuit Judges. PER CURIAM. Rodeseh, as purchaser, made an oral contract at Chicago1 with Fabbri, as agent for the Kirkpatrick Company, to buy from it a quantity of! coal. The terms were confirmed by Fabbri in a'letter sent from Chicago1 upon the letterhead of the Kirkpatrick Coal Company, which letterhead stated the business of the coal company, the location of the mines, and that the general offices were at Memphis, Tenn. It bore an overprint in red, “L. F. Fabbri, Manager, Chicago, HI.” The lettersheet also carried, at a considerable distance down the page, printed in capital letters in two- lines, certain restrictive provisions. The letter was in form as follows: “August 24, 1926. “Rodeseh Company, Dixon, Illinois. “Gentlemen:” “ALL ORDERS AND AGREEMENTS ARE CONTINGENT UPON STRIKES. CAR SUPPLY AND CONDITIONS UNAVOIDABLE OR BEYOND OUR CONTROL. QUOTATIONS AND AGREEMENTS NOT BINDING UNTIL ACCEPTED BY MEMPHIS OFFICE IN WRITING. ALL SALES ARE MADE STRICTLY F.O.B. CARS MINES AND ANY FREIGHT RATES QUOTED ARE FOR INFORMATION ONLY AND NOT GUARANTEED. “Attn. Mr. R. A. Rodeseh: “Confirming our conversation, ete.” • * * “[Signed] Kirkpatrick Coal Company, “L. F. Fabbri, Resident Mgr.” The only question needing decision is whether the provision that the prices and terms quoted should not be binding until confirmed by the Memphis office, is to be given effect. They were not so confirmed. In the action brought by Rodeseh in the court below to recover damages for the coal company’s refusal to fill the order, the court thought there was no completed contract, and directed a verdict for defendant. We approve this action. A line of eases holds that obscurely printed conditions upon a letterhead will not be read into a contract written thereon. B. F. Sturtevant Co. v. Fireproof Co., 216 N. Y. 199, 110 N. E. 440, L. R. A. 1916D, 1069. Another line of eases holds that such printed additions, if sufficiently prominent, must Be taken as a part of the contract. Poel v. Brunswick Co., 216 N. Y. 310, 322, 110 N. E. 619. We think this ease must be put in the latter class. The conditions are printed very legibly, although in small typo. They are in capital letters. They are so placed that they become physically a part of the letter itself. They follow the date and the salutation. It is not open to one who sends or receives such a letter to say that he skipped and did not read the matter which was thus plainly interposed, in the body of the letter. There is in this matter nothing inconsistent with the remainder of the letter. The fact that Fabbri, probably with the company’s consent, called himself “Resident Mgr.” does not imply authority to over-ride any one of the three restrictions found in this insertion. The judgment is affirmed. Note: The late Judge KNAPPBIN participated in the hearing and decision of this ease, hut did not see the opinion. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations CHAMPLIN REFINING CO. v. UNITED STATES et al. No. 21. Argued November 8, 9, 1945. — Reargued October 18, 21, 1946. Decided November 18, 1946. Dan Moody argued the cause for appellant on the original argument. With him on the briefs was Harry 0. Glasser. Both argued the cause on reargument. Edward Dumbauld argued the cause for the United States and the Interstate Commerce Commission, appel-lees. With him on the brief were Solicitor General Mc-Grath, Assistant Attorney General Berge, Daniel W. Knowlton and Nelson Thomas. Mr. Justice Jackson delivered the opinion of the Court. The Interstate Commerce Commission, acting under § 19 (a) of the Interstate Commerce Act, ordered the appellant to furnish certain inventories, schedules, maps and charts of its pipe line property. Champlin’s objections that the Act does not authorize the order, or if it be construed to do so is unconstitutional, were overruled by the Commission and again by the District Court which dismissed the company’s suit for an injunction. These questions of law are brought here by appeal. Judicial Code § 238, 28 U. S. C. § 345. Champlin owns and operates a line of six-inch pipe five hundred and sixteen miles in length lying in five states. Originating at Champlin’s Enid, Oklahoma refinery, it crosses Kansas, Nebraska, a part of South Dakota, and ends in Iowa. It is used only to convey the company’s own refinery products to its own terminal stations at Hutchinson, Kansas; Superior, Nebraska; and Rock Rapids, Iowa, at each of which the line connects with storage facilities from which deliveries are made. The statute, so far as relevant, says that it shall apply “to common carriers engaged in” “transportation of oil or other commodity” by pipe line from one state to another. It provides also that “common carrier” includes “all pipeline companies.” This language on its face would seem to cover the appellant’s operation. Champlin contends, however, that the “transportation” mentioned in the Act does not refer to the carriage of one’s -own goods. The District Court has found that Champlin is the sole owner of the products transported through its pipe line; it has never transported, offered to transport, or been asked to transport any products belonging to any other company or person; its pipe line does not connect with any other pipe line but only with storage tanks at the three terminal points; there are no facilities for putting any petroleum product into the line other than at the Enid refinery; delivery of the products at the three terminal points is made from Champlin’s storage tanks by means of truck racks or railroad tank car racks and is not made directly from the pipe line in any instance; no tariffs stating ‘ transportation charges have been filed with the Interstate Commerce Commission or with any state commission or regulatory body. Because of these facts the appellant suggests that the language and holding of this Court concerning the Uncle Sam Oil Company in The Pipe Line Cases, 234 U. S. 548, approved in Valvoline Oil Company v. United States, 308 U. S. 141, govern this case. The Uncle Sam Company operation is described as “simply drawing oil from its own wells across a state line to its own refinery for its own use, and that is all . . . .” The Pipe Line Cases, 234 U. S. 548, 562. The Court considered this was not “transportation” within the meaning of the Act. But we think it would expand the actual holding of that case to apply its conclusion to Champlin. The controlling fact under the statute is transporting commodities from state to state by pipe line. Admittedly Champlin is not a common carrier in the sense of the common law carrier for hire. However, the Act does not stop at this but goes on to say that its use of the term “common carrier” is to include all pipe line companies — a meaningless addition if it thereby included only what the term without more always had included. While Champlin technically is transporting its own oil, manufacturing processes have been completed; the oil is not being moved for Champlin’s own use. These interstate facilities are operated to put its finished products in the market in interstate commerce at the greatest economic advantage. Examination of Champlin’s pricing methods supports the view that appellant is engaged in transportation even though the products are still its own when moved. The District Court found that price at the terminal points includes f. o. b. price at the Enid refinery and an additional sum called a differential. The differential is the through railroad freight rate from Enid to the final destination (usually the purchaser’s place of business), less the carrying charges from the pipe line terminal to final destination. The District Court found, however, that competitive and other conditions “sometimes cause departures from the prices arrived at in accordance with the formula above described.” Appellant states that as to some deliveries “rail rates were used merely as a basis for calculating a delivered price, not as a charge for transportation.” Even so, and even though departures from the calculated differential are substantial and frequent, we think this practice points up a significant distinction'from the Uncle Sam case. We hold that Champlin’s operation is transportation within the meaning of the Act and that the statute supports the Commission’s order to furnish information. Appellant further contends that, as so construed, the Act exceeds the commerce power of Congress and violates the due process clause of the Fifth Amendment because, it is argued, this interpretation converts a private pipe line into a public utility and requires a private carrier to become a common carrier. But our conclusion rests on no such basis and affords no such implication. The power of Congress to regulate interstate commerce is not dependent on the technical common carrier status but is quite as extensive over a private carrier. This power has yet been invoked only to the extent of requiring Champlin to furnish certain information as to facilities being used in interstate marketing of its products. The commerce power is adequate to support this requirement whether appellant be considered a private carrier or a common carrier. • The contention that the statute as so construed violates the due process clause by imposing upon a private carrier the obligations of a conventional common carrier for hire is too premature and hypothetical to warrant consideration on this record. The appellant in its entire period of operation has never been asked to carry the products of another and may never be. So far, the Commission has made no order which changes the appellant’s obligations to-any other company or person. If it does, it will be timely to consider concrete requirements and their specific effects on appellant. At present, appellant is asked only to provide information about a subject within the power possessed by Congress and delegated to the Commission, and that cannot be considered a taking of property even if it arouses appellant’s premonitions. We hold that the order before us is authorized by statute and that in this respect the statute is within the commerce power and does not offend the Fifth Amendment. Affirmed. “. . . the commission shall . . . investigate, ascertain, and report the value of all the property owned or used by every common carrier subject to the provisions of this Act. . . . The commission shall make an inventory which shall list the property of every common carrier subject to the provisions of this Act in detail, and show the value thereof as hereinafter provided, and shall classify the physical property, as nearly as practicable, in conformity with the classification of expenditures for road and equipment, as prescribed by the Interstate Commerce Commission.” 37 Stat. 701, 49 U. S. C. § 19a. On May 15, 1941, the Interstate Commerce Commission, by letter addressed to the president of the Champlin Refining Company, requested that the company prepare and file with the Commission “a complete inventory of the pipe line property of the Champlin Refining Company, except land, showing the quantities, units, classes, kinds, and condition thereof.” The Commission enclosed with its letter copies of its Valuation Orders Nos. 26 and 27, with which the inventory was to comply. The Champlin company did not respond to the request in a manner satisfactory to the Commission, and on June 12, 1944, the Commission made the order of which the company here complains. It directed the company to comply with the provisions of Valuation Orders Nos. 26 and 27 within ninety days of the service of the order. In response to the Commission’s letter of May 15, 1941, the Champlin company filed with the Commission information and charts which it believed would satisfy the Commission’s request. The Commission, however, returned that report to the company, because in it the company had not recognized that it was a statutory common carrier and had not compiled the report from that viewpoint. The company then requested a hearing before the Commission to determine its status. On December 14, 1942, and on reargument, June 12, 1944, the Commission decided that appellant is a common carrier subject to the provisions of the Act. After the Commission had issued its supplementary order of June 12, 1944, appellant petitioned the district court for an injunction against the order. In accordance with §§ 46 and 47 of Title 28, U. S. C., the district judge convened a three judge court, which heard the case and dismissed appellant's petition. § 1. “(1) That the provisions of this Act shall apply to common carriers engaged in— “(b) The transportation of oil or other commodity ... by pipe line . . . from one State ... to any other State . . . “(3) (a) The term‘common carrier’as used in this Act shall include all pipe-line companies; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation as aforesaid as common carriers for hire.” 41 Stat. 474, as amended, 48 Stat. 1102, 49 U. S. C. § 1. The last words of § 1 (3) (a), “engaged in such transportation as aforesaid as common carriers for hire,” do “not affect the generality of the first clause as to pipe-line companies.” Valvoline Oil Co. v. United States, 308 U. S. 141, 146. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable 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. Gabriel Salgado FUENTES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 83-7662. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1985. Decided July 10, 1985. Teresa Bright, Redwood City, Cal., for petitioner. Dept, of Justice, Marshall Tamor Golding, Washington, D.C., for respondent. Before PREGERSON and FERGUSON, Circuit Judges, and GILLIAM, District Judge. The Honorable Earl B. Gilliam, United States District Judge for the Southern District of California, sitting by designation. FERGUSON, Circuit Judge: Gabriel Salgado Fuentes, a native and citizen of Mexico, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his motion to reopen his deportation proceedings. Petitioner Fuentes had unsuccessfully petitioned the BIA to reopen his deportation case so that he could apply for the exercise of the Attorney General’s discretionary authority to suspend deportation. See 8 U.S.C. § 1254(a)(1). We grant the petition so that the BIA can exercise its equitable discretion in a manner consistent with the facts explained below. I. Our task, like that of the BIA before us, is hampered by a less than plenary development of the factual record in this case. The primary reason for the inchoate state of the record lies in the procedure used by the Immigration and Naturalization Service (INS) in fulfilling its statutory duty to conduct a hearing on the petitioner’s immigration status. The petitioner was subjected to a “mass deportation” hearing, along with several of his co-workers, in which the immigration judge conceded that the simultaneous consideration of so many cases would inevitably cause difficulties for the development of the facts of an individual case. Piecing the record together as best we can, we can relate the following facts and issues. The petitioner, Gabriel Salgado Fuentes, is a twenty-seven-year-old male currently residing in California. Mr. Fuentes entered the United States without inspection in February 1974. A native and citizen of Mexico, Mr. Fuentes had been sent to the United States by his parents at the age of seventeen. Upon his arrival in the United States, Mr. Fuentes began working at the Ano Nuevo Ranch in Pes-cadero, California, as a farmworker. During the three years of his employment at Ano Nuevo Ranch, petitioner was paid wages of approximately $70 per week. In 1977, some three years after he began working at the Ano Nuevo Ranch, Mr. Fuentes joined thirteen of his co-workers at the ranch and filed suit against his employer for violation of the minimum wage laws. In retaliation, their employer reported Mr. Fuentes and other members of the group to the INS as deportable aliens. In other words, the petitioner’s deportation proceeding was proximately caused by his employer’s retaliation for filing a lawsuit seeking the protection of this country’s labor laws from his employer’s unfair labor practices. The record is silent as to the outcome of Mr. Fuentes’ labor lawsuit. The record does reflect, however, that the petitioner was released “on his own recognizance” after he was taken into custody in September 1977. In May 1980, the District Director of the INS “decided to go forward with the deportation hearing on the grounds that the [petitioner] had been given more than enough time to seek judicial resolution of his employment claim.” At the conclusion of the mass deportation hearing, the immigration judge found the petitioner deportable after the petitioner conceded deportability but sought the exercise of the Attorney General’s discretion to suspend deportation under 8 U.S.C. § 1254. The petitioner and the respondent disagree on what transpired at the hearing. According to the petitioner, the immigration judge informed petitioner’s former counsel that because of the aggregate nature of the proceedings and the burden this placed on a full presentation of the facts, the judge would grant any subsequently filed motions to reopen if supported by a showing of seven years' continuous presence. See 8 U.S.C. § 1254(a)(1) (permitting Attorney General to suspend deportation on showing of seven years’ continuous residence, good moral character, and extreme hardship from deportation); 8 C.F.R. 3.2 (establishing criteria for motions to reopen as presentation of material evidence establishing prima facie case based on new information not previously available). The petitioner also claims that the INS trial attorney accepted this procedure. The respondent denies that the immigration judge promised that because of the mass hearing he would grant future motions to reopen based solely on seven years’ residency. The INS contends that the immigration judge’s promises aimed at mitigating the harms associated with the truncated record of a mass deportation hearing are the subject of a second motion to reopen and therefore are not currently before this court. We agree that we cannot decide the factual dispute as to the promises made by the immigration judge or the INS trial attorney in this petition. Nonetheless, we recognize that any inducement offered to expedite the administrative hearing will have had an effect on the state of the administrative record. The immigration judge denied the motion to reopen because the petitioner allegedly had not met the seven-year residency requirement and “also ... for the reasons cited by the Government’s Attorney in their [sic] brief.” Decision of September 1, 1982. The petitioner appealed this decision. On appeal, the BIA declined to address the residency question and instead dismissed the appeal based on a lack of evidence on extreme hardship sufficient to establish “additional equities.” II. This case involves a reconciliation of competing legislative directives concerning the enforcement of our nation’s labor and immigration laws. On the one hand, Congress has enacted various labor laws to foster peace, security, and equal treatment in our nation’s labor force. See 29 U.S.C. § 151. As the Supreme Court recently noted, “If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining.” Sure-Tan, Inc. v. NLRB, — U.S.-, 104 S.Ct. 2803, 2809, 81 L.Ed.2d 732 (1984). Beyond question, the Attorney General is charged with the responsibility of insuring that the labor laws of this country are duly enforced in such a manner as to prevent the creation of this type of employee subclass. “If the [federal labor laws] were inapplicable to workers who are illegal aliens, we would leave helpless the very persons who most need protection from exploitative employer practices such as occurred in this case.” NLRB v. Apollo Tire Co., 604 F.2d 1180, 1184 (9th Cir.1979) (Kennedy, J., concurring). On the other hand, we are well aware of the magnitude of the Attorney General’s separate responsibility to enforce the immigration laws of this country. In keeping with the Constitution’s mandate that the executive branch “take Care that the Laws be faithfully executed,” art. II, § 3, the Attorney General must simultaneously enforce both the labor and immigration laws of this country. . On some occasions the demands of the labor laws may conflict with the dictates of the immigration laws. We have no doubt that, in many cases, fulfillment of this “dual responsibility,” see United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982), will prove a difficult task. The deportation of illegal aliens who have relied on our nation’s courts and labor laws places the Attorney General in the unenviable position of either advertently or inadvertently suborning the efforts of those who would violate the labor laws of this country. In addressing this latter petition for review of the denial of the motion to reopen, our inquiry is limited to the latter possibility. Moreover, the resolution of the Attorney General’s executive responsibilities regarding aliens may place the Attorney General in conflict with the executive duties of the Secretary of Labor regarding the enforcement of the labor laws of the United States. See 29 U.S.C. §§ 202, 216, 551. We are conscious of the narrow role ascribed to the federal judiciary in matters relating to the enforcement of this country’s immigration laws. We cannot sit in judgment of the Attorney General’s substantive exercise of his discretion in meeting the competing demands of the nation’s labor and immigration laws. If the Attorney General, or Congress, chooses to elevate the enforcement of one set of laws over another, we are in no position to interpose a “chancellor’s foot” veto. United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). In passing on a motion to reopen, the immigration judge and, in turn, the BIA must look to the proffered record to determine whether the petitioner has presented evidence which is both “material” and could not have been presented in the prior deportation hearing. 8 C.F.R. § 3.2. At oral argument, counsel for the INS conceded that if deportation proceedings were proximately caused by an employer’s retaliation for his employees’ report of illegal conduct by the employer, then this fact would be an important factor in the exercise of the Attorney General’s discretion in deportation proceedings. Stated more simply, this fact would be material to the immigration judge’s exercise of the discretion vested in him by delegation of the Attorney General. Counsel for the INS also acknowledged that the import of this material fact was never specifically addressed in either the deportation proceeding itself or in the consideration of the petitioner’s motion to reopen. The Supreme Court has recently acknowledged that the Attorney General’s discretion in considering a motion to reopen is broad enough to encompass factors not within the plain language of the immigration laws. See INS v. Rios-Pineda, — U.S.-,---, 105 S.Ct. 2098, 2101-2103, 85 L.Ed.2d 452, 53 U.S.L.W. 4537, 4538-39 (May 13, 1985). As the Court held in Rios-Pineda, the Attorney General has the discretion to consider factors such as the “flagrancy and nature” of the alien’s immigration violations among the many considerations that are properly weighed in the INS’s “legitimate concerns about the administration of the immigration laws.” Id. at-, 105 S.Ct. at 2103. This broad view of the discretion vested in the Attorney General and his delegates is consistent with the position taken by respondent’s counsel that the Attorney General has the discretion to consider an alien’s beneficial service to the laws of this country. We are also aware of another route available to the INS for the recognition of an alien’s service to the enforcement of the laws of this country. Under regulations promulgated by the INS, the pertinent INS District Director could place the petitioner’s case on deferred action status. More specifically, Operating Instruction 242.-l(a)(22) provides: The district director may, in his or her discretion, recommend consideration of deferred action, an act of administrative choice to give some cases lower priority and in no way an entitlement, in appropriate cases. The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. In making deferred action determinations, the following factors, among others, should be considered: (B) the presence of sympathetic factors which, while not legally precluding deportation, could lead to unduly protracted deportation proceedings, and which, because of a desire on the part of the administrative authorities or the courts to reach a favorable result, could result in a distortion of the law with unfavorable implications for future cases; (C) the likelihood that because of the sympathetic factors in the case, a large amount of adverse publicity will be generated which will result in a disproportionate amount of Service time being spent in responding to such publicity or justifying actions By its own terms, the Operating Instruction confers some measure of administrative discretion on the District Director to take into consideration factors that are not readily apparent in the statutory constellation of the immigration laws. Again, however, we recognize that the role of the courts in the review of this discretion is extremely limited. Nonetheless, the petitioner's effort to vindicate the labor laws of this country reveals a “substantial basis in the record upon which the district director could place' the petitioner in the deferred action category and thus allow him to remain in this country on humanitarian grounds.” In re Guerrero-Morales, 512 F.Supp. 1328, 1331 (D.Minn.1981). We need not speculate on the likely disposition of a deferred action request or on any subsequent role by this court in reviewing such disposition. Instead, we simply observe that the respondent has the discretion to consider the petitioner’s service in the form of a request for deferred action status. Accordingly, in remanding this case to the BIA to permit an informed exercise of the Attorney General’s administrative discretion, we also note the suitability of the petitioner’s case for consideration of deferred action status. CONCLUSION In order to permit the Attorney General to consider the import of the facts in this case, we will grant the petition and remand this case to the BIA “with instructions to reconsider the motion to reopen and to articulate the underlying reasons and basis for any rulings it makes.” Sida v. INS, 665 F.2d 851, 855 (9th Cir.1981). We reiterate, however, that we do so not because we consider ourselves empowered to sit in judgment on the ultimate exercise of the Attorney General’s discretionary decisions on this matter. We remand only to preclude the possibility that the Attorney General’s decision on this matter was inadvertent. For the reasons stated in the foregoing discussion, the petition for review is GRANTED and the cause is REMANDED to the BIA. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MANCHESTER NAT. BANK v. ROCHE, Trustee. No. 4536. United States Court of Appeals First Circuit. Feb. 1, 1951. Perkins Bass, Manchester, N. H. (William L. Phinney, Manchester, N. H., on the brief), for appellant. Charles J. Flynn, Nashua, N. H. (Robert E. Earley, Nashua, N. H., on the brief), for appellee. Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge. MAGRUDER, Chief Judge. This is an appeal from an order of the United States District Court for the District of New Hampshire, affirming an order of a referee in bankruptcy which denied a petition by Manchester National Bank that the trustee for the bankrupt estate of Standard Construction Company, Inc,, be directed to turn over to the said petitioner certain accounts receivable of the bankrupt corporation. On May 14, 1947, Manchester National Bank and Standard Construction Company-entered into a factor’s lien agreement covering the company’s inventory and accounts, receivable, under the provisions of C. 262-A, Rev.Laws of New Hampshire, as enacted in N.H.Laws 1943, C. 161, and amended by N.H.Laws 1949, C. 156. The text of a portion of § 1 of C. 262-A and of § S in full will be found in the footnote. On the same day the statutory prerequisites for the validation of the lien on inventory were fulfilled by the posting of notice and the recording prescribed in §§ 1 and 2 of the Act; and shortly thereafter a notice was pasted in the front of the accounts receivable ledger of the company stating that such accounts were assigned to Manchester National Bank. However, the referee found, and the finding is undisputed, that prior to November 1, 1948, no notice of assignment was given to any debtor in such accounts receivable. On or about November 1, 1948, the bank did instruct Standard Construction Company to stamp its invoices and statements with notice of the assignment. The company filed a voluntary petition in bankruptcy on January 25, 1949, and was later duly adjudged a bankrupt. In denying the bank’s petition for a turnover of the accounts receivable, the referee held (1) that the bank had failed to perfect a valid lien on such accounts prior to four months before the filing of the petition in bankruptcy, and that the belated notification of the assignment, given to debtors within the four-month period, was an attempted preference under § 60 of the Bankruptcy Act, 11 U.S.C.A. § 96; and (2) that the retention by the bankrupt of dominion over the accounts receivable and the proceeds thereof made the assignment voidable as a fraud on creditors within the doctrine of Benedict v. Ratner, 1925, 268 U.S. 353, 45 S.Ct. 566, 69 L.Ed. 991. The district court rested its affirmance of the referee’s order on the first ground taken by the referee, and did not consider the alternative. In determining whether the lien on the bankrupt’s accounts receivable had become perfected more than four months prior to January 25, 1949, we must of course look to the New Hampshire law, Benedict v. Ratner, supra; In re Robert Jenkins Corp., 1 Cir., 1927, 17 F.2d 555, and in particular to the somewhat obscure provisions of § 5 of C. 262-A, quoted above in the footnote. It is stated in appellant’s brief that the “sole question presented by this appeal is whether the statutory requirements of section 5 of the New Hampshire Factors Lien Act were met prior to the four month period as to certain of the bankrupt’s accounts receivable. If the answer is in the affirmative, the factors lien thereon was perfected before the four month period and there was no preference under section 60, sub. a, of the Bankruptcy Act”. In substance § 5 provides two alternative methods for effectuating the factor’s lien agreement with regard to accounts receivable: (1) By the giving of notice of the assignment to the account debtor, or (2) by making and delivering a “further or formal assignment” of the account. Since it is a fact that prior to November 1, 1948 no such notice of assignment was sent to the account debtors, it must follow that the lien was not perfected more than four months before bankruptcy unless the second statutory alternative was complied with, that is, unless Standard Construction Company made a “further or formal assignment” to the bank of the accounts now in question. Subsequent to the execution of the factor’s lien agreement on May 14, 1947, no instrument in the nature of an assignment of the accounts was ever executed by the bankrupt. But appellant contends that such “further or formal assignment” within the meaning of § 5 of the Act may be found in the terms of clause (3) of the factor’s lien agreement itself. The said clause (3) provided as follows: “The Borrower agrees to accept the advances made or to be made, on the said line of credit in accordance with the terms hereof, and agrees to sell, assign, transfer and pledge, and does hereby sell, assign, transfer and pledge to the Bank all of the merchandise, inventory and accounts receivable owned by it (described in Schedule A attached hereto), and also agrees to, and does hereby, sell, assign, transfer and pledge to the Bank any and all merchandise, inventory and accounts receivable of any kind, nature and description whatsoever that subsequently may be acquired by the Borrower, and whether or not resulting from the sale or other disposition of any of said merchandise, inventory and accounts receivable.” This clause does by its terms purport to be an agreement to assign and a general assignment in praesenti of all existing and future accounts receivable; and it is contended that, as each account materialized ■ in the future course of business, appellant’s lien automatically attached thereto. The bank’s contention in this regard has apparently not been discussed in any New Hampshire cases, and the statute itself gives no specific answer. Nor has there been, so far as we can find, any authoritative interpretation of the phrase “further or formal assignment”, found also in § 45 of the N.Y. Personal Property Law, McK.Consol.Laws, c. 41, from which C. 262-A, Rev.Laws of N.H., was apparently derived almost verbatim. In Bloch v. Mill Factors Corp., 2 Cir., 1941, 119 F.2d 536, 538, 134 A.L.R. 1188, it is said: “Section 45 [of N.Y. Personal Property Law] provides two alternative methods by which a merchant can give to a factor a lien upon his accounts receivable: first, by a general agreement that the factor shall have such a lien, which must be implemented by notice to each of the merchant’s customers that the account is payable to the factor; and, second, by a separate assignment of each account to the factor of which he need not advise the customer. The defendant followed both methods and the trustee does not question the validity of the assignments, so far as concerns the accounts themselves.” While the above-quoted language was by way of dictum, since in the Bloch case the corporation had executed a separate assignment of each account as it came into existence, it does lend some support to the conclusion we have reached that a purported general assignment of future accounts, contained in the factor’s lien agreement itself, is insufficient to perfect a lien on such accounts under § 5 of C. 262-A. The interpretation thus made in the Bloch case seems to have met with approval in 4 Collier, Bankruptcy f 70.83 n. 12 (14th ed. 1942). We do not decide that a clause in the factor’s lien agreement itself can never be an effective assignment of accounts in existence when the agreement was executed, though the statutory reference to a “further” assignment might raise some doubt on this point. What we do hold is that to perfect the lien oh future accounts, the after-acquired accounts must be assigned as or after they come into existence; that the statute does not contemplate a general assignment of future accounts. Several considerations lead us to this conclusion. First, the language of § 5 seems most naturally to refer to assignments of existing, ascertained accounts. Indeed the word “assignment” normally imports a present transfer by the assignor; and the assignor cannot presently transfer an interest which he has not yet acquired, though he may contract to assign such an interest in the future upon his acquisition of it. Second, it is not without significance that in § 1 of C. 262-A the New Hampshire legislature' specifically provided that the lien on merchandise would be valid from the time of filing the prescribed notice “whether such merchandise shall be in existence at the time of the agreement creating the lien or at the time of filing such notice or shall come into existence subsequently thereto or shall subsequently thereto be acquired by the borrower”. In other words, the res which is the subject of the lien provided in § 1 is the merchandise or stock in trade, conceived of as a unit presently and continuously in existence — a “floating mass”, the component elements of which may be constantly changing without affecting the identity of the res. Cf. Hopkins v. Baker Bros. & Co., 1894, 78 Md. 363, 28 A. 284, 22 L.R.A. 477; Pullman’s Palace Car Co. v. Pennsylvania, 1891, 141 U.S. 18, 26, 11 S.Ct. 876, 35 L.Ed. 613. So conceived, it is not inconsistent with the existence of the lien or floating charge on the inventory, as it may be made up at any particular time, that the borrower is free to withdraw an item from stock for sale in the regular course of business, without any obligation to account to the lien-holder for the proceeds. Colbath v. Me-chanicks National Bank of Concord, 1950, 96 N.H. 110, 70 A.2d 608. By analogy it might be • possible to treat a merchant’s accounts receivable as a unit presently and continuously in existence, the component elements of which (the particular accounts) may be constantly changing, without affecting the identity of the res; so that a general assignment by way of security of accounts receivable present and future might be deemed to create in pmesenti a lien upon this enduring unit, the accounts receivable, which lien would persist as a floating charge upon such res, however much its component elements might change from time to time by the payment of old accounts and the creation of new ones. But when the legislative explicitness in § 1 of C. 262-A is contrasted with the language of § 5, it would be quite far-fetched to read into § 5 any such sophisticated concept as suggested above. Third, and perhaps most persuasive, is the definition of account receivable given in C. 263-A of N.H.Rev.Laws, enacted in N.H.Laws 1945, C. 19. Chapter 263-A, which has been commonly called a “validation statute”, see Koessler, New Legislation Affecting Non-Notification Financing of Accounts Receivable, 44 Mich.L.Rev. 563, 594 — 600 (1946), is captioned “Assignments of Accounts Receivable”, and is partly concerned, as is C. 262-A, with the validity of assignments of accounts receivable as against creditors of the assignor. The two chapters are obviously in pari materia and should be read together. Chapter 263-A provides in substance that after an assignee of an account receives a written assignment in good faith and for value, whether or not notice of the assignment has been given to the account debtor, “no existing or future creditor of the assignor and no subsequent assignee shall or can acquire any right, title, lien or interest in or to such account, or any proceeds thereof * * * equal or superior to or in diminution of the rights of the assignee under such assignment.” In the definitions in § 1 of C. 263-A it is provided: “‘Account’ means an account receivable. It includes sums owing, although not yet payable, under an existing contract, but not sums to become due for goods not yet completed or services not yet rendered.” Since the legislature evidently does not contemplate under C. 263-A that a lien upon an account receivable may be perfected unless there has been an assignment thereof after the account has come into existence, it seems to us that § 5 of C. 262-A, even if deemed to be somewhat ambiguous, should be given an interpretation in harmony with the provisions of C. 263-A. For these reasons we conclude that language in a factor’s lien agreement, under § 5 of C. 262-A, purporting to be a present assignment of future accounts receivable is not effective automatically, and without more, to create a valid lien on such accounts as they come into existence in the future. It is true, as appellant points out, that since under § 5 no notice need be given either to the customers whose accounts are assigned or to the creditors of the assignor, it is perhaps of little practical importance whether the “assignment” includes future or only existing accounts. However, the legislature has drawn such a distinction in § 263-A, and we believe that such a distinction is also implicit in the natural reading of § 5 of C. 262-A. Under this interpretation, the general language of assignment in clause (3) of the factor’s lien agreement might well have been effective as to any accounts which were in existence on May 14, 1947, when the agreement was executed, but appellant apparently does not claim that any of the accounts here in dispute were in existence at that time. We think, also, that the order under review may properly be affirmed on the alternative ground taken by the referee, namely, that retention by the borrower, with the bank’s assent, of complete dominion over the assigned accounts and their proceeds, rendered the assignment void as a fraud on creditors under the doctrine of Benedict v. Ratner, 268 U.S. 353, 45 S.Ct. 566, 69 L.Ed. 991. The factor’s lien agreement provided, in paragraph (11): “If and to the extent required by the Bank, the Borrower shall deposit or permit to be deposited in a special cash collateral account * * * such of the proceeds of the collateral as the Bank shall not require to be applied on the indebtedness and withdrawals from any such special cash collateral account shall be made by the Borrower only upon such terms and conditions, and under such supervision as the Bank may from time to time prescribe.” [The term “collateral” as here used in the phrase “proceeds of the collateral” is earlier defined in the agreement as including accounts receivable which are made subject to the lien.] The referee found that “there appears no evidence that the petitioner herein, prior to November 1, 1948, required the bankrupt corporation to account for the Accounts Receivable, or further, require [d] it to turn such proceeds over to the petitioner for credit on the indebtedness which they secured. It therefore follows that the bankrupt corporation retained dominion and control over the Accounts Receivable with the right to use the proceeds collected by it for its own purpose.” In fact the assistant cashier of the bank testified that as a matter of banking procedure under a factor’s lien agreement “we do not ask for the actual payment of receivables as they are received by the.corporation unless we want the loan reduced”; that the bank works on a percentage basis, and as long as “the ledgers are satisfactory to us we do not ask for each account to be paid to us by the account funds received.” It was not until within the four-month period prior to bankruptcy that the bank proceeded to assert dominion over the accounts receivable and to demand that the proceeds of collections be turned over to it. In the Ratner case the borrowing corporation, more than four months before it was adjudged bankrupt, purported to make a general assignment of future accounts receivable as security for a loan. Under the agreement, the receivables were to be collected by the borrower. Until demand was made by the lender, the borrower, as in the case at bar, was not required to apply any collections to the repayment of the loan nor to account in any way to the lender, but was at liberty to use the proceeds of all accounts collected as it might see fit. The Supreme Court, in an opinion by Justice Brandeis, held, 268 U.S. at 360, 45 S.Ct. at 568, 69 L.Ed. 991, that under the law of New York “a transfer of property as security which reserves to the transferor the right to dispose of the same, or to apply the proceeds thereof, for his own uses, is, as to creditors, fraudulent in law and void”; and held, also as a matter of New York law, that the same rule was applicable to assignments of accounts receivable. While there are no New Hampshire cases on this point involving accounts receivable, it seems to be clear, at least prior to the enactment of C. 262-A, that the New Hampshire courts recognized the rule, with regard to merchandise, that an understanding or agreement between a chattel mortgagor and mortgagee that the mortgagor shall be free to sell the chattels on his own account renders the mortgage void as to creditors. See In re Kibbie, D.C.D.N.H. 1934, 8 F.Supp. 809; In re Streeter, D.C. D.N.H.1927, 20 F.2d 157; Putnam v. Osgood, 1872, 52 N.H. 148. Section 1 of C. 262-A seems to have changed this rule so far as concerns the retention of dominion by a mortgagor of chattels, and the New Hampshire court has accordingly held that the sale of merchandise without an obligation to account for the proceeds does not render invalid a factor’s lien on the merchandise remaining in stock. Colbath v. Mechanicks National Bank of Concord, supra, 1950, 96 N.H. 110, 70 A.2d 608. In the Ratner case itself, the Supreme Court observed that the provisions of § 45 of the N.Y.Pers.Prop.Law, substantially identical with § 1 of C. 262-A, N.H.Rev.Laws, might well have done away with the rule that retention of possession of chattels by the mortgagor with power of sale for his own benefit is fraudulent as to creditors, see 268 U.S. at 361, n. 11, 45 S.Ct. at 568, 69 L.Ed. 991, but such fraudulent conveyance doctrine was held to be still applicable so far as concerned the assignment of accounts receivable. The legislature of New Hampshire seems to have chosen, in § 5 of C. 262-A, not to abrogate entirely the rule of Benedict v. Ratner but rather to qualify it, so as to render it inapplicable to certain extreme situations in which Benedict v. Ratner had been held applicable in other jurisdictions. The last sentence of § 5 provides: “If merchandise sold, or any part thereof, is returned to or recovered by the assignor from the person owing the account receivable and is thereafter dealt with by him as his own property, or if the assignor grants credits, allowances or adjustments to the person owing an account receivable, the right to or lien of the factor upon any balance remaining owing on such account receivable and his right to or lien upon any other account receivable assigned to him shall not be invalidated, irrespective of whether the factor shall have consented to the acts of the assignor.” Certainly these restrictions upon the application of the rule of Benedict v. Ratner would have been superfluous, except upon the assumption that under the New Hampshire law retention by the borrower of dominion over his accounts receivable would render his purported assignment of such accounts void as against his creditors. See Koessler, New Legislation Affecting Non-Notification Financing of Accounts Receivable, 44 Mich.L.Rev. 563, 595-96, especially note 139 containing a comment upon a substantially identical provision of § 5, Laws of Mass.1945, C. 141. The order of the District Court is affirmed. . “1. Factors liens. If so provided by any written agreement, all factors shall have a continuing general lien upon all merchandise from time to time consigned to or pledged with them, whether in their constructive, actual or exclusive occupancy or possession or not, and upon any accounts receivable or other proceeds resulting from the sale or other disposition of such merchandise, for all their loans and advances to or for the account of the person creating the lien (hereinafter called the borrower), together with interest thereon, and also for any commission, charges, and expenses properly chargeable against or due from said borrower and for the amount due upon any notes or other obligations given to or received by them for or on account of any such loans or advances, interest, commission, charges, and expenses, and such lien shall be valid from the time of filing the notice hereinafter referred to, and whether such merchandise shall be in existence at the time of the agreement creating the lien or at the time of filing such notice or shall come into existence subsequently thereto or shall subsequently thereto be acquired by the borrower; provided, that a notice of the lien is recorded, as hereinafter provided, stating [certain details of the transaction which need not now be set forth.].” “5. Lien on Bills Receivable. If any agreement provides for a right to or lien upon accounts receivable or other pro-eeeds arising out of the performance of work, labor or services or resulting from or which may result from a sale or sales of merchandise, whether or not such merchandise or a part thereof is subject to the lien, such right or lien upon such accounts receivable or the proceeds shall not be void or ineffectual as against creditors or otherwise by reason of failure to make or deliver a further assignment of any such account; provided, a bill, invoice, statement or notice shall be mailed, sent or delivered to the person owing such account receivable stating in substance that the account is payable to the factor, and such mailing, sending or delivery of such bill, invoice, statement or notice shall have the same effect as a formal assignment of such account to the factor named therein; provided, however, that the making and delivery of any such further or formal assignment shall, in and of itself, give to the factor a right to or lien upon the account receivable assigned and to the proceeds thereof, effectual as against all claims of creditors of the assignor, irrespective ■ of whether or not such bill, invoice, statement or notice shall be mailed, sent or delivered to the person owing sueh account receivable stating in substance that the account is payable to the factor. If merchandise sold, or any part thereof, is returned to or recovered by the assignor from the person owing the account receivable and is thereafter dealt with by him as his own property, or if the assignor grants credits, allowances or adjustments to the person owing an account receivable, the right to or lien of the factor upon any balance remaining owing on such account receivable and his right to or lien upon any other account receivable assigned to him shall not be invalidated, irrespective of whether the factor shall have consented to the acts of the assignor.” ; The requirement in § 1 that notice of the lien be posted at the premises was deleted in N.H.Laws 1949, c. 156. . Appellant does not advance the contention that any of the accounts here in question resulted from the sale of merchandise on which the bank had a lien, and that under the provisions of § 1 of O. 262-A the lien, not only upon such merchandise bnt also upon any accounts receivable resulting from the sale thereof, became valid from the time of the filing of the notice therein referred to, “whether such merchandise shall be in existence at the time of the agreement creating the lien or at the time of filing such notice or shall come into existence subsequently thereto or shall subsequently thereto be acquired by the borrower”. There would be two objections to such a contention. In the first place, though the statute is hardly a model of the draftsman’s art, it would seem, from a reading of § 1 in conjunction with § 5, that the only lien which may be perfected under § 1 by the filing of the notice is a lien upon merchandise or stock in trade (conceived of as a “floating mass”, see infra this opinion). Section 5 is the section which deals comprehensively with the creation of liens on accounts receivable, and it seems that, to be a valid lien on accounts receivable, even on accounts receivable resulting from the sale of merchandise, the lien must be perfected in one of the two alternative methods described in § 5 “whether or not such merchandise or a part thereof is subject to the lien”. In the second place, even if the above-suggested contention were well taken, the burden would be upon the petitioner for a turn-over order to show which of the accounts receivable in question were in fact the result of the sale of merchandise upon which the factor had a lien; and this the bank made no effort to show, in the hearing before the referee, so far as the record discloses. Indeed, the bank failed to show that any of the particular accounts receivable came into existence more than four months before the filing of the petition in bankruptcy. On the bank’s theory of the case, as appears below, by virtue of the language in the factor’s lien agreement purporting to be a general assignment of all present and future accounts receivable, a lien upon each future account receivable was automatically perfected at the moment it was acquired by the bankrupt. But on this theory, if the accounts receivable which the bank was seeking to have the trustee turn over came into existence within the four-month period, the creation of a lien thereon, also necessarily within the four-month period, would clearly be a preference. As to whether it would be a voidable preference under § 60, sub. b, of the Bankruptcy Act, the bank makes no claim that during the four-month period it was lacking in “reasonable cause to believe” that Standard Construction Co., Inc., was insolvent. . See footnote 1 supra. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. WARD TRUCKING CORP., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, R.A.N. Trucking Company, Intervenor. No. 80-1451. United States Court of Appeals, Third Circuit. Argued Nov. 3, 1980. Decided Dec. 1, 1980. Henry M. Wick, Jr., Donald J. Balsley, Jr., Pittsburgh, Pa. (argued); Wick, Vuono & Lavelle, Pittsburgh, Pa., of counsel, for petitioner. Richard A. Allen, Gen. Counsel, Henri F. Rush, Assoc. Gen. Counsel, Interstate Commerce Commission, Washington, D.C., Dennis Starks (argued); Sanford M. Litvack, Asst. Atty. Gen., Robert B. Nicholson, Asst. Chief, Margaret Halpern, Dept, of Justice, Washington, D.C., for respondents. Daniel C. Sullivan (argued); Gregory A. Stayart, L. Steven Platt, Chicago, Ill., Sullivan & Associates, Ltd., Chicago, Ill., of counsel, for intervenor. Before ADAMS and SLOVITER, Circuit Judges, and KNOX, District Judge. Honorable William W. Knox, United States District Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT .PER CURIAM: Ward Trucking Corporation has filed a petition to set aside a decision of the Interstate Commerce Commission (ICC) which granted temporary rights to R.A.N. Trucking Company (R.A.N.) to transport merchandise from areas in and around New York City to various points in Western Pennsylvania, Ohio, Indiana and West Virginia. The respondents are the ICC and the United States. Intervenor status was granted to R.A.N. since its interest is substantially affected by the outcome of this litigation. STATEMENT OF FACTS For over one year R.A.N. had been transporting general freight originating in the New York City area to certain points in Western Pennsylvania and Ohio through an “interline” arrangement with another common motor carrier, Crown Motor Freight. R.A.N. was also moving goods to points in Indiana, Southern Ohio, and West Virginia as the result of a further interline hookup with its wholly-owned subsidiary, Povaro Trucking. Crown then moved its inspection site to Patterson, New York. As a result, in order to continue the interline, R.A.N. would have had to increase its total linehaul distance by 10 per cent. Crown then proceeded to cancel the interline service with R.A.N. At approximately the same time Povaro sought to withdraw from its interline arrangement. R.A.N. thereupon applied to the ICC for temporary, emergency authority to serve the affected areas directly. Specifically, R.A.N. sought to serve points in Western Pennsylvania, Northeastern and Southwestern Ohio, Indiana and West Virginia. Without such permission, R.A.N. asserts it would have lost $25,000 per week in gross revenues, and the financial base of its operations would have been in jeopardy. In addition, it claims that many members of the public who relied on R.A.N.’s shipping services would be seriously inconvenienced unless the application for temporary authority was granted. As support for its request, R.A.N. submitted an interline traffic study and two certificates from customers in Ohio served by the R.A.N./Crown interline. The traffic study showed that R.A.N. made scores of trips into the areas affected by the application during the one year course of the study. Although the majority of the trips in the study were to Western Pennsylvania and Northern Ohio, the study revealed that at least some trips had been made by R.A.N. to Wheeling, West Virginia, and a few cities in Indiana. R.A.N.’s application for temporary authority was protested by six motor carriers, including Ward Trucking. Ward’s protest alleged that R.A.N.’s application conflicted in part with the authority held by Ward. The protestants pointed out that other common carriers already serviced the area, and that the grant of temporary authority to R.A.N. would have an adverse impact on the ability of the protesting firms to continue to offer adequate service. The protestants also declared that the burden of demonstrating an immediate and urgent need rested upon R.A.N. Because some of the six carriers already served the area, they argued that R.A.N. could not meet this burden. In an order entered on October 23, 1979, the ICC found an immediate and urgent need for the service sought by R.A.N. that could not adequately be met by existing carriers. The ICC granted the temporary authority in its entirety. An appeal was taken to the ICC, but its original ruling was affirmed by an order entered on February 20, 1980. Ward now takes the present appeal to this Court, complaining of the grant of the temporary authority. DISCUSSION The standard for an appellate court when reviewing a grant of temporary authority by, the ICC is to insure that the administrative action was not arbitrary and capricious and that it was supported by “some evidence.” East Texas Motor Freight Lines v. U. S., 593 F.2d 691 (5th Cir. 1979). Accord, Barnes Freight Lines, Inc. v. ICC, 569 F.2d 912 (5th Cir. 1978). This standard of review is clearly distinguishable from appellate review of the grant of permanent authority, where the finding must be supported by “substantial evidence on the record taken as a whole.” Administrative Procedure Act, 5 U.S.C. § 706. Agency decisions relating to grants of temporary authority, in contrast to grants of permanent authority, are exempt from the requirements of the Administrative Procedure Act. Barnes at 920. The agency is specifically authorized to take action in its discretion and without hearings or other proceedings. Id., § 210a. Interstate Commerce Act, 49 U.S.C. § 310a. The reason for this approach, of course, is that the situation in question is an emergent one, and that for the ultimate resolution of the request a final hearing will be conducted. Thus, our assignment at this time is to determine whether there is “some” evidence to support the ICC’s finding that there was an “immediate and urgent need,” as defined in 49 CFR § 11.31.4(b)(2), to support the grant of temporary authority to R.A.N. Evidence submitted by R.A.N. as support for the temporary grant of authority included (1) the very existence and termination of the interline arrangement between R.A.N. and Crown; (2) a lengthy traffic study of interline traffic movements during the period from July 3, 1978 to December 29, 1978; and (3) “Certificates of Support” from two of R.A.N.’s customers. In opposition to the sufficiency of this evidence, Ward advances an array of arguments: Specifically, Ward claims that (1) the grant of temporary authority was impermissibly broader than the geographic scope of the old R.A.N./Crown interline; (2) the interline traffic study should have been more carefully scrutinized by the ICC because of Ward’s charge that R.A.N. is under investigation for unspecified “unlawful operations,” and (3) the two supporting statements from customers of R.A.N. are quantitatively inadequate, and in any event too vague to meet the requirements for supporting statements that are set forth in 49 CFR § 1131.2(c)(l)-(ll). The existence of the interline arrangement between R.A.N. and Crown and the additional hookup with Povaro in and of itself represents “some evidence” in support of the decision of the ICC. Bearing in mind that it is not our task to re-weigh the evidence in the type of appeal now before us, the existence of the interline arrangements, which provided service to the entire area contemplated by the temporary permit issued to R.A.N., suggests that the authority is at least needed and desired by those shippers, that the arrangement already serves. Need is established because of the economic viability of the route, and because the cessation of the route could create problems for those companies that now depend on the services. Once such need is established, it is within the province of the ICC to determine the immediacy and urgency of maintaining the continuity of the services. Petitioner argues that the grant of authority was geographically too broad and as such constituted an arbitrary and capricious act by the ICC. Although it is true that the interline traffic study did not refer to trips to each of the cities and counties mentioned in the special permit, it did refer to a large number. It also showed the presence of some service by R.A.N. to the general geographic area, including West Virginia, Indiana, and Southern Ohio. Demonstration of service to every city within the scope of the permit is not necessary to support an emergency temporary grant of authority. A need to serve an area, at least temporarily, can be inferred from the existence of a few trips to representative destination points within that area. Moreover, the existence of the interline connection with R.A.N.’s subsidiary Povaro, suggests a need for continued service to all areas mentioned in the grant of authority. Thus, we cannot say, under the circumstances, that the interline exhibit did not constitute “some evidence” in support of the petition. Ward also claims that the ICC did not scrutinize the underlying documentation as fully as it should, in view of its charge that there is pending an ICC investigation of R.A.N. for unlawful operations. A board-brush charge of some kind of wrongdoing such as we have here, should not, without more, preclude an emergency grant. For such a contention to be accorded substantial weight, Ward would have to demonstrate how the traffic study was tainted. The general assertion of wrongdoing does not allege any facts whatsoever which would link the alleged wrongdoing to the traffic study itself. In support of its objection to the sufficiency of the statements used to demonstrate the need for continued service by R.A.N., Ward cites ICC cases where the courts have considered substantially more statements by customers than the two submitted by R.A.N. See, e. g., East Texas Motor Freight Lines, supra; Garrett Freightlines, Inc. v. U. S., 540 F.2d 450 (9th Cir. 1976); Georgia-Florida-Alabama Transportation Co. v. ICC, 614 F.2d 1078 (5th Cir. 1980). Further, Ward maintains that the actual form of the two supporting statements proffered by R.A.N. renders them inadequate when compared to the requirements of 49 CFR 1131.2(c)(l)-(ll). Although there are slight deficiencies in the form of the statements, and although a greater number of statements might have been desirable for further substantiation of the application, these shortcomings are not fatal, because when the two statements are considered together with the other evidence submitted it is apparent that “some” evidence supports the ICC’s action. CONCLUSION The petition to set aside the decision and order of the ICC will be denied. . R.A.N.’s request for permanent authority to serve the area encompassed by the temporary grant is now pending before the ICC. The Commission’s decision in that matter will be subject to the substantial evidence standard of review. . Cf., Barnes, supra, in which the Fifth Circuit reversed an ICC grant of temporary authority where the Commission based its decision in part on perjured testimony of an officer of the applicant, and where the president of the applicant refused to submit to cross-examination after the perjury of the officer was disclosed. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Natalie A. DOUGLAS, Administratrix, Plaintiff, Appellant, v. Clayton E. BROWN, Defendant, Appellee. No. 6663. United States Court of Appeals First Circuit. Heard April 6, 1966. Decided April 13, 1966. John Landfield, Boston, Mass., for appellant. Sturtevant Burr, Boston, Mass., with whom Badger, Parrish, Sullivan & Frederick, Boston, Mass., was on brief, for appellee. Before. ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. The only question of consequence in this case, involving a collision between a motorcycle and a car, relates to a hospital record. There were two records, the Peter Bent Brigham, and the York. Both contained a statement as to the cause of the accident which conflicted, substantially, with plaintiff’s account. These statements were inadmissible under the Massachusetts hospital record statute, Mass.G.L. c. 233, § 79, and defendant appellee does not claim that they were otherwise admissible over objection. Plaintiff read the Peter Bent Brigham record to the jury, except for this statement. A recess was then called. The court instructed the witness, who had brought both records, that the Peter Bent Brigham record “be left.” According to the transcript, it added, “The York Hospital. Records are also admitted.” After the recess, the plaintiff read the York Hospital record to the jury, except for the statement as to the cause of the collision. After a jury verdict for the defendant, and the exhibits were returned to counsel, plaintiff’s counsel discovered, allegedly for the first time, that the York Hospital record had gone to the jury, denominated as a plaintiff’s exhibit, as a result of what the court had said. Counsel asserted to the court, and to us, that he had not heard the court’s use of the words, “also admitted,” and thought it had said, “also left.” We do not doubt that counsel spoke the truth. We assume, of course, that the court said “admitted,” but we cannot think it was other than a slip of the tongue. Neither party had offered the York record. Not only was the court’s word not responsive to a request, but it made no sense to say “also admitted” after saying, correctly, that the other record embraced by the “also,” was “left,” not “admitted.” Clearly, plaintiff’s 'counsel was, throughout, conscious of the objectionable statements, and carefully read both records, minus the statement, to the jury, instead of offering them himself. Inescapably, he would have reacted if he had heard that this record was being physically marked. We do not question but that under proper circumstances, the court may offer its own exhibit. This record was marked plaintiff’s exhibit. Furthermore, at a minimum, a court cannot introduce its own exhibit without giving counsel clear notice that it is doing so. The court disposed of plaintiff’s post trial motions by stating that, in its memory, the transcript was accurate, and there was “no error.” We are unable to avoid the conclusion that there was manifest error. In an effort to support the court’s denial of plaintiff’s motion for new trial, defendant argues that the court is presumed to have found that the error was “not prejudicial.” This is not what the court found. It is not to be presumed to have found it because, on its ruling that there was no error, it did not reach that question. While we doubt very much whether the court would have found that the admission of the hospital record contradicting the plaintiff was not prejudicial, we believe it, rather than we, should pass on this question in the first instance. Judgment will be entered vacating the judgment of the district court and remanding the action to that court to set aside the verdict and grant a new trial unless, after hearing, the court should find its error was not of prejudicial consequence. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_applfrom	E	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). Leo DuBOISE, Appellant, v. STATE OF NORTH CAROLINA, Appellee. No. 9466. United States Court of Appeals Fourth Circuit. Argued Nov. 12, 1964. Decided Nov. 16, 1964. Ronald P. Sokol, Charlottesville, Ya. (Court-assigned counsel), for appellant. Andrew A. Vanore, Jr., Asst. Atty. Gen. of North Carolina (Thomas Wade Bruton, Atty. Gen. of North Carolina, and Theodore C. Brown, Jr., Asst. Atty. Gen. of North Carolina, on brief), for appellee. Before BOREMAN and BRYAN, Circuit Judges, and THOMSEN, District Judge. PER CURIAM. Leo DuBoise, a prisoner of the State of North Carolina, filed his petition in the court below for a writ of habeas corpus alleging that at the time of his trial he “requested that he be put on the stand in his own behalf” and that his counsel “did not want your petitioner to take the stand in his own behalf.” The District Court, accepting the factual allegations of the petition as true, concluded that they presented no constitutional question and dismissed the petition without requiring the state to answer and without a hearing. Following dismissal of his petition, DuBoise addressed to one of the individual judges of this court what purports to be a “Petition for Writ of Certiorari,” appearing in the record on appeal, in which he attempts to allege facts in addition to those alleged in his habeas corpus petition. We affirm the action of the District Court, without prejudice, however, to petitioner’s right to amend his original petition or file a new petition as he may be advised. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_respond1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". WHIRLPOOL CORPORATION, a Delaware Corporation, Appellant, v. Leland S. MORSE and Arthur Kraniger, Jr., Co-partners Doing Business as Morse Tuckpointing Co., and Morse Tuckpointing Co., Inc., a Minnesota Corporation, Appellees. No. 17524. United States Court of Appeals Eighth Circuit. June 19, 1964. James P. Miley, of Firestone, Fink, Krawetz, Miley & O’Neill, St. Paul, Minn., made argument for appellant and filed brief. James H. Geraghty, of Altman, Geraghty & Mulally, St. Paul, Minn., made argument for appellees and filed brief. Before VOGEL, MATTHES and RIDGE, Circuit Judges. PER CURIAM. Plaintiff-appellant brought this action against defendants-appellees, who were repair contractors doing work on property owned by appellant. By the action, appellant sought indemnification for, or contribution toward, a settlement it had made with one of the appellees’ employees. Appellees’ employee had brought suit against the appellant to recover money damages for injuries sustained in a fall on appellant’s premises, basing his claim on negligence. Prior to trial appellant or its liability insurance carrier made a compromise settlement with the employee in the amount of $40,000. It brought this suit against appellees to recover such sum, or a contribution thereto, plus $10,241.38 representing legal services and expenses incurred in preparing for and settling the suit against it. This case was tried to the court without a jury and resulted in a judgment in favor of the appellees and against the appellant for costs and disbursements. In ordering judgment for the appellees, the District Court found that the appellant, as the property owner, had full apd complete knowledge and notice of the dangerous condition of its premises which resulted in the employee’s injury and specifically held that appellant’s negligence was the proximate cause of the employee’s fall and his injuries. It further held that the failure of the appellees, who had agreed to comply with all statutes and safety regulations of the State of Minnesota to assure that safety lines and other safety equipment were taken to the building and used by the employees, was not a proximate cause of the injuries and that appellant could recover on neither the theory of indemnity nor contribution between two joint tort feasors. Appellant had also contended below that since appellees had offered to provide “complete insurance coverage”, it breached its contract in that its insurance policies did not contemplate defense of third parties against suits such as brought by appellees’ employee. The District Court concluded as a matter of law that appellees did not breach the contract in this regard and, in dismissing this argument, noted that prior to commencement of the repair operation appellant had requested to see appellees’ certificates of insurance and thus was then “cognizant of the [appellees’] precise insurance coverage”. Whirlpool brought this appeal, questioning the District Court’s findings and conclusions. The District Court’s complete Findings of Fact, Conclusions of Law and detailed Memorandum Opinion are published in Whirlpool Corporation v. Morse, D.C. Minn., 1963, 222 F.Supp. 645. Judge Larson has, with infinite care, set forth the contentions of the parties, his findings and conclusions arrived at, and the Minnesota law by which the case was ruled. Because we are in complete accord with Judge Larson’s excellent published opinion, we find no reason for reiterating here that which he has so ably set forth. On the basis of that opinion, this case is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_usc2sect	121	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 30. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES v. HURLBURT. No. 1029. Circuit Court of Appeals, Tenth Circuit. July 28, 1934. Ivor 0. Wingren, Asst. U. S. Atty., of Denver, Colo. (Thos. J. Morrissey, U. S. Atty., of Denver, Colo., on the brief), for the United States. Jean 8. Breitenstein, of Denver, Colo., for appellee. Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges. PHILLIPS, Circuit Judge. This action was brought by the United States to cancel a patent dated April 14, 1930, conveying a homestead to Hurlburt. The material facts, as established by the agreed statement of facts and photostat copies of pertinent records of the Land Office, are these: Prior to February 2, 1915, the United States was the owner, as part of its unsurveyed public domain, of the following described land: The W% of the SE% and the SW]4 of Sec. 3, and the E% of the SE% of Sec. 4, Township 6 South, Range 95 West of the 6th P. M., containing 320 acres, Garfield County, State and District of Colorado. Hurlburt, after marking the exterior boundaries of such land, filed a settlement claim on February 2, 1915, in the United States Land Office at Glenwood Springs, Colorado. About July 15, 1915, he established his homo thereon, with a view to acquiring title thereto under the homestead laws of the United States when it became open and subject to homestead. He expended about $1500 in improving such land. He cultivated a small portion and used the balance of the land for grazing livestock. On December 6, 1916', the President of the United States issued an executive order which reads in part as follows: “It is hereby ordered that all lands included in the following list shall hereafter constitute Naval Oil Shale Reserve No. 1, Colorado No. 1, and shall be held for the exclusive use or benefit of the United States Navy, until the order is revoked by the President or by Congress.” The land in controversy is described in such list. i Subsequently thereto, the land was surveyed and a plat showing such survey was filed in the Land Office on January 7, 1924. Hurlburt filed a homestead application on January 2, 1924, which was aecejited and allowed. After the usual field investigation, a recommendation was made that upon submission of final proof the land be clear-listed and passed to patent. Final proof was made on September 12, 1929, and on April 14, 1930, a patent was issued containing the following reservation: “Excepting and reserving, also,, to the United Slates all oil and gas and all shale or other rock valuable as a source of pe-, troleum and nitrogen in the lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove such deposits from the same upon compliance with the conditions and subject to the provisions and limitations of the Act of July 17, 1914 (38 Stat. 509 [30 USCA §§ 121-123]).” The trial court found that Hurlburt entered and settled upon such land in 1915 in good faith, and sinee that time has continuously maintained and perfected such entry and settlement. It concluded as a matter of law that such land was improperly and unlawfully included within the executive order of December 6; .1916. Under section 3 of article 4 of the Constitution, Congress lias the power to dispose of and make all needful rules and regulations, respecting the territory of the United States. Utah Power & L. Co. v. United States, 243 U. S. 389, 37 S. Ct. 387, 61 L. Ed. 791; United States v. Gratiot, 14 Pet. 526, 537, 10 L. Ed. 573; Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534; United States v. Hanson. (C. C. A. 9) 167 F. 881. On June 25, 1910, Congress passed an act conferring upon the President the power to temporarily withdraw from settlement, location, sale, or entry any of the public lands, for certain specified purposes. Prior to the passage of such act the President had made numerous withdrawals of public lands, and his power so to do had been confirmed by the courts. United States v. Midwest Oil Co., 236 U. S. 459, 35 S. Ct. 309, 316, 59 L. Ed. 673. In that case the court said: “Congress, with notice of this practice and of this claim of authority, received the report. Neither at that session nor afterwards did it ever repudiate the action taken or the power claimed. Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress.” The Act of June 25,1910, did not attempt to affirm, repudiate, abridge, or enlarge any withdrawals previously made. Its purpose was to confer specific authority upon the President for the future, subject to the restriction that “there shall be excepted from the force and effect of any withdrawal made under the provisions of this Act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law.” The executive order creating the naval oil shale reserve and withdrawing the land from settlement was issued December 6, 1916. It ■was therefore subject to the exception clause -contained in the Act of June 25, 1910, and •could not affect a prior valid settlement. Did Hurlburt make a prior valid settlement that would bring him within the exception clause of that act? The record shows that prior to December 6, 1916, Hurlburt entered upon the land, marked the exterior boundaries, built a home, and filed a settlement claim with the United States Land Office. It is admitted that he continued to reside thereon and did everything required by law to secure a patent, but it is contended that the land was unsurveyed and not subject to sale, entry, or disposal mirier the laws of the United States. One settling upon public domain in advance of public surveys acquires no right, except the preferential right to secure the land after it has been surveyed and offered for settlement. There is nothing in the essential nature of the mere acts of entering upon unsurveyed public land, residing thereon, and improving it with the intention of filing on it as a homestead, that confers upon the settler a vested right or claim to the land, and such acts in no wise impair the power of the government to set aside the land for any public use. Frisbie v. Whitney, 9 Wall. 187, 19 L. Ed. 668; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629, 5 S. Ct. 566, 28 L. Ed. 1122; Buxton v. Traver, 130 U. S. 232, 9 S. Ct. 509, 32 L. Ed. 920; United States v. Hanson (C. C. A. 9) 167 F. 881, 886. See, also, 43 USCA §§ 166, 218 and 223, which deal with preferential rights of settlers on surveyed and unsurveyed public land. Conceding that Hurlburt’s occupation of public land gives him no.right against the government, and that Congress had the power to set apart the land in controversy, we come to the inquiry whether Congress, by the reservation contained in the Act of June 25, 1910, withheld from the President power to withdraw Hurlburt’s land. The reservation in the act contemplates that there might be a valid settlement upon public lands, other than those which are embraced in legal entries or covered by lawful filings, as those terms are used in the public land laws. The courts have held also that a valid settlement could be made upon unsurveyed public land. We conclude that Hurl hurt made a valid settlement within the meaning of the reservation clause of the act of June 25,1910. Furthermore the land was withdrawn as a naval oil shale reserve. Under the Act of July 17, 1914 (38 Stat. 510, § 3 [30 USCA § 123]) such lands are subject to settlement, and a patent may be issued with a reservation of the mineral rights in the United States. The record clearly shows that the Land Office in receiving the application and issuing the patent, considered itself bound by such act. The judgment is affirmed. The Act of June 25, 1910 (36 Stat. 847, §§ 1, 2 [43 USCA §§ 141, 142 and note]), read in part as follows: “That.the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States * • * and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress. “Sec. 2 * * * That this Act -shall not be construed as a recognition, abridgement, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to the passage of this Act: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provisions of this Act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entry-man or settler shall continue to comply with the law under which the entry or settlement was made.” In Holmes v. United States (C. C. A. 9) 118 F. 995, 999. the court said: “Does the settler upon unsurveyed land, who makes it his home with the intention, as soon as the land is surveyed, to take the necessary steps to secure and protect his entry as a homestead, and to acquire title under the homestead law, and who malíes valuable and permanent improvements on the land, make a ‘valid settlement pursuant to law’? “In Clements v. Warner, 21 How. 394-397, 16 L. Ed. 695, it was said: “ ‘The law deals tenderly with one who in good faith goes upon the public lands with a view of making a home thereon.’ “In Buxton v. Traver, 130 U. S. 232, 9 S. Ct. 509, 32 L. Ed. 920, it was said: “ ‘A settlement upon the public lands in advance of the public surveys is allowed to parties who in good faith intend, when the surveys are made and returned to the local land office, to apply for their purchase.’ “In Washington & I. Railroad Co. v. Osborn, 160 U. S. 103, 16 S. Ct. 219, 40 L. Ed. 350, it was held that a settler upon public unsurveyed land, who had made improvements thereon with the intention of acquiring a title under the pre-emption laws as soon as the lands should be surveyed, had a ‘possessory claim,’ such as was protected by the act of congress in granting to a railroad company a right of way over the public lands, and conferring upon a territorial legislature power to ‘provide for the manner in which private lands and possessory claims on the lands of the United States may be condemned.’ * * *f “It is true, there is no statutory provision which in express terms permits or protects settlement upon unsurveyed public land. We think, however, in view of the foregoing expressions of the supreme court, and the known recognition of the rights of such settlers as against all except the United States, that such a settlement, while it confers no right which the government is bound to respect, is nevertheless a valid settlement, and made pursuant to law, and that it comes within the spirit and intent of the exception contained in the proclamation of the president.” See also Lytle v. State of Arkansas, 9 How. 314, 333, 334, 13 L. Ed. 153; Stockley v. United States, 200 U. S. 532, 43 S. Ct. 186, 67 L. Ed. 390. 30 USCA § 123 (38 Stat. 510, § 3) reads as follows: “Any person who has, in good faith, located, selected, entered, or purchased, or any person who shall locate, select, enter, or purchase, after July 17, 1914, under the nonmineral land laws of the United States, any lands which are subsequently withdrawn, classified, or reported as being valuable for phosphate, nitrate, potash, oil, gas, or asphaltic minerals, may, upon application therefor, and making satisfactory proof of compliance with the laws under which such lands are claimed, receive a patent therefor, which patent shall contain a reservation to the United States of all deposits on account of which the lands were withdrawn, classified, or reported as being valuable, together with the right to prospect for, mine, and remove the same.” Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 30? Answer with a number. 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. LANGLEY et ux. v. FEDERAL DEPOSIT INSURANCE CORPORATION No. 86-489. Argued October 14, 1987 Decided December 1, 1987 Scalia, J., delivered the opinion for a unanimous Court. William C. Shockey argued the cause and filed a brief for petitioners. Richard G. Taranto argued the cause for respondent. With him on the brief were Solicitor General Fried, Deputy Solictor General Wallace, John C. Murphy, Jr., and Ann S. DuRoss. Justice Scalia delivered the opinion of the Court. Petitioners W. T. and Maryanne Grimes Langley seek reversal of a decision by the United States Court of Appeals for the Fifth Circuit granting the Federal Deposit Insurance Corporation (FDIC) summary judgment on its claim for payment of a promissory note signed by petitioners. 792 F. 2d 541 (1986). The Fifth Circuit rejected petitioners’ contention that a defense of misrepresentation of existing facts is not barred by 12 U. S. C. § 1823(e) because such a representation is not an “agreement” under that section. We granted certiorari to resolve a conflict in the Courts of Appeals. 479 U. S. 1028 (1987). Compare Gunter v. Hutcheson, 674 F. 2d 862, 867 (CA11), cert. denied, 459 U. S. 826 (1982); FDIC v. Hatmaker, 756 F. 2d 34, 37 (CA6 1985) (dictum). I The Langleys purchased land in Pointe Coupee Parish, Louisiana, in 1980. To finance the purchase, they borrowed $450,000 from Planters Trust & Savings Bank of Opelousas, Louisiana, a bank insured by the FDIC. In consideration for the loan, they executed a note, a collateral mortgage, and personal guarantees. The note was renewed several times, the last renewal being in March 1982, for the principal amount of $468,124.41. In October 1983, after the Langleys had failed to pay the first installment due on the last renewal of the note, Planters brought the present suit for principal and interest in a Louisiana state trial court. The Langleys removed the suit, on grounds of diversity, to the United States District Court for the Middle District of Louisiana, where it was consolidated with a suit by the Langleys seeking more than $5 million in damages from Planters and others. The Langleys alleged as one of the grounds of complaint in their own suit, and as a defense against Planters’ claim in the present suit, that the 1980 land purchase and the notes had been procured by misrepresentations. In particular, they alleged that the notes had been procured by the bank’s misrepresentations that the property conveyed in the land purchase consisted of 1,628.4 acres, when in fact it consisted of only 1,522, that the property included 400 mineral acres, when in fact it contained only 75, and that there were no outstanding mineral leases on the property, when in fact there were. No reference to these representations appears in the documents executed by the Langleys, in the bank’s records, or in the minutes of the bank’s board of directors or loan committee. In April 1984, the FDIC conducted an examination of Planters during which it learned of the substance of the lawsuits with the Langleys, including the allegations of Planters’ misrepresentations. On May 18, 1984, the Commissioner of Financial Institutions for the State of Louisiana closed Planters because of its unsound condition and appointed the FDIC as receiver. The FDIC thereupon undertook the financing of a purchase and assumption transaction pursuant to 12 U. S. C. § 1823(c)(2), in which all the deposit liabilities and most of the assets of Planters were assumed by another FDIC-insured bank in the community. Because the amount of the liabilities greatly exceeded the value of the assets, the FDIC paid the assuming bank $36,992,000, in consideration for which the FDIC received, inter alia, the Langleys’ March 1982 note. In October 1984, the FDIC was substituted as a plaintiff in this lawsuit, and moved for summary judgment on its claim. The District Court granted the motion, 615 F. Supp. 749 (WD La. 1985), and was sustained on appeal. The Fifth Circuit held that the word “agreement” in 12 U. S. C. § 1823(e) encompassed the kinds of material terms or warranties asserted by the Langleys in their misrepresentation defenses and, because the requirements of § 1823(e) were not met, those defenses were barred. 792 F. 2d, at 545-546. We granted the Langleys’ petition for certiorari on the issue whether, in an action brought by the FDIC in its corporate capacity for payment of a note, § 1823(e) bars the defense that the note was procured by fraud in the inducement even when the fraud did not take the form of an express promise. II The Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U. S. C. § 1823(e), provides: “No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.” A Petitioners’ principal contention is that the word “agreement” in the foregoing provision encompasses only an express promise to perform an act in the future. We do not agree. As a matter of contractual analysis, the essence of petitioners’ defense against the note is that the bank made certain warranties regarding the land, the truthfulness of which was a condition to performance of their obligation to repay the loan. See 1 A. Corbin, Contracts §14, p. 31 (1963) (“[T]ruth [of the warranty] is a condition precedent to the duty of the other party”); accord, 5 S. Williston, Contracts § 673, pp. 168-171 (3d ed. 1961); J. Murray, Contracts § 136, pp. 275-276 (2d rev. ed. 1974). As used in commercial and contract law, the term “agreement” often has “a wider meaning than . . . promise,” Restatement (Second) of Contracts § 3, Comment a (1981), and embraces such a condition upon performance. The Uniform Commercial Code, for example, defines agreement as “the bargain of the parties in fact as found in their language or by implication from other circumstances ____” U. C. C. § 1-201(3), 1 U. L. A. 44 (1976). Quite obviously, the parties’ bargain cannot be reflected without including the conditions upon their performance, one of the two principal elements of which contracts are constructed. Cf. E. Farnsworth, Contracts §8.2, p. 537 (1982) (“[P]romises, which impose duties, and conditions, which make duties conditional, are the main components of agreements”). It seems to us that this common meaning of the word “agreement” must be assigned to its usage in § 1823(e) if that section is to fulfill its intended purposes. One purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets. Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal authorities, see 12 U. S. C. §§ 1817(a)(2), 1820(b), and when the FDIC is deciding whether to liquidate a failed bank, see § 1821(d), or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank, see §§ 1823(c)(2), (c)(4)(A). The last kind of evaluation, in particular, must be made “with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.” Gunter v. Hutcheson, 674 F. 2d, at 865. Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions. A second purpose of § 1828(e) is implicit in its requirement that the “agreement” not merely be on file in the bank’s records at the time of an examination, but also have been executed and become a bank record “contemporaneously” with the making of the note and have been approved by officially recorded action of the bank’s board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Neither purpose can be adequately fulfilled if an element of a loan agreement so fundamental as a condition upon the obligation to repay is excluded from the meaning of “agreement.” That “agreement” in § 1823(e) covers more than promises to perform acts in the future is confirmed by examination of the leading case in this area prior to enactment of § 1823(e) in 1950. In D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447 (1942), the FDIC acquired a note in a purchase and assumption transaction. The maker asserted a defense of failure of consideration (that is, the failure to perform a promise that was a condition precedent to the maker’s performance), based on an undisclosed agreement between it and the failed bank that the note would not be called for payment. The Court held that this “secret agreement” could not be a defense to suit by the FDIC because it would tend to deceive the banking authorities. Id., at 460. The Court stated that when the maker “lent himself to a scheme or arrangement whereby the banking authority . . . was likely to be misled,” that scheme or arrangement could not be the basis for a defense against the FDIC. Ibid, (emphasis added). We can safely assume that Congress did not mean “agreement” in § 1823(e) to be interpreted so much more narrowly than its permissible meaning as to disserve the principle of the leading case applying that term to FDIC-acquired notes. Certainly, one who signs a facially unqualified note subject to an unwritten and unrecorded condition upon its repayment has lent himself to a scheme or arrangement that is likely to mislead the banking authorities, whether the condition consists of performance of a counterpromise (as in D’Oench, Duhme) or of the truthfulness of a warranted fact. B Petitioners’ fallback position is that even if a misrepresentation concerning an existing fact can sometimes constitute an agreement covered by § 1823(e), it at least does not do so when the misrepresentation was fraudulent and the FDIC had knowledge of the asserted defense at the time it acquired the note. We conclude, however, that neither fraud in the inducement nor knowledge by the FDIC is relevant to the section’s application. No conceivable reading of the word “agreement” in § 1823(e) could cause it to cover a representation or warranty that is bona fide but to exclude one that is fraudulent. Petitioners effectively acknowledge this when they concede that the fraudulent nature of a promise would not cause it to lose its status as an “agreement.” See supra, at 89, n. 1. The presence of fraud could be relevant, however, to another requirement of § 1823(e), namely, the requirement that the agreement in question “ten[d] to diminish or defeat the right, title or interest” of the FDIC in the asset. Respondent conceded at oral argument that the real defense of fraud in the factum — that is, the sort of fraud that procures a party’s signature to an instrument without knowledge of its true nature or contents, see U. C. C. § 3-305(2)(c), Comment 7, 2 U. L. A. 241 (1977) — would take the instrument out of § 1823(e), because it would render the instrument entirely void, see Restatement (Second) of Contracts § 163 and Comments a, c; Farnsworth § 4.10, at 235, thus leaving no “right, title or interest” that could be “diminish[ed] or defeat[ed].” See Tr. of Oral Arg. 24-25, 27-30. Petitioners have never contended, however, nor could they have successfully, that the alleged misrepresentations about acreage or mineral interests constituted fraud in the factum. It is clear that they would constitute only fraud in the inducement, which renders the note voidable but not void. See U. C. C. §3-201(1), 2 U. L. A. 127; Restatement (Second) of Contracts §163, Comment c; Farnsworth §4.10, at 235-236. The bank therefore had and could transfer to the FDIC voidable title, which is enough to constitute “title or interest” in the note. This conclusion is not only textually compelled, but produces the only result in accord with the purposes of the statute. If voidable title were not an “interest” under § 1823(e), the FDIC would be subject not only to undisclosed fraud defenses but also to a wide range of other undisclosed defenses that make a contract voidable, such as certain kinds of mistakes and innocent but material misrepresentations. See Restatement (Second) of Contracts §§152-153, 164. Finally, knowledge of the misrepresentation by the FDIC prior to its acquisition of the note is not relevant to whether § 1823(e) applies. Nothing in the text would support the suggestion that it is: An agreement is an agreement whether or not the FDIC knows of it; and a voidable interest is transferable whether or not the transferee knows of the misrepresentation or fraud that produces the voidability. See Farnsworth §11.8, at 780-781; cf. U. C. C. §3-201(1), 2 U. L. A. 127. Petitioners are really urging us to engraft an equitable exception upon the plain terms of the statute. Even if we had the power to do so, the equities petitioners invoke are not the equities the statute regards as predominant. While the borrower who has relied upon an erroneous or even fraudulent unrecorded representation has some claim to consideration, so do those who are harmed by his failure to protect himself by assuring that his agreement is approved and recorded in accordance with the statute. Harm to the FDIC (and those who rely upon the solvency of its fund) is not avoided by knowledge at the time of acquiring the note. The FDIC is an insurer of the bank, and is liable for the depositors’ insured losses whether or not it decides to acquire the note. Cf. 12 U. S. C. § 1821(f). The harm to the FDIC caused by the failure to record occurs no later than the time at which it conducts its first bank examination that is unable to detect the unrecorded agreement and to prompt the invocation of available protective measures, including termination of the bank’s deposit insurance. See § 1818 (1982 ed. and Supp. IV). Thus, insofar as the recording provision is concerned, the state of the FDIC’s knowledge at that time is what is crucial. But as we discussed earlier, see supra, at 92, § 1823(e) is meant to ensure more than just the FDIC’s ability to rely on bank records at the time of an examination or acquisition. The statutory requirements that an agreement be approved by the bank’s board or loan committee and filed contemporaneously in the bank’s records assure prudent consideration of the loan before it is made, and protect against collusive reconstruction of loan terms by bank officials and borrowers (whose interests may well coincide when a bank is about to fail). Knowledge by the FDIC could substitute for the latter protection only if it existed at the very moment the agreement was concluded, and could substitute for the former assurance not at all. The short of the matter is that Congress opted for the certainty of the requirements set forth in § 1823(e). An agreement that meets them prevails even if the FDIC did not know of it; and an agreement that does not meet them fails even if the FDIC knew. It would be rewriting the statute to hold otherwise. Such a categorical recording scheme is of course not unusual. Under Article 9 of the U. C. C., for example, a filing secured creditor prevails even over those unrecorded security interests of which he was aware. See, e. g., Rockwell Int’l Credit Corp. v. Valley Bank, 109 Idaho 406, 408-409, 707 P. 2d 517, 519-520 (Ct. App. 1985); Bloom v. Hilty, 427 Pa. 463, 471, 234 A. 2d 860, 863-864 (1967); 9 R. Anderson, Uniform Commercial Code § 9-312:74, p. 298 (3d ed. 1985); J. White & R. Summers, Uniform Commercial Code §25-4, p. 1037 (2d ed. 1980). * * A condition to payment of a note, including the truth of an express warranty, is part of the “agreement” to which the writing, approval, and filing requirements of 12 U. S. C. § 1823(e) attach. Because the representations alleged by petitioners constitute such a condition and did not meet the requirements of the statute, they cannot be asserted as defenses here. The judgment of the Court of Appeals is Affirmed. The Langleys also alleged certain other misrepresentations by Planters, including that the Langleys would have no personal liability on the notes, that Planters would provide another purchaser for the land as soon as the sale to the Langleys was closed, and that no payments would be due until the property was resold. The Langleys concede that 12 U. S. C. § 1823(e) bars these other misrepresentations from being asserted as defenses to FDIC’s suit on the note because they were promissory in nature. Brief for Petitioners 12. 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_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. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. SHERWOOD SWAN AND COMPANY, Ltd., et al., Respondents. No. 19627. United States Court of Appeals Ninth Circuit. Nov. 8, 1965. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Edward L. Rogers, Attys., Dept, of Justice, Washington, D. C., for petitioner. James F. Crafts, Jr., Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, Cal., for respondent. Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges. HAMLEY and DUNIWAY, Circuit Judges: The decision of The Tax Court is affirmed for the reasons stated by that court in its opinion reported at 42 T.C. 299. 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_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. GANNAWAY v. STANDARD ACC. INS. CO. OF DETROIT, MICH. No. 1409. Circuit Court of Appeals, Tenth Circuit. July 27, 1936. Wade H. Loofbourrow, of Oklahoma City, Okl., and Meacham, Meacham & Meacham, of Clinton, Okl., for appellant. M. U. Hayden, of Detroit, Mich., and Ned Looney and Edgar Fenton, both of Oklahoma City, Okl., for appellee. Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges. BRATTON, Circuit Judge. This action presents for determination the liability of the insurance company on its accident policy insuring Clarence Gannaway with double indemnity in the event death should result from bodily injuries effected through accidental means while the insured was driving or riding in an automobile. Plaintiff is the nominated beneficiary in the policy and the surviving widow of the insured. She instituted the suit in the state court alleging that the policy was dated January 17, 1928, and provided-for an annual premium of $27.50; that F. H. Palmer was the agent of the company at Clinton, Old.; that it was agreed between the insured and the company through Palmer that the policy should not lapse without notice thereof in advance; that it would be renewed from year to year and kept in force unless the .insured notified the company otherwise and that he would pay the premium; that the insured depended upon the company to keep the policy in force and to send him a statement for the premium as it became due; that annual premiums were paid to the agent on February 1, 1929, March 1, 1930, and February 6, 1931; that they were paid and accepted and the insurance continued in force in accordance with such agreement, custom and practice; that the company held Palmer out to the insured and others a-s its agent clothed with full apparent power to enter into the agreement and do the things set forth; and that on January 27, 1932, while the insured was depending upon such understanding and agreement that the policy was in force and without any notice from the company that it had lapsed, the insured sustained bodily injuries through accidental means while riding in an automobile from which he died the following day. Subsequent to removal of the case to the United States court and more than three years after the death of the insured, a supplement to the petition was filed in which it was alleged that some time in January, 1932, the company issued its usual and customary certificate of renewal at its office in Oklahoma City and forwarded it to Palmer; that Palmer displayed it to the insured and advised him that the policy was renewed and in force for another year; and that if the insured did not actually pay the premium for such renewal at the time the certificate was issued, the company extended him credit for the amount in accordance with the custom and practice between them. A demurrer on the ground that the alleged facts failed to state a cause of action and that the action was barred by the statute of limitation and by the limitation fixed in the policy was sustained. Plaintiff appealed. It is contended that the amendment introduced a new cause .of action which had become barred, but the conclusion which we have reached respecting the basic question of liability upon the policy renders it unnecessary to consider that point. The policy was an annual contract which expired upon failure to pay the renewal premium on the due date. It provided that, subject to its conditions and limitations, it might be renewed with the consent of the company and by payment of the premium; that if default should be made in the payment of the premium, the subsequent acceptance of such premium should reinstate the insurance, but only to cover accidental injury thereafter sustained; that no change in its terms should be valid unless approved by an executive officer of the company and indorsed thereon; and that no agent should have authority to change the policy or to waive any of its provisions. Manifestly, there were two plainly provided requisites for renewal. They were payment of the premium and assent of the company. And by the clear terms of the reinstatement clause, acceptance of an overdue premium merely reinstated the contract to cover injury thereafter sustained and did not extend the coverage to the period intervening between the termination and the subsequent payment. Further, it was unconditionally provided that a change in the contract could be effected only with approval of an executive officer of the company. Palmer was not such an officer. He was a soliciting agent without the powers of a general agent. The policy expressly withheld authority for him to waive any of its provisions. It clearly denied authority in him to waive termination of the contract on January 17, 1932, upon failure to pay the premium due at that time or to agree with binding effect upon the company that the insurance should continue in force without payment of such premium. A provision of that kind is valid and binding; and where it is expressed in the contract, the insured is presumed to be aware of it. And one who enters into an agreement with such an agent, knowing that his act exceeds his authority, cannot have recourse against the principal, absent ratification. Northern Assurance Co. v. Grand View Building Association, 183 U.S. 308, 22 S.Ct. 133, 46 L.Ed. 213; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.l914D, 1029; Exchange Trust Co. v. Capitol Life Ins. Co. (C.C.A.) 49 F.(2d) 133; Lamar v. Aetna Life Ins. Co. (C.C.A.) 85 F.(2d) 141; Hill v. Philadelphia Life Ins. Co. (C.C.A.) 35 F.(2d) 132; Massachusetts Protective Ass’n v. Turner, 171 Okl. 14, 41 P.(2d) 689; Collins v. Metropolitan Life Ins. Co., 32 Mont. 329, 80 P. 609, 1092, 108 Am.St.Rep. 578; Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 190 P. 993, 16 A.L.R. 601; Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529, 57 N.E. 458, 49 L.R.A. 760. The petition contains general allegations that the company held Palmer out as its agent clothed with apparent authority to make the agreement; that the insured depended upon such agreement; and that the company acted accordingly and ratified and acquiesced in it. The demurrer admitted all matters well pleaded, but these allegations are in conflict with the clear provision in the policy expressly denying authority to an agent to make an, agreement of that kind. It is well settled in Oklahoma and elsewhere that where a written instrument is the foundation of a civil action and a copy of it is attached to the pleading, it controls over the pleading in respect of any conflict between the two. Hyde v. City of Altus, 92 Okl. 170, 218 P. 1081; Mason v. Slonecker, 92 Okl. 227, 219 P. 357; Forry v. Brophy, 116 Okl. 99, 243 P. 506; Home Ins. Co. v. Whitchurch, 139 Okl. 1, 281 P. 234; School District. No. 60 v. Crabtree, 146 Okl. 197, 294 P. 171; Deere v. Gypsy Oil Co., 160 Okl. 237, 15 P.(2d) 1086; Devine v. Pyanhunkah, 170 Okl. 178, 39 P.(2d) 132; Maxwell-Chamberlain Motor Co. v. Piatt, 65 Colo. 140, 173 P. 867; Stillwell Hotel Co. v. Anderson (Cal.App.) 42 P.(2d) 720; Aetna Ins. Co. v. Long (Tex.Civ.App.) 47 S.W.(2d) 854; Rounds v. Owensboro Ferry Co., 253 Ky. 301, 69 S.W.(2d) 350; Frigorifico Wilson De La Argentina v. Weirton Steel Co. (C.C.A.) 62 F.(2d) 677. Plaintiff’s alleged cause of action has its genesis in covenants which the agent lacked authority to make. Accordingly, the judgment of dismissal 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:
sc_adminaction	032	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. OUBRE v. ENTERGY OPERATIONS, INC. No. 96-1291. Argued November 12, 1997 Decided January 26, 1998 Kennedy, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 430. Scalia, J., filed a dissenting opinion, post, p. 434.' Thomas, J., filed a dissenting opinion, in which Rehnqtjist, C. J., joined, post, p. 434. Barbara G. Haynie argued the cause for petitioner. With her on the briefs were W. Richard House, Jr., and John S. Lawrence, Jr. Beth S. Brinkmann argued the cause for the United States et al. urging reversal. With her on the-brief were Acting Solicitor General Dellinger, Deputy Solicitor General Waxman, J. Ray Terry, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler. Carter G. Phillips argued the cause for respondent. With him on the brief were Michael G. Thompson, O. H. Storey III, Renee W. Masinter, and Rosemarie Falcone. Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Thomas Osborne; and for the National Employment Lawyers Association by Thomas R. Meites. Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Stephen A Bokat, Robin S. Conrad, Edward H. Comer, J. Bruce Brown, and Edward N. Bomsey; and for the Illinois State Chamber of Commerce by Brian W. Bulger. Justice Kennedy delivered the opinion of the Court. An employee, as part of a termination agreement, signed a release of all claims against her-employer. In eonsider-ation, she received severance pay in installments. The release, however, did not comply with specific federal statutory requirements for a release of claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq. After receiving the last payment, the employee brought suit under the ADEA. The employer claims the employee ratified and validated the nonconforming release by retaining the moneys paid to secure it. The employer also insists the release bars the action unless, as a precondition to filing suit, the employee tenders back the moneys received. We disagree and rule that, as the release did not comply with the statute, it cannot bar the ADEA claim. I Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operations, Inc. In 1994, she received a poor performance rating. Oubre’s supervisor met with her on January 17,1995, and gave her the option of either improving her performance during the coming year or accepting a voluntary arrangement for her severance. She received a packet of information about the severance agreement and had 14 days to consider her options, during which she consulted with attorneys. On January 31, Oubre decided to accept. She signed a release, in which she “agree[d] to waive, settle, release, and discharge any and all claims, demands, damages, actions, or causes of action ... that I may have against En-tergy _” App. 61. In exchange, she received six installment payments over the next four months, totaling $6,258. The Older Workers poses specific requirements for releases covering ADEA claims. OWBPA, § 201,104 Stat. 983,29 U. S. C. §§ 626(f)(1) (B), (F), (G). In procuring the release, Entergy did not comply with the OWBPA in at least three respects: (1) Entergy did not give Oubre enough time to consider her options. (2) Entergy did not give Oubre seven days after she signed the release to change her mind. And (3) the release made no specific reference to claims under the ADEA. Oubre filed a charge of age discrimination with the Equal Employment Opportunity Commission, which dismissed her charge on the merits but issued a right-to-sue letter. She filed this suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Oubre has not offered or tried to return the $6,258 to Entergy, nor is it clear she has the means to do so. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the moneys she had received. The District Court agreed and entered summary judgment for Entergy. The Court of Appeals affirmed, 112 F. 3d 787 (CA5 1996) (per curiam), and we granted certiorari, 520 U. S. 1185 (1997). II The employer rests its case upon general principles of state contract jurisprudence. As the employer recites the rule, contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party. See 1 Restatement (Second) of Contracts § 7, and Comment b (1979); e. g., Ellerin v. Fairfax Sav. Assn., 78 Md. App. 92, 108-109, 552 A. 2d 918, 926-927 (Md. Spec. App.), cert. denied, 316 Md. 210, 557 A. 2d 1336 (1989). The employer maintains, however, that before the innocent party can elect avoidance, she must first tender back any benefits received under the contract. See, e. g., Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 147-148, 515 P. 2d 757, 766-767 (1973). If she fails to do so within a reasonable time after learning of her rights, the employer contends, she ratifies the contract and so makes it binding. 1 Restatement (Second) of Contracts, supra, § 7, Comments d, e; see, e. g., Jobe v. Texas Util. Elec. Co., No. 05-94-01368-CV, 1995 WL 479645, *3 (Tex. App.-Dallas, Aug. 14, 1995) (unpublished). The employer also invokes the doctrine of equitable estoppel. As a rule, equitable estoppel bars a party from shirking the burdens of a voidable transaction for as long as she retains the benefits received under it. See, e. g., Buffum v. Peter Barceloux Co., 289 U. S. 227, 284 (1933) (citing state ease law from Indiana and New York). Applying these principles, the employer claims the employee ratified the ineffective release (or faces estoppel) by retaining all the sums paid in consideration of it. The employer, then, relies not upon the execution of the release but upon a later, distinct ratification of its terms. These general rules may not be as as asserts. See generally Annot., 76 A. L. R. 344 (1932) (collecting cases supporting and contradicting these rules); Annot., 134 A. L. R. 6 (1941) (same). And in equity, a person suing to rescind a contract, as a rule, is not required to restore the consideration at the very outset of the litigation. See 3 Restatement (Second) of Contracts, supra, § 384, and Comment b; Restatement of Restitution § 65, Comment d (1936); D. Dobbs, Law of Remedies § 4.8, p. 294 (1973). Even if the employer’s statement of the general rule requiring tender back before one files suit were correct, it would be unavailing. The rule cited is based simply on the course of negotiation of the parties and the alleged later ratification. The authorities cited dp not consider the question raised by statutory standards for releases and a statutory declaration making nonconforming releases ineffective. It is the latter question we confront here. In 1990, Congress amended the ADEA by passing the OWBPA. The OWBPA provides: “An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary.... [A] waiver may not be considered knowing and voluntary unless at a minimum” it satisfies certain enumerated requirements, including the three listed above. 29 U. S. C. § 626(f)(1). The statutory command is clear: An employee “may not waive” an ADEA claim unless the waiver or release satisfies the OWBPA’s requirements. The policy of the OWBPA is likewise clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee "may not waive” an ADEA claim unless the employer complies with the statute. Courts cannot with ease presume ratification of that which Congress forbids. The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications. The text of the OWBPA forecloses the employer’s defense, notwithstanding how general contract principles would apply to non-ADEA claims. The rule proposed by the employer would frustrate the statute’s practical operation as well as its formal command. In many instances a discharged employee likely will have spent the moneys received and will lack the means to tender their return. These realities might tempt employers to risk noneomplianee with the OWBPA’s waiver provisions, knowing it will be difficult to repay the moneys and relying on ratification. We ought not to open the door to an evasion of the statute by this device. Oubre’s cause of action arises under the ADEA, and the release can have no effect on her ADEA claim unless it complies with the OWBPA. In this case, both sides concede the release the employee signed did not comply with the requirements of the OWBPA. Since Oubre’s release did not comply with the OWBPA’s stringent safeguards, it is unenforceable against her insofar as it purports to waive or release her ADEA claim. As a statutory matter, the release cannot bar her ADEA suit, irrespective of the validity of the contract as to other claims. In further proceedings in this or other cases, courts may need to inquire whether the employer has claims for restitution, recoupment, or setoff against the employee, and these questions may be complex where a release is effective as to some claims but not as to ADEA claims. We need not decide those issues here, however. It suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute. Nor did the employee’s mere retention of moneys amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. The statute governs the effect of the release on ADEA claims, and the employer cannot invoke the employee’s failure to tender back as a way of excusing its own failure to comply. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered! APPENDIX TO OPINION OP THE COURT Older Workers Benefit Protection Act, § 201, 104 Stat. 983, 29 U. S. C. § 626(f): (f) Waiver (1) An individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless 'at a minimum— (A) the waiver is part of an agreement between the individual and the employer that is written in a manner ealcu-lated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims arising under this Act; (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; (G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; (H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to— (i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. (2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual’s representative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum— (A) subparagraphs (A) through (E) of paragraph (1) have been met; and (B) the individual is given a reasonable period of time within which to consider the settlement agreement. (3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in sub-paragraph (A), (B), (C), (D), (E), CP), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2). (4) No waiver agreement may affect the Commission’s rights and responsibilities to enforce this Act. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_issue_4	A	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. LELAND v. OREGON. No. 176. Argued January 29, 1952. Decided June 9, 1952. Thomas H. Ryan argued the cause for appellant. With him on the brief was Harold L. Davidson. J. Raymond Carskadon and Charles Eugene Raymond argued the cause for appellee. With them on the brief was George Neuner, Attorney General of Oregon. Mr. Justice Clark delivered the opinion of the Court. Appellant was charged with murder in the first degree. He pleaded not guilty and gave notice of his intention to prove insanity. Upon trial in the Circuit Court of Multnomah County, Oregon, he was found guilty by a jury. In accordance with the jury’s decision not to recommend life imprisonment, appellant received a sentence of death. The Supreme Court of Oregon affirmed. 190 Ore. 598, 227 P. 2d 785. The case is here on appeal. 28 U. S. C. § 1257 (2). Oregon statutes required appellant to prove his insanity beyond a reasonable doubt and made a “morbid propensity” no defense. The principal questions in this appeal are raised by appellant’s contentions that these statutes deprive him of his life and liberty without due process of law as guaranteed by the Fourteenth Amendment. The facts of the crime were revealed by appellant’s confessions, as corroborated by other evidence. He killed a fifteen-year-old girl by striking her over the head several times with a steel bar and stabbing her twice with a hunting knife. Upon being arrested five days later for the theft of an automobile, he asked to talk with a homicide officer, voluntarily confessed the murder, and directed the police to the scene of the crime, where he pointed out the location of the body. On the same day, he signed a full confession and, at his own request, made another in his own handwriting. After his indictment, counsel were appointed to represent him. They have done so with diligence in carrying his case through three courts. One of the Oregon statutes in question provides: “When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt . ...” Appellant urges that this statute in effect requires a defendant pleading insanity to establish his innocence by disproving beyond a reasonable doubt elements of the crime necessary to a verdict of guilty, and that the statute is therefore violative of that due process of law secured by the Fourteenth Amendment. To determine the merit of this challenge, the statute must be viewed in its relation to other relevant Oregon law and in its place in the trial of this case. In conformity with the applicable state law, the trial judge instructed the jury that, although appellant was charged with murder in the first degree, they might determine that he had committed a lesser crime included in that charged. They were further instructed that his plea of not guilty put in issue every material and necessary element of the lesser degrees of homicide, as well as of the offense charged in the indictment. The jury could have returned any of five verdicts: (1) guilty of murder in the first degree, if they found beyond a reasonable doubt that appellant did the killing purposely and with deliberate and premeditated malice; (2) guilty of murder in the second degree, if they found beyond a reasonable doubt that appellant did the killing purposely and maliciously, but without deliberation and premeditation; (3) guilty of manslaughter, if they found beyond a reasonable doubt that appellant did the killing without malice or deliberation, but upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible; (4) not guilty, if, after a careful consideration of all the evidence, there remained in their minds a reasonable doubt as to the existence of any of the necessary elements of each degree of homicide; and (5) not guilty by reason of insanity, if they found beyond a reasonable doubt that appellant was insane at the time of the offense charged. A finding of insanity would have freed appellant from responsibility for any of the possible offenses. The verdict which the jury determined — guilty of first degree murder — required the agreement of all twelve jurors; a verdict of not guilty by reason of insanity would have required the concurrence of only ten members of the panel. It is apparent that the jury might have found appellant to have been mentally incapable of the premeditation and deliberation required to support a first degree murder verdict or of the intent necessary to find him guilty of either first or second degree murder, and yet not have found him to have been legally insane. Although a plea of insanity was made, the prosecution was required to prove beyond a reasonable doubt every element of the crime charged, including, in the case of first degree murder, premeditation, deliberation, malice and intent. The trial court repeatedly emphasized this requirement in its charge to the jury. Moreover, the judge directed the jury as follows: “I instruct you that the evidence adduced during this trial to prove defendant’s insanity shall be considered and weighed by you, with all other evidence, whether or not you find defendant insane, in regard to the ability of the defendant to premeditate, form a purpose, to deliberate, act wilfully, and act maliciously; and if you find the defendant lacking in such ability, the defendant cannot have committed the crime of murder in the first degree. “I instruct you that should you find the defendant’s mental condition to be so affected or diseased to the end that the defendant could formulate no plan, design, or intent to kill in cool blood, the defendant has not committed the crime of murder in the first degree.” These and other instructions, and the charge as a whole, make it clear that the burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se — an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict. On this issue appellant had the burden of proof under the statute in question here. By this statute, originally enacted in 1864, Oregon adopted the prevailing doctrine of the time — that, since most men are sane, a defendant must prove his insanity to avoid responsibility for his acts. That was the rule announced in 1843 in the leading English decision in M’Naghten’s Case: “[T]he jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and ... to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing . . . This remains the English view today. In most of the nineteenth-century American cases, also, the defendant was required to “clearly” prove insanity, and that was probably the rule followed in most states in 1895, when Davis v. United States was decided. In that case this Court, speaking through Mr. Justice Harlan, announced the rule for federal prosecutions to be that an accused is “entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.” In reaching that conclusion, the Court observed: “The views we have expressed are supported by many adjudications that are entitled to high respect. If such were not the fact, we might have felt obliged to accept the general doctrine announced in some of the above cases; for it is desirable that there be uniformity of rule in the administration of the criminal law in governments whose constitutions equally recognize the fundamental principles that are deemed essential for the protection of life and liberty.” The decision obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here. Today, Oregon is the only state that requires the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt. Some twenty states, however, place the burden on the accused to establish his insanity by a preponderance of the evidence or some similar measure of persuasion. While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here. Oregon merely requires a heavier burden of proof. In each instance, in order to establish insanity as a complete defense to the charges preferred, the accused must prove that insanity. The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights. In Davis v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of Oregon. But “[i]ts procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.” Snyder v. Massachusetts, supra, at 105. “The judicial judgment in applying the Due Process Clause must move within the limits of accepted notions of justice and is not to be based upon the idiosyncrasies of a merely personal judgment. . . . An important safeguard against such merely individual judgment is an alert deference to the judgment of the state court under review.” Mr. Justice Frankfurter, concurring in Malinski v. New York, 324 U. S. 401, 417 (1945). We are therefore reluctant to interfere with Oregon’s determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice. Nothing said in Tot v. United States, 319 U. S. 463 (1943), suggests a different conclusion. That decision struck down a specific presumption created by congressional enactment. This Court found that the fact thus required to be presumed had no rational connection with the fact which, when proven, set the presumption in operation, and that the statute resulted in a presumption of guilt based only upon proof of a fact neither criminal in itself nor an element of the crime charged. We have seen that, here, Oregon required the prosecutor to prove beyond a reasonable doubt every element of the offense charged. Only on the issue of insanity as an absolute bar to the charge was the burden placed upon appellant. In all English-speaking courts, the accused is obliged to introduce proof if he would overcome the presumption of sanity. It is contended that the instructions may have confused the jury as to the distinction between the State’s burden of proving premeditation and the other elements of the charge and appellant’s burden of proving insanity. We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State’s burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so. Much we have said applies also to appellant’s contention that due process is violated by the Oregon statute providing that a “morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.” That statute amounts to no more than a legislative adoption of the “right and wrong” test of legal insanity in preference to the “irresistible impulse” test. Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions. The science of psychiatry has made tremendous strides since that test was laid down in M’Naghten’s Case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. This whole problem has evoked wide disagreement among those who have studied it. In these circumstances it is clear that adoption of the irresistible impulse test is not “implicit in the concept of ordered liberty.” Appellant also contends that the trial court’s refusal to require the district attorney to make one of appellant’s confessions available to his counsel before trial was contrary to due process. We think there is no substance in this argument. This conclusion is buttressed by the absence of any assignment of error on this ground in appellant’s motion for a new trial. Compare Avery v. Alabama, 308 U. S. 444, 452 (1940). While it may be the better practice for the prosecution thus to exhibit a confession, failure to do so in this case in no way denied appellant a fair trial. The record shows that the confession was produced in court five days before appellant rested his case. There was ample time both for counsel and expert witnesses to study the confession. In addition the trial judge offered further time for that purpose but it was refused. There is no indication in the record that appellant was prejudiced by the inability of his counsel to acquire earlier access to the confession. Affirmed. Ore. Comp. Laws, 1940, §§ 26-929, 23-122. Id., § 26-929. Id., §§ 26-947, 26-948. Six possible verdicts were listed in the instructions, guilty of murder in the first degree being divided into two verdicts: with, and without, recommendation of life imprisonment as the penalty. Since the jury in this case did not recommend that punishment, the death sentence was automatically invoked under Oregon law. Id., § 23-411. The agreement of ten jurors would also have been sufficient for a verdict of not guilty, a verdict of guilty of second degree murder, or a verdict of guilty of manslaughter. R. 333-334. Ore. Comp. Laws, 1940, §§ 23-401, 23-414, 26-933; cf. State v. Butchek, 121 Ore. 141, 253 P. 367, 254 P. 805 (1927). R. 321, 323, 324, 330, 331, 332. R. 330. Again: "I instruct you that to constitute murder in the first degree, it is necessary that the State prove beyond a reasonable doubt, and to your moral certainty, that the defendant’s design or plan to take life was formed and matured in cool blood and not hastily upon the occasion. “I instruct you that in determining whether or not the defendant acted purposely and with premeditated and deliberated malice, it is your duty to take into consideration defendant’s mental condition and all factors relating thereto, and that even though you may not find him legally insane, if, in fact, his mentality was impaired, that evidence bears upon these factors, and it is your duty to consider this evidence along with all the other evidence in the case.” R. 332. R. 321, 324. Ore. Comp. Laws, 1940, § 26-846 (requiring notice of purpose to show insanity as defense); id., § 26-955 (providing for verdict of not guilty by reason of insanity and consequent commitment to asylum by judge). After defining legal insanity, the trial court instructed the jury: “In this ease, evidence has been introduced relating to the mental capacity and condition of the defendant ... at the time [the girl] is alleged to have been killed, and if you are satisfied beyond a reasonable doubt that the defendant killed her in the manner alleged in the indictment, or within the lesser degrees included therein, then you are to consider the mental capacity of the defendant at the time the homicide is alleged to have been committed.” R. 327 (emphasis supplied). Deady’s Gen. Laws of Ore., 1845-1864, Code of Crim. Proc., §204. 10 Cl. & Fin. 200, 210 (H. L., 1843). Stephen, Digest of the Criminal Law (9th ed., Sturge, 1950), 6; cf. Sodeman v. The King, [1936] W. N. 190 (P. C.); see Woolmington v. Director of Public Prosecutions, [1935] A. C. 462, 475. Weihofen, Insanity as a Defense in Criminal Law (1933), 151-155. “Clear proof” was sometimes interpreted to mean proof beyond a reasonable doubt, e. g., State v. De Rancé, 34 La. Ann. 186 (1882), and sometimes to mean proof by a preponderance of the evidence, e. g., Hurst v. State, 40 Tex. Cr. R. 383, 50 S. W. 719 (1899). Seé Wharton, Criminal Evidence (9th ed. 1884), §§ 336-340. 160 U. S. 469, 484 (1895); see Hotema v. United States, 186 U. S. 413 (1902); Matheson v. United States, 227 U. S. 540 (1913). Id., at 488. Weihofen lists twelve states as requiring proof by a preponderance of the evidence, four as requiring proof “to the satisfaction of the jury,” two which combine these formulae, one where by statute the defense must be “clearly proved to the reasonable satisfaction of the jury,” one where it has been held that the jury must “believe” the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule. Weihofen, Insanity as a Defense in Criminal Law (1933), 148-151,172-200. Twenty-two states, including Oregon, are mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of the evidence, in 9 Wigmore, Evidence (3d ed. 1940 and Supp. 1951), § 2501. Weihofen, Insanity as a Defense in Criminal Law (1933), 161; 9 Wigmore, Evidence (3d ed. 1940), § 2501. Ore. Comp. Laws, 1940, § 23-122. State v. Garver, 190 Ore. 291, 225 P. 2d 771 (1950); State v. Wallace, 170 Ore. 60, 131 P. 2d 222 (1942); State v. Hassing, 60 Ore. 81, 118 P. 195 (1911). Weihofen, Insanity as a Defense in Criminal Law (1933), 15, 64-68, 109-147. 10 Cl. & Fin. 200 (H. L., 1843). Compare Fisher v. United States, 328 U. S. 463, 475-476 (1946). See Holloway v. United States, 80 U. S. App. D. C. 3, 148 F. 2d 665 (1945); Glueck, Mental Disorder and the Criminal Law (1925); Hall, Mental Disease and Criminal Responsibility, 45 Col. L. Rev. 677 (1945); Keedy, Insanity and Criminal Responsibility, 30 Harv. L. Rev. 535, 724 (1917). Palko v. Connecticut, 302 U. S. 319, 325 (1937). Question: What is the issue of the decision? A. due process: miscellaneous (cf. loyalty oath), the residual code B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights) C. due process: hearing, government employees D. due process: prisoners' rights and defendants' rights E. due process: impartial decision maker F. due process: jurisdiction (jurisdiction over non-resident litigants) G. due process: takings clause, or other non-constitutional governmental taking of property Answer:
songer_direct1	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. McALLISTER et al. v. SLOAN. No. 10305. Circuit Court of Appeals, Eighth Circuit Feb. 13, 1936. Harry Campbell, of Tulsa, Old. (A. J. Biddison, V. Biddison, and Harry Campbell, Jr., all of Tulsa, Old., on the brief), for appellants. M. A. Breckinridge, of Tulsa, Okl. (Vincent M. Miles, Fred S. Armstrong, and Robert A. Young, Jr., all of Fort Smith, Ark., on the brief), for appellee. Before STONE, SANBORN, and BOOTH, Circuit Judges. Rehearing denied March 23, 1936. SANBORN, Circuit Judge. This was an action at law brought by Mr. and Mrs. McAllister against J. W. Sloan to recover damages to' land alleged to have been caused by the building, by the defendant, of a dam in the Illinois river, a nonnavigable stream which runs from Arkansas into Oklahoma. In substance, the complaint alleged that the McAllisters owned land on the banks of the stream, which they.used as a summer camp for girls 9,nd which was valuable and desirable for that purpose, having a fine beach upon a natural pool of clear water suitable for 'boating, bathing, and other water sports; that they had spent large sums of money improving their land and the adjacent river bank; that the defendant Sloan built a dam in the river below their land, raised the water seven feet above its n&tural level, flooded the bathing beach and a portion of the land, and made the land and the river unsightly, unattractive, and unfit for the purposes for which the land was used and useful; that the defendant had never obtained a permit to build the dam from any court; that the land was worth $35,000 before it was flooded, and $5,000 after it was flooded. They prayed for double damages. The defendant first moved, unsuccessfully, to make the complaint more definite and certain and to strike portions of it. He then demurred. His demurrer was overruled. He then answered, denying all of the allegations of the complaint, and alleging that the dam was built by the Illinois Water Development Company, an Oklahoma corporation, upon lands in Oklahoma, pursuant to a permit from the Oklahoma Conservation Commission, and that his only participation in the project was as an officer of that company. After the answer was filed, the plaintiffs asked leave to file an amended complaint omitting the allegation that Sloan had no permit from any court and asserting that in 1926 he had caused the incorporation of the Illinois Water Development Company with a capital stock of $1,000, 98 per cent, of which was issued to Sloan; that during 1930, when the dam was built, that company was insolvent; that Sloan, acting either for himself or as president of the company, had full charge and control of the building of the dam. The court refused leave to file the amended complaint. The case was called for trial. Mrs. McAllister having died, the administrator of her estate was substituted for her. A jury was impaneled. Counsel for the plaintiffs made his opening statement. In substance, he stated to the jury that he would prove the same facts which were alleged in the complaint. He made no reference, however, to the lack of a permit from any court to erect the dam, and said that he would show that the dam was built on land in Oklahoma, the title to which was in the name of the Illinois Water Development Company; and that J. W. Sloan owned virtually the entire capital stock of that company,-and was its president and in full control of it; that he supervised the building of the dam and actively participated in building it. Upon the completion of this opening statement, the defendant moved the court “for a directed verdict on the allegations of the petition and the opening statement of counsel.” The court announced that counsel for the plaintiffs had failed “to state a state of facts which the court thinks would entitle him to recover under his complaint,” and directed a verdict for the defendant, upon which the judgment appealed from was entered. The plaintiffs assign as error (1) the refusal by the court of leave to file the amended complaint; (2) the granting of the motion for a directed verdict. The federal statute covering amendments to pleadings (U.S.C., tit. 28, § 777; 28 U.S.C.A. § 777) is liberally construed. Woodard v. Outland (C.C.A.8) 37 F.(2d) 87, 89. The practice of the federal courts is to permit amendments in all judicial proceedings where they are necessary to enable parties to reach the merits of the controversy they attempt to present, and where the allowance of the amendments will work no injustice. In re Plymouth Cordage Co. et al. (C.C.A.) 135 F. 1000, 1003; .Woodard v. Outland, supra, 37 F. (2d) 87, 89. Amendments to pleadings are freely allowed where they are in furtherance of justice. The. propriety of such amendments is a matter of discretion with the trial court, and its determination will not be disturbed unless it appears that its discretion has been unwisely exercised and that its action was not, under the circumstances, in furtherance of, but a detriment to, justice. Schulenberg v. Norton (C.C. A.8) 49 F.(2d) 578, 579. Amendments maybe made at any time while the court has jurisdiction, even after judgment; and upon appeal the appellate court may regard a pleading as having been amended to conform to the proof. Schulenberg v. Norton, supra, 49 F.(2d) 578, at page 579. An amendment which makes no change in the facts relied upon for recovery, but which merely alters the remedy or result of the facts alleged, states no different cause of action and is proper. Schulenberg v. Norton, supra, 49 F.(2d) 578, at page 579; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355; New York Central & Hudson River R. Co. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294; Manhattan Oil Co. et al. v. Mosby (C.C.A.8) 72 F.(2d) 840, 843. Apparently the court below, in denying leave to amend and in disposing of the case upon the trial, proceeded upon the theory that the plaintiffs were seeking to depart from the cause of action stated in the complaint and to set up and prove a different, distinct, and inconsistent cause of action. Since they alleged the lack of the permit to build a dam and asked for double damages, it is claimed that they had declared under the mill dam statutes of Arkansas (Crawford & Moses’ Dig.1921, §§ 3943-3967) — which give the right to build dams in nonnavigable streams with permission from county courts, but make the person building such a dam liable for double damages if he has no permit — and that they could not, under their complaint, treat their cause of action as one arising in tort under the common law. When it appeared from the opening statement of counsel that the dam was built in Oklahoma, and it then became apparent to the court below that no recovery could be had( under the statutes of the state of Arkansas relating to dams built in the streams of that state, the court directed a verdict for the defendant. It is obvious that, unless the plaintiffs at the trial were offering to prove a different cause of action than that alleged in their complaint, the motion of the defendant for a directed verdict should have been denied. While it is apparent that the plaintiffs, in drawing their complaint, originally had in mind that the mill dam statutes of Arkansas applied to their situation, it is equally apparent that they stated sufficient facts to make out a cause of action at common law for damages for the flooding of their lands. The defendant was fully apprised of the factual basis of their claim. The allegations of the complaint were not, in our opinion, inconsistent with the facts stated in the opening statement. The opening statement amplified what was asserted in the complaint. It was only the remedy or result of the facts alleged as originally conceived that the plaintiffs were departing from. There are several cases in the Supreme Court which clearly demonstrate that neither the amendment proposed nor the opening statement constituted a departure from the cause of action stated in the complaint. In Missouri, Kansas & Texas Ry. Co. v. Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, a mother, as sole heir, commenced a suit, under the Kansas statute, to recover damages for the death of her son. Two years after the injury, and after the statute of limitations had run, she amended her complaint and sued both as sole heir and as administratrix, and relied both on the Kansas law and the Federal Employers’ Liability Act (45 U.S.C.A. §§ 51-59). She obtained a judgment under the federal act, which was sustained by the Supreme Court, although, because' the suit was brought by her originally in her personal capacity and in terms based upon the Kansas law, it could not originally have been attributed to the federal act. The court said (226 U.S. 570, at page 576, 33 S.Ct. 135, 137, 57 L.Ed. 355) : “Nor do we think it [the amendment] was equivalent to the commencement of a new action, so as to render it subject to the two years’ limitation prescribed by section 6 of the Federal Employers’ Liability Act [45 U.S. C.A. § 56]. The change was in form rather than in substance. Stewart v. Baltimore & Ohio Railroad Co., 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537. It introduced no new or different cause of action, nor did it set up any differe'nt state of facts as the ground of action, and therefore it related back to the beginning of the suit.” In New York Central & Hudson River R. Co. v. Kinney, supra, 260 U.S. 340, 43 S. Ct. 122, 67 L.Ed. 294, the original complaint set forth facts which would have given a cause of action at common law, under the statutes of New York or the' Federal Employers’ Liability Act, a.s one or another law might govern. It alleged a notice required by the New York statute, indicating that it was drawn upon the theory that that statute applied. Some seven and a half years after the action was begun, an amended complaint was filed, which alleged that the plaintiff and the defendant were engaged in interstate commerce, but which retained the allegation as to the notice required by the state statute. It was contended that the amendment introduced a new cause of action which was barred by limitations. The trial court.held that the complaint warranted a recovery under either law, as the jury should find. The Supreme Court, in affirming a judgment for the plaintiff and holding that no new cause of action was stated, said (260 U.S. 340, at page 346, 43 S.Ct. 122, 123, 67 L.Ed. 294): “Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.” In Seaboard Air Line Railway v. Koennecke, 239 U.S. 352, 353, 36 S.Ct. 126, 60 L.Ed. 324, the original complaint was clearly based upon the statute of South Carolina relating to death by wrongful act,- because exemplary damages were prayed for. Upon the trial, the plaintiff asked leave to amend so as to bring the case under the Federal Employers’ Liability Act. The amendment was allowed, and the plaintiff had judgment. The court said (239 U.S. 352, at page 354, 36 S.Ct. 126, 127, 60 L.Ed. 324): “The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same whichever law gave them that effect.” See, also, Seaboard Air Line Railway v. Renn, 241 U.S. 290, 293, 36 S.Ct. 567, 60 L.Ed. 1006; St. Louis, S. F. & T. Ry. Co. v. Smith, 243 U.S. 630, 37 S.Ct. 477, 61 L.Ed. 938, affirming St. Louis, S. F. & T. Ry. Co. v. Smith (Tex.Civ.App.) 171 S.W. 512; Manhattan Oil Co. et al. v. Mosby (C.C.A.8), supra, 72 F.(2d) 840, 843. The case at bar is not one where the plaintiffs failed to state enough facts; the claim is that they stated one fact too many (lack of a permit), and asked for double damages, and hence must lose their case. The gist of their complaint was the flooding of their land. Whether it was done by a dam rightfully built or wrongfully, built is of little consequence. Whether they are to receive damages or mere compensation for their loss is not important. Compensation is the fundamental principle of damages. Miller v. Robertson, 266 U.S. 243, 257, 45 S.Ct. 73, 69 L.Ed. 265. We think that it is a situation where the defendant has had notice from the beginning that the plaintiffs set up and were trying to enforce a claim against him because of specified conduct, and we believe a liberal rule should apply. We do not hold that the court below erred in denying leave to amend. The allegation as to lack of a permit may be regarded as surplusage. Evidence as to the extent and nature of the defendant’s participation in the building of the dam can be received under the complaint as it stands. A trial court has discretion to amend the pleadings upon the trial to conform to the proof if that is necessary. H. F. Wilcox Oil & Gas Co. v. Skidmore (C.C.A.8) 72 F. (2d) 748, 752. It was error to grant the motion for a directed verdict. Whether a verdict could ever be directed upon the opening statement of counsel on the ground that the cause of action stated differed from that alleged in the complaint, we need not determine. The practice is certainly unusual. If no opening statement had been made, and if counsel for the plaintiffs had attempted to introduce evidence which was inadmissible because not within the issues, and which was ruled out on that ground, and thus had failed to prove his case, the penalty would have been that imposed by the practice of Arkansas for failure of a plaintiff to establish •a cause of action— whether a dismissal without prejtidice or one with prejudice, we do not now stop to inquire. In Hanna et al. v. Brictson Mfg. Co. et al. (C.C.A.8) 62 F.(2d) 139, 144, this court said: “It is the duty of the courts to dispose of controversies after trial and upon their merits whenever possible. The modern tendency of both the bench and the bar is to brush aside technicalities and to bring about a disposition of suits, not upon some technical rule of pleading and practice incomprehensible to the lay mind, but upon the evidence and in accordance with the law.” In Bedford v. J. Henry Miller, Inc., 212 F. 368, 370, the Circuit Court of Appeals of the Fourth Circuit said: “When a party gets his cause of action, or his defense, or his appeal, before a court of competent jurisdiction, he should not be turned out before trial of the merits of the controversy, except in obedience to a clear statutory mandate, or on a showing of gross carelessness or bad faith. The absolute dismissal of a plea or an appeal, for error in a matter of mere procedure, is in reality the infliction of the severest penalty for a minor fault, and is suggestive of the excessive punishments formerly inflicted for minor offenses in the administration of the criminal law. Conformity to rules of procedure is important, but usually it may be secured by imposing as a condition of amendment the payment of costs or other penalty, short of dismissal, on the party or his counsel, as circumstances may require, for negligence or inadvertence.” See, also, Nash v. Towne, 5 Wall. 689, 698, 18 L.Ed. 527; Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 532, 17 S.Ct. 661, 41 L.Ed. 1101; Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314. The judgment is reversed, and the case remanded, with directions to grant the plaintiffs a new trial. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_issuearea	I	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. LOCKHART v. UNITED STATES et al. No. 04-881. Argued November 2, 2005 Decided December 7, 2005 O’Connor, J., delivered the opinion for a unanimous Court. Scaua, J., filed a concurring opinion, post, p. 147. Brian Wolfman argued the cause for petitioner. With him on the briefs was Scott L. Nelson. Lisa S. Blatt argued the cause for respondents. With her on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hun-gar, Barbara C. Biddle, Kent D. Talbert, and Arnold I. Havens Stuart Rossman filed a brief for the National Consumer Law Center et al. as amici curiae urging reversal. Justice O’Connor delivered the opinion of the Court. We consider whether the United States may offset Social Security benefits to collect a student loan debt that has been outstanding for over 10 years. I A Petitioner James Lockhart failed to repay federally rein-sured student loans that he had incurred between 1984 and 1989 under the Guaranteed Student Loan Program. These loans were eventually reassigned to the Department of Education, which certified the debt to the Department of the Treasury through the Treasury Offset Program. In 2002, the Government began withholding a portion of petitioner’s Social Security payments to offset his debt, some of which was more than 10 years delinquent. Petitioner sued in Federal District Court, alleging that under the Debt Collection Act’s 10-year statute of limitations, the offset was time barred. The District Court dismissed the complaint, and the Court of Appeals for the Ninth Circuit affirmed. 376 F. 3d 1027 (2004). We granted certiorari, 544 U. S. 998 (2005), to resolve the conflict between the Ninth Circuit and the Eighth Circuit, see Lee v. Paige, 376 F. 3d 1179 (CA8 2004), and now affirm. B The Debt Collection Act of 1982, as amended, provides that, after pursuing the debt collection channels set out in 31 U. S. C. § 3711(a), an agency head can collect an outstanding debt “by administrative offset.” § 3716(a). The availability of offsets against Social Security benefits is limited, as the Social Security Act, 49 Stat. 620, as amended, makes Social Security benefits, in general, not “subject to execution, levy, attachment, garnishment, or other legal process.” 42 U. S. C. § 407(a). The Social Security Act purports to protect this anti-attachment rule with an express-reference provision: “No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.” § 407(b). Moreover, the Debt Collection Act’s offset provisions generally do not authorize the collection of claims which, like petitioner’s debts at issue here, are over 10 years old. 31 U. S. C. § 3716(e)(1). In 1991, however, the Higher Education Technical Amendments, 105 Stat. 123, sweepingly eliminated time limitations as to certain loans: “Notwithstanding any other provision of statute ... no limitation shall terminate the period within which suit may be filed, a judgment may be enforced, or an offset, garnishment, or other action initiated or taken,” 20 U. S. C. § 1091a(a)(2), for the repayment of various student loans, including the loans at issue here, § 1091a(a)(2)(D). The Higher Education Technical Amendments, by their terms, did not make Social Security benefits subject to offset; these were still protected by the Social Security Act’s anti-attachment rule. Only in 1996 did the Debt Collection Improvement Act — in amending and recodifying the Debt Collection Act — provide that, “Notwithstanding any other provision of law (including [§407] . . .),” with a limited exception not relevant here, “all payment due an individual under ... the Social Security Act . . . shall be subject to offset under this section.” 31 U. S. C. § 3716(e)(3)(A)(i). II The Government does not contend that the “notwithstanding” clauses in both the Higher Education Technical Amendments and the Debt Collection Improvement Act trump the Social Security Act’s express-reference provision. Cf. Marcello v. Bonds, 349 U. S. 302, 310 (1955) (“Exemptions from the terms of the . . . Act are not lightly to be presumed in view of the statement . . . that modifications must be express[.] But.. . [u]nless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the ... Act, we must hold that the present statute expressly supersedes the .. . provisions of that Act”); Great Northern R. Co. v. United States, 208 U. S. 452, 465 (1908). We need not decide the effect of express-reference provisions such as § 407(b) to resolve this case. Because the Debt Collection Improvement Act clearly makes Social Security benefits subject to offset, it provides exactly the sort of express reference that the Social Security Act says is necessary to supersede the anti-attachment provision. It is clear that the Higher Education Technical Amendments remove the 10-year limit that would otherwise bar offsetting petitioner’s Social Security benefits to pay off his student loan debt. Petitioner argues that Congress could not have intended in 1991 to repeal the Debt Collection Act’s statute of limitations as to offsets against Social Security benefits — since debt collection by Social Security offset was not authorized until five years later. Therefore, petitioner continues, the Higher Education Technical Amendments’ abrogation of time limits in 1991 only applies to then-valid means of debt collection. We disagree. “The fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.” Union Bank v. Wolas, 502 U. S. 151, 158 (1991). Petitioner points out that the Higher Education Technical Amendments, unlike the Debt Collection Improvement Act, do not explicitly mention §407. But § 407(b) only requires an express reference to authorize attachment in the first place — which the Debt Collection Improvement Act has already provided. III Nor does the Debt Collection Improvement Act’s 1996 re-codification of the Debt Collection Act help petitioner. The Debt Collection Improvement Act, in addition to adding offset authority against Social Security benefits, retained the Debt Collection Act’s general 10-year bar on offset authority. But the mere retention of this previously enacted time bar does not make the time bar apply in all contexts — a result that would extend far beyond Social Security benefits, since it would imply that the Higher Education Technical Amendments’ abrogation of time limits was now a dead letter as to any kind of administrative offset. Rather, the Higher Education Technical Amendments retain their effect as a limited exception to the Debt Collection Act time bar in the student loan context. Finally, we decline to read any meaning into the failed 2004 effort to amend the Debt Collection Act to explicitly authorize offset of debts over 10 years old. See H. R. 5025, 108th Cong., 2d Sess., §642 (Sept. 8, 2004); S. 2806, 108th Cong., 2d Sess., §642 (Sept. 15, 2004). “[F]ailed legislative proposals are ‘a particularly dangerous ground on which to rest an interpretation of a prior statute.’” United States v. Craft, 535 U. S. 274, 287 (2002) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990)). In any event, it is unclear what meaning we could read into this effort even if we were inclined to do so, as the failed amendment — which was not limited to offsets against Social Security benefits — would have had a different effect than the interpretation we advance today. Therefore, we affirm the judgment of the Ninth Circuit. It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_casetyp1_3-3-2	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "First Amendment - speech and other expression". UNITED STATES of America, Appellee, v. Robinson JOYCE, Jr., Appellant. No. 18335. United States Court of Appeals, Seventh Circuit. Jan. 26, 1971. Richard Fain, Chicago, 111., for appellant. Richard L. Rosenfield, Dept, of Justice, Washington, D. C., William J. Bauer, U. S. Atty., Chicago, 111., for appellee. Before CASTLE, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges. CUMMINGS, Circuit Judge. This is an appeal from a conviction for refusal to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. After a bench trial, the court held that the defendant did not qualify for classification as a conscientious objector, and therefore found him guilty and imposed a three-year sentence. We reverse. Defendant is a 24-year-old Negro who was classified I-A on November 17, 1965, after terminating his schooling. A month thereafter, he was ordered to report for á physical examination on January 4, 1966. A week beforehand, he requested conscientious objector Form 150, and his Local Board sent it to him on January 3, 1966. Nine days later, the Local Board mailed him a statement of physical acceptability, and on the following day defendant executed the conscientious objector form, which was received by the Local Board on January 14, 1966. In the Form 150, defendant reported that he was working for the United States Steel Corporation in Gary, Indiana, and that he was a member of the A-Beta Israel Hebrew sect located at 4654 Cottage Grove Avenue in Chicago. He stated that he believed in “the God of Abraham, the God of Isaac, the God of Jacob,” and that his duty was “to live by the commandments of Elohim (God).” He reported that he “believed in the teachings of the Torah (Bible) and this is the source of my information and knowledge.” He said that he did not believe in the use of force under any circumstances. He described his religious sect or organization as a “way of life,” reporting that he did not remember when he became a member of this sect, but was inspired to do so by the Bible. He referred to two excerpts from the Bible as supporting his opposition to war. He appended five scriptural quotations to explain his beliefs. On January 20, 1966, the Local Bpard rejected defendant’s conscientious objector classification and classified him I-A. Indiana state headquarters of the Selective Service System advised the Local Board “there must be some information in the file to show why the Local Board did not feel that the registrant is conscientious in his claim.” The Local Board was directed to cancel the order to report for induction, to reopen and consider anew the classification, and to request additional information from the registrant, or to request him to appear before it. On May 19, 1966, defendant reported for a personal appearance before the Local Board. The minutes of the Local Board reveal the following: “ * * * Board asked him how he could justify working in the Steel Mills where materials for the Armed Forces are being made. “Registrant answered, T have nothing to do with making the materials, I just work there, the job does the making of the materials’. “He said he has had this ‘Faith’ about a year. His folks are Hebrews too, only they don’t know it yet. When asked if he would fight to protect his family, if they were in the process of being attacked, and he answered, T would not do a thing to help them’, ‘any kind of fighting is against “my way of life” ’. “The Board asked him ‘What about the Jewish people in Israel, and the Jewish people down through History that have always fought for their way of life?’ Joyce answered, ‘They aren’t really true Jews. The only true Jew is black, as was our father Abraham’. Then he said, ‘If the Jewish people did fight a long time ago, then they were ordered to fight by ‘someone’. He couldn’t explain the ‘Someone’. “The Board asked him if he would go into Non-combatant training, or in work in a hospital taking care of the wounded and sick. Joyce answered, ‘No, that would still be entering into the Armed Forces of the United States. If I took care of the sick or wounded, that means I would be helping those who had fought in the war’. The Board then asked him if he would rather go to prison than into the Army, and Joyce answered, ‘Yes, he would rather go to prison for two years’. “The Board feels that this Registrant is highly confused. He said he reads the Old Testament, but so far has never read anything about the Hebrews fighting. The Board recommended he read the Testament a little more, as the Hebrew people have always fought in wars. Joyce said again, ‘then they aren’t true Jews, or someone told them to fight’. He still couldn’t explain who he meant by ‘someone’. But according to Joyce, ‘Fighting was alright for the Old Testament Jews, because someone told them to fight.’ “Board asked him if his religion taught him to obey the Laws of the Land where he lives. He said ‘I don’t have a religion, it is a way of life. I don’t go to church, I go to the A-Beta Temple. Yes, we are taught to obey the Laws of the Land.’ The Board then said, ‘Well, the Selective Service System is of this country, and their laws state you must go into service or into Non-combatant service, or serve in a hospital. Will you go into Noncombatant or Hospital Service?’ Joyce answered, ‘No.’ The Board asked him if he would fight for his country if it were ever envaded (sic). Joyce answered he would not fight for any reason. The Board said, ‘If this Country were Communist, then you couldn’t practice “your way of life”.’ Joyce answered ‘He didn’t know about that, but he still wouldn’t fight for his country'. “The Board feels strongly that this Registrant is not consistent in his statements. He states he couldn’t take a Hospital job because he would be taking care of men that had fought in the wars, yet he works in the Mills that makes materials for the war effort. “They said to retain him in a I-A Classification, and strongly recommend that he be drafted into the Service.” In appealing his ensuing I-A classification, defendant advised that he “could not follow and obey the laws, statutes and commandments of the Holy One of Israel if I were to join the Army. Scripture tells me directly not to join in the armies of (Babylon) America,” citing various Biblical verses. The Appeal Board thereafter forwarded defendant’s file to the Department of Justice for an advisory recommendation, and on March 24, 1967, the Department sent defendant a notice of a hearing scheduled before a hearing officer in South Bend, Indiana, on April 11, 1967. Defendant did not appear at the hearing, subsequently explaining to the Appeal Board that his absence was “because I didn't have sufficient funds for the trip.” On November 3, 1967, the Department of Justice recommended to the Appeal Board that defendant’s conscientious objector claim should not be sustained. The Department relied in part on defendant’s failure to file his claim of conscientious objection until he was notified of his physical acceptability for service. The Department also expressed reliance on the statement of a leader of a rival religious organization, formerly attended by defendant, that defendant had not been “sincere in his pursuit of religious studies” with the Israelite Bible Class. This rabbi attacked the A-Beta Israel Hebrew group, which defendant subsequently joined, as “not orthodox Jewish * * * not the true religion and the entire group is nothing but a fraud.” According to the Department’s résumé, defendant’s own rabbi advised the Department that “the belief that one should object to military service stems from the Scriptures, but that no brother in this way of life [A-Beta sect] is told directly to object to military service.” He said that failure to object to military service would not cause expulsion from his sect and that such objection “must come from the true belief in the writings of the Bible.” The rabbi declined to comment on the sincerity of defendant’s request for a conscientious objector status “since he has had no occasion to discuss this matter with him, and as he was not sufficiently aware of his personal conduct.” The résumé also shows that defendant requested not to be assigned Saturday work at the United States Steel Corporation. One of his co-workers said that the registrant described himself as a member of a Hebrew Church of Chicago and “often talked about his religion.” He reported that the registrant did not eat pork and abstained from eating meat on Fridays. A neighbor reported that registrant’s mother told her that he attends a Hebrew Center in Chicago and does not eat pork, and that his sister influenced the registrant to attend that church. Another member of the A-Beta Israel Hebrew Center advised the Department of Justice that the registrant attends Saturday Bible classes two or three times a month, “that all brothers in this way of life feel the same attitude toward military service, and that they believe that it is not their right to go against God to fight in the military service or to kill.” He said that he and his brothers object to noncombatant service because even mopping floors contributes to the operation of the military machine. He had no reason to doubt that registrant was not sincere in such beliefs. Another member of the Center advised that the sect believes that you cannot participate in military service since it is against the laws of God, and that registrant was sincere in his conscientious objector stand. In recommending against a conscientious objector classification for defendant, the Department relied on the Local Board’s minutes of May 19, 1966, particularly with reference to its statement that defendant was inconsistent in his statements about his religion, his statement that he does not have a religion but “a way of life,” and his position at the United States Steel Corporation, which supplies materials for use in the Armed Forces. On November 14, 1967, the Appeal Board sent defendant a copy of the Department’s recommendation and solicited a written reply. In his reply, defendant explained that he had not appeared before the Department’s hearing officer in South Bend, Indiana, because he did not have sufficient funds for the trip. In this letter, defendant said that the leader of the rival Israelite Bible Class couldn’t truthfully make a statement about defendant’s sincerity because that leader had no knowledge thereof. He asserted that Negroes are the true Hebrews or chosen people of God. The appeal was denied on January 30, 1968. On April 12, 1968, defendant refused to be inducted, and the indictment was returned on July 1, 1969. Petitioner’s file, including his Form 150 statements, correspondence, and the minutes of his personal appearance before the Local Board, established a prima facie case for his deferment as a conscientious objector to service in the Armed Forces. The Appeal Board, considering defendant’s claim de novo (United States v. Chodorski, 240 F.2d 590 (7th Cir. 1956)), offered no explanation of the basis for affirming Joyce’s I-A classification. It is clear, however, from defendant’s file and the classification ultimately given him, that both Boards concluded that the registrant was not sincere in his beliefs. Our duty on review is limited to scrutiny of the Selective Service System’s records to ascertain whether a lawfully cognizable basis in fact supports the Local Board’s classification. Estep v. United States, 327 U.S. 114, 122-123, 66 S.Ct. 423, 90 L.Ed. 567; Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132; United States v. Lemmens, 430 F.2d 619, 624 (7th Cir. 1970). After careful scrutiny of the material contained in defendant’s file, we conclude that none of the factors apparently relied upon by either the Local or Appeal Board offers the minimal probative weight to establish the necessary basis in fact for Joyce’s classification. The Local Board discounted Joyce’s sincerity because of its perception of “inconsistencies” in his statements regarding his beliefs, and its belief that his occupation was incompatible with a conscientious objection to any participation in war-related service. Neither proposition is valid. The function of the Selective Service Board in conscientious objector cases is not to assess the theological or scriptural sophistication of the registrant. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, makes it abundantly clear that the Board must focus on the nature and depth of the registrant’s individual beliefs, however derived or inspired, whether orthodox or unorthodox: “Local boards and courts in this sense are not free to reject beliefs because they consider them ‘incomprehensible.’ Their task is to decide whether the beliefs professed by a registrant are sin- . cerely held and whether they are, in his own scheme of things, religious.” 380 U.S. at p. 185, 85 S.Ct. at p. 863; see also Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. This principle is critically important in the case of an inarticulate registrant who lacks sophistication or a cultivated intellect, or whose beliefs derive from profound personal insights or are inspired by the teachings of an unstructured or unorthodox sect. Cf. Caverly v. United States, 429 F.2d 92, 94 (8th Cir. 1970). In this case, however, it is manifest that the “inconsistencies” in Joyce’s beliefs were judged in the perspective of the Board’s own scriptural and historical perceptions of Judaism. Reliance upon such matters was improper. Likewise, nothing in the registrant’s occupation even remotely belies the sincerity of his convictions. Defendant’s job with the steel mill entailed cleaning open hearth furnaces. The Government has conceded, and we fully agree, that no reasonable inference could be drawn from such employment as a general laborer which would negate the sincerity of the registrant’s convictions. Cf. Caverly v. United States, 429 F.2d 92, 94 (8th Cir. 1970). The additional factors cited by the Justice Department’s recommendations add nothing of substance to support the I-A classification given Joyce. Under certain circumstances, the unexplained tardiness of a claim may, when coupled with other indicia of insincerity, undermine the credibility of the registrant. Cf. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969). Tardiness standing alone, however, carries slight weight in light of the subjectivity of the beliefs involved and the fact that aging, as well as external circumstances, may serve to crystallize sincere beliefs in a young man’s mind long after his initial registration. See generally, United States v. Nordlof (7th Cir. 1971); cf. United States v. Abbott, 425 F.2d 910 (8th Cir. 1970). Joyce’s Selective Service file discloses that his religious beliefs and conscientious objection to war matured approximately a year before he presented them to the Local Board in his request for a deferment. At that time he already held a student deferment. Cf. United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970). At approximately the same time, he joined the A-Beta Hebrew sect which separated from the Israelite Bible Class to which he had belonged. The Résumé of Inquiry submitted to the Appeal Board along with the Justice Department’s recommendations overwhelmingly supports Joyce’s assertion that, ever since his membership in that sect, he has rigorously observed his religious convictions. We can see no basis in fact in this case for any reliance upon the timing or circumstances of his claim for deferment as a conscientious objector. Cf. United States v. Abbott, 425 F.2d 910 (8th Cir. 1970); United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970). We also reject the adverse comments of the leader of the Israelite Bible Class as providing any proof of insincerity. The Résumé of Inquiry discloses that any knowledge that rabbi might have had regarding the character or sincerity of defendant’s beliefs arose from contacts prior to Joyce’s departure from that group to join the A-Beta Israel Hebrew Center. In addition, as previously noted, the Résumé states that the rabbi “indicated that he knows nothing of the A-Beta Israel Hebrew Group of which the registrant is now a member but that in his own opinion, they are not orthodox Jewish, they are not the true religion and the entire group is nothing but a fraud.” These uninformed criticisms of the religious philosophies held by defendant’s sect hardly illuminate the question of the registrant’s sincerity. Finally, we find meritless the contention that defendant’s failure to appear before the Justice Department’s hearing officer in South Bend, Indiana, implies that his religious beliefs are insincere. Such hearings may assist the registrant in clarifying legitimate questions concerning the nature of his belief or the depth and sincerity with which it is held, but failure to appear at such a proceeding is not a substitute for a factual basis for disbelief of his claim. Moreover, in his correspondence with the Appeal Board, Joyce subsequently explained that he lacked the funds for the trip and had not understood its importance. At the same time, he responded in writing to the matters raised by the investigator. In Dickinson v. United States, 346 U.S. 389, 397, 74 S.Ct. 152, 158, 98 L.Ed. 132, the Court stated that “when the uncontroverted evidence supporting a registrant’s claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice.” Our review of this registrant’s file has uncovered no fact or combination of facts which provides any justification for questioning his sincerity. Not one iota of evidence casting doubt on his claim was uncovered by the Justice Department’s investigation. On the contrary, the Résumé of Inquiry is replete with evidence confirming that his objection to war derived from sincerely held religious convictions. The conclusion that a board’s classification is supported by “basis in fact” is not automatic. Those “facts” must contain a minimal probative value, either in themselves or on the particular facts of a given case. We have found no such evidence in this file. At the conclusion of the trial in the district court the prosecutor acknowledged defendant’s sincerity. Our appraisal of the entire record is the same as his. We are satisfied that defendant’s claim of conscientious objector status was rejected on an impermissible basis. The Court expresses its appreciation to Richard Fain of the Chicago Bar who served diligently and effectively as defendant’s appointed counsel on appeal. Reversed. Question: What is the specific issue in the case within the general category of "First Amendment - speech and other expression"? A. obscenity B. association C. federal internal security and communist control acts, loyalty oaths, security risks D. legality of expression in context of overt acts (speeches, parades, picketing, etc.) protesting race discrimination E. overt acts - opposition to war and the military F. conscientious objection to military service or other first amendment challenges to the military G. expression of political or social beliefs conflicting with regulation of physical activity (includes demonstrations, parades, canvassing, picketing) H. threats to peace, safety ,and order (except those covered above) (includes fighting words, clear and present danger, incitement to riot) I. challenges to campaign spending limits or other limits on expression in political campaigns J. other (includes tests of belief) Answer:
songer_direct1	C	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. Michael Darrell SANDERS, Appellant, v. George BREWER, Classification Administrator; Larry Norris, Warden; R.D. Perry, Building Major; H.D. Rhodes, Field Sergeant, Maximum Security Unit; F. Brantley, Field Sergeant, MSU, Appellees. Michael Darrell SANDERS, Appellee, v. George BREWER, Classification Administrator; Larry Norris, Warden; R.D. Perry, Building Major; Defendants, H.D. Rhodes, Field Sergeant, Maximum Security Unit; Appellant, F. Brantley, Field Sergeant, MSU, Defendant. Nos. 91-3254, 91-3797. United States Court of Appeals, Eighth Circuit. Submitted July 15, 1992. Decided Aug. 13, 1992. John Harris, Russellville, Ark., for appellant. David B. Eberhard, Asst. Atty. Gen., Little Rock, Ark., for appellees. Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges. McMILLIAN, Circuit Judge. Michael Darrell Sanders, an Arkansas inmate, appeals from a final judgment entered in the District Court for the Eastern District of Arkansas upon a jury verdict awarding him $1 compensatory and $10 punitive damages against prison guard Harry Rhodes and granting judgment to other defendant prison officials in his 42 U.S.C. § 1983 action. Sanders claimed that prison officials failed to protect him from attacks by other inmates. Sanders also appeals an order granting three prison officials summary judgment on the ground of respondeat superior. Rhodes cross-appeals the magistrate judge’s order awarding Sanders attorney’s fees. For the reasons discussed below, we affirm the judgment of the district court. In his complaint, Sanders, who is white, asserted that after he hit a black inmate with a hoe in self-defense at Cummins and was transferred to the Tucker Maximum Security Unit of the Arkansas Department of Correction, other black inmates affiliated with “Muslim power” threatened him repeatedly with bodily harm. He alleged that after he hit two other inmates with a hoe in self-defense, he informed defendants Classification Director Brewer, Warden Norris, Chief Security Officer Perry, Assistant Director Morgan, Director Lock-hart, Board of Corrections members and Chairman Walker, and Governor Clinton of his need for protection. Sanders further alleged that, while on a work detail guarded by defendants Sergeant Brantley and Major Rhodes, inmate Hardin struck Sanders in the face with a hoe, breaking his jaw. Sanders alleged that the defendant prison officials were deliberately indifferent to his serious need for protection by failing to transfer him or to separate him from others. Sanders sought declaratory and injunctive relief, and compensatory and punitive damages. Sanders also requested a jury trial. Defendants Walker, Lockhart, and Morgan moved for summary judgment, arguing that their only involvement was their receipt of Sanders’s letters, and that re-spondeat superior was not a basis for relief under section 1983. The magistrate judge granted the three defendants summary judgment. Sanders filed an amended complaint alleging that he told Rhodes he had received additional threats against his life. Despite Sanders’s protest, Rhodes assigned him to the hoe squad with inmate Thompson. Sanders alleged that Thompson attacked Sanders with a hoe and was about to strike a fatal blow to Sanders when a guard shot and killed Thompson. At the jury trial, Sanders testified in detail about the five hoe-squad incidents that occurred between 1986 and 1991. During cross-examination, the prison officials introduced an audio tape recording of Sanders’s testimony at another inmate’s 1988 trial, which was inconsistent with the testimony he had just given. When Sanders’s attorney objected to having the tape recording played for the jury because he had not yet had an opportunity to listen to it, the magistrate judge called a recess so that the attorney could hear the tape recording. After the recess and out of the presence of the jury, Sanders’s attorney assented to the playing of the tape recording, but requested transcripts because of the poor audio quality. The tape recording was then played for the jurors, each of whom had a transcript. After the tape recording was played, Sanders admitted that he had committed perjury at the 1988 trial. Three other inmates testified that they heard threats against Sanders’s life. After Sanders’s case-in-chief, the magistrate judge granted a directed verdict in favor of Brantley. The prison officials then presented their case, in which Rhodes, Perry and Brantley testified that they did all they could to prevent the assaults upon Sanders. The jury returned a verdict for Sanders against Rhodes for $1 in compensatory and $10 in punitive damages, and verdicts for the remaining defendants. Following trial, Sanders moved for attorney’s fees and expenses of approximately $14,000. The prison officials responded that the award should be reduced for partial success because Sanders prevailed against only one of the original eight defendants, he did not obtain injunctive or declaratory relief, and he was awarded only nominal damages. The magistrate judge concluded that the requested fee award should be reduced to $7500 in attorney’s fees and $418.09 in expenses, based on the limited ultimate success at trial. The magistrate judge also granted counsel’s motion to withdraw. This appeal followed. SUPERVISOR LIABILITY Sanders first argues that the magistrate judge erred in granting summary judgment in favor of Lockhart, Woodson, and Morgan. He argues that respondeat superior is not applicable because these three defendants received actual notice of his need for protection and failed to take any action. “To hold supervisors liable under section 1983, a plaintiff must show that a superior had actual knowledge that his [or her] subordinates caused deprivations of constitutional rights and that he [or she] demonstrated deliberate indifference or ‘tacit authorization’ of the offensive acts by failing to take steps to remedy them.” Pool v. Missouri Dep’t of Corrections & Human Resources, 883 F.2d 640, 645 (8th Cir.1989) (quoting Wilson v. City of North Little Rock, 801 F.2d 316, 322 (8th Cir.1986)). A single incident, or a series of isolated incidents, usually will not provide a sufficient basis to assign supervisory liability. Howard v. Adkison, 887 F.2d 134, 138 (8th Cir.1989). Defendants Lockhart, Woodson and Morgan are upper-level supervisors. Even assuming that mere receipt of Sanders’s letters constituted sufficient personal involvement to defeat defendants’ summary judgment motion, we conclude that, because the jury did not find the lower-level and more closely-involved supervisors liable, the jury would not have found these three defendants liable on a theory of direct responsibility to supervise. See Beard v. Lockhart, 716 F.2d 544, 545 (8th Cir.1983) (per curiam). IMPEACHMENT Sanders also argues that the magistrate judge erred in admitting the tape recording of his testimony at the other trial because of the unfair surprise. Sanders failed to preserve his objection to the use of his previous trial testimony. After listening to the tape recording, Sanders’s counsel assented to the playing of the tape recording, and thus waived his objection. Even if the objection had not been waived, the evidence was proper impeachment testimony, counsel was permitted to listen to the tape recording before the jury heard it so that he could prepare any objections, and Sanders was permitted to explain any inconsistencies in the testimonies. Thus, the magistrate judge did not abuse his discretion in allowing the tape recording to be played. ADEQUACY OF JURY VERDICT Sanders next argues that the judgment should be reversed because the nominal damages award amounted to a refusal to assess damages. The jury award of only nominal damages on this record is troubling; however, Sanders did not file a motion for new trial. Absent exceptional circumstances, the issue of the adequacy of a jury verdict must first be presented to the trial court in a motion for a new trial in order to preserve the issue for appellate review. Haley v. Wyrick, 740 F.2d 12, 13-14 (8th Cir.1984). Exceptional circumstances may exist where there is a “plain injustice,” or a “monstrous” or “shocking” result. Taken Alive v. Litzau, 551 F.2d 196, 198-99 (8th Cir.1977). We have carefully reviewed the record, and we find the verdict neither “shocking” nor a “plain injustice.” ATTORNEY’S FEES In his cross-appeal, Rhodes argues the magistrate judge abused his discretion in not further reducing the attorney’s fee award because of the limited success Sanders achieved. We disagree. The magistrate judge properly considered the factors for awarding Sanders attorney’s fees under 42 U.S.C. § 1988. Where a plaintiff has “achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983). Compensation should not be awarded on a claim-by-claim basis, but rather on specific theories of relief. Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir.1991). Based on the magistrate judge’s finding that Sanders’s several claims contained a common theory, we conclude there was no abuse of discretion in the fee determination.' See id. at 162 (fee determination reversible only if court abused its discretion). Accordingly, we affirm the judgment of the district court. . The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the Eastern District of Arkansas, to whom this case was referred for final disposition by consent of the parties under 28 U.S.C. § 636(c). . The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas. Magistrate Judge Cavaneau ruled on all subsequent orders. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_timely	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court 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". BRODERICK, Collector of Internal Revenue, v. KEEFE et al. No. 3513. Circuit Court of Appeals, First Circuit. May 14, 1940. James P. Garland, Sp. Asst, to Atty. Gen. (Samuel O. Clerk, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., Arthur L. Jacobs, of Washington, D. C., and J. Howard McGrath, of Providence, R. 1., on the brief), for appellant. Richard F. Canning, of Providence, R. I. (Andrew P. Quinn, of Providence, R. I., on the brief), for appellees. Roger B. Hull, of New York City, for National Ass’n of Life Underwriters, ami-cus curiae. Before MAGRUDER, Circuit Judge, and PETERS and SWEENEY, District Judges. SWEENEY, District Judge. This is an appeal from a judgment of the District Court for the District of Rhode Island entered in favor of the plaintiffs below. The question presented is whether, after the exhaustion of the $40,000 exemption provided in the statute, the proceeds of two life insurance policies, taken out by the decedent on his own life, should have been included in his gross estate subject to federal estate tax. Both policies are sufficiently similar to treat them as one. The facts disclose that John W. Keefe, who died on August 3, 1935, was the owner of two insurance policies for which he paid the annual premiums. In each case, on April 18, 1930, he executed a “Nomination of Beneficiary and Request” in which he designated a “vested, irrevocable beneficiary”, who "if she survives me” was to receive the income during her lifetime, and it was further declared that "her consent in writing is necessary before any subsequent change in the beneficial interest can be made” or any loans secured on the policies. After having designated the primary beneficiary, the insured also designated certain contingent beneficiaries who would receive benefits after the death of the primary beneficiary. As to the contingent beneficiaries, the assured expressly withheld any vested interest and reserved the right to cancel or change the beneficiaries without their consent. The executrices filed a return, but did not include in the gross estate any value on account of the policies described. In 1937, the Commissioner made a deficiency assessment on this account which was paid. These suits were brought to recover the assessment in whole or in part. The Revenue Act of 1926, c. 27, 44 Stat. 9, as amended by, section 803(a), Revenue Act 1932 and Section 401 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 U. S.C.A.Int.Rev.Acts, p. 227, is as follows: “Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated — * * * “(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death (1) the possession or enjoyment of, or the right to the income from, the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death, without such consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title; “(d) (1) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * * “(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.” The Government contends, if it is determined that the proceeds of this insurance are not brought into the gross estate by subdivision (g) above, that subdivision (d) covers the proceeds of an insurance policy as well as any other property. We prefer to reach our decision without recourse to subdivision (d). See Walker v. United States, 8 Cir., 83 F.2d 103, and to an opposite conclusion see Pa'ul on Life Insurance and Federal Estate Tax, 52 Harvard Law Review 1051. We can rest our decision in this case squarely on subdivision (g). The language of Section 302(g) appears to cover much more than the Government claims for it, and seems broad enough to include the proceeds of policies involving no transfer of property in a testamentary sense. See Harvard Law Review, Vol. 52, 1047. However, it has never been the contention of the Treasury Department that subdivision (g) is as broad as this, and, in Treasury Regulations 80, Article 27, it limits the type of policies that are to be included in the gross estate to those where “the decedent possessed at the time of his death any of the legal incidents of ownership”. Since the adoption of this regulation, Congress has failed in its various amendatory acts to change this administrative interpretation. We are therefore hound to follow it. It is the settled rule that the practical interpretation of an ambiguous or doubtful statute that has been acted upon by officials charged with its administration will not be disturbed except for weighty reasons. Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 74 L.Ed. 457. Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval, and have the effect of law.’ Helvering v. Win-mill, 305 U.S. 79, 83, 59 S.Ct. 45, 83 L.Ed. 52. Section 302(g) and the Treasury Regulations promulgated thereunder seek to compel an estate, after the specified exemption, to pay a tax on proceeds of insurance policies in which the insured had an interest or legal incidents of ownership up to the time of his death. In Chase National Bank v. United States, 278 U.S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A.L.R. 388, the Supreme Court heldy where an insured retained until his death a legal interest in policies which gave him the power of disposition, and there was at his death a shifting of the economic benefits to the beneficiaries free from the exercise of the powers retained during the lifetime of the insured, that such a transfer was a legitimate subject of a transfer of a transfer tax. At page 338, of 278 U.S., at page 129 of 49 S.Ct., 73 L.Ed, 405, 63 A.L.R. 388, the court said: “Termination of the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax.” The gift to the primary beneficiary, although declared to be a full and complete gift to a “vested, irrevocable beneficiary”, was nevertheless expressly made contingent upon the primary beneficiary’s surviving the insured. It was only a life estate. Consequently, it is plain that the event which effectively transferred the life estate to the beneficiary was the death of the insured. Cf. Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. —, 125 A.L.R. 1368; Klein v. United States, 283 U.S. 231, 234, 51 S.Ct. 398, 75 L.Ed. 996. While these cases dealt with Section 302 (c), by parity of reasoning they throw light upon the proper construction of Section 302 (g). The insured retained the power “to cancel or change the interests” of the contingent beneficiaries “without their consent”. Under the power reserved, the insured, in the event of surviving the primary beneficiary, became complete master of the policy and could dispose of it as he pleased. It follows that as to all the beneficiaries, the death of the insured was the “indispensable and intended event” [309 U.S. 106, 60 S.Ct. 448, 84 L.Ed.-, 125 A.L.R. 1368] which effected the transmission of the estate from the dead to the living. See Klein v. United States, supra. As the court pointed out in the Hallock case the basic purpose of the estate tax is to bring within the gross estate of the transferor that wh'ich he gave “upon a contingency terminable at his death”. It is to be noted, further, that in the event of the insured’s surviving the primary and contingent beneficiaries, the insured had a reversionary interest in the proceeds of the policy. We are not called upon in this case to decide whether this possibility of reverter, standing alone, would have warranted the inclusion of the proceeds of the policy in the gross estate of the insured. See Bingham v. United States, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160; Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191; with which compare Helvering v. Hallock, supra. The powers which this insured retained, and which became extinct at his death, thus effecting a transfer or a possibility of transfer of economic benefits, constituted such a legal interest and were such incidents of ownership as to bring the value of the policies within the gross estate of the insured for estate tax purposes. See Chase National Bank v. United States, supra, and Igleheart v. Commissioner of Internal Revenue, 5 Cir., 77 F.2d 704, 711. The taxpayer further contends that the insurance proceeds should not be included in the gross estate since the issuance of the policies antedated the effective date of the Revenue Act of 1918, 40 Stat. 1057, and cites Lewellyn v. Frick, 268 U.S. 238, 45 S.Ct. 487, 488, 69 L.Ed. 934, and Bingham v. United States, supra, as authority for the rule that the Act does not apply to. insurance policies issued prior to the effective date of the first taxing statute. We d©' not think that the cases cited by the taxpayer are entitled to. this construction. In. both of them not only were the policies issued prior to the passage of the 1918 statute, but the beneficiaries had also been named long before the passage of that Act. Consequently, the question before the court in both cases was whether the Act applied to policies where the policies had been issued, and the transfer of interest in those policies had been made, before the adoption of the taxing statute. In the Frick case, Mr. Justice Holmes stated that doubts as to the constitutionality of a similar taxing statute could be “avoided by construing the statute as referring only to transactions taking place after it was passed”, and that the “general principle 'that the laws are not to be considered as applying to cases which arose before their passage’ is preserved”. We think that the word “transactions” as used by Mr. Justice Holmes is not directed to the issuance of the policies, but more likely was intended to mean the action which effected the transfer of interest in the insurance from the insured to the beneficiary or assignee. Support for this meaning of the word “transactions” is found in the second ground for the court’s decision in the case of Bingham v. United States, supra, where it said that the principles announced in Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, were decisive in favor of the taxpayers, and that those principles “establish that the title and possession of the beneficiary were fixed by the terms of the policies and assignments thereof, beyond the power of the insured to affect, many years before the act here in question was passed”. [296 U.S. 211, 56 S. Ct. 181, 80 L.Ed. 160.] What effect the decision in Helvering v. Hallock, supra, which rejected the theories announced in the St. Louis cases, would have upon the Bingham case is not determined here. Nevertheless, the basis for the Bingham decision, at least in part, was that the rights of the parties to the transfer of interests were fixed prior to the passage of the taxing statute. In the instant case, the rights of the parties to the transfer of interest were not fixed until after the passage of the Act. There was therefore no imposition of an unexpected liability that, if known, could have been avoided by those concerned, as was found in both the Frick and Bingham cases. The tax imposed being in the nature of a transfer tax and the actual transfer of interests having taken place after the passage of the Act, we can see no reason why the proceeds of the policies should not be included in the gross estate of the deceased. Having found that the insured did retain incidents of ownership, in addition to a possibility of a reverter, we are of the opinion that rhe P'rick and Bingham cases are not controlling. The judgment of the District Court is reversed, and the case is remanded to that court with directions to enter judgment for the defendant. I, John W. Keefe, the insured under the aforesaid policy,.do hereby nominate and request that if the said policy becomes a claim by reason of my death, the proceeds due thereunder be retained by the Company in accordance with the conditions and provisions of Instalment Option C and paid as follows: The interest income shall be paid monthly to my daughter, Gertrude S. Keefe, if she survives me, during her lifetime. At the death of the survivor of myself and my said daughter the proceeds or principal sum shall be divided and paid in equal lump sum payments to the then surviving issue of my said daughter. If the survivor of myself and my said daughter is not survived by any issue of my said daughter the proceeds or principal sum shall be divided into equal shares for my other daughters, Alice S. Keefe and Mary R. Keefe, which shares shall be paid as follows: The shares of such daughters shall be retained under the said Option C and the interest income thereon paid monthly to my said daughters during their respective lives. At the death of either of my said daughters her respective share of the principal and interest shall pass and be paid to the survivor of my said daughters in accordance with the conditions and provisions governing the payment of her respective share. At the death of the survivor of my said daughters the principal sum retained by the Company shall be paid in one sum to the estate of such survivor. If at the death of the survivor of myself and my said daughter, Gertrude S. Keefe, no issue of my said daughter are then living and one of my said other daughters is not then living, all of the proceeds or principal sum shall be paid to the surviv- or of my said other daughters in accordance with the conditions and provisions governing the payment of such survivor’s share. If my said daughter, Gertrude S. Keefe, survives me and no issue of hers survive her and neither of my said other daughters survive ier, the principal sum retained by the Company shall be paid in one sum to the estate of my said daughter, Gertrude S. Keefe, at her death. My said daughter, Gertrude S. Keefe, is herewith nominated as a vested, irrevocable beneficiary, and I declare that her consent in writing is necessary before any subsequent change in the beneficial interest can be made. However, I expressly withhold any vested interest from the contingent beneficiaries named hereunder, and the right is expressly reserved to cancel or change the interests of such contingent beneficiaries without their consent. It is especially agreed that the right is reserved to myself and my said daughter, Gertrude S. Keefe, to secure loans from the Company on this policy and to assign the same to the Company on the signatures of myself and my said daughter, Gertrude S. Keefe, as collateral security for such loans, without the consent of any contingent beneficiary and without annulling or altering the terms of this nomination and request. It is understood and agreed that the last survivor of my said daughters shall have the privilege while receiving interest income payments of withdrawing in one sum all of the principal sum retained by the Company. This right of withdrawal shall not pass to, or be exercised by, any attorney, trustee, assignee, or any other person in her behalf. The right to such withdrawal shall not be considered as having been effectively exercised unless the Company shall have received at its home office a written and dated request for withdrawal signed by such daughter entitled to make such withdrawal. This nomination and request cancels and supersedes any nomination of any and all beneficiaries heretofore made. The foregoing provisions of this nomination and request shall be null and void if the proceeds due under the said policy or policies at maturity, or at the death of the insured, are less than one thousand dollars, or if all the beneficiaries named herein predecease the insured; and in either event the said proceeds then due shall b<i paid in one lump sum to the executors or administrators of the insured. If the said insured shall be living at the expiration -of the endowment period (if suck period is named in said policy or policies), then said policy or policies and all rights thereunder shall revert to the said insured, unless otherwise provided herein. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_usc1	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. Milton JOHNSON, Defendant-Appellant. No. 17618. United States Court of Appeals, Seventh Circuit. May 20, 1970. Rehearing Denied July 22, 1970. Ronald P. Alwin, Federal Defender Program, Chicago, 111., for defendant-appellant. Thomas A. Foran, U. S. Atty., Lawrence J. Cohen, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee; Michael B. Nash, Asst. U. S. Atty., of counsel. Before DUFFY and HASTINGS, Senior Circuit Judges, and FAIRCHILD, Circuit Judge. HASTINGS, Senior Circuit Judge. A one count indictment charged that defendant Milton Johnson, on or about May 7, 1968, “fraudulently and knowingly did receive, conceal, buy, sell and facilitate the transportation, concealment and sale of approximately 10 grams of * * * heroin * * * ” in violation of Title 21, U.S.C.A. § 174. After a hearing before the court, defendant’s motion to suppress the evidence and testimony was denied. Defendant was represented at all times in the trial court by privately employed counsel. The record shows that defendant in open court knowingly and voluntarily waived a trial by jury. The issues were then tried to the court without a jury. Judgment of conviction was entered upon a finding of guilty. Defendant, having previously been convicted of violation of federal narcotic laws, was thereupon committed to the custody of the Attorney General for the minimum mandatory period of ten years. Defendant appeals from the judgment of conviction and sentence. We affirm. Defendant asserts as reversible error the denial of his motion to suppress. Critical to this issue is whether the federal narcotics agents had probable cause for the warrantless arrest of defendant for possession of narcotics and the warrantless incident search which led to the discovery of the narcotics on his person. We have read the entire transcript of the evidence introduced in the suppression hearing, as well as that introduced in the bench trial on the merits. From this the following seems clearly established. Federal narcotics Agents Kukstra and Jackson had defendant’s place of residence in Chicago under surveillance about 9:45 a. m. on May 7, 1968. They had been prompted to do this because of information received from an informant “that Milton Johnson was again big in the narcotics traffic;” because they had been able to effect an arrest and conviction through the use of information secured from this informant in one other case; and because defendant was known to the Bureau of Narcotics in Chicago through his record. At that time they saw defendant leave in a car in the company of Charles Ellis whom they recognized and knew was “of record” with the Bureau. The agents trailed them to 86th and Cottage Grove, where Agent Jackson followed Ellis into a National Tea Store and observed him making several telephone calls. Ellis then rejoined defendant and they drove to 86th and Drexel, where Ellis left defendant’s car and walked east on 86th Street and entered a north-south alley. About thirty-five minutes later, defendant drove his car around the block and parked. At that point the agents saw Ellis walk up to the car. Agent Jackson, using binoculars, saw Ellis hand defendant an aluminum foil package through the window on defendant’s side of the ear. At that time the agents moved to arrest defendant and Ellis. However, on reaching the corner where the suspects had been and after stopping their car, the agents saw that Ellis had disappeared through a gangway. They then lost sight of defendant after trying to catch up with his car. The agents gave up their attempt to make these arrests and resumed their surveillance of defendant’s residence. About twenty minutes later they again saw defendant leave his house with one Alonzo Oliver. Defendant and Oliver were followed to 67th and Jeffrey, where defendant was seen to leave his car and converse with an unidentified man, return to his ear and drive to 43rd and Cottage Grove, where he met another unidentified man outside his car and talked with him. Defendant then drove to the Lake Meadows Shopping Center, arriving about 1:00 p. m. There defendant was seen making several telephone calls and receiving one call inside the Walgreen drugstore. He met Oliver outside the drugstore and together they returned inside for lunch. About forty-five minutes later, defendant and Oliver drove to 51st and King Drive where defendant talked to a third unidentified man. Defendant and Oliver then drove to near 60th and Stony Island, where defendant left his car and met Ellis again. While they were seen talking together, Agent Jackson, again using his binoculars, saw defendant hand a white envelope to Ellis and receive an aluminum foil package in exchange. Ellis entered a nearby hotel and defendant drove to Jeffery and Marquette Road where, with the assistance of other agents, defendant was arrested by Agents Jackson and Kukstra. The aluminum foil package was removed from his left inside coat pocket at that time. At the conclusion of the evidence on the motion to suppress, the trial court stated the following conclusion on probable cause: “Well, the record shows that according to this agent, who has been in the Bureau for eight years, that he was aware of the narcotics background of both parties involved here. The court has seen enough of these silver packages here and on the west side [Cook County Criminal Courts Building] to realize this seems to be the standard method of wrapping contraband. Usually, there is an exchange of money for the contraband and that, of course, appeared to be what was going on at the time at 60th and Stony Island. The motion to suppress is denied.” Thus, the issue before us is whether or not on the record of the hearing before the district court there was a sufficient showing of probable cause to justify the agents in making a warrantless arrest and incident search of defendant. Defendant contends that the information the agents had, together with their personal observations, amounted to nothing more than a suspicion. The Government asserts a contrary view. We first consider the informant’s tip. The Government does not argue that this information alone was sufficient to establish probable cause. We may assume arguendo that the informer’s tip in the instant case would not be sufficient due to its vague and general character. Nevertheless, in the words of the Supreme Court, “this is not to say that the tip was so insubstantial that it could not properly have counted in the [agents’] determination. Rather, it needed some further support.” Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). On the question of the existence of such further support, defendant contends that Spinelli requires a reversal of his conviction. We believe that a close reading of that case indicates an opposite conclusion. In Spinelli, the Court held that an informer’s tip, which standing alone did not meet the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not sufficiently supported by other factors present in that case to justify a magistrate’s finding probable cause to believe a crime was being committed. The crime alleged there was interstate gambling activities. The additional factors relied upon to support the informant’s tip were: 1) An FBI surveillance that disclosed that the defendant on four of five days was seen going from Illinois to Missouri, parking his car in a certain lot and, on one occasion, going into a certain apartment; 2) a check with the telephone company which revealed that such apartment had two telephones; and 3) the fact that defendant was “known” to the FBI as a gambler. Given these factors, the Court concluded that “there can be no question that the * * * informant’s tip, has a fundamental place in this warrant application. Without it, probable cause could not be established.” Spinelli, supra, 393 U.S. at 414, 89 S.Ct. at 588. The Court specifically noted that the first two items were completely innocent and that the case would be different if there had been an unusual number of telephones or some abnormal activity. Id. The fact that Spinelli was “known” was no more than police suspicion entitled to no weight in these circumstances. Id. If we apply this same technique of carefully assessing all facts known to the agents to ascertain what support they give each other in the determination of probable cause, the contrast between Spinelli and the instant case is compelling. Here the informant’s tip was not “fundamental” to a finding of probable cause. Rather, the information that defendant was again engaging in the narcotics business merely served to alert the agents to undertake a surveillance of the defendant to determine whether he was in fact so engaged. That surveillance revealed • activities that cannot be justly characterized as “innocent-seeming.” Defendant was observed twice meeting the same known narcotics violator and twice obtaining from him a tinfoil packet. Both instances followed a series of telephone calls and trips to apparently pre-arranged meeting points. Defendant was seen delivering a white envelope in exchange for the second packet. In Spinelli, the Court cited McCray v. Illinois, 386 U.S. 300, 302, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), as a case where, unlike Spinelli, a defendant’s “abnormal activity” served to buttress an informer’s tip. In that case narcotics agents, acting on a tip which was apparently more reliable than that in the instant case, saw the defendant talk briefly and separately with two persons and then walk “hurriedly” between two buildings after seeing the police car. It was at this point that the agents concluded they had probable cause. The Court agreed. While the tip in the instant case may be less reliable, the suspicious activity is far greater. Without doubt, it was sufficient to “permit the suspicions engendered by the informant’s report, to ripen into a judgment that a crime was probably being committed.” Spinelli, supra, 393 U.S. at 418, 89 S.Ct. at 590. Above all else is the fact that the agents twice saw defendant receive an aluminum foil packet from a known narcotics violator. Such packages are well-known to experienced narcotics agents as a hallmark of the traffic in drugs. See Fisher v. United States, 92 U.S.App.D.C. 247, 205 F.2d 702 (1953), cert. den. 346 U.S. 872, 74 S.Ct. 122, 98 L.Ed. 381. Any contention that they could have contained innocent commodities is substantially overcome by the fact that they were passing between two known narcotics violators, that the incident occurred twice in the span of a few hours and that both incidents were surrounded by other suspicious activities. Finally, whereas in Spinelli all the magistrate knew was that Spinelli was a “known” gambler, here the agents knew that not only defendant, but also the man from whom he was getting the suspicious packets, were “of record” with the narcotics bureau. This indicates more than “suspicion.” It indicates that both had prior convictions for violation of the narcotics laws. And most important is the fact that the agents were not simply giving weight to defendant’s reputation as a “bad man,” as was the case in Spinelli. Rather, they were giving weight to the fact that two prior offenders were twice seen engaging in conduct that gave strong indication they were again engaging in illegal activity. In Spinelli all that was shown was that a reputed “bad man” had done a number of perfectly normal and innocent things which an unproven informer alleged were evidence of illegal activity. Spinelli is clearly distinguishable from the instant case. We are led to the firm conviction that the totality of the information possessed by the agents under the circumstances of this case was sufficient to establish probable cause. In his brief defendant raises a second issue, the constitutional validity of the statute under which he was convicted, 21 U.S.C.A. § 174. However, after his brief was filed, the Supreme Court decided this issue adversely to defendant in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (January 20, 1970), and he abandoned it on oral argument. Mr. Ronald P. Alwin, of the Chicago Bar, ably represented defendant on this appeal following our appointment pursuant to the Criminal Justice Act of 1964. He was assisted by Jean Kamp, of the University of Chicago Law School. We appreciate their services. The judgment of conviction and sentence is affirmed. Affirmed. . Cf. Sibron v. United States, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). There the arresting officer saw defendant converse with known addicts over a period of time and subsequently meet with other addicts at a restaurant and hold a conversation. However, the officer had no information concerning defendant and was not acquainted with him. The Court then stated: “It must be emphasized that Patrolman Martin [the officer] * * * saw nothing pass between Sibron and the addicts. * * * Nothing resembling probable cause existed until after the search had turned up the [glassine] envelopes of heroin.” Id. at 62-63, 88 S.Ct. at 1902. . Also distinguishable from the ease at bar is United States v. Burhannon, 7 Cir., 388 F.2d 961 (1968), heavily relied upon by defendant. There we were faced with an arrest based solely on observations and information so remote in time from the actual arrest as to be almost useless in the determination of probable cause to believe that the defendant had narcotics in his possession at the time of the arrest. The arresting officers there as much as admitted that they lacked probable cause at the time they made the arrest. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_appel1_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). Courtie U. BLAKESLEY, Appellant, v. Sherman H. CROUSE, Warden, Appellee. No. 7656. United States Court of Appeals Tenth Circuit. June 19, 1964. Rehearing Denied July 17, 1964. Thomas P. Hester, Oklahoma City, Okl., for appellant. Richard H. Seaton, Asst. Atty. Gen. of Kansas (William M. Ferguson, Atty. Gen. of Kansas, on the brief), for appellee. Before PHILLIPS and SETH, Circuit Judges, and ARRAJ, District Judge. PER CURIAM. This is an appeal from an order dismissing an application for a writ of habeas corpus by Blakesley, who was in custody under a sentence of a Kansas state court to imprisonment for the term of his natural life. From the application and copies of state court records attached thereto as exhibits, the following appears : On March 30, 1946, Blakesley appeared in person and with John E. Powell, an attorney selected and employed by him, in a state court in Kansas, entered a plea of not guilty to a complaint, voluntarily waived ■ a preliminary examination, and was bound over for trial in a state court for the offense charged in the complaint. Thereafter, on April 2, 1946, Blakesley appeared in person and by his attorney, John E. Powell, and entered his voluntary plea of guilty to an information charging him with first degree murder. Thereupon, the state introduced evidence in the case, as required by G.S.Kan., 1943, 21-403. After such evidence had been presented, the court sentenced him to confinement in Kansas State Penitentiary during the term of his natural life. In his application for the writ Blakesley set up two grounds: One, that he was charged by information and not by indictment and was thereby deprived of a federal constitutional right, and two, that his attorney, John E. Powell, was a resident of the State of Missouri and did not have associated and appearing with him in the case an attorney who resided in or maintained his law office within the judicial district of the State of Kansas, in which the action was pending, and who was duly and regularly admitted to practice in the courts of record of the State of Kansas. Powell’s competency to represent Blakesley was not otherwise challenged in the application. The trial court dismissed the application on the record before him and without a hearing. The first ground plainly was without merit. Under the constitution and the laws of Kansas a person may be charged for murder by an information and a charge by indictment is not required. A prosecution by information in a state court is not a violation of either the Fifth or Fourteenth Amendment to the Constitution of the United States. Although it is not alleged in the application, we will assume that Powell was not licensed to practice in Kansas. He was an attorney selected by Blakesley, duly licensed to practice in the State of Missouri. He was permitted to represent Blakesley in the state court action. There no doubt could be cases where a Missouri lawyer might not be sufficiently familiar with Kansas law to competently represent a party in a proceeding in a Kansas court, but we think it could not be assumed that a member of the bar of Missouri could not properly investigate the case, determine and appraise the evidence that would probably be introduced against Blakesley, examine the Kansas Statutes defining murder, and determine whether or not under the circumstances it would be best for Blakesley to enter a plea of not guilty. Moreover, we think that Blakesley, by appearing with Powell as his attorney and not requesting the appointment of a Kansas lawyer to be associated with Powell, waived the right, if any he had, to an attorney who resided in and was licensed to practice in the State of Kansas. We conclude that the court rightfully dismissed the application without a hearing. Affirmed. . Sec: Chapter 83, § 1, State of Kansas Session Laws, 1939. . G.S.Kan., 1949, G2-801; Sims v. Hudspeth, 166 Kan. 667, 203 P.2d 129. . Hurtado v. California, 110 U.S. 510, 4 S. Ct. 292, 28 L.Ed. 232; Gaines v. Washington, 277 U.S. 81, 86, 4S S.Ct. 408, 72 L.Ed. 793. 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_r_natpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. McMAN OIL & GAS CO. v. HURLEY et al. Circuit Court of Appeals, Fifth Circuit. March 19, 1928. No. 5050. 1. Mines and minerals <§=105 (2) — Authority to execute conveyance was conclusively presumed, where secretary’s certificates showed resolutions of executive committee and directors authorizing sale. Where certificates of secretary, showing resolutions of executive committee and board of directors of corporation authorizing and approving sale of oil lease, were issued and delivered to purchaser, it was conclusively presumed that the resolutions were adopted and that corporate authority was given to execute conveyance. 2. Corporations <@=>422(1) — Corporation is es-topped to deny authorized representations of its officers and'agents. Corporation is estopped to deny representations of its officers and agents, made within the scope of their authority. 3. Frauds, statute of <@=63(2)— Purchaser’s oral agreement, after sale of oil lease, to re-convey, held inadmissible under statute. Alleged oral agreement of purchaser of oil lease, after sale was made, to reconvey upon return of purchase price within 60 days, held inadmissible under statute of frauds. 4. Evidence <@=230 (3) — Title, having passed, cannot be impeached by vendor’s declaration that it passed conditionally. After title to property has passed to purchaser, it cannot be impeached by the vendor’s declaration that sale was conditional only. 5. Mines and minerals <@=74 — Failure of vendor of oil lease to attempt to comply with alleged condition permitting repurchase within time agreed rendered purchaser’s title absolute. If purchaser of oil lease entered into agreement with vendor to reconvey on return of purchase price within 69 days, purchaser’s title became absolute, where no attempt was made to comply with the condition within the time limit agreed upon. 6. Evidence <@=244(1 i) — Declaration that ■ Its officer had agreed to give bribe for sale of oil lease held not binding on purchaser corporation and insufficient to show bribery. Purchaser of oil lease, sued by receivers of vendor corporation to set aside conveyance as fraud on creditors, held not bound by declaration of vendor’s officer concerning agreement of purchaser’s officer to give bribe for sale, since conversation was not part of res gestee but constituted mere narration of past event, and charge of bribery was therefore not sustained. 7. Fraudulent conveyances <@=298(I)— Evidence held insufficient to support finding that sale of oil lease by corporation at time of financial embarrassment and decline in price of oil was made to defraud creditors. In suit by receivers of oil company to set aside corporation’s sale of oil lease, made at time price of oil had considerably declined and corporation was financially embarrassed, evidence held insufficient to support finding that sale was made with intent to hinder, delay, or defraud creditors, notwithstanding close family relations between officers and stockholders of two companies and profits realized from property after sale, where insolvency of grantor was not satisfactorily shown. 8. Fraudulent conveyances <@=249 — Year’s delay by receivers held to bar suit to set aside sale of corporation’s oil lease as fraud on creditors. Suit by receivers of oil company to set aside sale of corporation’s oil lease as fraud on creditors held barred by laches, where receivers delayed bringing suit for one year, after having acquired knowledge of all essential facts upon which suit was based, on account of belief that transaction was profitable to corporation. 9. Fraudulent conveyances <§=248 — Vendor’s receivers on purchaser’s refusal to reconvey oil lease as agreed were required to act promptly to set aside sale as fraud on creditors. Receivers of oil company, upon receiving notice of refusal of purchaser of oil lease to re-convey in alleged violation of agreement, were required to act promptly to set aside sale on account of fraud, especially in view of fluctuation in prices of oil-producing properties, and receivers could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid. Appeal from tlie District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge. Suit by P. J. Hurley and another, receivers of the Gilliland Oil Company, against the McMan Oil & Gas Company. From a decree for complainants defendant appeals. Reversed and remanded, with directions. John Rogers, of Tulsa, Okl., Harry H. Rogers, of San Antonio, Tex., A. B. Flanary, of Dallas, Tex., A. H. Carrigan, of Wichita Falls, Tex., and R. L. Batts, of Austin, Tex. (Carrigan, Britain, Morgan & King, of Wichita Falls, Tex., and Flanary & Aldredge, of Dallas, Tex., on the brief), for appellant. T. R. Boone, of Wichita Falls, Tex., John M. Atkinson, of St. Louis, Mo., J. M. McCormick, of Dallas, Tex. (McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., Atkinson, Rombauer & Hill, of St. Louis, Mo., Boone & Humphrey, of Wichita Falls, Tex., and Robert H. Richards, of Wilmington, Del., on the brief), for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. On May 11, 1921, the Gilliland Oil Company conveyed to the McMan Oil & Gas Company an interest in oil-producing land, designated in the record as the Hardin lease. The conveyance was absolute in form, and was authorized by the executive committee of the Gilliland company’s board of directors. A resolution of the board of directors, dated May 19, purporting to approve the sale, appears in the minutes; but whether it was adopted by a majority vote depends upon conflicting evidence as .to whether a director named McCullough was present. However, it is shown by undisputed testimony that the secretary certified that both sets of resolutions were regularly adopted by a majority vote, and his certificates to that effect‘Were delivered by the general attorney of the Gilliland company to the general attorney of the McMan company after the latter had insisted upon the sale being approved by resolution of the directors. On November 20, 1922, this suit was brought by P. J. Hurley and John J. Satterthwait, as receivers of Gilliland company, against the McMan company, to have the conveyance in question- decreed to be a mortgage, or to have been made with intent to hinder, delay, or defraud creditors of the grantor. The bill alleged that at the time of such conveyance the Gilliland company was insolvent, in the sense that it was unable to pay its debts as they matured in the course of business. Appellant defended on the grounds that it paid adequate consideration, was the purchaser of an unconditional title in good faith, without notice of the grantor’s insolvency, and that the suit was barred by laches. The purchase price, which was promptly paid, was a million dollars. Before this suit was brought, the net profits exceeded that sum. On final hearing, the District Court held that the sale was made in fraud of creditors, and that appellant had notice, though not actual knowledge, thereof, and ordered that the sale be set aside, and that appellant account to the receivers for the profits it had received over and above the purchase price. The Gilliland company was engaged in trading in oil properties and in producing and selling oil therefrom. It was incorporated under the laws of Delaware, with its principal office at Tulsa, Okl. In July of 1921 Hurley and Satterthwait were appointed receivers of that company by the Federal Distriet Court of Delaware and ancillary receivers by the Federal District .Court for the Northern District of Texas. The bill of complaint was filed on behalf of preferred stockholders, and charged the sale of property in Louisiana for less than its value,' but did not attack the sale of the Hardin lease to appellant. In May of 1922 the Gilliland company was reorganized, and its assets were ordered returned to it as a solvent, going concern ; and, except for the purpose of bringing this suit, the receivership was terminated. At the beginning of the year 1921, crude oil and its by-products commanded high prices; but in January of that year those prices began to decline rapidly. The price of crude oil dropped from $3.50 to $4 per barrel in January to $1.50 by May 11, the date of the conveyance in question. It continued to decline until in September, when it fell to the low level of $1 per barrel. Of course, the price of by-products declined in proportion. Beginning in September, prices began to advance. During this period of depression many oil operators either failed or were seriously embarrassed. Many banks that financed oil operators were in a precarious condition, and some of them also failed. The Gilliland company found itself in great financial difficulty, although it is not claimed that at any time its liabilities exceeded its assets. John -W. Gilliland was its president, and owned about 75 per cent, of its common stock. Hurley, who was later one of its receivers, and J. H. Boxley were active vice presidents. Gilliland and Boxley were interested in a number of banks in Oklahoma and Texas, and resorted to the devices of kiting checks and making accommodation notes to secure money for their corporation, which continued to expand its business by making additional purchases until as late as the middle of April. In order to raise the money which the corporation needed to pay its debts, including the debts evidenced by fictitious paper in banks, which, though not definitely fixed by the evidence, ranged somewhere be* tween one and two million dollars, the disputed sale of the Hardin lease was made, and the proceeds of the sale were applied in the payment of its debts. The McMan Oil & Gas Company also had its principal office at Tulsa, and, as its name implies, was engaged in the oil-producing business. J. A. Chapman, R. M. MeFarlin, and H. G. Barnard were its president, vice president, and treasurer, respectively, and together owned more than 75 per cent, of its capital stock. They were familiar with the Hardin lease, by reason of the fact that the McMan company owned a one-eighth interest in it at the time of the conveyance by the Gilliland company. Gilliland, Boxley, Chapman, McFarlin, and Barnard were all related to each other by blood or marriage. Negotiations for the conveyance of the Hardin lease were conducted by Boxley and Barnard, and, according to their testimony, that conveyance was intended to evidence an outright, unconditional sale. The court found that the fair market value of the property at the time of the transaction was approximately $1,784,000. The Hardin lease represented about one-third of the value of the Gilliland company’s total assets. Approximately $3,600,000 of preferred stock had been issued and was held by investors living in New York. About a month after the conveyance was made, representatives of preferred stockholders called upon Chapman with the view of reacquiring the property. They stated to him that they had been informed by Gilliland that this could be accomplished by returning the purchase price of a million dollars with interest within a reasonable time. Gilliland testified that he had made a statement to this effect to the board of directors of Gilliland company at the time the resolution approving the sale was adopted. He further testified that he never discussed the return of the property with Chapman, but that Barnard agreed, after the sale was made, to a reconveyance upon the return of the purchase price within 60 days. Chapman and Barnard denied that there was any such understanding, but Chapman offered to reeonvey the property upon those terms being accepted and complied with within two weeks. Upon request, the time was extended about two weeks more, but Chapman’s offer was not accepted. In the meantime, engineers made an investigation and reported to the parties interested in securing a reconveyance that the property was worth less than the sum that the McMan company had paid for it. In September, Hurley, one of the receivers, made practically the same offer, but it was declined. J. W. Hayes, secretary of the Gilliland company, testified that he heard Barnard say that that company could have the property back at any time it returned the money, but that witness was unable to say that the statement was made before the contract was executed. J. H. Maxey, general attorney for the Gilliland company, N testified that, after the sale was agreed upon, but before the resolution of the board of -directors approving it was passed, Boxley told.him that Barnard had agreed to pay Boxley a bribe of $150,000 for making the sale. That witness, however, does not claim that he disclosed this information to the board of directors, or to any of the other officers of the company he represented. Besides this, he co-operated with the general attorney of the McMan company in the preparation of the final papers, and never mentioned the alleged bribe to him, and represented the receivers as attorney throughout the receivership proceedings. Hurley, one of the receivers, testified that he first learned of Boxley’s alleged admission to Maxey of being promised a bribe by Barnard in November of 1921, but admitted that Barnard denied the truth of the charge. And there was no direct evidence that the corrupt agreement was in fact made. The testimony of the several witnesses for appellees, to the effect that appellant’s officers had stated after the sale was made that it would reeonvey upon the return of the purchase price, was received over appellant’s objection and exception, as was also the testimony relating to Maxey’s alleged conversation with Boxley on the subject of a bribe being paid by Barnard. In addition, Boxley denied that any such conversation was ever had, and both he and Barnard denied that the alleged bribe was ever offered. The testimony discloses that the principal officers and stockholders of the McMan company knew in a general way that the Gilliland company was in need of money to pay its pressing obligations, and in order to get it was under the necessity of disposing of some of its holdings at a possible sacrifice because of greatly depressed, market conditions; but it does not show that they had knowledge or could reasonably be charged with notice that the sale of the Hardin lease would so reduce its assets as to bring about a condition of insolvency. In our opinion it sufficiently appears that corporate authority was given to execute the conveyance of the Hardin lease to appellant.. The resolutions, both of the executive committee and of the board of directors, purport to have been adopted by majority votes. It is conclusively presumed that they were so adopted by reason of the certificates to that effect issued by the secretary and delivered to appellant by the general attorney of the Gilliland company. A corporation is estopped to deny the representations of its officers and agents made within the scope of their authority. Whiting v. Wellington (C. C.) 10 F. 810; Holden v. Whiting (C. C.) 29 F. 881; Prentiss Tool & Supply Co. v. Godchaux (C. C. A.) 66 F. 234; Commonwealth v. Reading Savings Bank, 137 Mass. 431; Holden v. Phelps, 141 Mass. 456, 5 N. E. 815. The conveyance was not a mortgage. Under no phase of the evidence was the consideration shown to be a loan. The utmost that was claimed by witnesses for appellees was that a sale was made upon condition that the property sold could be repurchased. That testimony went no further than to show that the condition was imposed by appellant after the sale was consummated; but it was oral testimony, and in our opinion was inadmissible under the statute of frauds. 27 C. J. 207. After title has passed, it cannot be impeached by the vendor’s declaration that it was conditional. Greenleaf, § 189. But, assuming the admissibilty of that testimony, the right claimed was to repurchase within the definite period of 60 days. There was no testimony that such right should continue for a reasonable time, as is contended by appellees. No attempt was made to comply with the alleged condition within the time limit that was agreed upon, and so appellant’s title became absolute. Campbell v. Fetty (C. C. A.) 271 F. 671. We are of opinion also that the evidence, even of appellees, fails to show that the conveyance was made with intent to hinder, delay, or defraud creditors of the Gilliland company. The charge of bribery must fail, because it is only supported by an alleged declaration of an officer of appellees which it is not claimed was made until after the execution of the contract of sale. The alleged conversation between Boxley and Maxey was not a part of the res geste, or made during the continuance or in pursuance of a common plan designed by Boxley and Barnard, but was a narrative of a past event. Under no possible view could it be binding on appellant. There was no other circumstance tending to sustain the charge of bribery. The evidence does not appear to us sufficient fairly and reasonably to support the conclusion that the Gilliland company made the sale with intent to hinder, delay, or defraud its creditors. In the first place, insolvency of that company is not satisfactorily shown. The most that appears is that that company, in order to pay its debts, was obliged to sell some of its holdings at a sacrifice because of depressed market conditions. No improper use was made of the proceeds of the sale, but they were devoted to the payment of debts. The officers of the McMan company were, of course, acquainted with the financial situation that confronted oil companies generally, and besides knew that the Gilliland company was badly in need of money. But, as it appears to us, the evidence falls short of showing that they were chargeable with notice that the Gilliland company was insolvent, even conceding the existence of a state of actual insolvency. In arriving at this conclusion, we have given full weight to the circumstance that close family relations existed between the principal officers and stockholders of the two companies, But, aside from all the foregoing considerations, we are of opinion that this suit is barred by laehes. Hurley, one of the receivers, and formerly a vice president of the Gilliland company, knew of the sale in question. The original suit, in which- he was appointed one of the receivers, was brought in July of 1921. It is significant that the sale here complained of was not attacked during the entire period of the receivership, which was not terminated until May of 1922. Certainly the preferred stockholders, on whose behalf the receivership proceedings were instituted, knew of the sale, for, within a few weeks after it was made, they negotiated for a repurchase. The reason that they did not reacquire the Hardin lease may reasonably be ascribed to their belief that it was not worth more than the price at which it had been sold. Hurley was notified in September of 1921 that the purchaser would not re-convey the property, but would insist upon holding the title it had acquired. Upon receiving notice of the refusal of the purchaser to reconvey, it became the duty of the receivers to act promptly, especially in view of the great fluctuation in the prices of oil-producing properties. They could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid or to repudiate it as invalid. Hurley excused the delay until November of 1921 on the ground that he did not earlier learn of Barnard’s ‘alleged bribery of Boxley. But it stands admitted that there was a delay in bringing suit oí; a year after Hurley was in full possession of all the essential facts on which the suit was based. In the meantime it developed that the purchase of the Hardin lease was profitable to appellant. It is not equitable to allow appellees so to speculate on the value of the property involved. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328. The decree is reversed, and the cause remanded, with directions to dismiss the bill of complaint. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_treat	G	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES, Appellee, v. Ismail KURKCULER, a/k/a George Murphy, Defendant, Appellant. No. 89-1266. United States Court of Appeals, First Circuit. Heard Oct. 5, 1990. Decided Nov. 7, 1990. Ralph J. Perrotta, for defendant, appellant. Seymour Posner, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, for appellee. Before BOWNES, Circuit Judge, BROWN, Senior Circuit Judge, and TORRUELLA, Circuit Judge. Of the Fifth Circuit, sitting by designation. JOHN R. BROWN, Senior Circuit Judge. This ease presents the question, left unanswered by the Supreme Court in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), of the appropriate remedy for a breach by the prosecution of a plea bargain agreement. Santobello left the .choice of remedy, within certain boundaries, to the discretion of the state court, “which [was] in a better position to decide [what] the circumstances of [the] case requirefd].” Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433. Although the Santobello Court did not identify the constitutional basis of the decision, its holdings are clearly of such proportions, since the Court would otherwise have had no jurisdiction over the defendant’s sentencing under New York statutes. We see no reason, therefore, to distinguish between the discretion to be afforded state and federal courts in breach-of-plea-bargain cases. Santobello requires us to reverse and remand for resentencing or a vacated plea and new trial as the circumstances require. Id. Under our own breach-of-plea-bargain cases following Santobello, we find that the circumstances of this case do not require a new trial and that resentencing is an adequate, appropriate remedy. How It All Began Appellant Kurkculer was prosecuted for wire fraud in connection with a scheme to defraud merchants by ordering goods COD and paying United Parcel Service with phony certified or cashier’s checks. Kurkculer and the government entered a plea agreement on December 18, 1988, under which Kurkculer was to plead guilty and the government was to recommend sentencing under the guidelines at level 13, and recommend the shortest sentence for that level — 12 months — if merchandise valued at $100,000 or more was returned. Kurkculer pleaded guilty on December 19 to three counts of fraud under 18 U.S.C. 1343, and before sentencing he returned merchandise valued at about $132,500. The probation officer’s presentence report, however, suggested that a higher sentence level was warranted. Some of the reasons included evidence that Kurkculer had promoted similar schemes in other jurisdictions, and the probation officer’s opinion that, because Kurkculer had bargained for a lower sentence recommendation in exchange for his guilty plea and the return of the merchandise, he had not truly accepted responsibility for his actions. In the first session of a three-part sentencing hearing on February 15, 1989, the prosecution recommended that Kurkculer be sentenced in accordance with the presen-tence report. The defense objected to the prosecution’s failure to make its recommendations in accordance with the agreement. The hearing was continued, and on February 22, the defense moved that the matter be assigned to another judge for sentencing and that the prosecution be ordered to keep its agreement. The judge refused to recuse himself from the matter. The prosecution withdrew its original recommendation and now recommended a 12-month sentence under level 13 of the guidelines, as agreed. The defense renewed its motions, contending that the prosecution’s new recommendation was ineffective, since the judge had heard the original recommendation and understood that this was the prosecution’s “real” evaluation. The judge said that he was unaffected by the prosecution’s recommendations, and held that because of the new recommendation there was no breach of the plea agreement. The judge asked if the defendant wished to withdraw his guilty plea, but defense counsel continued to request recusal and specific performance of the agreement. Finally, on March 3, Kurkculer was sentenced in accordance with the recommendations of the presentence report, to three years in prison on each of the three counts, to run concurrently. The court also increased Kurkculer’s sentence beyond the guideline range because of his “frivolous” objection to the presentence report. Promises, Promises The Supreme Court’s Santobello decision and our own decisions require more than good faith by the government in securing through plea bargaining a defendant’s waiver of constitutional rights. The government must keep its promises or the defendant must be released from the bargain. Thus, on remand Santobello’s possible remedies for a prosecutor’s breached agreement were specific performance or withdrawal of the bargained-for plea. In Santobello, a prosecutor inadvertently breached a colleague’s earlier agreement to make no sentence recommendation, and instead recommended the maximum sentence. The sentencing judge stated for the record that he was not influenced by the prosecutor’s mistaken recommendation but rather by the presentence report, and sentenced the defendant to the maximum prison time. The Santobello Court held that, “[Wjhen a plea rests in any significant degree 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.” 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added). The Court remanded for the state court “to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be sentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.” Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added). The Court obviously considered withdrawal of the plea — Santobello’s preferred remedy — more extreme than resen-tencing. It is at least suggested by the use of the word “only” and the phrase “or whether ... the circumstances require,” that specific performance by the government of the plea agreement is the minimum acceptable remedy, and it is clear that where specific performance is a sufficient remedy, the Supreme Court has held that such a defendant “should be sentenced by a different judge.” Id. The Revolving Issues The case at hand revolves around factors which distinguish it from Santobello. It is distinguishable from Santobello by the prosecutor’s retraction of his original recommendation followed by an acknowledgement and recitation of the agreed upon recommendation, and by the court’s offer to permit the defendant to withdraw his plea. In Kurkculer’s sentencing, the prosecution withdrew its first recommendation, which was contrary to the plea agreement, and told the court that it was recommending sentencing in accordance with the agreement. Kurkculer argues that, since the judge was aware of the prosecutor’s original recommendation and would consider it as the prosecutor’s “real” opinion on the matter, the prosecutor’s attempt to remedy its breach was ineffective. The trial judge stated that he was not influenced by the offending recommendation, and held that the prosecution’s retraction not only remedied the breach, but that there somehow was no breach at all. On appeal, it is not disputed that there was a breach. The government contends however, that since the trial court offered Kurkculer the opportunity to withdraw his guilty plea and he declined, Kurkculer has waived all right to any remedy to the prosecution’s breach. The questions then, are whether the prosecutor’s belated specific performance before the same judge was a sufficient remedy to his breach, and whether the defendant has waived any relief by declining to withdraw his plea when offered the opportunity to do so. May a Defendant Choose His Remedy? While not denying that Santobello affords a remedy for a government breach of a plea bargain, the government argues that Santobello does not afford a defendant a choice of remedy, and so by refusing the offered remedy, Kurkculer has waived any right he had to a remedy. In his concurrence to Santobello, Justice Douglas recommends that “a court ought to accord a defendant’s preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the State.” Santobello, 404 U.S. at 267, 92 S.Ct. at 501, 30 L.Ed.2d at 436. Justice Douglas was the “swing” vote on this issue; three of the seven justices believed the defendant should be entitled to withdraw his plea if he chooses. Id. at 267-69, 92 S.Ct. at 501-02, 30 L.Ed.2d at 436-37 (Marshall, Brennan & Stewart, JJ., concurring in part and dissenting in part). Thus a majority of the Court would afford at least substantial deference to a defendant’s preference for vacating a plea. Id. at 268 n. , 92 S.Ct. at 502 n. , 80 L.Ed.2d at 437. This arithmetic inference, however, should not be confused with the law of the case, which is that the court, not the defendant, chooses the remedy- Petitioner cites Correale v. United States, 479 F.2d 944 (1st Cir.1973), apparently to support a preference for the relief requested by the defendant. But in Correale, the defendant abandoned a claim for vacating his plea and such an option was not offered by the trial court. In Corréale, we determined that, where the defendant, as here, sought resentencing and not the opportunity to withdraw his plea, specific performance could not always be provided by remanding to a different judge for re-sentencing. We observed that in Santobel-lo, unlike Corréale, the defendant had been released on bail and had not begun to serve his sentence, and that therefore the Court had no reason to consider any other means of providing specific performance. The Court in Santobello left appropriate relief to the discretion of the state court and stated that “what is reasonably due in the circumstances ... will vary.” Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. In Corréale, the prosecution had agreed to recommend that a federal sentence run concurrently with a state sentence. While the promised recommendation was given, the sentence was illegal and thus unfulfillable. 479 F.2d at 947 n. 3. Because it was impossible to give the defendant the benefit of the agreement by remanding for re-sentencing (the benefit being the possibility that the judge could choose to act in accordance with the recommendation), and because the defendant had already served the state sentence plus 17 months of his original federal sentence, we considered it “hollow to remand for resentencing” with a recommendation that the sentences run concurrently. Id. at 950. We determined that “the only just remedy and the only one which could now approximate specific enforcement of the agreement” would be a sentence that resulted in the defendant’s release. Consequently, we remanded the case with instructions to impose a suspended sentence that would achieve the same result. Id. We used our equitable power in Corréale to remand with instructions to impose a specific sentence in order to achieve specific performance of the agreement. Such an equitable remedy is extraordinary, however, depriving the trial court of its discretion in sentencing, and instead giving the prosecutor the power to sentence. Obviously we do not take such action lightly. Santobello does not require courts to impose sentences as recommended, but only requires that the prosecutor keep its promise to make recommendations even though they are not binding on the court. Although the defendant in Corréale received the remedy he requested, the case does not stand for the proposition that the defendant’s preference necessarily prevails. Thus, even in Corréale, we followed the Santobello rule that the court chooses the remedy. In a later case, also asserting our power to impose a specific sentence on appeal, we chose the same remedy, but it was not the one preferred by the defendant. In United States v. Garcia, 698 F.2d 31 (1st Cir.1983) [hereafter Angeles Garcia ], unlike Corr-éale, the defendant asked to vacate her guilty plea and the government asked that she be resentenced to time served. We said, “Where withdrawal of the plea or specific performance would be meaningless or infeasible, a court may order imposition of a specific sentence. Correale v. United States, supra, 479 F.2d at 950; accord United States v. Bowler, supra, 585 F.2d [851] at 856 [ (7th Cir.1978) ].” 698 F.2d at 37. The defendant had served her sentence and been released on parole. We held that resentencing would serve no useful purpose and, because of the defendant’s age, the unfairness to both parties of a trial, the less than egregious error of the prosecutor and the strength of the case, we ordered the trial court to resentence the defendant to the amount of time served. “[W]e are persuaded that further proceedings are not in the interests of justice.” Id. Waive Goodbye The prosecution argues without using the word “waiver,” that because Kurkculer declined the opportunity to withdraw his plea, instead seeking specific performance of the agreement before another judge, that he is entitled to no relief. Santobello and its First Circuit progeny do not address the question of whether and how a defendant may waive the right to a remedy for the government’s breach of its bargain. Of course, it may be possible to waive the remedy, just as one waives the right to a trial and other constitutional rights by pleading guilty pursuant to a plea bargain. An effective waiver of the remedy would reaffirm the defendant’s waiver of the rights originally waived by pleading guilty. Thus, at a minimum, such a waiver must, like a guilty plea, be “knowing and voluntary.” Because we find that Kurkculer did not knowingly and voluntarily waive the right to a remedy to the breach, we need not determine whether the right may be waived, and what, if any, additional conditions to such a waiver are required. Even if Kurkculer waived any right to withdraw his plea, it cannot reasonably be assumed that he also knowingly and voluntarily waived any remedy, since he clearly continues to request the lesser remedy suggested by the Court in Santobello. The Court in Santobello did not leave room for the defendant to inadvertently lose his due process rights, and to sacrifice his right to a trial to an unfair and unfulfilled bargain; instead it requires us to determine what remedy is “required.” Santobello, 404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433. May the Court Choose, Over Kurkculer’s Objection, To Vacate His Guilty Plea? Santobello requires that the breach be remedied and gives the choice of remedy to the court. Because Kurkculer has not waived a remedy but is not entitled to a choice of remedy, and because he prefers specific performance to the vacated plea offered by the trial court, we must determine whether the court may choose to vacate his guilty plea over his objections on remand. This court has repeatedly expressed a preference for specific performance of the agreement by resentencing before a different judge rather than vacating pleas. Once that is done, a defendant “will obtain all he says he was promised and can then have no right to withdraw the plea.” McAleney v. United States, 539 F.2d 282, 286 (1st Cir.1976). The case at hand is unusual in that the defendant prefers resentencing to vacating his plea. Santobello and our cases which refused to give the defendant a choice of remedy reached that result where the defendant wanted his plea vacated. While the Court in Santobello did leave the choice of remedy to the state court on remand, the trial court was to determine whether the circumstances “require[d]” the greater remedy of a withdrawn plea or “only” specific performance. Id. In determining what the circumstances require, we bear in mind that although the trial court is not required to accept a guilty plea, it has less discretion once a plea has been accepted. We addressed the question of whether a district court may vacate a guilty plea over a defendant’s objection once it has been accepted, in United States v. Cruz, 709 F.2d 111 (1st Cir.1983). In Cruz, the trial judge accepted a bargained-for guilty plea, then rejected the plea on the basis of information contained in the presentence reports of the defendant and two codefendants, and then recused himself. We held that the district judge’s actions contravened Fed.R.Crim.P. 11(e) (Plea Agreement Procedure), and Rule 32(c) (Pre-sentence Investigation), and that a guilty plea may not be set aside on the basis of information in a presentence report concerning something short of fraud on the court. Id. at 114-15. Fed.R.Crim.P. 11(e) allows the court to accept or reject a guilty plea, or to defer its decision until it has had the opportunity to review the presentence report. See United States v. Blackwell, 694 F.2d 1325, 1338 (D.C.Cir.1982). The court may choose the latter, however, only if it has the defendant’s permission to review the presen-tence report. Fed.R.Crim.P. 32 provides that, “Except with the written consent of the defendant the report shall not be submitted to the court unless the defendant has pleaded guilty or nolo contendere or has been found guilty.” Fed.R.Crim.P. 32(c)(1). We agreed with the reasoning of Blackwell: “Rule 11 appears to speak unequivocally; if the plea is accepted, the judge does not announce any deferral of that acceptance, and the defendant adheres to the terms of the bargain, all parties to it are bound.... [T]he mere postponement of sentencing itself to a future date does not authorize the judge to remake or vacate the plea bargain for whatever reasons later seem appropriate to [the judge]. [694 F.2d] at 1339.” Cruz, 709 F.2d at 115. Rule 32 was modified to permit the court to see the presentence report prior to accepting a guilty plea — but only with the defendant’s permission — in response to Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) which held that submission of presentence report to the court before the defendant pleads guilty or is convicted “constitutes error of the clearest kind,” Id. at 492, 89 S.Ct. at 1136, 22 L.Ed.2d at 446, because the reports contain “hearsay and facts that are collateral to the central issue of the defendant’s guilt or innocence in the instant case, [so] a trial court’s exposure to the report could seriously prejudice the defendant.” Cruz, 709 F.2d at 115. Thus, in Cruz, the court’s action in vacating a guilty plea after reviewing a presen-tence report “undermined the protection afforded the defendant by Rules 11 and 32.” Id. In Kurkeuler's sentencing hearing, the court did not, nor is it purported to have relied on the presentence report in offering to vacate the plea. Rather, the opportunity to withdraw the plea was offered because of the prosecution’s breach of its plea bargaining agreement. Nonetheless, if the plea is rejected over Kurkeuler’s objections, he will be similarly denied the protection of Rules 11 and 32 because the judge has reviewed the presentence report without Kurkeuler’s consent before the defendant has pleaded (guilty) or been convicted — unless he is tried by a different judge. Thus, under Santobello and the Rules the court must choose which remedy is “required:” a vacated plea and trial or mere resentenc-ing. We hold that specific performance by resentencing is all that is required in this case. Specific performance is feasible and is a lesser burden on the government and defendant. Further, permitting a judge to vacate a plea over defendant’s objection on breach by the prosecution allows the government to back out of its agreement at will and obtain a trial. Given nothing more than the prosecutor’s breach, the circumstances do not “require” a new trial. Thus we hold that the facts of this case do not compel vacating Kurkculer’s guilty plea over his objections. Was the Breach Corrected at Trial? The defendant complains that the prosecutor’s corrected recommendation is ineffective because the judge is aware of the government’s “real” position on the sentencing and will be improperly influenced by the original recommendation. The trial court held that the breach was corrected by the later recommendation. Neither of these arguments is in accordance with Santobello. The Court in Santo-bello nowhere suggested that a mere withdrawal of the offending recommendation with substitution of the agreed recommendation would have been a sufficient remedy. While no such attempt was made in Santobello, its futility is suggested by the Court’s comment that “at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial.... That the breach of agreement was inadvertent does not lessen its impact.” 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. Cf. United States v. Brown, 500 F.2d 375 (4th Cir.1974) (holding that where prosecutor promised to recommend a particular sentence, the mere half-hearted recitation of a suggested sentence would not satisfy the plea agreement). Furthermore, the majority in Santobello found it irrelevant whether the judge was actually influenced by the breach. 404 U.S. at 262, 92 S.Ct. at 498, 30 L.Ed.2d at 433. In Corréale, this court determined that, “The reason [that the impact on the judge is irrelevant] is obvious; it is the defendant’s rights which are being violated when the plea agreement is broken or meaningless. It is his waiver which must be voluntary and knowing. He offers that waiver not in exchange for the actual sentence or impact on the judge, but for the prosecutor’s statements in court. If they are not adequate, the waiver is ineffective.” 479 F.2d at 949 (emphasis added). We therefore hold that under Santobello a remedy is required and that resentencing is an appropriate remedy. In a footnote to Corréale, we echoed Santobello's requirement that a new judge resentence, although finding that “unusual circumstances” made the requirement inapplicable. 479 F.2d at 950 n. 6. A different judge was not needed in Corréale because we ordered imposition of a specific, suspended sentence. Time and tide wait for no man. As in Angeles Garcia, Kurkculer has already served more time than the government agreed to recommend, and he is scheduled to be released soon. Consequently, although the court would not have been bound by the government’s recommendation, it is now, as in Corréale, impossible for the court to choose to act in accordance with the bargained-for recommendation on remand. Thus, as in Corréale, it would be “hollow to remand for resentencing” before a new judge who would be given the agreed-upon recommendation by the government. 479 F.2d at 950. Therefore, as in Corréale, we remand for resentenc-ing with specific instructions to the court. As in Angeles Garcia, where the defendant had served her sentence and had been released on parole, we order resentencing to time served — plus the supervised release, fine, special assessment and restitution ordered in the original sentence. As we stated in Corréale, a new judge is not needed to carry out such an order. In light of this disposition, we need not decide the merits of Kurkculer’s assertions that the trial court improperly applied the sentencing guidelines. AFFIRMED. THE SENTENCE IS VACATED AND THE CAUSE IS REMANDED. . See 404 U.S. at 258, 92 S.Ct. at 496, 30 L.Ed.2d at 431 (Burger, J., for the plurality); see also id. at 266-67, 92 S.Ct. at 501, 30 L.Ed.2d at 436 (Douglas, J., concurring) (“This is a state case over which we have no ‘supervisory’ jurisdiction. ... I ... favor a constitutional rule...."). . E.g., Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973) (“We must reverse, not because of any lack of good faith, but only because the most meticulous standards of both promise and performance must be met by prosecutors in plea bargaining."). See also United States v. Hogan, 862 F.2d 386, 388 (1st Cir.1988) (quoting with approval an opinion of the district court for Rhode Island — the same court from which Kurkculer now appeals: " ‘Santobello and its progeny proscribe not only explicit repudiation of the government’s assurances, but must in the interests of fairness be read to forbid end-runs around them.’ United States v. Voccola, 600 F.Supp. 1534, 1537 (D.R.I.1985).’’). But cf. United States v. Ramos, 810 F.2d 308, 313-14 (1st Cir.1987) (recommendations need not be made "enthusiastically’’). . Santobello’s prosecutor did not withdraw his recommendation, which breached an agreement to make no recommendation at all. . No such offer was made to Santobello. This in fact was the relief he sought. . We are reluctant to reverse the trial court on this factual issue. See, e.g., Panzardi-Alvarez v. United States, 879 F.2d 975, 987 (1st Cir.1989) ("The trial judge makes the factual determination of whether there has been a breach of the plea agreement. United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). We will not reverse this determination, therefore, unless clearly erroneous. Id."), cert. denied, - U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990). It is clear error to say that no breach ever occurred. . See 18 U.S.C. § 3553. . See, e.g., United States v. Garcia, 694 F.2d 294, 296 (1st Cir.1982) [hereafter Francisco Garcia ] (where trial court refused to hear government recommendation and defendant requested plea be vacated, resentencing was held appropriate); McAleney v. United States, 539 F.2d 282, 286 (1st Cir.1976) (where defendant relied on misinformation from his attorney regarding bargain prosecutor had not actually offered and trial court vacated plea, court of appeals permitted government option of giving before a new judge the recommendation relied upon by defendant if it could do so in good faith, thereby limiting defendant’s remedy to resentencing); Mawson v. United States, 463 F.2d 29, 31 (1st Cir.1972) (where government was silent when plaintiff disavowed existence of bargain but pleaded guilty, and plaintiff sought “various forms of relief," resentencing was ruled appropriate). . Santobello, 404 U.S. at 262, 92 S.Ct. at 498, 30 L.Ed.2d at 498; In re Arvedon, 523 F.2d 914, 916 (1st Cir.1975); Fed.R.Crim.P. 11. . To the extent that Cruz relied on a double jeopardy analysis and is inconsistent with Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), it has been disapproved by this court. United States v. Santiago Soto, 825 F.2d 616 (1st Cir.1987). . See Fed.R.Crim.P. 32(c)(1); United States v. Sonderup, 639 F.2d 294, 296 (5th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 426 (1981); United States v. Harris, 635 F.2d 526, 528 (6th Cir.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 847 (1981). 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_search	A	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. UNITED STATES of America, Plaintiff-Appellee, v. Steven MANN, Dennis McLaughlin, Marc Schulman and Bruce Cunningham, Defendants-Appellants. No. 79-5165 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 17, 1980. Rehearing Denied May 27,1980. Dick DeGuerin, Houston, Tex., for defendants-appellants. James R. Gough, John M. Potter, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee. Before GEE, RUBIN and POLITZ, Circuit Judges. Fed.R.App.P. 34(a); 5th Cir. R. 18. PER CURIAM: Now well-established principles relating to stopping and searching U. S. vessels on the high seas are involved in the appeal of this criminal conviction after a jury trial on three counts, conspiracy to import marijuana, 21 U.S.C. § 963, conspiracy to possess marijuana with intent to distribute it, 21 U.S.C. § 846, and carrying firearms in the commission of a felony, 18 U.S.C. § 924(c)(2). We affirm the conspiracy convictions, but reverse the firearms conviction on the ground that it is not unlawful to carry firearms on the high seas. The four defendants, Mann, McLaughlin, Cunningham, and Schulman were arrested aboard a U. S. registry vessel on the high seas off the Yucatan Peninsula. The vessel, Texas Star, a shrimper owned by a Texas corporation, Interstate Exploration, Inc., was travelling in the direction of the Texas coast when Coast Guard officers observed her from a helicopter, and noted her course and speed. They communicated with the crime information center in El Paso, Texas, but the center had no information regarding the vessel. However, she was headed toward Texas, was not rigged for shrimping, carried no shrimp nets, was not on waters usually fished for shrimp and the Coast Guard saw no one aboard engaged in fishing activity. Therefore, the Coast Guard officer aboard the helicopter’s base vessel,- the Valiant, decided to board the Texas Star, ostensibly for a safety and document inspection. The officer in charge of the boarding party told those aboard that he was checking for compliance with U. S. laws and whether there were guns aboard. Mann said there were weapons on the ship and produced an AR 15 semi-automatic rifle and a shotgun. The vessel’s papers showed that 19 days previously she had been boarded by the Captain of the Port of Galveston and his inspection revealed that the pollution plaque was not in the engine room. The Coast Guard officer went to the engine room to see whether the discrepancy had been corrected. En route he smelled what he thought to be marijuana. There were burlap covered bags in the room so he asked about their contents. Mann said the cargo was bauxite. The Coast Guard officer opened some of the bags, found marijuana and gave the defendants Miranda warnings. The Coast Guard party then searched the vessel and discovered 22,590 pounds of marijuana, two .22 caliber pistols, a shotgun and 980 rounds of ammunition. Mann and McLaughlin thereafter made incriminating statements that were used against them at the trial. Seven issues are raised on appeal. We deal separately with defendants’ challenges of the conspiracy convictions, the firearms convictions and the sentences of defendants Mann and McLaughlin. I. Defendants initially challenge the introduction of evidence seized from the Texas Star and incriminating statements made after the stop of the vessel. As defendants recognize in their brief, the Coast Guard has plenary authority to stop and board an American vessel on the high seas for a safety and document inspection as it did here. See 14 U.S.C. § 89(a); United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc). The Texas Star was registered under the laws of the United States and was, therefore, subject to this authority. Defendants argue, however, that the real reason for .the search was to uncover contraband and that the Coast Guard’s invocation of its section 89(a) safety and document check authority was pretextual. Even accepting that characterization of the stop and boarding, we need not determine whether it would distinguish this case from Warren, supra, for the district judge concluded that the facts known to the Coast Guard created a reasonable suspicion that the vessel was carrying contraband to the United States. We agree, and conclude that the stop and boarding was, therefore, justified. See United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979); United States v. Kleinschmidt, 596 F.2d 133 (5th Cir. 1979), cert. denied, — U.S. -, 100 S.Ct. 267, 62 L.Ed.2d 184. Once the customs officer was aboard, the odor of marijuana in the engine room and the presence of weapons justified the Coast Guard in taking further steps to ascertain the nature of the cargo the vessel carried. United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc); United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979). Thus, whether the stop was intended to be only for safety and document inspection or whether it was designed to seek signs of illegal cargo, it was constitutional. Defendants challenge the sufficiency of the evidence to support the conclusion that they intended to distribute the contraband cargo. The defendants were apprehended with over 22,500 pounds of marijuana in their possession, far too much for the personal consumption of four individuals. Having determined that defendants planned to import their cargo, the jury was entitled to infer from the facts before it that some plan had been made for its disposition. As we have previously noted “[t]he very size of a . . . cache can be sufficient to show intent to distribute . . .” United States v. Rodriguez, 585 F.2d 1234, 1246 (5th Cir. 1978), aff'd 612 F.2d 906 (5th Cir. 1980) (en banc); United States v. Perry, 480 F.2d 147 (5th Cir. 1973); United States v. Mather, 465 F.2d 1035 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972). Defendants argue that, even though the evidence may support convictions for both conspiracies, there was but a single agreement and a double conviction violates double jeopardy. The argument was settled when this court en banc held that the conviction and punishment in one proceeding of a single conspiracy under two specific conspiracy statutes does not violate the double jeopardy clause. See United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc) But see id. at 925 (Rubin, J., dissenting). The defendants final attack on the conspiracy convictions challenges the jurisdiction of the court because of the failure of the government to prove any overt act within the United States in furtherance of the conspiracy. It is not necessary for the government to állege or prove an overt act to obtain convictions under the controlled substance conspiracy statutes. See United States v. Rodriguez, 612 F.2d 906, 919 n. 37 (5th Cir. 1980) (en banc). The district court was not divested of jurisdiction of the offense because the government failed to do what it was not required to do. “The nation has long asserted the objective view, under which its jurisdiction extends to persons whose acts have an effect within the sovereign territory even though the acts themselves occur outside it.” United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978). When a conspiracy statute does not require proof of overt acts, the requirement of territorial effect may be satisfied by evidence that the defendants intended their conspiracy to be consummated within the nation’s borders. See United States v. Postal, 589 F.2d 862, 886 n. 39 (5th Cir. 1979). Any other rule would place the United States in the anomalous position of being prohibited from apprehending and punishing those who plan to violate its laws until after the plan has taken fruit within its territorial boundaries. Thus, although Congress may have intended to strike at crimes and conspiracies begun outside the United States, it could not do so until they had some internal effect. Such a rule would not only make enforcement of our laws increasingly difficult, it would also conflict with the purpose of the objective view of jurisdiction. We, therefore, conclude that the district court had jurisdiction to try the defendants for a conspiracy aimed at violating United States law and intending effects in its territory even in the absence of proof of an overt act committed within this country. II. Defendants challenge their convictions for unlawfully carrying firearms in the course of a felony. 18 U.S.C. § 924(c)(2). “Section 924(c)(2) is violated only if the act of carrying the firearm is in and of itself a violation of federal, state or local law.” United States v. Bower, 575 F.2d 499, 501 (5th Cir. 1978). Defendants contend that there was no proof that their possession of weapons violated any federal, state or local law; we agree. The government does not argue that carrying a weapon aboard a vessel on the high seas is itself illegal. To establish that carrying the firearms was unlawful it relies upon several provisions of both state and federal law. None of the statutes we are referred to by the government makes illegal the conduct here — carrying a weapon on the high seas. Several of the statutes make the carrying of weapons within the territorial boundaries of a state illegal, e. g., Tex.Pen. Code § 46.02(a); L.S.A.-R.S. 14.95(A)(1); however, there is no proof that defendants had the weapons in their possession while they were in Texas and Louisiana. Had the defendants carried the weapons into Texas on their return, they would have violated federal prohibitions on the transporting and importation of firearms. The charge is not a conspiracy to violate the firearms statute, whatever the basis for such a charge might be, but possession of the firearms. The record contains no evidence that defendants’ possession of the weapons seized from the Texas Star was unlawful. Therefore, the convictions under 18 U.S.C. § 924(c)(2) must be reversed. III. At the sentencing hearing, the judge stated that he believed that Schulman and Cunningham had no knowledge of the identity of the backers of the drug scheme, and he sentenced them to twelve months with a six-year special parole term. The judge further stated that he did not believe the testimony of Mann and McLaughlin that they had no useful information to provide to the government and did not know of the identity of their financial backers, and he found them neither repentant nor determined to avoid similar action in the future. He then stated his intention to impose the maximum penalty of five years on Counts 1 and 2 and ten years on Count 3, running consecutively for a total of twenty years and a $30,000 fine. However, the judge invited their attorney to move for reduction of sentence. Following the filing of the motion, and counsel’s argument that punishment cannot be enhanced for refusal to provide information, the court reduced the sentences of these two defendants to five years on Count 1, five years on Count 2, and seven and one half years on Count 3, all sentences to run concurrently. While a court may not punish a defendant who refuses to provide information to the government, see United States v. Wright, 533 F.2d 214, 216 (5th Cir. 1976), it may consider a number of factors including truthfulness. See United States v. Grayson, 438 U.S. 41, 50-51, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582 (1978); United States v. Richardson, 582 F.2d 968, 969 (5th Cir. 1978). The reduction of the original sentence reflects an appropriate reconsideration of the judge’s initial resolve and an elimination of the possible presence of improper motive. The fact that the two other defendants received lesser sentences is irrelevant. See United States v. Hayes, 589 F.2d 811 (5th Cir. 1979). Mann and McLaughlin appeared- to the district judge not only to be the masterminds of the criminal scheme but also to be less truthful and less repentant than their confederates. The assessment of a lengthier prison term for those two was within his discretion. Accordingly, the convictions are REVERSED on Count 3 and AFFIRMED on all other counts. This case is REMANDED to the district court for resentencing. . We note that, in his instructions to the jury, the judge neglected to charge that the carrying of the firearm must be unlawful. Although the unlawfulness of the defendants’ possession of firearms might be viewed as a question of law, United States v. Rivero, 532 F.2d 450, 458-59 (5th Cir. 1976), in this case a resolution of the question would depend upon the presence of facts establishing that the defendants were carrying the firearms while inside the United States. We have concluded that there was insufficient evidence to support such a conclusion. However, even if the evidence in the record could support that inference, the charge to the jury did not require them to find such facts before returning a verdict of guilty. Thus, it is likely that the jury returned a guilty verdict on Count III on the basis of facts which did not establish that the defendants were unlawfully carrying firearms. We cannot assume that the jury determined factual issues against the defendants which,' on the charge given, it did not need to determine before returning a verdict. 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_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. NATIONAL LABOR RELATIONS BOARD v. VAN DEUSEN. No. 23. Circuit Court of Appeals, Second Circuit. Nov. 4, 1943. Winthrop Johns, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and Howard Lichtenstein, Asst. Gen. Counsel, all of Washington, D. C., Richard A. Perkins, of Los Angeles, Cal., and Leslie J. Capek, of Washington, D. C., on the brief), for petitioner. Henry Wise, of Boston, Mass. (A. H. Barenboim, of Boston, Mass., on the brief), for respondent. Elias Lieberman, of New York City (Morris Isserman, of Newark, N. J., of counsel), for International Ladies’ Garment Workers’ Union, intervenor. Before L. HAND, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. This case comes before us on petition of the National Labor Relations Board to enforce its decision and order of November 20, 1942, 45 N. L. R. B. 679, issued pursuant to § 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c), requiring respondent to reinstate two discharged employees with back pay, to make whole two others, to cease and desist from unfair labor practices, and to post the usual notices. The International Ladies’ Garment Workers’ Union, as intervenor, urges enforcement of the order. Respondent is a manufacturer of children’s garments at Cobleskill, New York, where he operates what is known as a “contract shop,” processing certain materials furnished by another manufacturer, Tiny Town Togs, Inc., of Troy, New York, into garments which are then delivered to the latter company and, after further processing by it, are distributed to its customers. Respondent works only on a portion of the garments produced by Tiny Town; but the parties have stipulated that eighty per cent of all the cloth used by Tiny Town in 1941, the year in question, was purchased outside the State of New York, and that ninety per cent of its total sales represented goods sold and delivered outside the State of New York. -The first and major objection raised by the respondent is that he was not engaged in interstate commerce within the meaning of the Act, and hence that the Board was without jurisdiction to enter its order. He urges that, in view of the small proportion of the total Tiny Town work done by him, it is quite possible for all of the raw materials used by him to have come from within the state and for all the garments processed by him to have been sold within the state. But the stipulation of the parties cannot properly be thus construed. Its reasonable interpretation, as well as the natural assumption from the circumstances — no attempt at separation of the interstate and intrastate elements by Tiny Town being suggested — is that the materials received and garments delivered by respondent, however small a part of Tiny Town’s total business, represented the same division of materials received from or delivered without the state as did that total business. On this view of the facts, and although no exactly analogous case has been cited, we are clear that the Board had jurisdiction. It is well settled that the Act is applicable to a processor where the materials processed are moved to and from the processor by their out-of-state owner. N. L. R. B. v. Bradford Dyeing Ass’n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; N. L. R. B. v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. While Tiny Town here was also located in New York, the facts that the raw materials emanated from and the finished products were shipped into other states and that the work done was part of a continuing process of a single manufacturer present a sufficiently analogous situation to justify the conclusion that respondent was engaged in interstate commerce within the meaning of the Act. But even if we should accept respondent’s contention that none of the raw materials or finished garments of his plant ever entered interstate commerce, we think the same result would follow. A labor dispute limiting' production in respondent’s plant would necessarily tend to curtail and disrupt Tiny Town’s interstate shipments by compelling Tiny Town to divert dresses from its interstate to its intrastate business. Such an impact of a labor controversy upon interstate commerce is within the remedial control of the Board. As was said in N. L. R. B. v. Cleveland-Cliffs Iron Co., 6 Cir., 133 F.2d 295, 300: “Curtailment of or interference with interstate commerce is a realistic and not an academic concept.” Here we find the necessary ingredients according to current conceptions of interstate commerce and of national power. Respondent also objects to the Board’s findings of unfair labor practices in violation of § 8(1) and (3) of the Act, 29 U.S.C.A. § 158(1, 3), based upon attempts by him (which were quite successful) to use the occasion of a strike at Tiny Town to stop unionization in his own plant and upon his discriminatory discharges of four employees for union activities. On both points the findings are sustained by substantial evidence. Respondent’s speech to his employees to the effect that if the Tiny Town strike failed and his plant was unionized then Tiny Town would send no more work and the shop would close down, the later speech by the treasurer of Tiny Town reiterating these sentiments, respondent’s interest in the union meeting amounting to spying upon it, and the general hostility of respondent and his executive officers to the union — all support the finding that respondent interfered with, restrained, and coerced his employees, contrary to § 8(1). Discriminatory discharges, contrary to § 8(3), were shown as to a mother and her two daughters who were all active in the union organization and one other who, though less active, was one of the union recruits. Respondent claims to have laid these employees off because of lack of work; but when his busy season again commenced, he refused to rehire them and gave no reason for his actions, even upon request. Such circumstances, together with the evidence of his general anti-union attitude, justify the Board’s conclusion that the discharges were because of the employees’ union affiliations. Respondent objects to the reinstatement order, first, because the statement of his attorney at the beginning of the hearing, as he contends, fulfilled his obligation to offer re-employment to the discharged employees. The statement was “that their positions are open for them and there will be positions open for them at any time they are ready and willing to return to work.” Such a general' and vague announcement at trial was hardly a specific offer to the employees of their old jobs to make an order unnecessary under the circumstances or to discharge respondent’s duty to them. Secondly, respondent claims that reinstatement should not have been ordered, because the employees had obtained substantially equivalent employment and because the Board did not disclose how reinstatement would effectuate the policies of the Act. That substantially equivalent employment has been obtained does not bar a reinstatement order if the Board deems one necessary in order to effectuate the policies of the Act, Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 189-191, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217; and here the Board has ample findings of facts upon which to justify its determination that reinstatement is thus necessary. As was said in the Phelps Dodge decision, supra, 313 U.S. at page 197, 61 S.Ct. at page 854, 85 L.Ed. 1271, 133 A. L.R. 1217, “All we ask of the Board is to give clear indication that it has exercised the discretion with which Congress has empowered it.” Respondent finally contends that under the authority of N. L. R. B. v. Express Pub. Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, no general cease and desist order should have been issued. Our views as to this issue have just been restated in N. L. R. B. v. Standard Oil Co., 2 Cir., 138 F.2d 885, decided November 1, 1943; we need only add that here direct violations of both § 8(1) and (3) of the Act were shown. The petition is granted. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_othcrim	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Appellee, v. Albert Eugene CARMICHAEL, Appellant. UNITED STATES of America, Appellee, v. Joe Grady FLOWERS, Appellant. Nos. 81-5141(L), 81-5142. United States Court of Appeals, Fourth Circuit. Argued May 6, 1982. Decided Aug. 12, 1982. Rehearing Denied Sept. 16,1982. Ronald P. Fischetti, New York City, Morris D. Rosen, Charleston, S. C. (Rosen, Oberman & Rosen, Charleston, S. C., on brief), John C. Lindsay, Bennettsville, S. C. (Henry Hammer, Columbia, S. C., on brief), for appellants. Craig C. Donsanto, Director, Election Crimes Branch, Washington, D. C., Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C. (Henry Dargan McMaster, U. S. Atty., Columbia, S. C., David J. Slattery, Sp. Asst. U. S. Atty., Nancy Simmons Stewart, Public Integrity Section, Criminal Div., Dept, of Justice, Washington, D. C., on brief), for appellee. Before PHILLIPS and ERVIN, Circuit Judges, and DOUMAR, District Judge. The Honorable Robert G. Dou'mar, United States District Judge for the Eastern District of Virginia, sitting by designation. ERVIN, Circuit Judge: In this appeal, Albert Eugene Carmichael, Jr. and Joe Grady Flowers challenge their convictions stemming from an extensive vote-buying investigation of the 1980 democratic primary election in Dillon County, South Carolina. The defendants were tried together and both were convicted of conspiracy to buy votes and substantive counts of vote buying in the primary election, as well as obstruction of justice in connection with the grand jury investigation of the election. Carmichael challenges the sufficiency of the evidence supporting his convictions, while Flowers joins him in vigorously pressing other grounds for reversing the convictions, including lack of federal jurisdiction to prosecute, prejudicial joinder of the obstruction charges, improper selection of the grand jury, and erroneous admission of certain evidence. Upon consideration of each of these arguments and assiduous scrutiny of the record below, we find no error and, therefore, affirm the convictions. I. On February 2, 1981, Albert Eugene Carmichael, a South Carolina state senator at that time, and Joe Grady Flowers, Mr. Carmichael’s parttime employee, were indicted for conspiracy, obstruction of justice and buying absentee ballots in connection with the June 10, 1980, democratic primary election in Dillon County, South Carolina. Among the offices contested in the election were the Sheriff of Dillon County, United States Senate and United States House of Representatives. In count one of the indictment Mr. Carmichael and Mr. Flowers were charged with conspiracy to pay voters to vote for incumbent Sheriff Roy Lee in violation of 18 U.S.C. § 371. Counts two through thirteen charged the appellants with knowingly and willfully paying and offering to pay and willfully aiding and abetting others to pay twelve voters in violation of 42 U.S.C. § 1973i(c) and and 18 U.S.C. § 2. Count fourteen charged Mr. Flowers with obstruction of justice for urging a subpoenaed witness to give false testimony before the grand jury. Count sixteen charged Mr. Carmichael with obstruction of justice based on similar allegations. On March 31, 1981, the defendants filed a motion for dismissal of the indictment because of improper selection of the grand jury. That motion was denied by an order of the court dated May 14, 1981. Various other pretrial motions including a defense motion for separate trials were heard and disposed of on March 4, 1981, and the parties went to trial on April 13, 1981. Mr. Carmichael has been active in Dillon County politics for twenty-five years. In 1978, he was elected to fill an unexpired term in the state senate to represent a district that included Dillon, Marlboro, Chesterfield, and Lee Counties. He ran for re-election in the 1980 democratic primary and general election and was elected to a four-year term. During the 1980 elections he also served as a state democratic executive committeeman from Dillon County and as a county executive committeeman from Lakeview precinct. Mr. Flowers was for many years the postmaster in Lakeview and was barred from engaging in any political activity by the Hatch Act. In early 1979 he retired from the post office and began parttime work as a secretary for his close friend, Carmichael. Flowers was paid $50.00 a week as expense money for work in Carmichael’s Lakeview office. In mid-April 1980, Sheriff Roy Lee asked Flowers to work for him in his reelection campaign. Lee gave Flowers $500.00 cash to pay “haulers” who were to help people register, obtain absentee applications or get to the polls. Carmichael gave Flowers permission to work for Lee and gave Flowers $500.00 to help in Lee’s campaign. Flowers added another $200.00 to $300.00. No records were kept to account for this money. To vote absentee in a primary election in South Carolina, a voter applies by mail or in person to the County Executive Committee at a location the Committee designates as the absentee voting place or precinct. ■When the County Executive Committee receives a completed application it checks with the Board of Voter Registration to determine whether the applicant' is registered in that county and, if so, mails the applicant an absentee ballot along with instructions, an oath envelope and a return envelope. The applicant is instructed to vote the ballots, put them in the oath envelope, sign the oath which states that he is qualified to vote in the election and has not voted any other ballots, seal the oath envelope, put it in the pre-addressed envelope to the county absentee precinct, and mail it. On April 14, 1980, the chairman of the Dillon County Democratic Party, Alan Schafer, wrote Carmichael a letter placing him in charge of absentee ballot procedures in Lakeview. Schafer instructed Carmichael to make absentee applications available to voters from his office or other places that would be convenient. The applications were to be forwarded to Schafer, who would mail out ballots to all qualified applicants. That same day, Carmichael wrote Flowers delegating to Flowers his authority to distribute absentee ballot applications from Carmichael’s office. On April 21, April 28, and May 12, political meetings for Sheriff Roy Lee’s re-election campaign were held at Carmichael’s lakehouse. Among the fifty-five to seventy-five persons who attended the first supper meeting were Flowers, Carmichael, Lee and a number of Lee’s workers and supporters. Government witnesses testified that at each of these meetings the discussion centered on getting blacks to vote by absentee ballot and the fact that the voters ■ wanted money. Sammie Lee Catoe, a trus-' tee at the Dillon County Jail who cooked the supper, testified that after most guests at the first meeting had gone, he heard Carmichael tell Sheriff Lee that if Lee would just take five dollars and add it to what Lee had paid during the last election, he could win. Catoe also testified that Carmichael told Lee that they needed about 1,700 absentee ballots to win. At the second and third meetings, the discussion centered on procedures for soliciting absentee ballots and how much voters would have to be paid. Government witnesses who attended these meetings testified that as workers for Lee they would be paid $10.00 per absentee ballot turned in and that they could pay the voters whatever they wished, probably $5.00. Applications for absentee ballots were available at the meeting and it was suggested that the workers would tell the voters to use employment outside the county or vacation as the reason for applying for absentee ballots. Flowers attended all three of these meetings; Carmichael was present at only the first and third. The vote-buying scheme was carried out as planned. Workers for Lee picked up absentee ballot applications from Flowers at Carmichael’s office in Lakeview. They took these applications to voters, had them filled out, and turned them back in to Flowers. After the ballots were mailed to the voters, the workers usually returned to help the voter fill out the ballot and then turned the ballot in to Flowers. In some cases, the ballots were sealed when returned as required by the instructions; in many cases they were unsealed. Flowers paid the worker $10.00 per ballot and the worker paid the voter. Several witnesses testified that during the campaign they communicated with Carmichael. Mazel Arnette testified that several times before the election, Carmichael told her it was all right to pay voters for their time and trouble and to give voters some money as long as she did not tell them she was buying a vote. Luther Nance stated that he was recruited to buy votes and met Flowers at Carmichael’s office to receive instructions about absentee ballots. Further, Nance stated that after the investigation began, he met with Carmichael at his office and the senator told him “if anybody came around, asking me (Nance) anything about giving anybody any money, tell them I didn’t.” Similarly, Mr. Freddie Wilson testified before the grand jury that Flowers had told him on two occasions to lie about giving money to voters. At trial, Wilson said he did not recall that testimony, but when it was read to him, he said he remembered and affirmed his prior testimony. Another witness testified that Carmichael told him that his expenses would be paid and “if you want to give somebody something, that’s up to ya’ll. I don’t see anything wrong with that.” Robert Miller, a lifelong Dillon County resident, testified that he was in the gas station in front of Carmichael’s office on May 10, 1980, when Carmichael came in and asked Flowers how many absentee ballots had been collected that day. After Flowers said about fifty, Carmichael responded, “(t)hat’s good.” The government also introduced tally sheets of county-wide absentee ballot totals, which showed that 1,265, or 94% of all absentee ballots cast in Dillon County, were cast for Sheriff Lee. In Lakeview precinct, which is one of twenty-one precincts in the county, 400 persons voted absentee. Two out of every five votes cast in Lake-view precinct were by absentee ballot. Carmichael and Flowers both testified in their own defense. Each categorically denied paying any voters for their votes, engaging in a conspiracy to buy votes, or telling anyone to give false testimony to the grand jury. Flowers admitted giving money to the campaign workers, but denied instructing them to return the absentee ballots to his office. He also admitted giving several voters a few dollars after they gave him their absentee ballots, but said that the money was a loan. Carmichael admitted that he had won his own race for the state senate in 1979 with 960 out of 970 absentee ballots cast in his district cast for him. II. A. Carmichael and Flowers were convicted under 42 U.S.C. § 1973i(c), which provides in pertinent part as follows: “Whoever knowingly or willfully ... pays or offers to pay ... for votes shall be fined no more than $10,000, or imprisoned not more than five (5) years, or both: Provided, however, that this provision shall be applicable only to general, special, or primary elections, held solely or in part for the purposes of selection or electing any candidate for the office of President, Vice-President, President Elector, Member of the United States Senate, Member of the United States House of Representatives . ... ” The defendants contend that Congress has power to control only federal elections and that 42 U.S.C. § 1973i(c) requires proof that any vote buying actually affected an election for federal office. The government argues that Congress is empowered by the Constitution and intended to prohibit any vote buying that occurs during a mixed state/federal election because such criminal activity potentially corrupts all contests in the election. This issue was resolved by this court in United States v. Mason, No. 81-5025 (4th Cir., March 25, 1982) (unpublished), which is a case arising out of the same vote-buying scheme giving rise to the convictions at issue in this case. In Mason, the defendant was one of Sheriff Lee’s campaign workers who paid for absentee ballots. We held that it is not necessary for the government to prove that vote-buying activities actually affected a federal contest. Rather, a violation of § 1973i(c) is established when the evidence shows that a defendant bought or offered to buy a vote and that such activity exposes the federal aspects of the election to the possibility of corruption, whether or not the actual corruption takes place and whether or not the persons participating in such activity had a specific intent to expose the federal election to such corruption or possibility of corruption. Id., Slip Op. at 6 (quoting United States v. Bowman, 636 F.2d 1003, 1011 (5th Cir. 1981). There was a possibility of corruption of the two federal contests in the Dillon County democratic primary because many of the envelopes containing the absentee ballots were unsealed when they were picked up from the voters and when they were turned in to Flowers. There was also testimony that Flowers and several workers helped voters mark their absentee ballots not only for the sheriff’s race, but for others as well. We hold, therefore, that the statute clearly proscribes the conduct for which Flowers and Carmichael were prosecuted in this case. The power of Congress to proscribe conduct that potentially corrupts a federal contest in addition to conduct that actually corrupts a federal contest has been upheld previously. See In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 244 (1888); United States v. Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Mason, supra. B. Carmichael also challenges his conviction on the ground that the evidence was not sufficient to prove beyond a reasonable doubt that he conspired to buy votes and aided and abetted payments to twelve voters named in the indictment. We must decide, therefore, whether there is substantial evidence, when considered in the light most favorable to the government, that shows Carmichael is guilty beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Stroupe, 538 F.2d 1063 (4th Cir. 1976). The existence of an illegal agreement need not be proved by direct evidence, but may be inferred from facts and circumstances that show that the defendant acted in concert with another to achieve an illegal goal. United States v. Laughman, 618 F.2d 1067, 1074 (4th Cir.), cert. denied, 447 U.S. 925,100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). Further, once the existence of the conspiracy has been proved, the only additional proof necessary is the defendant’s knowledge of the conspiracy and direct or indirect evidence of some action indicating his participation. Id.; United States v. Harris, 409 F.2d 77, 83 (4th Cir. 1969). The evidence of the supper meetings at Carmichael’s lakehouse at which the vote-buying plans were made clearly is sufficient evidence of the existence of a conspiracy. Further, it is clear Carmichael knew of the scheme. His parttime employee managed the vote-buying plan from Carmichael’s office with Carmichael’s tacit approval. And when he asked Flowers how many ballots had been received on May 10, and was told about fifty, he said “(t)hat’s good.” The evidence that Carmichael participated in the conspiracy and aided and abetted in the scheme is less direct. It is clear, however, that he personally recruited two workers and told them it was okay to pay voters. In addition, the jury could infer Carmichael’s participation from his authorization of Flowers to coordinate the absentee ballot system from Carmichael’s office. Carmichael’s sponsorship of the meetings when the scheme was planned also supports the inference of participation. Finally, the fact that Carmichael told Luther Nance not to tell the FBI about any money supports the inference that Carmichael knew of and participated in the conspiracy. C. Carmichael and Flowers both contend that the trial court erred in denying their motion for severance of the obstruction of justice charges pursuant to Fed.R.Crim.P. 8(b) and 14. Rule 8(b) authorizes joinder if the defendants “are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Rule 14 provides that “if it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information, the court may order an election or separate trials of counts, (or) grant a severance .... ” Carmichael and Flowers assert that because the separate obstruction of justice counts were entirely separate and distinct offenses from the conspiracy counts and from each other, joinder was improper as a matter of law under Rule 8(b), citing Cupo v. United States, 359 F.2d 990 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967). In Cupo, the D. C. Circuit held that joinder of substantive charges of acquiring automobiles by false statements with charges of conspiracy to obtain other merchandise on credit from stores by false statements was impermissible without a showing of prejudice to the defendants under Rule 14 because such offenses were not part of the same act or transaction or series of acts or transactions. The government argues that under Fourth Circuit precedent the obstruction of justice charges and the conspiracy charges were part of the same series of acts or transactions. We agree. Generally, “transaction” is a flexible term implying a connection of logical relationship rather than immediateness. Cataneo v. United States, 167 F.2d 820 (4th Cir. 1948). In this case the obstruction of justice charges related to actions by Carmichael and Flowers to conceal the actions for which they were charged under conspiracy and substantive counts. Similar concealment activities have been held to be properly joined under Rule 8 by this circuit in United States v. Santoni, 585 F.2d 667 (4th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 459 (1979), and by other circuits. See, e.g., United States v. Weiss, 491 F.2d 460 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974). Carmichael and Flowers also argue that even if joinder was permissible under Rule 8, the judge in his discretion should have granted severance under Rule 14 because joinder resulted in prejudice to them. They reason that they were prejudiced because the jury might have improperly cumulated all the evidence to infer a criminal disposition or to find guilt on all offenses when they may have been acquitted in separate trials solely on evidence of the separate offenses. See United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). As the government points out, however, evidence of the conspiracy and actual vote buying would have been admissible against each defendant in separate trials for obstruction of justice to prove motive. Likewise, evidence supporting the obstruction of justice count against each defendant would be admissible against each defendant in a separate trial on conspiracy and the substantive counts to show criminal intent. See United States v. Seidel, 620 F.2d 1006, 1012 (4th Cir. 1980). Carmichael and Flowers vigorously contend, however, that if they had been tried separately on the obstruction of justice counts, evidence supporting the obstruction charge against Carmichael would not have been admissible against Flowers and vice versa. Nevertheless, prejudice does not result automatically from a situation where some evidence not admissible in separate trials is admitted in a joint trial. We agree with the Sixth Circuit that absent any unusual circumstances the matter of severance rests in the sound discretion of the trial judge, particularly where there is a charge of conspiracy as well as other counts of an indictment alleging substantive violations. United States v. Branan, 457 F.2d 1062, 1066 (6th Cir. 1972). Although every bit of evidence that was admissible in the defendants’ joint trial might not be admissible against each of them in separate trials of the obstruction charges, we perceive no particular danger that the jury would cumulate such evidence against either Flowers or Carmichael. We, therefore, find no abuse of discretion on the part of the trial court on this issue. D. Carmichael and Flowers also contest the admissibility of tally sheets reflecting the total number of absentee votes cast in Dillon County on grounds that it was irrelevant or, if relevant, its prejudicial effect outweighed its probative value under Fed.R.Evid. 403. Appellants reason that the tally sheet is irrelevant because it showed the total number of absentee votes cast throughout the county, while the vote-buying charges referred to illegal activities in Lakeview precinct only. The tally sheets showed that 1,265 absentee votes were cast for Sheriff Lee county-wide, while only 81 were cast for his opponent. The Lakeview precinct book showed that almost 400 persons, or two out of every five voters in that precinct, received absentee ballots. The numbers on the tally sheet put the number of absentee ballots issued in Lakeview precinct in perspective. The tally sheet, while not relevant to the substantive counts, was relevant, therefore, to show the success of the conspiracy in Lakeview precinct. Under these circumstances it was not an abuse of discretion for the trial court to find that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. E. Finally, Carmichael and Flowers argue that their indictments should be dismissed and their convictions reversed because of improper selection of the grand jury under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., and the Plan of the United States District Court for the District of South Carolina for the Random Selection of Grand and Petit Jurors. Appellants first argue that because the pool from which the grand jury issuing their indictments was drawn contained slightly less than 300 names as required by South Carolina’s Random Selection Plan, the Jury Selection and Service Act was violated and the indictments must be dismissed. Although the Act requires courts to follow their jury selection plans, it contains no minimum pool size requirement. The district court below recognized that there had been a technical violation of the Plan. The Act, however, requires a substantial violation of its provisions before an indictment may be dismissed. 28 U.S.C. § 1867(d) (Cum.Supp.1982); United States v. Bearden, 659 F.2d 590 (5th Cir. 1981). The two objectives furthered by the Act are “random selection of juror names from voter lists” and “determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only.” H.R.Rep.No.1076, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Ad.News 1792, 1793. We agree with the district court that the technical violation of the Plan does not affect the objectives of the Act and, therefore, does not amount to a substantial violation of the Act. See United States v. Manbeck, et al., 514 F.Supp. 141, 144 (D.S.C.1981). Appellants’ second contention is that four factors- present in the selection of the grand jury resulted in an unrepresentative cross section of the community being present in the jury pool. The factors alleged are: 1) the sole use of voter registration lists as the starting point for the jury pool; 2) the racially discriminatory effect of South Carolina’s disenfranchisement statute; 3) the high rate of women excused from jury duty; and 4) the low return rate of juror questionnaires. The record contains little evidence to support these allegations. As recognized in United States v. Blair, 493 F.Supp. 398, 407 (D.C.Md.1980), 28 U.S.C. § 1863(b)(2) specifically requires that voter registration lists be used as the primary source for names of prospective jurors. Appellants apparently argue that the South Carolina Disenfranchisement Statute, S.C. Code Ann. § 7-5-120 (1976), has a racially discriminatory effect on the South Carolina voter registration lists and, therefore, taints any grand jury drawn from a pool using the lists. This court, however, has recently upheld the constitutionality of that statute in the face of an attack on equal protection grounds. See Allen v. Ellisor, 664 F.2d 391 (4th Cir.), vacated and remanded, 454 U.S. 807, 102 S.Ct. 80, 70 L.Ed.2d 76 (1981), dismissed as moot and remanded on other grounds, No. 79-1539 (February 16, 1982) (unpublished). Appellants’ third contention concerning the rate of excuses for women is equally without merit. Under the South Carolina Plan, women with children under twelve years of age are excused from service on the grand jury upon request. According to the appellants’ figures, the jury pool from which the grand jury in this case was drawn was composed of 48% women while the community contained 52% women. The contention that the 4% difference constitutes substantial underrepresentation of that group of women is simply frivolous. Finally, appellants argue that the Plan requires a 95% return rate of grand jury questionnaires and because the return rate for this grand jury was less — approximately 70% average — the fair cross section requirement of the Act was not met. A low return rate of questionnaires without some evidence that such rate caused under-representation of some group, does not amount to a substantial violation of the Act. Without other evidence, unfair cross section simply cannot be inferred. See United States v. Armsbury, 408 F.Supp. 1130, 1142 (D.C.Or.1976). III. We find appellants’ contentions on appeal to be without merit and, therefore, their convictions are AFFIRMED. . The appeals were consolidated by order of this court pursuant to local rule 19. . Mr. Carmichael resigned from the state senate on March 12, 1982, almost ten months after he was adjudged guilty and sentenced by the district court. . Mazel J. Arnette originally was indicted with Mr. Carmichael and Mr. Flowers. She entered a plea of guilty the day before trial and testified as a witness for the government. . Section 1973i(c) provides as follows: Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, that this provision shall be applicable only to general, special, or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico. 42 U.S.C. § 1973i(c) (1981). . Section 2 provides as follows: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. 18 U.S.C. § 2 (1969). . Roy Lee pleaded guilty to charges of conspiracy to buy votes in connection with his re-election in the 1980 democratic primary. . Alan Schafer pleaded guilty to conspiracy and substantive counts of mail fraud for the illegal and fraudulent use of absentee ballots to re-elect Roy Lee as Sheriff. . Nance testified under a plea agreement by which he pleaded guilty to one count of vote buying in exchange for his testimony. . Lee received a total of 3,905 votes. Mr. Rogers, Lee’s opponent, received a total of 4,686 votes, with only 81 of these votes being absentee. . Of the 1,346 absentee ballots cast in the sheriff’s race, Lee received 1,265. Of the 1,308 absentee ballots cast in the race for United States House of Representatives, incumbent John Jenrette received 1,108. Clearly, some of the 400 absentee ballots received in Lakeview precinct were voted in the congressional election. . Carmichael and Flowers argue that the Supreme Court required a showing of actual corruption of a federal election in Blitz v. United States, 153 U.S. 308, 14 S.Ct. 924, 38 L.Ed. 725 (1894). In Blitz, the Court held that a defendant who voted in the name of another person in a mixed federal/state election could not be prosecuted under federal law because the indictment did not allege that the defendant voted for a federal candidate. In In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274 (1888), however, the Court had held that the defendants who had induced election officers to take election records in a federal/state election to persons with no authority to receive them could be prosecuted under federal law. The Blitz court distinguished Coy on the ground that delivery of tally sheets to unauthorized persons raised the danger of corrupting the federal and state contests, whereas in Blitz, no such danger was present. We think Coy controls this case because just as the unauthorized persons in possession of election records posed a threat to the federal contest in Coy, the facts that Flowers and the workers helped voters vote and had possession of unsealed ballots posed a threat to the federal contest in this case. . Fed.R.Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the ideas, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . In their motion in the district court, the appellants incorporated the evidence and exhibits supporting a similar motion that was denied by Judge Falcon B. Hawkins in United States v. Manbeck, et al., 514 F.Supp. 141 (D.S.C.1981). . The jury wheel contained 299 names for first drawing and 267 names for second drawing from which the grand jury was selected. . Allen was dismissed on the merits for mootness because section 7-5-120(b) was amended in 1981 to disenfranchise only those persons convicted of felonies or the election laws. See S.C.Code Ann. § 7-5-120(b) (Cum.Supp. 1981). Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_const1	0	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. UNITED STATES of America, Appellee, v. James Russell ROSS, Appellant. No. 81-1483. United States Court of Appeals, Eighth Circuit. Submitted Oct. 13, 1981. Decided Dec. 11, 1981. Robert V. Broom, Omaha, Neb., argued, Susan Jacobs, Lincoln, Neb., for appellant. Thomas D. Thalken, U. S. Atty., D. Neb., Sally R. Johnson, Asst. U. S. Atty., D. Neb., argued, Lincoln, Neb., for appellee. Before HEANEY and STEPHENSON, . Circuit Judges, and OLIVER, Senior District Judge. The Honorable John W. Oliver, United States Senior District Judge for the Western District of Missouri, sitting by designation. STEPHENSON, Circuit Judge. This is a direct appeal from the judgment and sentence imposed by the district court on a guilty plea entered by appellant Ross. Ross questions the validity of his plea, the sentencing process, and the sentence imposed. We affirm. Ross pled guilty to Count I and Count VIII of a nine-count indictment. Count I charged defendant Ross and defendant Thomas Couceiro with conspiring to transport in interstate commerce stolen motor vehicles and to sell the same, knowing they were stolen, in violation of 18 U.S.C. §§ 371, 2312, 2313. Count VIII charged Ross and Couceiro with interstate transportation of a stolen motor vehicle, a 1977 Holiday Rambler motor home, knowing it was stolen in violation of 18 U.S.C. §§ 2, 2312. Ross initially contends that he was not advised of the effect of a guilty plea to Count I, the conspiracy count. However, the record discloses that the district court orally addressed the defendant and explained the elements of the conspiracy offense. The record also discloses that prior to addressing the defendant, pursuant to Rule 11, the court requested the defendant to fill out a four-page “petition to enter a plea of guilty” containing forty-three questions relating to the material covered by Rule 11: The court indicated that this was particularly desirable because the plea was being entered pursuant to a plea agreement. The questionnaire was signed by Ross and contained the certificate of counsel that he had read and fully explained to the defendant the allegations contained in the indictment, the maximum penalty for each count, and that defendant was offering to plead guilty to Counts I and VIII. Thereafter the district court addressed the defendant informing him of the nature of the charges, the maximum penalty provided by law on each count, and, after appropriate inquiry, determined that the plea was voluntary and that no promises had been made with respect to the penalty that might be imposed. The transcript of the change of plea hearing covered thirty-six pages and shows that Rule 11 was fully complied with. The remaining claims of Ross pertain to alleged errors in the sentencing process and the sentence imposed. He claims his sentence was too severe because the court apparently took into consideration more than one overt act charged in the conspiracy count despite the court’s statement that only one “specification” [overt act] is all that was needed in finding guilt. Ross infers this from the court’s observation at the time of sentencing that “this isn’t a petty misdemeanor of any nature at all. It is a matter of substance. And it appears to have been a rather widespread operation from the matters that are contained in Count I to which you have pled guilty.” In United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), the Supreme Court stated: [A] trial judge * * * has wide discretion in determining what sentence to impose * * * [and] may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information * * * or the source from which it may come, (citations omitted) * * * [A] sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review, (citations omitted). In the instant case, the trial judge imposed a sentence of four years on Count I to run consecutively to a term of imprisonment that defendant was then serving in the state of Utah and four years on Count VIII to run concurrently with Count I. However, execution of the sentence on Count VIII was suspended and defendant was placed on probation for five years to commence upon his release from imprisonment on Count I. The sentence was well below the maximum of ten years imprisonment that could have been imposed. The claim that the sentence was excessive' is devoid of merit. Appellant further contends that the court improperly considered prejudicial statements set out in the presentence report, made by the sentencing judge in Utah at the time of the Utah sentencing and statements made by the probation officer in Utah. These contentions are likewise without merit. Judge Van Pelt made it abundantly clear that he would not consider the judge’s statement in Utah because he did not have before him the facts which caused the judge’s comment. Furthermore, Judge Van Pelt stressed the fact that his sentence was based on defendant’s conduct and his previous record (two felony convictions). Appellant’s additional contentions that the court erred in denying a continuance so he could present evidence regarding his past employment and that appellant was suffering from hypoglycemia (low blood sugar condition) are likewise without merit. The information concerning appellant’s employment the last ten years was cumulative and the court also advised appellant, if he had anything further to offer, he could present it in a motion for reduction of sentence under Rule 35. The record also discloses that defendant’s counsel informed the court of defendant’s medical condition. Defendant does not contend his health affected the validity of his plea. Instead he asserts that the sentence imposed does not adequately assure that he will get the proper treatment necessary for rehabilitation. Finally, appellant contends that the court was required to impose a federal sentence to run concurrently with his state sentence. The record discloses that at the change of plea hearing Judge Van Pelt advised defendant, “[d]o you understand that when I say you are going to leave it up to me that maybe you will end up being sentenced in a federal court, sentence to be run when you are through with your state court sentence? Do you so understand?” Ross acknowledged that he understood. Defendant’s contention is frivolous. See Chaney v. Ciccone, 427 F.2d 363 (8th Cir. 1970); 18 U.S.C. § 3568. We are satisfied the able and experienced trial judge gave careful consideration to the relevant facts in imposing a proper sentence. Affirmed. . The Honorable Robert Van Pelt, United States Senior District Judge for the District of Nebraska. . Appellant Ross was forty-one years old and had the equivalent of four years of college. . Ross also complained because co-defendant Couceiro pled guilty to five counts and only received a total sentence of six years, one more year than Ross received. 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_respond1_5_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant. Lea DUNCAN, Plaintiff-Appellant, v. Jack DUCKWORTH, Warden, and Ronald Freake, Hospital Administrator, Defendants-Appellees. No. 79-2395. United States Court of Appeals, Seventh Circuit. Submitted Feb. 13, 1981. Decided March 13, 1981. Lea Duncan, pro se. Bruce L. Kamplain, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees. Before FAIRCHILD, Chief Judge, WOOD and CUDAHY, Circuit Judges. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a “Statement as to Need of Oral Argument.” See Rule 34(a), Fed.R.App.P. (effective Aug. 1, 1979); Circuit Rule 14(f). No such statement having been filed, the appeal has been submitted on the briefs and record. FAIRCHILD, Chief Judge. Plaintiff-appellant, Lea Duncan, appeals from the dismissal of his pro se civil rights action seeking damages for the alleged cruel and unusual punishment he suffered as an inmate at Indiana State Prison. The defendants named in his suit are Jack Duckworth, the warden of the prison, and Ronald Freake, the prison hospital administrator. For the reasons that follow, we affirm the judgment of the district court as to Duckworth, but reverse as to Freake. I Duncan filed his complaint on May 7, 1979. He alleges therein that on January 23, 1977, he fell and injured his wrist while playing basketball in the prison gymnasium. He was taken to the prison hospital where his wrist was X-rayed, and he was given two Extra-Strength Tylenols for pain and released. His wrist was again X-rayed on November 18, 1977, after he “went on Sick Call,” complaining of severe pain. The X-ray revealed that his wrist was fractured. On December 12, 1977, when Duncan again “went on Sick Call” complaining of pain, he was scheduled for surgery. On March 10, 1978, and again on March 27, 1978, Duncan continued to complain of pain in his wrist and was informed the surgery would be scheduled. Finally, on November 30, 1978, a bone graft was performed on his wrist. Duncan alleges that he suffered extreme pain during the twenty-two months before surgery was performed. He claims that the suffering caused him by this delay constitutes cruel and unusual punishment. In granting the defendants’ motion to dismiss, the district court did not rule that Duncan had failed to state any claim whatsoever. On the contrary, based on the facts alleged, the court stated, “a case may be made for some sort of indifference or negligence.” However, because the complaint failed to allege facts showing that the defendants were in any way personally responsible for the delay, the district court held that it failed to state a claim against them. On that basis, the court entered judgment for the defendants. II In Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ Gregg v. Georgia, 428 U.S. 153, at 173, 96 S.Ct. 2909, at 2925, 49 L.Ed.2d 859 (joint opinion), proscribed by the Eighth Amendment.” “This is true,” said the Court, “whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. 429 U.S. at 104-105, 97 S.Ct. at 291 (footnote omitted). In light of this holding, we conclude that Duncan has at least stated a claim under § 1983. While the initial failure to properly diagnose his injury may be attributable to no more than an error in judgment, which may or may not be actionable as negligence, the failure to promptly schedule surgery, once the need for it was recognized and in the face of Duncan’s repeated complaints of severe pain, raises serious questions regarding the prison hospital officials’ concern for their patient. Whether this delay was in fact due to the hospital officials’ deliberate indifference to Duncan’s serious medical needs remains to be proved, but the facts alleged certainly give rise to at least an inference of such indifference. Notwithstanding its conclusion that Duncan may be entitled to some kind of relief, the district court dismissed the complaint as to both of the defendants because it failed to allege that they “personally participated in the alleged misconduct.” Relying on the rule that liability for money damages under § 1983 will not be imposed vicariously upon a theory of respondeat superior, see Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971), the district court ruled that specific allegations of fact showing personal knowledge or involvement on the part of the defendants were necessary to state such a claim. Because Duncan’s complaint did not allege such facts, the court concluded that dismissal was proper. It is true that a defendant’s direct personal responsibility for the claimed deprivation of a constitutional right must be established in order for liability to arise under 42 U.S.C. § 1983. Adams v. Pate, supra; Stringer v. Rowe, 616 F.2d 993, 1000-1001 (7th Cir. 1980). But by treating this general principle of recovery under § 1983 as a strict rule of pleading and dismissing a complaint which otherwise states a valid claim, we believe the district court ran afoul of the well established requirement that pro se pleadings be held to less stringent standards than those prepared by counsel. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The accepted rule in appraising the sufficiency of the complaint is that it “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Where the challenged complaint is one that has been prepared without the benefit of legal expertise, it must be liberally construed to determine whether it meets this test. French v. Heyne, 547 F.2d 994, 996 (7th Cir. 1976). Applying these principles to Duncan’s complaint, we conclude that the district court erred in granting dismissal as to defendant Ronald Freake. His position as administrator of the prison hospital justifies the inference at this stage of the proceeding that he does bear some responsibility for the alleged misconduct. If he later disclaims knowledge and responsibility for the alleged misconduct, if he later disclaims knowledge and responsibility for the delay in treatment suffered by Duncan, he can readily identify those who were responsible. This approach was recently utilized by the court in Chavis v. Rowe, 643 F.2d 1281 at 1290 (7th Cir. 1981). Plaintiff in that case, an inmate at the Menard Correctional Center, sued a number of officials of the Illinois Department of Corrections who allegedly violated his Eighth and Fourteenth Amendment rights. One of the Eighth Amendment claims related to the conditions under which plaintiff was forced to live during the time he was placed in the segregation unit of the prison. In evaluating that claim, the court noted that “Chavis’ failure to name a particular defendant in connection with his Eighth Amendment allegation is no bar to this claim.” Id. at 1290. Because “[djirect individual responsibility for the conditions of segregation imposed on plaintiff must have rested on an official at a relatively high administrative level,” the court concluded that the allegations describing those conditions were sufficient to state a claim against defendant Rowe, the Director of the Illinois Department of Corrections. Id. In the event Rowe later disclaimed knowledge and responsibility, the court noted that he was in a position to demonstrate who did bear responsibility for whatever conditions existed. This reasoning is equally applicable to the case at bar. As administrator of the prison hospital, Freake bears responsibility for insuring that prison inmates receive adequate medical care. This responsibility is a sufficient basis from which to infer his personal involvement in the denial of such care at the pleading stage of the proceeding, at least where the denial is as gross as has been claimed here. If it later develops that Freake was not personally involved, he is in a better position than Duncan to identify those who were. To be sure, our conclusion in both this case and Chavis does represent somewhat of a departure from a strict application of Adams v. Pate, supra. But it is a departure which we believe is justified by the nature of the claims presented. Both cases involve claims relating to conditions or practices which, if they in fact do exist, would very likely be known to, or acquiesced in, by officials at a relatively high administrative level. At the same time, the conditions or practices upon which the claims are based may be of such a kind that the claimant will have had no personal contact with, or knowledge of, the person directly responsible. Under these circumstances, it is understandable that a pro se litigant would name only the administrative officer, whose identity he knows, as a defendant in his civil rights lawsuit. To dismiss such a suit because the complaint fails to expressly allege that the administrative officer did in fact know of, or acquiesce in, or was otherwise personally responsible for the claimed deprivation seems to us inconsistent with the obligation to liberally construe pro se pleadings. Haines v. Kerner, supra. Instead, the district court should proceed on the claim and allow the named defendant to assert his own noninvolvement, if that is the case, and designate those who would likely have been responsible for whatever deprivation may have occurred. Essentially, this is the approach taken where a plaintiff is initially unable to name any of the persons whom he alleges to have injured him, and therefore uses fictitious names to refer to them in his complaint. See Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980), and cases cited therein. In such cases the court has held that, instead of dismissing a complaint because it fails to identify certain unnamed defendants, the district court should order their disclosure or permit the plaintiff to obtain their identity through discovery. Although in this case Duncan did not use fictitious names for any of the defendants named in his complaint, the same reasoning would seem to apply here. As a pro se inmate of a state prison, Duncan is at a distinct disadvantage in trying to discover the identity of those who were directly responsible for the delay in his treatment. This difficulty should not be used to prevent him from seeking relief on an otherwise meritorious claim. As to defendant Duckworth, the warden of the prison, there is equally no specific allegation of personal misconduct on his part. However, it is also true that he is more removed than Freake from the decision level at the hospital where the misconduct, if real, is likely to have occurred., It is doubtful that a prison warden would be directly involved in the day-to-day operation of the prison hospital such that he would have personally participated in, or have knowledge of, the kinds of decisions that led to the delay in treatment complained of by Duncan. Moreover, because we have already concluded that a claim has been stated against Freake, Duckworth’s presence is not needed to insure that those more directly involved will be identified. We therefore affirm the district court’s dismissal as to him. That portion of the judgment dismissing the claim as to Freake is reversed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant? A. Judge (non-local judge; appellate judge) B. Prosecutor/district attorney (non-local, e.g., special prosecutor) C. Jail/Prison/Probation Official (includes juvenile officials) D. Other judicial official E. not ascertained Answer:
songer_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. William E. KNUCKLES, Appellant in No. 18761, Arthur L. McKEE, Isiah Green and Joseph Tillery v. Arthur X. PRASSE, Commissioner of Correction, Commonwealth of Pennsylvania and Joseph R. Brierley, Supt. and A. T. Rundle and Clarence R. Wolfe and David N. Meyers, Appellants in No. 18829. Appeal of Arthur L. McKEE in No. 18,762. Appeal of Isiah GREEN, in No. 18,763. Appeal of Joseph TILLERY, in No. 18,764. James WASHINGTON, Appellant in No. 18,765, v. J. R. BRIERLEY, Supt., Appellant in No. 18,830. Nos. 18761-18765, 18829, 18830. United States Court of Appeals, Third Circuit. Argued Dec. 1, 1970. Decided Dec. 28, 1970. Walter L. Foulke, Philadelphia, Pa., for appellants. Herbert Monheit, Asst. Atty. Gen., Harrisburg, Pa., by Mabel G. Turner, Sp. Asst. Atty. Gen., Philadelphia, Pa., on the brief, for appellees. Before KALODNER, SEITZ and ALDISERT, Circuit Judges. OPINION OF THE COURT PER CURIAM: Before us are cross-appeals from a judgment of the district court granting partial relief sought under the Civil Rights Act, 42 U.S.C.A. § 1983 by inmates of a state prison who are followers of The Honorable Elijah Muhammad, often called Muslims or Black Muslims, a sect of the Islamic religion. The district court ordered the prison officials to permit collective religious services conducted by accredited ministers of their faith, “so long as the doctrines espoused by the ministers are identical to those Minister [Jeremiah] Shabazz testified to during the court proceedings.” The court found it was not mandatory that the prison authorities make available Muslim periodicals and books requested by the plaintiffs because these writings “could be interpreted as an endorsement of a concept that whites generally and prison authorities should be defied by Muslim prisoners even when legal orders or demands are made.” The court explained that “such a view is not an appropriate interpretation of Black religious Muslim doctrine * * * Since the literature could be subject to inferences urging such defiances if not interpreted by a trained Muslim minister, I rule that it is not mandatory that the prison authorities make available to prisoners the writings.” The court specifically found that “in the hands of the inmate who is not fully informed of the Black Muslim doctrine * * * the literature could constitute a ‘clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly function of the institution. Long v. Parker, 3 Cir., 390 F.2d 816, 820, 822.’ ” Knuckles v. Prasse, 302 F.Supp. 1036, 1058, 1059 (Ed.Pa.1969). This same reasoning apparently governed its decision relating to the wearing of medals. Similarly, we will not disturb the two conclusions that the plaintiffs had been subjected to “cruel and unusual punishment” for two and one-half days. We reject the appeal of the prison authorities grounded on the argument of insufficient evidence and the plaintiff-appellants’ argument that the court erred in not finding that the conditions persisted beyond this limited time, and that they were entitled to money damages as a matter of law. This court has previously said in Gittlemacker v. Prasse, 428 F.2d 1, 4 (3 Cir. 1970): “To determine with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests.” We conclude that The Honorable A. Leon Higginbotham, Jr., the trial judge, approached his task of striking this proper balance with outstanding sensitivity, understanding and perception. The district court demonstrated an awareness that “[i]n the case of a prisoner, the determination of what constitutes an actionable claim may become difficult since imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society.” Gittlemacker v. Prasse, supra, at 3. The district court succinctly posited the problem: But a prison is not a private dwelling and a cell row is not a public highway. Thus plaintiffs’ freedoms and rights must be analyzed in the realistic context of the prison situation where plaintiffs desire to exercise them. 302 F.Supp. at 1047. Guided by these principles, we turn to the argument advanced by the inmate-appellants, which suggests an inconsistency between the court’s conclusion that Eighth Amendment rights were denied them for two and one-half days and its refusal to award monetary damages. We do not find these conclusions incompatible. The complaint was a combination of counts in law and in equity. The district court treated this particular issue as one sounding in equity, setting forth in conclusion 7: “Plaintiffs were subjected to cruel and unusual punishment, but since it does not appear that this practice has been or will be continued, injunctive relief is DENIED.” 302 F.Supp. at 1062. Accordingly, after considering all the arguments advanced by the cross-appellants, we will affirm the judgment of the district court. Judge Seitz concurs in the result except that were he in the district court he would have assessed at least nominal damages against the defendants legally responsible for the conditions found to constitute cruel and unusual punishment. See Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965). Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellant, v. Fred A. BROWN and Jennie B. Brown, doing business as Gem Dairy, Appellees. No. 7433. United States Court of Appeals Tenth Circuit. April 29, 1964. Sherman L. Cohn, Atty., Dept. of Justice (John W. Douglas, Asst. Atty. Gen., Lawrence M. Henry, U. S. Atty., Alan S. Rosenthal and Barbara W. Deutsch, Attys., Dept. of Justice, on the brief), for appellant. George Louis Creamer, Denver, Colo. (Nathan H. Creamer, Denver, Colo., on the brief), for appellees. Before BREITENSTEIN and HILL, Circuit Judges, and KERR, District Judge. HILL, Circuit Judge. This appeal by the United States is from an order of the court below denying its motion for a preliminary mandatory injunction compelling the appellee-de-fendants, as alleged “handlers” of milk, to make certain payments into a producer-settlement fund established pursuant to the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C.A. § 601 et seq. United States v. Brown, 217 F.Supp. 285 (D.Colo.1963). The action was brought under the provisions of Section 8a(6) of the Act, 7 U.S.C.A. § 608a(6) to require the ap-pellee to comply with milk order No. 137, as amended, 7 C.F.R. § 1137.1 et seq., (formerly designated as Milk Order No. 1, 7 C.F.R. Part 901), regulating the handling of milk in the Easteim Colorado Marketing Area. The order is directed toward sales of fluid milk in the marketing area and defines what is meant by the terms “handler”, “producer” and “producer-handler”. See 7 C.F.R. §§ 1137.9, 1137.10 and 1137.11, respectively. It also establishes a producer-settlement fund, 7 C.F.R. § 1137.83, to equalize the payments made to the farmers by the handlers and, unlike some orders relating to other marketing areas, provides that a producer-handler is exempt from certain of its provisions, including payments into the producer-settlement fund, 7 C.F.R. § 1137.60. The complaint in this case alleges that the appellees do business in the Denver, Colorado area; that milk order No. 137 was issued pursuant to the provisions of the Act to regulate the handling of milk in the marketing area; that the Market Administrator, as the agency appointed by the Secretary of Agriculture to administer the provisions of the order, duly determined that, during the time in question, the appellees were “handlers” of milk as defined in the order and therefore they were subject to the provisions of the Act and the order; that the ap-pellees had handled milk in violation of the Act and certain provisions of the order, 7 C.F.R. § 1137.84, by refusing and failing to pay to the Market Administrator, for and on behalf of the producer-settlement fund, the sums of money alleged to be due; and that the appellees were continuing to handle milk in violation of the Act and order and additional payments would become due each month. The complaint prayed for a mandatory injunction compelling the appellees to pay to the Market Administrator for and on behalf of the producer-settlement fund all sums alleged to be due from them and for a permanent injunction restraining them from further violations of the Act and the terms and provisions of the order. The appellees filed an answer in which they denied that they were subject to the provisions of the Act or the order and specifically denied that the Market Administrator had made any such determination. It was affirmatively alleged that “ * * * any determination, as a matter of due process, would have to be made pursuant to hearing, after notice, and that no such notice or hearing have ever been given or had; that these Defendants are not subject to the act, inasmuch as they are dealing with milk produced from herds in which they in each case own substantial interests, and are accordingly producers, who cannot be required as to their own milk to adhere to the requirements made of others dealing in milk produced by third persons * With issues thus joined, appellant filed a motion for summary judgment and in support thereof submitted an affidavit, together with exhibits attached thereto, of the Market Administrator setting forth many of the facts alleged in the complaint and motion. The Browns executed and filed a traversing affidavit. The court issued an order holding the motion in abeyance for thirty days so as to give appellees an opportunity to commence administrative proceedings under Section 8c(15) (A) of the Act, 7 U.S.C.A. § 608c(15) (A). Appellees duly commenced administrative proceedings within the thirty-day period and such proceeding is now pending in the Department of Agriculture. The United States then filed a motion for preliminary injunction, which was denied, and this appeal followed. The authority of an appellate court, upon review of an order granting or denying temporary or preliminary injunctive relief pending the trial and final determination of a case, is limited. Local 180 of International Union, etc. v. J. I. Case Co., 7 Cir., 281 F.2d 773; Minnesota Mining & Mfg. Co. v. Polychrome Corp., 7 Cir., 267 F.2d 772; W. A. Mack, Inc. v. General Motors Corporation, 7 Cir., 260 F.2d 886; Westinghouse Electric Corp. v. Free Sewing Machine Co., 7 Cir., 256 F.2d 806; Carroll v. Associated Musicians of Greater New York, 2 Cir., 284 F.2d 91; Joshua Meier Company v. Albany Novelty Mfg. Co., 2 Cir., 236 F.2d 144. Such a review covers only the exercise of proper judicial discretion by the lower court in granting or denying the temporary relief. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189; Goldammer v. Fay, 10 Cir., 326 F.2d 268; Goodpaster v. Oklahoma Gas & Electric Company, 10 Cir., 291 F.2d 276; B. W. Photo Utilities v. Republic Molding Corporation, 9 Cir., 280 F.2d 806; Shearman v. Missouri Pacific Railroad Company, 8 Cir., 250 F.2d 191; Solex Laboratories, Inc. v. Plastic Contact Lens Co., 7 Cir., 268 F.2d 637; American Federation of Musicians v. Stein, 6 Cir., 213 F.2d 679, cert. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687; Tatum v. Blackstock, 5 Cir., 319 F.2d 397; Leesona Corp. v. Cotwool Mfg. Corp., Judson Mills Div., 4 Cir., 315 F.2d 538; Schering Corporation v. Sun Ray Drug Co., 3 Cir., 320 F.2d 72; Safeway Stores, Inc. v. Safeway Properties, Inc., 2 Cir., 307 F.2d 495; Celebrity, Inc. v. Trina, Inc., 1 Cir., 264 F.2d 956; Young v. Motion Picture Association of America, Inc., 112 U.S.App.D.C. 35, 299 F.2d 119, cert. denied, 370 U.S. 922, 82 S.Ct. 1565, 8 L.Ed.2d 504; 28 Am.Jur., Injunction, § 332, pp. 845-848; 5A C.J.S., Appeal and Error, § 1591, pp. 60-67. The merits of the case may be considered only insofar as they bear upon the question of proper judicial discretion. Shearman v. Missouri Pacific Railroad Company, supra; Holzer v. United States, 8 Cir., 244 F.2d 562; City of Des Moines, Iowa v. Continental Illinois Nat. Bank & Trust Co., 8 Cir., 205 F.2d 729; Flight Engineers’ Inter. Ass’n, AFL-CIO v. American Airlines, Inc., 5 Cir., 303 F.2d 5; Young v. Motion Picture Association of America, Inc., supra. The appellant urges that these rules are not applicable to this case and that Section 8a(6), in effect, is a mandate from the Congress compelling the courts to grant extraordinary equitable relief, in the form of a mandatory preliminary injunction, without the exercise of any judicial discretion. We do not adhere to this line of argument. To the contrary, we believe our inquiry here must go solely to the question of whether or not the court below abused its equitable discretion in refusing the preliminary relief. It is true the inferior Federal courts are creatures of statute but, nevertheless, historically, they are possessed with the inherent equitable powers of common law courts. If they are ever stripped of judicial discretion in equitable proceedings they will be relegated to the standing of mere administrative enforcement agencies. By the enactment ■of the enforcement provisions of the statute under consideration, we do not think the Congress intended to deprive the ju■diciary of any of its equitable power of discretion. A careful reading of the statute convinces us that the court below was •correct in its interpretation of that statute when it said: “This contains no language which can be interpreted as a ■congressional mandate withdrawing from this court the power to exercise its discretion in refusing injunctive relief which it deems unfair and improper. * * ” (217 F.Supp. at 286). The appellant places great stress upon -the case of United States v. Ruzicka, 329 U.S. 287, 67 S.Ct. 207, 91 L.Ed. 290. That case, unlike our case here, was reviewing an order granting a preliminary injunction. The order was upheld but the court expressly stated: “ * . * And so we are not called upon to decide what powers inhere in a court of equity, exercising due judicial discretion, even in a suit such as was here brought by the United States for the enforcement of an order under § 8a. * * * ” (329 U.S. at 295, 67 S.Ct. at 211). We do not believe that the Supreme Court in the Ruzieka case meant to, or did, withdraw from the courts their traditional and long standing power to exercise judicial discretion in equitable proceedings. We are cognizant of the conflicting rights involved in this case. On the one side, there is the policy of the Act which must be complied with and enforced in the public interest, and, on the other side, is the protection of individual rights. From the standpoint of equity we see factual circumstances in the case that justify the denial of the motion. The lapse of time between appellees’ request for administrative relief and the entering of the court’s order appealed from, without any administrative determination, may have been a compelling reason. Also, to compel the payment of substantial monthly assessments over a long period of time without appellees having their day in court certainly cannot be said to be equitable. Such a situation could work a severe financial hardship upon appellees. There are substantial questions of law and fact involved in the controversy and there is no showing, other than the bare allegations of the motion, of irreparable injury to appellant or the public. Nor is there any showing that appellee is or may become insolvent or that appellees’ failure to pay the assessments will seriously effect the milk order. We must conclude that the court below did not abuse its judicial discretion in refusing to issue the preliminary injunction. Affirmed. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_certreason	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. DeGREGORY v. ATTORNEY GENERAL OF NEW HAMPSHIRE. No. 396. Argued February 24, 1966. Decided April 4, 1966. Howard S. Whiteside argued the cause and filed a brief for appellant. R. Peter Shapiro, Assistant Attorney General of New Hampshire, argued the cause for appellee. With him on the brief were William Maynard, Attorney General, and Joseph F. Gall, Special Assistant Attorney General. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Brennan. This is the third time that the constitutional rights of appellant challenged in investigations by New Hampshire into subversion have been brought to us. The present case stems from an investigation by the Attorney General of the State under Rev. Stat. Ann. § 588:8-a (1965 Supp.), enacted in 1957, which provides in part: “At any time when the attorney general has information which he deems reasonable or reliable relating to violations of the provisions of this chapter he shall make full and complete investigation thereof and shall report to the general court the results of this investigation, together with his recommendations, if any, for legislation. . . . [T]he attorney general is hereby authorized to make public such information received by him, testimony given before him, and matters handled by him as he deems fit to effectuate the purposes hereof.” The “violations” cover a wide raiige of “subversive” activities designed to “overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government ... of the state of New Hampshire, or any political subdivision . . . by force, or violence.” § 588:1. Appellant was willing to answer questions concerning his relationship with and knowledge of Communist activities since 1957, and in fact he did answer them. But he refused to answer a series of questions put him concerning earlier periods: His refusal, not being based on the Fifth Amendment, raised important questions under the First Amendment, made applicable to the States by the Fourteenth Amendment. He was committed to jail for a period of one year or until he purged himself of contempt. That judgment was affirmed by the New Hampshire Supreme Court. 106 N. H. 262, 209 A. 2d 712. The case is here on appeal. 382 U. S. 877. The substantiality of appellant’s First Amendment claim can best be seen by considering what he was asked to do. Appellant had already testified that he had not been involved with the Communist Party since 1957 and that he had no knowledge of Communist activities during that period. The Attorney General further sought to have him disclose information relating to his political associations of an earlier day, the meetings he attended, and the views expressed and ideas advocated at any such gatherings. Indeed, the Attorney General here relied entirely upon a 1955 Report on Subversive Activities in New Hampshire to justify renewed investigation of appellant. The Report connects appellant with the Communist Party only until 1953, over 10 years prior to the investigation giving rise to the present contempt. On the basis of our prior cases, appellant had every reason to anticipate that the details of his political associations to which he might testify would be reported in a pamphlet purporting to describe the nature of subversion in New Hampshire. (See Uphaus v. Wyman, 360 U. S. 72, 88-95, Brennan, J., dissenting.) Admittedly, “exposure — in the sense of disclosure — is an inescapable incident of an investigation into the presence of subversive persons within a State.” Uphaus v. Wyman, supra, at 81. But whatever justification may have supported such exposure in Uphaus is absent here; the staleness of both the basis for the investigation and its subject matter makes indefensible such exposure of one’s associational and political past — exposure which is objectionable and damaging in the extreme to one whose associations and political views do not command majority approval. “The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.” Watkins v. United States, 354 U. S. 178, 197. investigation is a part of lawmaking and the First Amendment, as well as the Fifth, stands as a barrier to state intrusion of privacy. No attack is made on the truthfulness of the questions answered by appellant stating that he does not serve in a subversive role and lacks knowledge of any current subversion. There is no showing of “overriding and compelling state interest” (Gibson v. Florida Legislative Comm., 372 U. S. 539, 546) that would warrant intrusion into the realm of political and associational privacy protected by the First Amendment. The information being sought was historical, not current. Lawmaking at the investigatory stage may properly probe historic events for any light that may be thrown on present conditions and problems. But the First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need. Watkins v. United States, supra, at 197-200. The present record is devoid of any evidence that there is any Communist movement in New Hampshire. The 1955 Report deals primarily with “world-wide communism” and the Federal Government. There is no showing whatsoever of present danger of sedition against the State itself, the only area to which the authority of the State extends. There is thus absent that “nexus” between appellant and subversive activities in New Hampshire which the Court found to exist in Uphaus v. Wyman, supra, at 79. New Hampshire’s interest on this record is too remote and conjectural to override the guarantee of the First Amendment that a person can speak or not, as he chooses, free of all governmental compulsion. Reversed DeGregory v. Wyman, 360 U. S. 717; DeGregory v. Attorney General, 368 U. S. 19. After remand of the latter case appellant purged himself of contempt by answering in the negative the question “Are you presently a member of the Communist Party?” Subsequently, new hearings were held and it is out of them that the present case arises. Although the Act purports to extend its protection to the Federal Government as well, that field has been pre-empted. See Pennsylvania v. Nelson, 350 U. S. 497. “I am not now a member of the Communist Party and have not been at any time since this authority under which I was subject has been on the statute books; that I have no knowledge of any communistic activities in New Hampshire during this period, or any violations of law during this period of six and one-half years. In fact, I have not even been aware of the existence of any Communist Party in the State of New Hampshire at any time that this authority has been on the statute books.” “Have you ever been a member of the Communist Party? “When did you join the Communist Party? “Were you a paid member of the Communist Party? “Were you an officer of the Communist Party? “Did you ever have access to or control of membership or financial records of the Communist Party in New Hampshire? “Did you attend Communist Party meetings in New Hampshire? “To what extent did Communist Party District I in Boston, Massachusetts, have control over the party’s activities in New Hampshire? “Did you ever attend any Communist Party meetings in New Hampshire wherein any person advocated to . . . overthrow, destroy or alter the Government of the State of New Hampshire, by force or violence? “Did you ever attend any Communist Party meetings in New Hampshire where any person advocated, abetted, advised or taught by any means the commission of an act to constitute a clear and present danger to the security of this state? “Did you or any person known to you destroy any books, records or files, or secrete any funds in this state belonging to or owned by the Communist Party? “Did you at any time participate or assist in the formation of or contribute to the support of the Communist Party in New Hampshire ?” Prosecution for these activities was apparently barred by the six-year state statute of limitations, N. H. Rev. St-at. Ann. §603:1, long before the investigation in 1964. See Gibson v. Florida Legislative Comm., 372 U. S. 539, 543-544; Bates v. Little Rock, 361 U. S. 516, 523-524; NAACP v. Alabama, 357 U. S. 449, 462-463. Cf. Shelton v. Tucker, 364 U. S. 479, 485-487; Talley v. California, 362 U. S. 60, 64-65. Pennsylvania v. Nelson, supra, n. 2. 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_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). James Wm. SMITH, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Gilbert Esco ANGLE, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Nos. 9761, 9754. United States Court of Appeals Tenth Circuit. June 12, 1968. William M. Allison, Denver, Colo, (each petitioner pro se on separate briefs) for appellants. Benjamin E. Franklin, Topeka, Kan. (Newell A. George, Topeka, Kan., with him on brief) for appellee. Before MURRAH, Chief Judge, JONES Court of Claims, and BREIT-ENSTEIN, Circuit Judge. Honorable Marvin Jones, sitting by designation. MURRAH, Chief Judge. By separate petitions to the District Court of Kansas, Smith and Angle sought in effect to mandamus the Secretary of Defense to remove from their records dishonorable discharges resulting from court martial convictions in 1945 and 1948, respectively. The salient contention in both petitions seems to be that the court martials were void because petitioners were denied their constitutional right to counsel. On the authority of Ashe v. McNamara, 1 Cir., 355 F.2d 277, Judge Stanley entertained jurisdiction under 28 U.S.C. § 1361 to judicially review administrative orders of the Secretary acting through the Army Board for Correction of Military Records pursuant to 10 U.S.C. § 1552. He denied the writ of mandamus, holding that the court mar-tials were not constitutionally void and the Secretary was not legally required to grant the honorable discharges. For the first time on appeal the Secretary suggests the failure of jurisdiction in the Angle case for want of proper service. Public law 87-748 (1962), 28 U.S.C. §§ 1361, 1391(e), which confers jurisdiction on the District Courts to entertain actions in the nature of mandamus against government officers provides for service of summons and complaint in accordance with the Federal Rules of Civil Procedure “except that delivery of the summons and complaint to [such] officer * * * may be made by certified mail [outside] the district in which the action is brought.” 28 U.S.C. § 1391(e). Rule 4(d) (4) and (5), F.R.Civ.P., significantly provides that in suits against officers of the United States a copy of the summons and complaint must be delivered to the officer and to the United States, i. e. the United States Attorney and the Attorney General. See Messenger v. United States, 2 Cir., 231 F.2d 328; Wallach v. Cannon, 8 Cir., 357 F.2d 557. Angle admits that no such delivery was made on either the officer sued, i. e. the Secretary of Defense, or on the United States as provided in the rules. Nor did the Secretary or the United States waive the lack of service by pleading or appearance. It follows that the court never acquired jurisdiction in Angle’s case and the action must be dismissed on that ground. A different situation obtains with regard to Smith where the Secretary entered his appearance in response to an order to show cause. It now seems to be conceded that by such appearance the lack of proper service was waived, and we proceed to consider the Smith ease on its merits. Smith was convicted in 1945 of the crimes of Absence Without Leave and Robbery in violation of Articles of War 61 and 93 and sentenced to a term of imprisonment at hard labor, forfeiture of pay and allowances and dishonorable discharge. At trial he was represented by a member of the Military Police admittedly not trained in the law; the prosecuting officer was a member of the Transportation Corps and there is no record indication that he was legally trained. The convening authority approved the findings of guilt but reduced the term of confinement and suspended the dishonorable discharge. The record of trial was then reviewed by the office of the Judge Advocate General and found legally sufficient to support the sentence. Smith escaped from detention in the Phil-lipines and was recaptured five years later in the United States, at which time he was returned to confinement and suspension of the dishonorable discharge was revoked. Through legally trained, non-military counsel, Smith petitioned the office of the Judge Advocate General for a new trial raising some of the issues urged here, but not complaining of lack of counsel. The petition was denied but the term of imprisonment was subsequently reduced. On completion of the sentence, he petitioned the Army Board three times to grant him an honorable discharge and payment of all sums previously withheld; his requests were denied without a hearing. He brought the present action by petition pro se while in the custody of the State of Kansas on an unrelated conviction. The record before the court included one page of the transcript of testimony at the court martial and numerous documents summarizing the proceedings including both the brief and decision on the petition for new trial. In denying relief the trial court was of the opinion that all of Smith’s asserted claims had been fully investigated on the petition for new trial and found meritless by the military authorities. The Secretary’s initial contention on appeal is that, notwithstanding Ashe, the District Court had no jurisdiction to review the court martial and consequently the denial of the writ of mandamus should have been made to rest on that ground alone. The Secretary invokes the finality provisions of two statutes: (1) 10 U.S.C. § 876 which makes the decisions of court martials “final” and “binding upon all * * * courts”; and (2) 10 U.S.C. § 1552 which makes corrections of military records thereunder by the Secretary “final and conclusive on all officers of the United States”. It is sufficient to say that the contention with respect to Section 1552 was squarely met and conclusively answered in Ashe, supra, where, upon painstaking review of the legislative history, the First Circuit was of the opinion that the statute “was not intended to preclude any otherwise proper judicial review of departmental action [upon a petition] to change the type of [a] discharge.” Id. 355 F.2d 281. As to Section 876, it is well settled that the section “do[es] not deprive civil courts [of jurisdiction] of habeas corpus jurisdiction in proper cases.” Easley v. Hunter, 10 Cir., 209 F.2d 483; and see Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. And, notwithstanding the finality language of section 876, the Court of Claims has continuously entertained suits by military personnel claiming that their court martial convictions were void. Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131; and see Shaw v. United States, 357 F.2d 949, 953,174 Ct.Cl. 899 and cases cited in footnote 4. The court in Augenblick, supra, 377 F.2d 592, reasoned that “To deny collateral attack to one not in confinement — ■ the consequence of saying that habeas corpus is the only remedy — would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen * * * who have not been sentenced to jail or who have been released.” For like reasons we conclude that the trial court was vested with jurisdiction to review by mandamus, as in habeas corpus, the “final” court martial decision even though Smith had completed the term of imprisonment imposed as a result of that conviction. It follows that where the “conviction was the product of court-martial procedure so fundamentally unfair that, upon a proper petition, a district court at the place of incarceration would have been obliged to grant * * * a writ of habeas corpus”, it would be “as much the duty of the Secretary and the Correction Board, as it would have been of a court * * , to treat as void a sentence thus unconstitutionally imposed” and “the matter of changing the type of discharge [would therefore involve] a plain duty to grant relief, enforceable by an action in the nature of mandamus under section 1361 of title 28.” Ashe, supra, 355 F.2d 280, 282. This brings us squarely and inevitably to the constitutional validity of Smith’s court martial and particularly to the question whether the representation afforded him there complied with the fundamental right of due process, i. e. a full and fair hearing where liberty is at stake. In Kennedy v. Commandant, 10 Cir., 377 F.2d 339, we were confronted with the claim of denial of the constitutional right to counsel in a special court martial under the Uniform Code of Military Justice, which provides that both trial and defense counsel in a general court martial must be legally trained and that prosecution and defense counsel in a special court’martial need only be of coequal training. See Article 27, 10 U.S.C. § 827. In the circumstances of that case we found it “unnecessary and inappropriate to resolve the question whether the right to counsel provisions of the Sixth Amendment as recently vitalized in federal prosecutions and made applicable to state prosecutions * * should now be made strictly applicable to military prosecutions.” But, we were certain that, in any event the spirit of the Sixth Amendment right to counsel pervaded the due process rights of military justice to the end that an accused person was entitled to the guiding hand of one whose competence was comparable to that of his adversary. We were satisfied that such requirement “fully complies] with the right of counsel requirements of the Sixth Amendment.” Kennedy, supra, 343. The instant case arose before the advent of the Uniform Code of Military Justice, but the applicable Articles of War provided that: “Accused shall have the right to be represented * * * by counsel of his own selection * * * [or by appointed counsel]”. Article 17. Case law of the era interpreted this provision to mean that a commissioned officer admitted to practice before court martials was “a competent attorney within the purview of the Sixth Amendment.” Altmayer v. Sanford, 5 Cir., 148 F.2d 161, 162; and see Romero v. Squier, 9 Cir., 133 F.2d 528; Duval v. Humphrey, D.C., 83 F.Supp. 457, 460; Hayes v. Hunter, D.C., 83 F.Supp. 940, 944. By inference we are asked to overrule this line of cases in light of the “vitalized” Sixth Amendment. We do not choose to do so. “It would be fallacious to assume that a service member appears before a court martial in the identical position as a defendant before a civilian court. From Powell v. [State of] Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] * * * down to and including Gideon v. Wainright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] * * , there persists the plight of one charged with crime before civilian courts, who appears alone and without counsel because he is indigent. * * [N]o serviceman appears before a court martial alone.” Judge Kilday in United States v. Culp, 14 U.S. C.M.A. 199, 202. While the qualifications of counsel under the applicable Articles of War were not as stringent as the requirements of the Military Code, they did provide for counsel and Smith received it. We are not persuaded that Smith’s representation by non-legally trained counsel violated his right to counsel when the prosecuting officer was apparently also untrained in the law. This is particularly so in as much as Smith was represented by legally trained counsel on his petition for new trial and all issues relevant to the conduct of the court martial were then raised, considered and decided. Our situation is quite different from Ashe, supra, where the contradictory defenses of the two accused servicemen defended by a single attorney made it per se impossible for him to function as counsel for both. Smith also complains (1) that a reduction in rank from private first class to private was punishment for his alleged absence without leave and that as such he was put in double jeopardy; (2) that he was convicted on the uncorroborated testimony of an accomplice; (3) that the reading of the charge sheet in open court amounted to the introduction of hearsay evidence. All these issues were raised and answered on the petition for new trial and have been dealt with “fully and fairly” by the military and we will not interfere with their judgment. Burns v. Wilson, supra; Kennedy v. Commandant, supra, 377 F.2d 342, and cases cited. The motion for writ of mandamus was properly denied. . Section 1552 pertinently provides that the “Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.” . See Prairie Band of Pottawatomie Tribe of Indians v. Udall, 10 Cir., 355 F.2d 364. . Unlike the petitioner in Ashe, supra, Smith did not seek review of the Board’s action by the U.S. Court of Military Appeals, but the Secretary has not suggested that court had jurisdiction to review these administrative decisions. 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_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. MILLER v. CALIFORNIA. No. 154. Argued March 26, 1968. Decided June 17, 1968. F. Lee Bailey argued the cause for petitioner. With him on the briefs was Alan M. Dershowitz. Philip C. Griffin, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. Per Curiam. The writ of certiorari is dismissed as improvidently granted. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO. No. 3549. Circuit Court of Appeals, First Circuit. Sept. 16, 1942. Robert B. Watts, Gen. Counsel, and Ernest A. Gross, Associate Gen. Counsel, both of Washington, D. C., for petitioner. Jay Clark, Jr., and George H. Mason, both of Worcester, Mass., for respondent. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. The National Labor Relations Board has petitioned this court to adjudge Reed .& Prince Manufacturing Company, its officers and agents, and in particular its President, Chester T. Reed, its Treasurer, Alden Reed, and its Manager of Industrial Relations, George H. Taylor, in contempt for failure to comply with our decree entered April 2, 1941. 118 F.2d 874. Respondent in its sworn answer denies that George H. Taylor is in any way responsible for its corporate policy or the carrying out of the decree and since the Board has not pressed this point upon us, we consider him to be withdrawn from the scope of this opinion. The order of the Board as affirmed by this court, insofar as it is pertinent to this cause, is as follows: That respondent “2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: * * * * ❖ * “(b) Offer to Roy Harold Stevens, Jr., Clifford A. Gallant, Michael C. Sullivan, and Mary P. Sullivan immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; “(c) Make whole Roy Harold Stevens, Jr., Clifford A. Gallant, Michael C. Sullivan,'and Mary P. Sullivan for any loss of pay they may have suffered by reason of the respondent’s refusal to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the respondent’s refusal to reinstate him, to the date of such offer of reinstatement, less his net earnings during said period. * * *» While the name of Mary P. Sullivan appears in the decree as one of the employees to be reinstated and made whole, there is no dispute as to her. The parties are in agreement as to the periods of employment and earnings of Roy Harold Stevens, Jr., and Clifford A. Gallant and have filed a stipulation to this effect. They have, however, been unable to agree upon the sums which Michael Sullivan would have earned and the period of his employment. A stipulation with reference to these issues covering certain undisputed facts has been entered into by the parties. Certain records of the company showing the employment, lay off, and earnings of its employees have been presented to us. Memoranda and reply memoranda analyzing these records have also been filed. The only issue upon which the parties disagree as to the sums due Clifford A. Gallant and Roy Harold Stevens, Jr., is the proper interpretation of 2(c) of the Board’s order as affirmed by our decree. We defer a consideration of this question until we have disposed of the controversial issues concerning the period of Michael Sullivan’s employment. The Board contends that the position which Michael Sullivan filled as an annealer in Department 5 was continuously in existence from the time of his discriminatory discharge on July 26, 1937, until the date on which he was offered reinstatement, June 10, 1941, and that had Sullivan not been wrongfully discharged he would have had employment for the full four year period. His earnings as an employee of the respondent would then have totaled $6,303.-61 and according to the Board’s figures the respondent owes him $1,885.33. The respondent denies that Sullivan would have worked for the full four year period and sets up in its answer certain hypothetical dates on which he would have been laid off and reemployed in regular course of business had there been no discriminatory discharge. In determining when Sullivan would have been laid off respondent selects a date upon which it laid off a man in his department with next greater seniority. In order to determine when Sullivan would have been reemployed it selects a date on which the first man with less seniority than Sullivan was taken on in the same department. According to its contention, Sullivan would have been laid off February-14, 1938, and reemployed January 20, 1941, and would have earned as an employee of the respondent the sum of $1,808.38. Since he earned in outside employment the sum of $4,418.28 respondent claims it owes him nothing. It is contended by the respondent that the burden of proof in a contempt proceeding is upon the petitioner and that the Board in this case has failed to prove by a preponderance of the evidence that Sullivan would have been employed for the full four year period and that even if the Board has satisfactorily proved that Sullivan would have been employed for part of this period, it has not shown that the amount which he would have earned as an employee of the company is larger than the amount that he earned in outside employment. Since the issue in this case is the determination of the sums due him, respondent claims that the Board has failed to prove that it is in contempt as regards this employee. While the Board does not categorically deny that it has the burden of proving respondent’s contempt, nevertheless, it states that the respondent has set up an affirmative defense, that is, the hypothetical dates chosen by it to indicate the period of normal employment and unemployment of Sullivan. Petitioner contends that respondent has failed to sustain its burden as regards these dates. We agree that the burden of proof in a contempt proceeding is upon the petitioner, National Labor Relations Board v. Rath Packing Co., 8 Cir., 1941, 123 F.2d 684; National Labor Relations Board v. Little Rock Furniture Mfg. Co., 8 Cir., 1941, 123 F.2d 868; National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 1941, 122 F.2d 603 but we cannot lose sight of the fact that all of these issues arise from the discriminatory discharge of this employee. Because of his labor activities, Sullivan was unlawfully deprived of his position for the full four year period. What respondent would have actually done as regards Sullivan’s employment is, of course, a matter of hindsight. Certainly it is in a better position to come forward with evidence that Sullivan would not have worked for the full four year period, as the Board contends. If the respondent pursued a particular employment policy in relation to its employees, that knowledge is peculiarly within its possession. Cf. Montgomery Ward & Co. v. National Labor Relations Board, 7 Cir., 1939, 107 F.2d 555, 560; National Labor Relations Board v. Remington Rand Company, 2d Cir., 1938, 94 F.2d 862, 872, certiorari denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540, rehearing denied Remington Rand v. United States, 304 U.S. 590, 58 S.Ct. 1054, 82 L.Ed. 1549. It is not enough for it to deny that Sullivan would have worked for the full period. The respondent by its statement of its employment policy and its selection of certain hypothetical dates upon which it would have laid off and reemployed Sullivan has recognized the burden upon it. From what we shall say hereafter, however, it is clear that we do not believe that the respondent has come forward with adequate evidence. Its failure to do so adds force to the position of the Board. The respondent asserts that it pursued consistently its lay off policy which is based upon factory seniority without prejudice to Sullivan and had he not been discriminatorily discharged it would have laid him off in the normal course of events because of a severe depression which caused a curtailment in the number of its employees. A good statement of what this employment policy is may be found in the answer of the respondent. “During periods of depression, lack of business, lack of work, it had long been the policy of the company in making lay offs to make interdepartmental transfers, transfers within the department, stagger work, or lay off, all for the purpose of retaining key men, valuable men and efficient men with longer service records in preference to men of less seniority and no greater efficiency, and that the respondent company has never had a policy of job seniority.” Assuming that this is respondent’s policy, we believe that the Board is entitled to hold respondent strictly to it insofar as it affects the lay off of Sullivan. It is admitted by the parties that work in department 5 (Sullivan’s department) is essentially unskilled. The most important single factor in determining whether a man in this department would be retained or laid off in a period of depression is his length of service in the company’s employ. Respondent argues that no man in department 5 who succeeded Sullivan had less factory seniority and, therefore, it cannot be said that the company failed to apply consistently its lay off policy. Respondent does not establish its impartiality as regards Sullivan merely by introducing evidence which shows that none of the employees who succeeded him had less seniority. . It is uncontroverted that certain employees with less factory seniority were retained throughout the plant for the full four year period. Moreover, as the Board points out, among the entire production force in respondent’s employ in February, 1938, there were about SO employees with less than four years five months seniority, Sullivan’s seniority record, who were retained and that on the basis of the rate of pay as an index of relative value, he should have superseded any one of 44 employees with less factory service on jobs which required less or no more skill than did the work of an annealer in department 5. There is evidence in the records before us that had the respondent pursued its policy of interdepartmental transfers, Sullivan would have been' retained at his position or would have been transferred to another department to succeed an employee with less seniority. As an example of respondent’s failure to follow consistently its policy of interdepartmental transfers, there is evidence that during the period from February 14, 1938, to January 20, 1941, 53 men were employed at some time in department 23, all of whom had less seniority and were paid lower rates than Sullivan. Another example of respondent’s inconsistent application of its policy of transfers is to be found in the lay off of certain men employed in department 5 with less factory seniority than Sullivan who were later reemployed in other departments at dates much earlier than that set for his reemployment. Further the Board contends that some 282 employees were hired in all departments subsequent to February 14, 1938, and prior to January 20, 1941, and of this number 266 positions required no greater experience and none of these employees received a higher rate of pay than Sullivan. While this fact does not prove that Sullivan would have been employed for the full four year period, it does demonstrate that respondent’s hypothetical reemployment date upon which it places great stress is erroneous. In reply to the contention that it did not pursue consistently its policy of lay offs and that a lay off of Sullivan on February 14, 1938, would have been discriminatory, respondent asserts that some. 150 employees with equal or greater seniority than Sullivan were laid off during 1938. It also argues that the Board has not introduced any evidence showing that Sullivan was able to perform any of the jobs to which it says he might have been transferred. It is conceded by respondent that it retained for the full four year period some employees with less seniority than Sullivan but states that it did this only because it sought to keep a nucleus so that when the depression passed it would have an organization to commence work on a normal scale. It is true that the records indicate the aforementioned 150 employees were laid off during 1938 but it is also true that a number of these employees returned to work prior to the hypothetical date selected by respondent for Sullivan’s return. It cannot be said that because 150 employees were laid off during the period which respondent contends Sullivan would have been laid off, it necessarily follows that Sullivan would have been forced out of work. Nor is the argument that the Board has failed to prove that Sullivan was qualified to work in other departments of great force. It seems perfectly proper to assume that an employee who had worked in the plant for a considerable length of time and who had three years of college training was able to perform unskilled work at the same rate of pay which he received as an employee in department 5. Particularly is this true when we consider that this employee had no opportunity to demonstrate to his employers his ability to perform other tasks because of his discriminatory discharge. We know as a fact that Sullivan’s position was in existence for the full four year period; that certain employees of the respondent whose work was of no greater skill remained in the employ of the company for the full four year-period; that the company made transfers inconsistent with its so called policy of interdepartmental transfers and that the company reemployed or employed for the first time a good many employees at dates much earlier than that set for the hypothetical return of Sullivan. Viewing this case in its proper context, we believe that the inference is warranted that had Sullivan not been discriminatorily discharged he would have been employed for the full four year period in department 5, or transferred to another department at an equal rate of pay. We, therefore, hold that the respondent owes Michael Sullivan the difference between what he would have earned as an employee of the company for the full four year period and the sum which he earned in outside employment. We come now to a consideration of the proper interpretation of 2(c) of our decree. Respondent contends that it is entitled to deduct from the amounts that Gallant and Stevens would normally have earned from it, but for their discriminatory discharge, amounts they respectively earned elsewhere during the period in question, despite the fact that these employees would normally have been unemployed for a part of this time. The petitioner asserts that such an interpretation of our decree is violative of the purpose of the Board’s order in that it fails to make these employees whole. The following is a chart taken from the stipulation entered into by the parties, illustrating graphically the alternative positions urged upon us. - CLIFFORD A. GALLANT I. II. Net Earnings Amount Gallant would Normally From 7-26-37 to 6-10-41 Have Earned at Respondent’s Plant From 7-26-37 to 6-10-41 From 7-26-37 to 3-25-38 124.05 From 7-26-37 to 3-25-38 $1,129.61 B. B. From 3-27-38 to 3-30-40 947.28 From 3-27-38 to 3-30-40 none C. C. From 4-1-40 to 6-10-41 1,578.19 From 4-1-40 to 6-10-41 1,868.85 Total $2,649.52 Total $2,998.46 1. Total net earnings of Gallant from July 26, 1937 to June 10, 1941 (total of Column 1, above) 2,649.52 2. Total amount Gallant would normally have earned from respondent during the period from July 26, 1937 to June 10, 1941 2,998.46 3. Less his net earnings during said period 2,649.52 4. Amount respondent was required to pay Gallant if respondent’s position is upheld. 348.94 (already paid $376.70) 5. Total amount Gallant would normally have earned from respondent during periods A and C noted in Column II, above 2,998.46 6. Total amount of Gallant’s net earnings during periods A and C noted in Column I, above 1,702.24 7. Amount respondent would be required to pay Gallant if board’s position is upheld $1,296.22 (already paid $376.70) ROY H. STEVENS, JR. II. Net Earnings From 7-26-37 to 6-10-41 Amount Stevens would Normally Have Earned at Respondent’s Plant From 7-26-37 to 6-10-41 A. From 7-26-37 to 1-28-38 $155.20 From 7-26-37 to 1-28-38 667.65 B. B. From 1-31-38 to 7-29-39 '1,199.47 From 1-31-38 to 7-29-39 none C. C. From 8-1-39 to 6-10-41 3,107.98 From 8-1-39 to 6-10-41 2,705.45 Total $4,462.65 Total $3,373.10 1. Total net earnings of Stevens from July 26, 1937 to June 10, 1941 (total of Column 1, above) $4,462.65 2. Total amount Stevens would normally have earned from respondent during the period from July 26, 1937 to June 10, 1941 3,373.10 3. Less his net earnings during said period 4,462.65 4. Amount respondent was required to pay Stevens if respondent’s position is upheld. none 5. Total amount Stevens would normally have earned from respondent during periods A and C noted in Column II, above 3,373.10 6. Total amount of Stevens’ net earnings during periods A and C noted in Column 1, above 3,263.18 7. Amount respondent would be required to pay Stevens if board’s position is upheld , $109.92 This is a civil proceeding rather than a criminal one and our main purpose is to determine the correct amounts due to these employees. Waterman S. S. Co. v. National Labor Relations Board, 5 Cir., 1941, 119 F.2d 760; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 1939, 108 F.2d 188; National Labor Relations Board v. Hopwood Retinning Co., 2 Cir., 1939, 104 F.2d 302. As is well stated in Waterman S. S. Co. v. National Labor Relations Board, supra, at page 762 of 119 F.2d: “Punition is not sought so much as clarification as to the principles on which the wage losses should be computed.” The all-pervading purpose of the Board’s orders regardless of their difference in language based on different circumstances in each case, is that the employees discriminatorily discharged for labor activities shall not suffer any loss because of their employer’s unfair labor practice. See National Labor Relations Board v. Phelps Dodge Corporation, 313 U.S. 177, 197, 198, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217. It is clear from the Board’s decision that this was its purpose in framing its order in this case. The Board in the matter of Reed & Prince Mfg. Co., 12 N.L.R.B. 944, 977, Footnote 18, in discussing the meaning of net earnings states: “By net earnings is meant earnings less expenses, such as for transportation, room and board incurred by an employee in connection with obtaining work and working elsewhere than, for respondent, which would not have been incurred but for his unlawful discharge and consequent necessity of seeking employment elsewhere.” We do not believe that the Board intended to frame an order compensating these employees for expenses incurred in seeking employment elsewhere and at the same time allow this respondent to deduct amounts earned in outside employment during periods they would normally have been unemployed. It is urged upon us by the respondent that the decree is unambiguous and that the literal interpretation of the Board’s order compels us to read the decree in such a manner that the respondent despite its unlawful discharge of these employees, derives benefit from the fact that they were employed elsewhere during the period of respondent’s depression. It is argued that the words in our decree “by payments to each of them of a sum or sums equal to that which he would normally have earned as wages from the date of respondent’s refusal to reinstate him to the date of such offer of reinstatement less his net earnings during said period” qualifies that part of our decree which states respondent “shall make whole Roy Harold Stevens, Jr., Clifford A. Gallant and Michael C. Sullivan for any loss of pay they might have suffered by reason of respondent’s refusal to reinstate them, and that the words “said period” refer to the full four year period in question. While the order might have been framed more clearly, it cannot be said that the respondent will suffer any damage from a proper interpretation of this decree. Respondent has not relied to its detriment upon the interpretation which it presently urges. In a letter written to the Regional Director of the petitioner, as set forth in respondent’s answer, it makes the following statement: “‘We are sending these checks to you so you will know that we have complied with the Decree according to our understanding and you may assure the employees that they may cash the checks without prejudice to any right which you may have to persuade the court that our computation and interpretation of the Decree is incorrect’ and further suggested that the respondent join said Director in requesting the Clerk to ask the Court to see the parties ‘informally in Chambers to discuss the legal meaning of Section 2(c) of this Decree.’ ” The interpretation urged upon us by the respondent under the circumstances of this case is unreasonable. Had there been no discriminatory discharge of these employees and had respondent suffered a depression they would have sought and undoubtedly obtained employment elsewhere. Their total income for the full four year period would have been the sums earned from respondent added to the sums earned in outside employment. If respondent’s argument prevails the explicit purpose of the decree is vitiated. These employees suffer loss from their discriminatory discharge unless they receive in the aggregate the same amounts that they would have earned had there been no discharge. If we read the order, realizing its purpose, the only sensible interpretation is the one urged upon us by the Board. A similar interpretation concerning an order exactly phrased as this one was entered in National Labor Relations Board v. J. Greenebaum Tanning Co. decided November 19, 1941 (C.C.A.7th). We, therefore, order that Reed & Prince Manufacturing Company, Chester T. Reed and Alden Reed forthwith purge themselves of contempt by fully complying with and obeying Section 2(c) of our decree by paying Michael Sullivan, Clifford A. Gallant and Roy Harold Stevens, Jr., the sums due them in conformance with this opinion. Stipulations as to earnings of Gallant and Stevens, Exhibits 1 and 2. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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). UNITED STATES of America, Plaintiff-Appellee, v. William Patrick COUSINS, Defendant-Appellant. No. 87-3065. United States Court of Appeals, Eleventh Circuit. April 19, 1988. W. Dexter Douglass, Douglass, Cooper & Coppins, Tallahassee, Fla., Lamar Wine-gart, III, Edward M. Booth, Sr., Booth & Arnold, P.A., Jacksonville, Fla., for defendant-appellant. Paul Alan Sprowls, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee. Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY, Chief Circuit Judge. Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit, sitting by designation. EDMONDSON, Circuit Judge: William P. Cousins was convicted of conspiracy to import cocaine and income tax evasion. Among other things, Cousins contends that reversible error was committed during his trial when: 1) the district court denied his motion for a mistrial after a local newspaper reported that a member of Cousins’ family contacted members of the jury; and 2) rebuttal testimony concerning Cousins’ prior drug use was admitted over his objection. We affirm the convictions. During the prosecution’s case-in-chief, the jury informed the trial judge that a person had approached several jurors in an elevator outside the courtroom and had begun asking questions, such as, “He [referring to Cousins] is guilty, isn’t he,” or words to that effect. The jurors then explained that they had told the speaker that they were not supposed to discuss the trial; but the person continued to ask questions until the jurors walked away. The trial judge asked whether the person had identified himself in “any manner, whatsoever as to who he was or if he had any relationship to this case whatsoever?” The jury spokesman responded, “No.” Cousins’ attorney requested a bench conference and informed the district court that the person who approached the jury may have been Cousins’ eighteen-year old nephew. Defense counsel also expressed concern that the jurors might react unfavorably if they believed that Cousins had arranged the incident in order to obtain a mistrial. After a brief recess, Cousins stated he wished additional time to consider whether he would move for a mistrial. After the district court discussed with counsel how best to determine whether any jurors were prejudiced by the incident, the following questions were asked of the jurors: THE COURT: Do any of you at this time, feel that the incident you have described and told us in open court was prompted or instigated by either the government or the defendant? Any of you feel that way? JURY COLLECTIVELY: No. THE COURT: Secondly, will the incident in any manner enter into or affect your consideration of the merits of this case? JURY COLLECTIVELY: No. THE COURT: Thank you. Satisfied with these responses, the district court permitted the trial to proceed. Prior to the evening recess, the jurors were instructed “not to discuss this case or anything about this case amongst yourselves or with anyone else. Please do not read, listen to, or watch any news accounts.” The next morning Cousins moved for a mistrial based upon the previous day’s events. Cousins also expressed concern over a report on the jury-encounter incident appearing in that morning’s local newspaper; the newspaper attributed the remarks to Cousins’ nephew. Defense counsel, however, requested no poll of the jurors about whether they had seen the article. The district court, on the basis of the answers the jurors previously provided, denied a mistrial. Cousins contends that the district court erred when it denied his motion for a mistrial. Preliminarily, we note that the decision to grant a mistrial based upon allegations that a jury has been unfairly prejudiced by exposure to extraneous information or outside influences is largely within the discretion of the district court and will not be reversed absent a showing that the trial judge abused his discretion. United States v. Khoury, 539 F.2d 441, 443 (5th Cir.1976). Moreover, when a defendant makes a “colorable showing” that jurors have been exposed to extrinsic influences, the district court, in the exercise of its discretion, must make sufficient inquiries or conduct a hearing to determine whether the influence was prejudicial. However, there is no per se rule requiring an inquiry in every instance. The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality. In other words, there must be something more than mere speculation. United States v. Barshov, 733 F.2d 842, 851 (11th Cir.1984) (citations omitted); Khoury, 539 F.2d at 443 (district court’s “discretion extends to the type of investigation required” to ascertain whether jury is prejudiced); see also United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir.1987) ("The trial court has broad discretion as to how to proceed when confronted with an allegation of jury misconduct, including discretion with regard to the initial decision as to whether to interrogate jurors.”). Cousins has failed to demonstrate that any of the jurors were aware that Cousins’ nephew was involved in the incident. When questioned by the district court on the day of the contact, the jurors denied any knowledge of the person’s identity. The jurors also indicated that the incident would not affect their consideration of the merits of the case. In this case, on the evening prior to the appearance of the challenged newspaper article, the district court specifically instructed the jury not to “read, listen or watch” any news accounts pertaining to the trial. Cf. United States v. Herring, 568 F.2d 1099, 1105 (5th Cir.1978) (reversing conviction where judges’ previous instructions concerning trial publicity were inadequate). In addition, the trial transcript reflects that throughout the course of Cousins’ trial, the district court admonished the jury not to read any newspaper account of the case. Nowhere does the record indicate that the jury failed to heed these instructions. We will, therefore, presume that the jurors followed the district court’s instructions and did not read the newspaper article. See generally United States v. Phelps, 733 F.2d 1464, 1473 (11th Cir.1984) (“The law presumes that the jury will follow the court’s instructions_”). “Because no juror read the article, its publication could not have prejudiced [Cousins].” See Khoury, 539 F.2d at 442; see also United States v. Barshov, 733 F.2d 842, 851-52 (11th Cir.1984) (post-trial motion to interview jurors properly denied because district court “presumed that jurors followed the court’s oft-repeated instructions not to discuss the case” even though a juror’s son — who attended every day of the trial and overheard discussions occurring outside the jury’s presence, who talked to the prosecutor and defense counsel about the case, and who even attempted to discuss the case with one of the defendants — was seen talking to jurors during recesses). Cousins has presented no colorable showing that either the jury-encounter incident or the newspaper’s account thereof “impugned in any way the integrity of the trial process.” Barshov, 733 F.2d at 852. Consequently, the district court did not abuse its discretion in denying Cousins’ motion for a mistrial. Nor was the district court obligated to ask the jurors more questions. Cousins contends that the district court improperly admitted extrinsic evidence of his use of drugs. During the presentation of Cousins’ defense, he made a motion in limine to prohibit the prosecution from cross-examining him or any character witness about his use of marijuana and cocaine. After this motion was denied, Cousins testified at length about his successful business career, prior military service and various civic activities. In response to questions asked by Cousins’ attorney about previous drug use, Cousins testified: Let me clarify ‘use.’ I never was a user. I experimented with it. I have never ever in my life seen cocaine or marijuana, other than on television, up until 1978, when I went to Fort Lauder-dale. And I did get the opportunity to attend many parties, social functions, that were attended by people like doctors and lawyers and people in very high positions in the community. And it seems like drugs were just socially accepted and were done as an everyday life type situation. I didn’t — I didn’t agree with it, and I have always been an anti-drug person. And because of that and the exposure to our children, we moved [from Ft. Lauderdale to Gainesville]. In addition, on cross-examination, the prosecution referred to this testimony when Cousins was asked: PROSECUTION: ... Other than your experience or your experimentation with cocaine at one time, several years ago, is it your testimony that you have never used it or been involved in any smuggling of marijuana or cocaine? COUSINS: That’s exactly what I testified to, and it’s the truth. Thus, Cousins’ testimony portrayed himself to the jury not only as a law-abiding, hardworking business and family man, but also as someone vehemently and particularly opposed to illegal drugs. During the government’s rebuttal, two witnesses were called to refute Cousins’ statements concerning his anti-drug sentiments and prior drug use. Both witnesses testified that Cousins had used cocaine since moving from Ft. Lauderdale to Gainesville, two years after the conclusion of the alleged conspiracy charged in count one of his indictment. Cousins objected to this testimony as an impermissible form of impeachment prohibited by Rule 608(b) of the Federal Rules of Evidence. Rule 608(b) provides, in part, that “[sjpecific instances of the conduct of a witness for the purpose of attacking or supporting the witness’ credibility ... may not be proved by extrinsic evidence.” This rule prohibits a party from introducing extrinsic evidence of specific instances of misconduct in order to impeach the general credibility of a witness. Still, “evidence may be admitted to prove or disprove material facts in a case, even though a previous witness has testified to the contrary.” United States v. DiMatteo, 716 F.2d 1361, 1366 (11th Cir.1983). Evidence relevant to a material issue is not rendered inadmissible because it also happens to include references to specific instances of misconduct of a witness. United States v. Calle, 822 F.2d 1016, 1021 (11th Cir.1987). Thus, extrinsic evidence is admissible where it disproves “a specific fact material to the defendant’s case.” Id.; United States v. Russell, 717 F.2d 618, 520 (11th Cir.1983) (“extrinsic evidence which contradicts the material testimony of a prior witness is admissible”) (emphasis in original); United States v. Opager, 589 F.2d 799, 801-02 (5th Cir.1979) (“We consider Rule 608(b) to be inapplicable in determining the admissibility of relevant evidence introduced to contradict a witness s testimony as to a material issue.”). Therefore, although extrinsic evidence of prior drug use could not properly be used just to attack Cousins’ credibility, such evidence could be used to refute specifics to which Cousins had previously testified. On direct examination, Cousins’ testimony went beyond merely denying complicity in the smuggling conspiracy. Indeed, Cousins made sweeping assertions that he was strongly opposed to drugs and had moved his family from south Florida because of what he perceived as a permissive attitude towards illegal drugs. These assertions represented to the jury that Cousins could not have conspired to import cocaine because he abhorred drug use. Because the government must show beyond a reasonable doubt that Cousins knowingly and willfully became a member of the conspiracy, see generally United States v. Sanchez, 722 F.2d 1501 (11th Cir.1984), Cousins’ anti-drug statements provided the jury with a basis upon which to acquit him of the conspiracy charge. See generally Pattern Jury Instructions (Criminal Cases), Eleventh Circuit, Special Instruction No. 8-Character Evidence (1985 ed.). Thus, Cousins made his true attitude toward illegal drugs a material issue. The government’s extrinsic evidence was introduced to disprove Cousins’ self-serving testimony that he was staunchly opposed to drugs. Although the rebuttal testimony tended to impeach Cousins’ veracity, it also contradicted Cousins’ testimony about his anti-drug view which, if believed by the jury, may have led to his acquittal. Under these circumstances, Cousins’ attitude-on-drugs testimony was material; and the district court properly admitted extrinsic evidence to prove its falsity. Extrinsic evidence is permitted to contradict a defendant’s or witness’ testimony as to a material issue in a case because: the ultimate purpose of the rules of evidence should not be lost by a rigid, blind application of a single rule of evidence. Individual rules of evidence, in this instance Rule 608(b), should not be read in isolation, when to do so destroys the purpose of ascertaining the truth. This is especially so when a witness directly contradicts the relevant evidence which Rule 608(b) seeks to exclude. By admitting the rebuttal evidence, the trial court merely completed the picture as to appellant’s true involvement and knowledge in the drug world and thereby corrected a disturbed view of the appellant’s testimony. United States v. Opager, 589 F.2d 799, 802 (5th Cir.1979) (quoting United States v. Batts, 558 F.2d 513, 517, 518 (9th Cir.1977)); accord United States v. Calle, 822 F.2d 1016 (11th Cir.1987); United States v. Greschner, 802 F.2d 373, 383 (10th Cir.1986); see also United States v. Gonzalez, 491 F.2d 1202, 1204 (5th Cir.1974) (case decided prior to adoption of the Federal Rules of Evidence); Jackson v. United States, 311 F.2d 686, 689-90 (5th Cir.1963) (same). In sum, we conclude that the district court did not err; it neither abused its discretion in denying Cousins’ motion for a mistrial nor improperly admitted rebuttal testimony to refute Cousins’ material assertions. Accordingly, the judgment of the district court is AFFIRMED. . Cousins was convicted of one count of conspiracy to import cocaine, in violation of 21 U.S.C. sec. 963, and three counts of income tax evasion, in violation of 26 U.S.C. sec. 7201. . In his brief, Cousins raises four additional claims on appeal. After reviewing these claims, we conclude that they are without merit. . Precisely what was said to the jurors is unclear from the record. When asked by the trial judge what had happened, one of the jurors responded: We was coming up in the elevator after lunch. A young boy that has been in the audience come up with us and he was asking several questions about the trial. We told him we couldn’t talk about it. He kept persisting, he said, 'he is guilty, isn’t he’ or 'is he guilty,’ or ‘it is over with, they don’t have any more.' Just statements like that. .In addition, the trial judge subsequently asked the jurors the following questions: THE COURT: I would like to ask the entire panel something. The experience as you have told me — and it is proper that you all tell me — I have asked you to do it and I thank you. Has this incident created any problems in your mind that would prevent you from putting that aside and proceeding with this case basing your decision only upon the evidence and the law and disregard what was said to you or attempted to be said? Does anyone have any problem? THE JURY COLLECTIVELY: [Negative Responses]. THE COURT: Is there anyone at all, now, that thinks that would influence them one way or the other in this case? THE JURY: [No Response]. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981. . We note the district judge initially stated that the jurors had been contacted by an "individual who they thought was a part of Mr. Cousins's family." Still, when subsequently questioned about this, the jurors expressly denied this fact. Consequently, for the reasons stated in the text of the opinion, we assume that the jurors answered truthfully. . This instruction provides: Evidence has been offered of a Defendant’s good character, and such evidence may give rise to a reasonable doubt. So, where a Defendant has offered testimony that he is an honest and law-abiding citizen, the jury should consider that testimony, along with all the other evidence, in deciding whether the Government has proved beyond a reasonable doubt that the Defendant willfully committed the crime charged. Pattern Jury Instructions (Criminal Cases), Eleventh Circuit, Special Instruction No. 8 — Character Evidence (1985 ed.) (emphasis added). This instruction was given to the jury and we believe it demonstrates the materiality of Cousins’ statements. 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_district	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Plaintiff-Appellee, v. Robert Wyman BOYD, Defendant-Appellant. No. 29793. United States Court of Appeals, Fifth Circuit. Aug. 3, 1971. Floyd M. Buford, Macon, Ga., for defendant-appellant. William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee. Before RIVES, GOLDBERG and MORGAN, Circuit Judges. RIVES, Circuit Judge: Robert Wyman Boyd was convicted of receiving, concealing and retaining two stolen mechanic’s tool boxes containing tools, all the property of the United States Government and having a value in excess of $100, in violation of 18 U.S.C. § 641. Boyd was named in the second count of a two-count indictment. Count one charged Bobby Gene Goble, George Lewis Winburn and Charley Wright, Jr., with the theft of the tool boxes and tools. Boyd was tried alone, and the co-indictees testified against him. Boyd’s principal defense was that he was not aware that the property, which he concedes he received, was stolen. He also challenged the Government’s proof that the property in question was in fact Government property and that it had a value in excess of $100. While we find that the evidence was sufficient on all elements of the offense, the conviction must be reversed and remanded because the jury, in determining whether Boyd received stolen property and whether it had a value in excess of one hundred dollars, was allowed to consider property other than that included in the indictment. This was an improper use of “other crime” evidence. I. The Government’s Case. There was evidence from which the jury could have found that Boyd received up to seven tool boxes containing tools, plus other individual items — a pneumatic or impact wrench, several micrometers, a pressure gauge, sun glasses, wrist watch, and sleeping bag — from an Air Force sergeant, Bobby Gene Goble. Goble testified as to his part in procuring the tool boxes and selling them to Boyd. The other two indictees, Wright and Winburn, corroborated Goble’s testimony that they stole the items for Goble from the tool issue center at the Base. In the course of his employment as a sound equipment technician, Boyd had met Goble, who was moonlighting as a projectionist at a drive-in theatre. On one of his repair calls Boyd noticed some tools laying around the projection booth. Goble informed him that the tools were from the Air Base, and that he had others in a tool box at his home. The men discussed the possible purchase of tools from Goble by Boyd or anyone he might know, but there was no inquiry or mention of whether Goble was offering to sell stolen property. Boyd eventually purchased the tool box containing tools, which Goble had at his home, and got from Goble other boxes with tools which Boyd in turn sold to acquaintances. Boyd admitted receiving at least five tool boxes, and conceded that it was possible he had handled seven in all. He purchased the first for himself, sold the second to a friend, and the rest, whether three or five in number, were passed on to another friend who sold them to mechanics at that friend’s place of employment. There is no evidence that Boyd received any profit from these transactions other than the retention of the first tool box for his own use. The Government’s witnesses testified that all money Boyd received from the other sales was turned over to Goble. Boyd claimed he was not aware that the tool boxes were stolen, but thought Goble was purchasing them legitimately as surplus property. However, there was sufficient evidence from which the jury could have found guilty knowledge. Goble testified that when he delivered the second and third boxes to Boyd, they were still in their original cardboard crates which bore Government markings. Goble tore up the crates, put the scrap material in Boyd’s car, and told Boyd he did not want anyone to see the crates. Also, Goble testified that on the day Boyd went to Goble’s home (located on the Air Base) to purchase the first tool box, Goble showed him the flight equipment issue center where he worked. When Goble pointed out the tool issue center located in the same building, Boyd asked him if he could get a pneumatic wrench. Goble said he procured the wrench from the tool issue center in Boyd’s presence, and turned it over to him when the two men got outside the building. Boyd did not pay Goble for this wrench or the other individual items mentioned above. Goble never specifically informed Boyd that the property involved was stolen from the Air Base. However, Boyd testified that when he asked Goble if the tools were “hot,” he got an equivocal answer. “I would ask him where he was getting them from. And he would say, ‘From the getting place,’ or some other fancy answer like that.” There was ample evidence from which the jury could have concluded beyond a reasonable doubt that Boyd was aware that the tools and tool boxes were stolen property. Government ownership was sufficiently established. The evidence showed that property was taken from the tool issue center and that this was the property Boyd received. II. Other Crime Evidence. There are two types of other crime evidence involved. The first concerns the individual items Boyd received from Goble, independent of any tool box transaction. Testimony concerning these items was timely objected to by the defendant as constituting evidence of other criminal actions. The objections were overruled and the evidence was admitted on the theory that it was relevant on the issue of intent. The second type of other crime evidence was the testimony concerning the receipt of tool boxes other than those boxes specified in the indictment. No objection was made to this evidence. However some discussion is appropriate for purposes of re-trial. The prohibition of the use of other crime evidence is stated in Rule 55 of the Uniform Rules of Evidence (drafted by the National Conference of Commissioners on Uniform State Laws): “[E] vidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but * * * such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity.” The rationale supporting this rule is that while evidence of other crimes is often relevant, such evidence may unduly prejudice the accused in the eyes of the jury, and there may be a tendency to vote for conviction because the accused is a “bad man.” The Fifth Circuit has often recognized exceptions to the rule against admissibility of other crime evidence. The list of exceptions to the other crime evidence rule is extensive, and in most situations evidence of other crimes — if closely connected in time and nature to the offense charged — can fit within at least one of the exceptions. But the mere categorizing of the evidence should not overshadow the rationale of the rule. It has been stated that the admissibility of such evidence is not to be determined entirely by its relevancy and its categorization, but that there must also be a balancing of the need for the evidence against the possible prejudice to the accused. Bearing in mind the other crime evidence rule and its exceptions, we turn to a consideration of the evidence in this particular ease. A. Evidence of Independent Items. Evidence of the individual items received by Boyd was properly admitted to establish the element of intent. The fact that he received a number of items of value for no remuneration, and the circumstances of the acquisition of the pneumatic wrench, were strong evidence indicating Boyd was aware that he was dealing with stolen property. Whether this evidence was properly limited to the element of intent will be discussed later. B. Evidence of the Tool Boxes Not Specified in the Indictment. The admissibility of other crime evidence is largely governed by the discretion of the trial court, but the discretion is not without limit. Once the Government had introduced the testimony concerning Boyd’s receipt of the two tool boxes, including the testimony about the crates bearing Government markings and the destruction of these crates, and had introduced evidence of Boyd’s receipt of individual items for which he paid nothing, there was sufficient evidence upon which the jury could base a finding of criminal intent. The evidence of the other tool boxes was merely cumulative. It was provided by the same witnesses who testified concerning the first boxes. The jury’s assessment of the credibility of these witnesses would not likely be affected by the additional testimony. If the jury believed the initial testimony, the relating of the subsequent testimony added little, if anything, to a revelation of Boyd’s state of mind. In United States v. Byrd, 2 Cir. 1965, 352 F.2d 570, the Second Circuit indicated, in dictum, that the testimony of a witness concerning a transaction similar to the ones in the indictment, was cumulative, unnecessary, and prejudicial since he was the witness who had already testified about events covered by the indictment. That Court felt that the additional testimony could have added little to the issue of intent and was prejudicial, as evidence of another criminal act, even though the act was not in itself infamous (the prosecution was under 26 U.S.C. § 7214(a) (2), receipt by an internal revenue auditor of a fee not prescribed by law). In a case where the evidence indicates that if the accused engaged in felonious activity, he did so at considerable risk but with little ascertainable profit to himself, great care should be exercised to insure that the accused is not unfairly prejudiced. United States v. Matot, 2 Cir. 1944, 146 F.2d 197, 198. III. Jury Instructions in Evidence. The District Court’s charge to the jury on the elements of the crime contained the following language: “Now, let’s see what are the essential ingredients of this charged crime which the Government must prove. First of all, the Government must prove that the property involved here, including some tool boxes and including some tools — and you have heard the evidence about it — whether there was five of them or four of them or three of them or two of them or one of them. However many were the number, the Government must prove that some of the property alleged, not all of it but some considerable amount of it, was stolen and that it belonged to the Government before it was stolen. The Government doesn’t have to prove he stole, that two of them were stolen or that three, four or five were stolen, but that one or more tool boxes with a substantial amount of tools belonged to the Government and that it was stolen from the Government. The Government doesn’t have to prove that the defendant stole it. The Government doesn’t charge that the defendant stole it. But the Government must prove that some such property of some considerable value belonged to the Government and was stolen by somebody, and that after it was stolen this defendant had knowledge that it was stolen.” [T. 272, 273.] When charging on the issue of value the District Court said: “Of course, you have heard all of the evidence as to the value and you have seen some of the property. You have seen G-l and G-2. The Government contends that other property was also received, retained and concealed by the defendant. You have heard the contentions and you know what they are on both sides, and you have heard the evidence with respect to the value.” [T. 275.] The charge as to value permitted the jury to consider all of the property Boyd allegedly received, not merely Exhibits G-l and G-2, in determining that the value of the property exceeded one hundred dollars. No limiting instruction is to be found elsewhere in the charge. This alone would require that the judgment of conviction be modified, reducing the possible maximum sentence and fine. While mindful that the jury instructions must be considered as a whole, we hold that the first paragraph quoted above constituted error. True, this portion of the charge was intended to inform the jury of the difference between larceny and the crime charged— reception, retention and concealment. Also, since Goble identified some of the tools contained in G-l as his legitimate personal property, the Court was properly telling the jury that this factor would not mean that the Government had failed to prove its case, i. e., all of the evidence exhibited did not have to be stolen. But the fact remains that the jury was never instructed, either at the time the evidence and testimony was introduced or during the charge, that the evidence of other crimes was to be limited only to the element of intent and could not be used as the basis for a guilty verdict. The part of the charge quoted above indicates an absence of any such limitation. We need not decide whether the failure to so limit the use of other crime evidence is reversible error in all cases, or whether in some instances it may be termed harmless error, for it is certain that Boyd’s rights were substantially affected in this case. We have found no precedent in the federal courts for permitting the Government to formally accuse a person of one act and then, as proof that he is guilty, introduce evidence of similar criminal acts, closely related in time and nature. Evidence of such acts has been sanctioned in this Circuit only when its use is strictly limited to one of the exceptions to the other crime evidence rule. Boyd was charged with only one crime, and once intent to commit the crime charged was sufficiently established, the Government had no need to prove the commission of other crimes. In the present case the only possible legitimate purpose of introducing other crime evidence was to prove intent, and the evidence was not limited to that purpose. Specific prejudice is shown by the proof that Boyd received a pneumatic wrench, dial indicator and micrometer from Goble for no payment. The inventory of G-l, introduced as G-3, lists three such items with a combined value of over one hundred dollars. We cannot say that the jury’s verdict was not based on these three items, since the evidence that they were improperly received by Boyd seems stronger than the evidence as to any other property. The unrestricted use of the other crime evidence did more than establish Boyd’s guilty knowledge and intent — it tended to demonstrate that Boyd was guilty of more than he stood accused of in the indictment and it was permitted to be used as basis for conviction. This is, of course, the use that the other crime evidence rule is intended to prohibit. That this type of procedure should not be permitted was stated well by Judge Hutcheson — the case “was presented and tried too much on the theory, ‘Give a dog an ill name and hang him.’ ” Olinger v. Commissioner of Internal Revenue, 5 Cir. 1956, 234 F.2d 823, 824. For improper use of other crime evidence, the judgment of conviction must be reversed. IV. Issues Which May Arise at Retrial. Since there may be a retrial, some discussion of other points raised by the appellant is warranted.. A. Evidence as to Value. Boyd contends that the verdict finding the value of the stolen property to be in excess of one hundred dollars was unwarranted. But his argument is merely that the jury disbelieved his witnesses who testified to lower values. Of course, questions of credibility are for the jury. The tool boxes and the tools they contained, Exhibits G-l and G-2, were inventoried by David Lee Cunningham, an inventory management specialist in charge of the tool issue center from which the thefts were allegedly made. Cunningham testified that he ascertained the value of each item by getting its stock number from a federal stock list and then looking up the stock number in the federal catalog to get the price. By this method he placed the value of G-l and G-2 at $324.38 and $148.92, respectively. Though not grounds for reversal, it should be pointed out that this testimony was not solidly based. Cunningham identified the source of the federal catalog, but did not know how the price was determined. His job did not involve any buying or selling of tools, and there was no other evidence that he regularly used the catalog for its price list aspect. Further, there is nothing in the record to indicate when the catalog was published or when its price list was compiled. See United States v. Horning, 4 Cir. 1969, 409 F.2d 424, 426, holding analogous testimony inadmissible as hearsay. B. Knowledge That the Stolen Property Belonged to the United States as an Element of the Crime. The defense requested that the jury be instructed that Boyd could not be eon-victed unless it found he was aware the property he received belonged to the United States. The requested instruction was refused, and the refusal is asserted as error. Appellant’s interpretation of the statute is apparently the rule in the Tenth Circuit. Nonetheless, we do not think that 18 U.S.C. § 641 requires that the accused be aware that the stolen property belongs to the United States or to one of its departments or agencies. This exact issue has apparently not been decided by the Fifth Circuit, and, while we speak only for purposes of possible retrial, we think the Ninth Circuit has the better of the argument. That Court decided in United States v. Howey, 9 Cir. 1970, 427 F.2d 1017, that the fact of United States ownership must be established as an element of the crime, but that the accused’s knowledge of this element is irrelevant in an 18 U.S.C. § 641 prosecution. It is sufficient that he know that the property is stolen. C. Denial of Request for Bill of Particulars. Boyd asserts that the District Court erred in refusing his request that the Government furnish him with information concerning the date the tools were purchased by the Government, from whom they were purchased, and the cost of the tools. In light of the evidence introduced at the trial below, the issue as to the cost of the tools may not arise again. We do not think there was error in refusing the other information. One theory of the defense was that the tools in question may have been purchased years before, and that the purchase price might have been far less than the current price. But a lower purchase price would not preclude a conviction based on the current value of the tools exceeding one hundred dollars. The term “value” is defined in 18 U.S.C. § 641 as meaning “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” D. Jurors Employed at Air Base. Boyd contends that the District Court committed error in refusing to strike for cause four persons from the venire who were listed as employees of the Air Force Base from which the thefts were made. A timely motion to strike was made and overruled. Boyd concedes that governmental employ does not automatically disqualify a juror, and that such jurors may be removed for cause only on the basis of actual bias. He argues, however, that employment at this particular base is sufficient to establish actual bias. Factors such as the size of the Base, any connection between the jurors and base security or the department from which the property was stolen, or their removability from employ would have a bearing on actual bias. But no offer of proof was made on such matters, nor does the record reflect any questions propounded to the jurors on these matters, or that the defense was prevented from having such questions put to the jurors. If it were established that the employees concerned had a closer connection to the circumstances of this prosecution than mere employment at the military base, a case of implied bias might be presented. But, on this record, we are unable to say that the District Court abused its discretion in refusing to strike the Base employees for cause. E. Other Objections to Jury Instructions. Appellant contends that the jurors were instructed to conform to an impossible standard when the Court told them to lay aside their “human emotions.” We think this contention has no merit. This part of the charge was merely the standard instruction that the jurors should not be swayed by bias or prejudice. See Daniel v. United States, 5 Cir. 1959, 268 F.2d 849. Appellant also objects to a paragraph of the charge in which the District Court instructed the jury that a person cannot close his eyes to what is obvious to him. Appellant feels that this charge was argumentative, and that the Court was telling the jury that the defendant had closed his eyes to obvious facts. We do not agree. The paragraph objected to was a part of the instruction concerning the use of circumstantial evidence to establish intent. The jury was told that intent could be seen in a person’s actions and that one cannot avoid becoming aware of circumstances by consciously looking in the opposite direction. The Court did not interweave into this charge the Government’s factual allegations as to intent, and it cannot be said that the Court was suggesting to the jury that Boyd could not have been unaware that he was dealing with stolen property. Cf. Boatright v. United States, 8 Cir. 1939, 105 F.2d 737, 739. There was no error as to these aspects of the charge to the jury. Reversed and remanded. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. . “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or “Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. “The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” . “THE GRAND JURY CHARGES: “COUNT TWO “That on or about the 30th day of April, 1969, in the Macon Division of the Middle District of Georgia and within the jurisdiction of this court, ROBERT WYMAN BOYD did receive, conceal and retain two (2) stolen mechanic’s tool boxes containing hand and power tools and instruments of a value in excess of $100.00, of the goods and jn'operty of the United States, with intent to convert the same to his use and gain, and he then knew the mechanic’s tool boxes to have been stolen; all in violation of 18 U.S.C. 641.” . See Mora v. United States, 5 Cir. 1951, 190 F.2d 749, a case involving the theft of shirts belonging to the Government. The evidence there that a crime had been committed was similar to that in the instant case, and it was held that recovery of any of the stolen property was not necessary to prove the corpus delicti. . McCormick, Law of Evidence, 1954, § 157, p. 327 n. 2; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381 (listing exceptions); Swann v. United States, 4 Cir. 1952, 195 F.2d 689 (discussion of different form of rule, Rule 311, American Law Institute’s Model Code of Evidence). . Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 687; McCormick, supra, § 155, p. 324. . 2 Wright, Federal Practice & Procedure, 1969, Criminal, § 409, pp. 114, 115; Gordon v. United States, 1967, 127 U.S.App.D.C. 343, 383 F.2d 936, 940. . See United States v. Restrepo, 5 Cir. 1969, 417 F.2d 927; United States v. Chapman, 5 Cir. 1969, 413 F.2d 440, 444; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381; Sutton v. United States, 5 Cir. 1968, 391 F.2d 592; Gilstrap v. United States, 5 Cir. 1968, 389 F.2d 6, 9; Pardo v. United States, 5 Cir. 1966, 369 F.2d 922, 924; Condrey v. United States, 5 Cir. 1965, 351 F.2d 456; Roe v. United States, 5 Cir. 1963, 316 F.2d 617; Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514; Ehrlich v. United States, 5 Cir. 1956, 238 F.2d 481, 484; Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 687. . See, United States v. Byrd, 2 Cir. 1965, 352 F.2d 570, 575; United States v. Phillips, 7 Cir. 1967, 375 F.2d 75, 81-85 (dissenting opinion); Gordon v. United States, 1967, 127 U.S.App.D.C. 343, 383 F.2d 936; Brown v. United States, 1966, 125 U.S.App.D.C. 220, 370 F.2d 242; Luck v. United States, 1965, 121 U.S.App.D.C. 151, 348 F.2d 763; McCormick, supra, § 157, pp. 332, 333. . The Government’s proof was that Boyd requested the wrench from Goble, that Goble procured it from the tool issue center in Boyd’s presence, and that Boyd was not required to pay anything for the wrench. . When other crime evidence is admitted for the purpose of proving intent, the jury must be instructed that the evidence is to be so limited. Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514. . See, McCormick, supra, § 157, pp. 332, 333, for the suggestion that the district court’s discretionary powers do not permit the introduction of prejudicial evidence if it is not needed. McCormick suggests that the discretionary power runs in the opposite direction, i. e., to exclude relevant evidence where its probative value is outweighed by the possible prejudicial effect on the accused. . By necessity this included evidence that Boyd received at least three tool boxes. The Government produced two tool boxes at the trial. The chain of evidence was adequate to establish that one of the tool boxes (Exhibit G-l) was the one which Boyd retained for bis own use, and the other (Exhibit G-2) was the one Boyd personally sold to a friend. Since G-2 was delivered to Boyd at the same time as a third box, it must be conceded for the purposes of this discussion that it was proper to admit testimony concerning the three tool boxes. . The Government’s evidence showed that Boyd received no profit for handling the tool boxes which were sold to others. While the Goveniment’s evidence indicated that he did purchase the first box for himself at a price far below what the Government contends is its actual value, and received other property gratis, there is no evidence that the benefit to Boyd was conditioned on his assisting Goble in future sales. . See, Theriault v. United States, 5 Cir. 1970, 434 F.2d 212; Robinson v. United States, 8 Cir. 1964, 333 F.2d 323; United States v. Wilson, 4 Cir. 1960, 284 F.2d 407. . Harris v. United States, 1 Cir. 1966, 367 F.2d 633; Beck v. United States, 5 Cir. 1963, 317 F.2d 865. . Fed.R.Crim.P. 52(a). . United States v. Restrepo, 5 Cir. 1969, 417 F.2d 927; Sutton v. United States, 5 Cir. 1968, 391 F.2d 592; Hurst v. United States, 5 Cir. 1967, 370 F.2d 161; Condrey v. United States, 5 Cir. 1965, 351 F.2d 456; Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514; Weiss v. United States, 5 Cir. 1941, 120 F.2d 472, reh. denied 122 F.2d 675, cert. denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. . The Government sought to show that such instruments contained in the tool box labeled <3 — 1, were the ones Boyd received on independent occasions. It is consistent with the Government’s theory, both at trial and on appeal, that these items were not in the tool box when Boyd received it. It is clear that the indictment did not charge Boyd with receiving anything other than two tool boxes and the tools they contained at the time of receipt. (See indictment, quoted in footnote 2). . The wrench alone, which the Government’s proof showed Boyd requested while at the tool issue center, is listed as having a value of $81.00. . Defense counsel strenuously attacks Cunningham’s testimony, but there was no objection to his qualifications nor suggestion that his use of sources constituted improper reliance on hearsay. The questioning of Cunningham went only to the weight of. his testimony. Further, even if Cunningham’s testimony had been stricken, there was sufficient evidence for the jury to find that the stolen property had a thieves’ market value in excess of one hundred dollars. See Montgomery v. United States, 8 Cir. 1968, 403 F.2d 605. . Cunningham testified that the catalog price represented the cost to the Government, but there is nothing to demonstrate his qualifications to make that statement. Similarly, his statement that he was unaware of any difference between the cata- • log price and the retail price is entitled to no weight. . Findley v. United States, 10 Cir. 1966, 362 F.2d 921; United States v. Baltrunas, 10 Cir. 1969, 416 F.2d 401. . This Circuit has sustained convictions where the accused was unaware of the factor which made his action a federal rather than a state offense. See United States v. Licausi, 5 Cir. 1969, 413 F.2d 1118; Clark v. United States, 5 Cir. 1954, 213 F.2d 63. . The defense was allowed to inspect tlie evidence, and most of the tools apparently were imprinted with the manufacturers’ names. The evidence shows that the tools were commonly sold in the area, and their retail or wholesale value could have been ascertained by the defense, though, admittedly, this process would be tedious and time-consuming. . Frazier v. United States, 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Dennis v. United States, 1950, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734. . In Frazier v. United States, 1948, 335 U.S. 497, 512, 69 S.Ct. 201, 93 L.Ed. 187, it was held that persons employed by the United States Treasury Department were competent to sit as jurors in a criminal prosecution for violating narcotics laws, so long as their employment was not connected with the Narcotics Bureau within the Department. In United States v. Wood, 1936, 299 U.S. 123, 141, 57 S.Ct. 177, 183, 81 L.Ed. 78, it was held that the “mere fact of a governmental employment, unrelated to the particular issues or circumstances of a criminal prosecution” did not disqualify the employee as a juror. . The Government has filed a supplemental record on this appeal consisting of the original jury list from the Clerk’s file. This document purportedly shows that the four jurors objected to were peremptorily stricken, and it is therefore contended that Boyd was not harmed by the refusal to strike them for cause. But on its face the document indicates that these peremptory strikes were made by the defense, and that the defense used all of its challenges authorized by Fed.R.Crim.P. 24 (b). Under these circumstances, if the refusal to strike for cause had been erroneous, this action by the defense would not liave cured the error. Franeone, et al. v. Southern Pac. Co., 5 Cir. 1944, 145 F. 2d 732. The effect of this action would have been the reduction in the number of peremptory challenges allowed the defense, an impairment of a substantial right which would require reversal. 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_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 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. UNITED STATES of America, v. William C. ADAMS, Appellant. No. 16036. Appeals United States Court of Third Circuit. Argued Jan. 19, 1967 Decided April 13, 1967. Raymond G. Hasley, Pittsburgh, Pa. (Harold R. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, Pa., on the brief), for appellant. W. Wendell Stanton, Asst. U. S. Atty., Pittsburgh, Pa. (Gustave Diamond, U. S. Atty., Pittsburgh, Pa., on the brief), for appellee. Before HASTIE, GANEY and SEITZ, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Defendant was convicted by a jury of operating a vessel in a reckless or negligent manner in violation of 46 U.S.C. § 526L A fine of $500.00 plus costs was assessed pursuant to 46 U.S.C. § 526m. Defendant appeals from the denial of his motions for judgment of acquittal and for a new trial. The pertinent facts are not in dispute. Having previously procured a pilot’s license in 1946, defendant Adams in the early 1950s obtained a Master’s license and thereby became the fourth generation in his family to follow the tugboat navigation profession. On October 1, 1963 Adams was in charge of the towboat “Humphrey”, a vessel 132 feet long owned by the Consolidation Coal Company which had employed Adams for nearly sixteen years. At 5:45 a. m. Adams came on watch to pilot the “Humphrey” up the Ohio River toward Pittsburgh as it pushed eleven empty coal barges extending 525 feet ahead in a four-three-four pattern. In the pilot house thirty feet above the water the captain, the lookout, and a third crew member had an unobstructed view out over the empty barges. Because fog had considerably reduced visibility, however, Adams sounded his fog horn every minute and operated by radar and radio communication. He safely overtook another vessel, sent a radio message that he was upbound, and approached Phyllis Island through a partial clearing in the fog. Once past the island Adams observed the fog closing in again in the vicinity of the Shippingport Bridge which he knew was located 1,000 feet downstream from a ferry crossing. In case any traffic should be coming downriver he favored the Shippingport bank to his right. Adams reduced speed almost to an idling position and the barges and tug just coasted under the bridge. All the while Adams sounded his vessel’s fog horn which had a range of one mile. Mindful of a navigational rule that a vessel at shore must remain there until a moving vessel such as his has passed, Adams watched his radar screen and listened for fog horns and radio communications. A deck hand was on the front of the “Humphrey”, but in response to questions from the trial court Adams stated that no lookout had been placed on the forwardmost barge because of the danger in fog of having a man out on wet, slippery barges obscured from the pilot house over 525 feet behind. As he heard nothing and saw on the radar screen only the image of an aerial wire crossing located seventy and more feet upstream from the ferry crossing, Adams slowly began increasing his speed again. Just at this moment he heard someone call for help from out in the thick fog which had reduced visibility practically to zero. It soon became apparent that there had been a collision with the ferry as a result of which two ferry passengers drowned. The ferry boat consisted of a flat barge propelled by a tug alongside. It followed an irregular schedule of crossings according to need, although Adams knew that in the morning hours it often carried steelworkers to and from work. With the sounding of its horn the ferry on the morning in question departed from the Shippingport side of the river at about 7:40. The ferry’s horn was sounded a second time about a minute after the boat had set out into the river. The toll collector on the ferry thought he heard an approaching vessel, but did not notify the ferry’s captain. A car passenger on the ferry stated that he definitely heard a horn out in the fog, but that the ferry’s speed did not change. The ferry’s horn was sounded a third time a few seconds before the accident. Captain Adams and the two crew members who were with him in the pilot house on the “Humphrey” never heard the ferry’s horns which had a range downriver of only 630 to 800 feet. Nor did they hear any radio signals from the ferry, even though the ferry captain made two radio calls. Finally, they did not pick up the ferry on the radar screen, even though the set had a range of one mile. Adams explained that his radar would not have distinguished an object underneath the aerial wires where the ferry apparently was located at the time of the collision, and that if the ferry had followed its designated crossing the wires would not have interfered with his radar capability of spotting the ferry. In the information Adams was charged with 1) traveling at an immoderate rate of speed in conditions of poor visibility; 2). failure to interpret radar signals properly; and 3) failure to keep a proper lookout in the forward position of the tow. We first consider whether defendant’s motion for judgment of acquittal should have been granted. Our review of the evidence leads us to conclude that there was insufficient proof of immoderate speed or misinterpretation of radar signals to justify a jury finding of negligence or recklessness beyond a reasonable doubt. As soon as Captain Adams observed the thickening fog around the bridge he idled his engines and allowed his vessel to drift forward. Not until the forward-most barge was about to pass under the wires which he knew to be upstream from the designated ferry crossing did Adams begin to engage his boat’s engines again just as the collision took place. And his testimony was uncon-tradicted that radar signals could not have distinguished between objects as close together as the ferry and the wires appeared to be at the time of the accident. The question then becomes whether defendant’s failure to post a lookout on the bow of one of the leading barges constituted evidence upon which a jury could base a finding of negligence or recklessness beyond a reasonable doubt. Although rules established in libels are not necessarily applicable in criminal prosecutions, we can accept the proposition that generaly a lookout must be placed on the bow of a vessel: “Proper lookouts are competent persons other than the master and helmsman, properly stationed for that purpose, on the forward part of the vessel. . . .” The Ottawa, 3 Wall. 268, 70 U.S. 268, 273, 18 L.Ed. 165 (1865). While it might be asserted that this is a hard and fast rule, “we do not agree that under all circumstances lookouts must be stationed well forward.” The Mamei, 152 F.2d 924, 929 (3rd Cir. 1945). As Judge Learned Hand noted in Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F.2d 108, 111 (2nd Cir. 1949) : “Although a lookout is one of the most essential safeguards on a ship, nothing could less insure his value than rigidly to circumscribe his functions. Normally, he should indeed be stationed in the bow; because there his view is not obstructed; and apparently he can see better when close to the water than aloft. However, all such considerations yield, when the weather makes another position more suitable.” In the foggy conditions which he encountered the captain here decided not to place a lookout on the forwardmost barge obscured from the pilot house located 525 feet behind. Obviously, because of the fog some kind of communication device would have been essential in order for such a lookout to have served any purpose at all. Even then, by the time such a lookout could observe an object in the water and communicate with the pilot house it is unlikely that action could be taken to avoid a collision. While not decisive as it would be in a civil action where a causal connection between the conduct and the accident must be shown, this consideration is an important indication of the reasonableness of the captain's judgment. In addition, the captain reasonably believed that placing a crewman in a position at the front of the barges would have been dangerous. We note also the reasonable assumption of Captain Adams that the ferry operator would follow proper procedures. The trial court certainly was correct in instructing the jury that to find defendant guilty it was not required to find that the ferry captain had exercised due care. However, Adams did not have to anticipate that the crew of the ferry would not hear or respond to his fog horn or observe the navigational rule that the vessel at shore should wait until he passed. Compare The Sagamore, 247 Fed. 743, 751 (1st Cir. 1917). Nor did Adams have any reason to know that the ferry’s horn could not be heard over 800 feet away. From our analysis of the evidence we conclude that a jury would not be legally justified in finding defendant negligent beyond a reasonable doubt on the basis of a failure to station a lookout on the forwardmost barge. In its memorandum the trial court reasoned that “to say there is no need for a lookout on the forward tow is to conclude that no lookout was required at all under the foul weather conditions encountered by Captain Adams on the morning in question”, and that if a lookout “was not required under the circumstances in this case, then it is difficult to see under what circumstances it would be required, as this vessel was proceeding at the time of the collision in almost zero fog.” In support of its position the trial court quoted the following language from The Sagamore, 247 F. 743, 755 (1st Cir. 1917): “The denser the fog and the worse the weather the greater the cause for vigilance. A ship cannot be heard to say that a lookout was of no use because the weather was so thick that another ship could not be seen until actually in collision. Marsden on Collisions at Sea (6th Ed.) 472, 474.” The trial court’s analysis gives insufficient recognition to advances in technology. We think that the availability of radar and other communication devices is an important factor in evaluating the adequacy of a lookout. This is particularly so here because the weather conditions rendered it not unreasonable to station the lookout with Captain Adams and a third crew member in the pilot house where the lookout duty could be performed with the aid of modern detection equipment. Nor is the forward-lookout rule destroyed by an exception made in circumstances where positioning a lookout on the bow would be ineffective and dangerous. It is necessary to discuss only one other basis for the contention that a jury would have been legally justified in finding negligence beyond a reasonable doubt. The trial court instructed the jury that “another thing he could have done very easily, is he could have attempted to call somebody on his radio.” But Captain Adams earlier that morning had radioed his upward journey, and he had no way of knowing that he was not heard on the ferry because its receiver was out of order. In addition, he might reasonably have felt safe listening for incoming radio calls without transmitting messages himself. Therefore, the failure to attempt radio calls likewise was insufficient evidence upon which to base a finding of negligence beyond a reasonable doubt. We conclude that defendant’s motion for judgment of acquittal should have been granted. In light of our disposition of this appeal there is no need to consider other points raised by defendant. The order of conviction and fine is reversed with instructions to enter a judgment of acquittal. . 46 U.S.C. § 526l, subsection (a), provides as follows: “No person shall operate any motorboat or any vessel in a reckless or negligent manner so as to endanger the life, limb, or property of any person. To ‘operate’ means to navigate or otherwise use a motorboat or a vessel.” Defendant argues that this criminal statute should be interpreted to require a showing of gross misconduct. However, we shall assume without deciding that evaluation of the evidence should be governed by the civil standard of ordinary negligence which was adopted by the trial court in its jury instructions. . The deckhand on the bow of the “Humphrey” also heard no fog horns from the ferry. . Two other witnesses who' had radio receivers turned on at the time also heard no radio signals from the ferry. A third witness who had installed the ferry’s radio and who had later examined it stated that at the time of the accident the ferry’s radio was not in working condition as the result of a defective tube. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. JOSEPH SCHACHTER & COMPANY, Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee. No. 86-7295. United States Court of Appeals, Second Circuit. Argued Aug. 11, 1986. Decided Aug. 20, 1986. Thomas H. Sear, New York City (Spengler, Carlson, Gubar, Brodsky & Frischl-ing, of counsel), for plaintiff-appellant. Richard Lutz, New York City (Townley & Updike, of counsel), for defendant-appel-lee. Before PRATT and MINER, Circuit Judges, and RE, Chief Judge of the United States Court of International Trade, sitting by designation. PER CURIAM: Our decision in this case was originally rendered as a summary order pursuant to § 0.23 of the rules of this court. Counsel for the John Hancock Mutual Life Insurance Company (“John Hancock”) subsequently requested that the summary order be converted to an opinion of the court, suggesting that it would serve a jurisprudential purpose in similar cases arising in the future. Accepting counsel’s representation, the panel has agreed to re-issue this decision as an opinion of the court. BACKGROUND Appellant, Joseph Schachter & Co., seeks to collect as beneficiary under a life insurance policy issued by John Hancock in the amount of $500,000 on the life of Jay Frankel. Frankel, a business associate of Schachter’s, was found dead on November 3, 1982. John Hancock refused to pay, claiming that Frankel’s death was a suicide committed within the two year incontestability clause of the policy. Appellant made its prima facie case by establishing the existence of the insurance policy and John Hancock’s nonpayment. John Hancock adduced evidence of extreme financial setbacks recently suffered by Frankel, and placed in evidence the facts surrounding Frankel’s death, which were highly suggestive of suicide. For its part, appellant attempted to demonstrate that Frankel’s death was the result of either homicide or an accident. The United States District Court for the Southern District of New York, Richard Owen, Judge, entered judgment on the jury’s verdict for John Hancock. On this appeal, appellant challenges several of the district court’s charges and evidentiary rulings. Finding no merit to any of its contentions, we affirm. DISCUSSION Appellant argues that the New York Court of Appeals intended for it to be “practically impossible” for an insurance company to succeed when invoking the suicide clause of a life insurance policy. See Schelberger v. Eastern Savings Bank, 60 N.Y.2d 506, 509, 470 N.Y.S.2d 548, 549, 458 N.E.2d 1225, 1226 (1983) (citing Schelberger v. Eastern Savings Bank, 93 A.D.2d 188, 197, 461 N.Y.S.2d 785, 790 (1st Dep’t 1983)). Therefore, it contends that Judge Owen improperly charged the jury on New York’s presumption against suicide by altering the language from the New York Pattern Jury Instructions approved by the court of appeals in Schelberger. That language provides, in pertinent part: “You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn.” 60 N.Y.2d at 509, 470 N.Y.S.2d at 549, 458 N.E.2d at 1226. Judge Owen used the same language except for the final clause, for which he substituted “that it was suicide and that no conclusion of accidental death may reasonably be drawn.” According to appellant, the district judge’s alteration mandated a verdict for John Hancock unless the jury believed the death to be accidental, whereas the Schelberger language would allow the jury to consider the additional possibilities of homicide and death by either natural or unknown causes. Although the Schelberger language did encompass these other possibilities, it does not follow that Judge Owen’s change in the language of the charge was improper. There being no admissible evidence either of homicide or of death by natural or unknown causes in this case, there was no reason to allow the jury to speculate on those points. In fact, the district judge’s redaction of the language was needed to avoid confusing the jury after he had earlier charged that there was no issue of homicide in the case. In a related vein, appellant maintains that it was improper to charge the jury that it could not consider homicide. However, while appellant raised the spectre of homicide in its opening statement, it presented no competent evidence to suggest that Frankel had in fact been killed. The only evidence appellant offered on this point, which suggested that Frankel had been involved with organized crime, was excluded on hearsay grounds. On the other hand, John Hancock presented testimony by the investigating detective that he had found no evidence of foul play. The mere fact that John Hancock bore the burden of proof of establishing that Frankel’s death was a suicide does not mean that the jury should have been allowed to speculate on all other possible causes of death. In these circumstances, the district judge correctly charged the jury that there was no issue of homicide in the case. Appellant next contends that language in the appellate division’s opinion in Schelberger recognizes an incompatibility between the preponderance of the evidence standard and the presumption against suicide. Appellant claims that the district judge therefore erred by placing the burden of proof on John Hancock to establish suicide by a preponderance of the credible evidence. This argument, however, overlooks the fact that both the appellate division and the court of appeals in Schelberger affirmed a trial court judgment entered after a jury charge that placed the burden on the insurance company to establish suicide by a preponderance of the credible evidence, rather than by clear and convincing evidence. Appellee’s brief at 37 (quoting the trial court’s jury charge). Moreover, the charge upheld in Schelberger was in keeping with similar charges previously upheld by the court of appeals. See, e.g., Wellisch v. John Hancock Mutual Life Insurance Co., 293 N.Y. 178, 183, 56 N.E.2d 540, 542 (1944). Appellant also attacks the district judge’s decision to exclude a portion of the report by the police expert who investigated Frankel’s death. Judge Owen allowed detective Lienau, a veteran New York City detective, to testify as an expert that there was “no foul play” involved in Frankel’s death; however, on appellant’s cross-examination of Lienau, the court excluded his conclusion that “the subject either jumped or fell to his death.” Appellant’s contention that this ruling was error is without merit. Judge Owen admitted Lienau’s testimony on the question of a possible homicide, believing it would assist the jury. See Fed.R.Evid. 702. Lienau testified outside the presence of the jury, however, that the “jumped or fell” language was meant to convey only that no foul play was involved. Lienau stated that he could express no opinion on whether the death was an accident or a suicide, since all he had concerned himself with was whether it was a homicide. Hence, he was not an expert on the question of whether the death was an accident or a suicide, and the conclusion of his report was properly excluded. Finally, maintaining that John Hancock failed to introduce sufficient evidence of suicide, appellant urges that a verdict should have been directed in its favor. In light of the circumstantial evidence of suicide adduced below, this argument borders on the frivolous, and the district court properly allowed the question of whether John Hancock had established Frankel’s suicide by a fair preponderance of the credible evidence to go to the jury. 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_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. Lawrence SCHREIBER, Plaintiff-Appellant, v. ALLIS-CHALMERS CORPORATION, Defendant-Appellee. No. 78-1357. United States Court of Appeals, Tenth Circuit. Argued May 17, 1979. Decided Nov. 27, 1979. Rehearing Denied Jan. 21, 1980. Larry Latham, Jackson, Miss. (R. Daniel Lykins of Jones, Schroer, Rice & Bryan, Topeka, Kan., on brief), for plaintiff-appellant. Barry E. Warren, Overland Park, Kan. (Frank Saunders, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., on brief), for defendant-appellee. Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges. McWILLIAMS, Circuit Judge. Lawrence Schreiber, plaintiff-appellant, appeals the summary judgment entered in favor of Allis-Chalmers, the defendant-appellee. The Memorandum and Order of the trial court now appears as Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079 (D.Kan.1978). Schreiber filed the instant action in the United States District Court for the Southern District of Mississippi, Jackson Division, on June 16, 1977. Allis-Chalmers, the defendant, is incorporated in Delaware, and has its headquarters in Milwaukee, Wisconsin. Since 1932 Allis-Chalmers has been duly licensed, qualified and authorized to do business in the State of Mississippi. Service of process was made by serving Allis-Chalmers’ statutory agent for service of process. Additionally, the general manager of Allis-Chalmers’ manufacturing facility, located just south of Jackson, Mississippi, was personally served with process. In the complaint Schreiber alleged that he is a resident and citizen of Kansas and federal jurisdiction is thus based on diversity of citizenship. Schreiber further alleged that on June 22, 1971, he was severely injured near Soldier, Kansas when working on an Allis-Chalmers Roto Baler, causing amputation of his arms. It was alleged that Allis-Chalmers had defectively designed and manufactured the Roto Baler in question and Schreiber’s cause of action was grounded on ordinary and gross negligence, breach of implied warranty and strict liability. Damages were sought in the amount of $5,000,000. Allis-Chalmers filed an answer and a motion for change of venue pursuant to 28 U.S.C. § 1404(a). The motion was based on a belief that since the accident complained of occurred in Kansas, the case should be transferred to the United States District Court for the District of Kansas. A federal district judge in Mississippi denied the defendant’s motion for change of venue. In an original proceeding brought in the United States Court of Appeals for the Fifth Circuit that Court, by minute order, ordered the federal district court in Mississippi to transfer the case to the United States District Court for the District of Kansas. In due time the case was thus transferred. In the Kansas federal court Allis-Chalmers filed a motion for summary judgment, and also sought, and obtained, an order staying discovery until a ruling on the summary judgment motion. The motion was predicated on two propositions: (1) the Mississippi federal court was without jurisdiction to adjudicate Sehreiber’s cause of action; and (2) assuming jurisdiction, the cause of action was barred by the 2-year Kansas statute of limitations. After oral argument, the trial court granted Allis-Chalmers’ motion for summary judgment, holding that the Mississippi federal court did not have jurisdiction to hear the case, and, alternatively, that if the Mississippi federal court did have jurisdiction, it would have applied the Kansas 2-year statute of limitations, which would bar the action. Schreiber now appeals the summary judgment entered for Allis-Chalmers. The trial court in a detailed Memorandum and Order, consisting of some 20 printed pages, made no findings of fact, of course, since the case was disposed of by way of summary judgment. The critical portions in the Memorandum constitute conclusions of law, with a comprehensive review of the many legal authorities which have bearing thereon. We would parenthetically note that authorities dealing with the troublesome questions of federal jurisdiction and conflict of laws here involved are not only numerous but often contradictory. We summarize the trial court’s Memorandum and Order as follows: (1) The transferee court, the Kansas federal court, must decide this case as would the transferor court, the Mississippi federal court, and the Mississippi federal court in turn must apply Mississippi state law. We agree. (2) The Mississippi federal court would hold that a Mississippi state court under Mississippi statutory and case law could assume jurisdiction of this case. We agree. (3) The attempted assumption of jurisdiction by the Mississippi state court, however, must fail because such would violate federal due process. Therefore, the hypothetical Mississippi state court has no jurisdiction of the case. With this we disagree. (4) However, assuming jurisdiction on the part of the Mississippi state court, which in turn would give the federal district court in Mississippi jurisdiction to hear the case, under present Mississippi law the Mississippi state court would normally hold that the statute of limitations of the forum state, i. e., the 6-year statute of Mississippi controls. With this we agree. (5) However, if this particular case were presented to a Mississippi state court at this point in time, the Mississippi state court would, for the first time, abandon the lex fori rule and would apply the 2-year statute of limitations of the State of Kansas. With this we disagree. As indicated, then, we agree with the trial court that it must sit as though it were a federal district court sitting in the Southern District of Mississippi. Although Allis-Chalmers apparently argued to the contrary in the trial court, on appeal it does not press the matter. The trial court’s determination in this regard finds support in Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), where the Supreme Court held that the transferee federal district court is obligated to apply the state law that would have been applied if there had been no change of venue. A corollary of the foregoing is that in the instant case the Mississippi federal court in this diversity proceeding must apply Mississippi’s state law, and the same rule extends to the field of conflict of laws. Klaxon Company v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) and Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). As indicated, we also agree with the trial court in the instant case that a Mississippi state court, and therefore the Mississippi federal court, would hold that under Mississippi statutory and case law a Mississippi state court could assume jurisdiction of this case. In just so many words, a Mississippi statute provides that a foreign corporation doing business in Mississippi is subject to suit in Mississippi to the same extent that corporations of Mississippi are, “whether the cause of action accrued in this state or not.” Section 79-1-27, Miss. Code 1972. In support of the trial court’s interpretation of that statute, see S. & W. Constr. Co. v. Douglas, 244 Miss. 498, 142 So.2d 33 (1962) and the cases cited therein. In Douglas the Mississippi Supreme Court held that under Mississippi law a Mississippi state court had jurisdiction to hear a case wherein the plaintiff, a resident of Tennessee, was injured in an accident occurring in Tennessee and the defendant was a Tennessee corporation, which, however, had qualified to do business in Mississippi and had appointed a resident agent for service of process upon whom service had been effected. As indicated, we do not agree that the assumption of jurisdiction by the Mississippi state court would offend federal due process. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952) held that federal due process neither forbids, nor compels, a state from opening its courts to a proceeding against a foreign corporation doing business within the state even though the cause of action does not arise from events occurring within that state. In Perkins the foreign corporation there involved was described as having carried on in Ohio “a continuous and systematic, but limited part of its general business.” 342 U.S. at 448, 72 S.Ct. at 414. Based on the record before us, the same can be said of Allis-Chalmers as concerns its connection with the State of Mississippi. As mentioned at the outset, since 1932 Allis-Chalmers has been continuously duly licensed, qualified and authorized to do business in the State of Mississippi. Historically, the business transacted in Mississippi has been sales and sales promotion, although since 1973 Allis-Chalmers has maintained a manufacturing plant near Jackson, Mississippi. That particular plant of Allis-Chalmers manufactures power breakers for electrical utility companies. The Court of Appeals for the Ninth Circuit in Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406 (9th Cir. 1977) has reviewed the pertinent authorities and has concluded that if a foreign corporation has sufficient deliberate “minimum contacts” with the forum state, a court may acquire in personam jurisdiction over such corporation in actions which arise from those forum contacts, and if the foreign corporation’s activities in the forum state are so “continuous and systematic” that the foreign corporation may in fact be deemed “present” in the forum state, then the foreign corporation may be served in causes of action unrelated to forum activities. In the instant case Allis-Chalmers not only had deliberate minimum contacts with Mississippi, it also had continuous and systematic activities within the state and indeed for nearly 50 years has qualified and been statutorily authorized to do business in Mississippi. The trial court was of the view that Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) sapped the continued vitality of Perkins. We do not agree. Shaffer is distinguishable from the instant case. Shaffer involved a quasi in rem action, filed in a Delaware state court, which was used as a springboard to obtain in personam jurisdiction over non-resident defendants. It was in such a setting that the Supreme Court held that the Delaware state court proceeding had to meet the minimum contacts standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In our case Allis-Chalmers, though a foreign corporation, had been duly qualified to do business in Mississippi, and for now nearly 50 years has been conducting “a continuous, systematic, but limited part of its general business” in the State of Mississippi. In sum, the local Mississippi law which would permit a state court to assume jurisdiction over the instant case does not in our best judgment violate federal due process. As indicated, we agree with the trial court that, assuming jurisdiction lies with the hypothetical Mississippi state court, the latter on the basis of present Mississippi state law would normally apply the lex fori, insofar as it relates to the Mississippi 6-year statute of limitations. Such in fact has been the precise holding of Mississippi federal courts in diversity cases. See Steeie v. G. D. Searle & Co., 422 F.Supp. 560 (S.D. Miss.1976), on rhg. 428 F.Supp. 646 (S.D. Miss.1977), and Cummings v. Cowan, 390 F.Supp. 1251 (N.D.Miss.1975). As indicated, we disagree with the trial court’s conclusion that, notwithstanding the fact that under present day law the Mississippi state court would ordinarily apply its 6-year statute to such a case, the Mississippi court, if this exact case were presented to it, would abandon the lex fori rule. It is the duty of the Kansas federal court, under the present circumstances, to follow Mississippi law as it presently exists, and not to anticipate that “the next time around” the Mississippi court would abandon its present law on the subject. Mitchell v. Craft, 211 So.2d 509 (Miss. 1968), relied on by the trial court as indicating “progressive thinking of Mississippi courts on choice of law problems,” does not support the theorization that a Mississippi state court handling the present case would abandon the lex fori rule and apply the 2-year statute of limitations of Kansas. In Mitchell the Mississippi Supreme Court merely adopted the “center of gravity” test for application of the proper substantive law, and in that case applied Mississippi substantive law to an automobile accident which occurred in Louisiana involving Mississippi residents. It does not follow, however, that Mississippi would abandon its long-adhered-to rule that in a proceeding in a Mississippi court the Mississippi statute of limitations governs. To the contrary, subsequent decisions by that court indicate continued adherence to the rule. Vick v. Cochran, 316 So.2d 242 (Miss.1975). From a reading of the trial judge’s Memorandum and Order it is quite evident that he was disturbed by the fact that though the present case could not be maintained in the first instance in Kansas federal court, because of the Kansas 2-year statute, it possibly could be maintained in a Mississippi federal court where a 6-year statute of limitations would control. There is perhaps a degree of incongruity in such result. However, it is axiomatic that hard cases make bad law. We think it preferable to adhere to accepted legal principles rather than strive to achieve, at the expense of those principles, a result which might appear to some as being more fair and just than the alternative. Judgment reversed and cause remanded for further proceedings consonant with the views herein expressed. . Mississippi has a 6-year statute of limitations governing tort and warranty actions, and therein lies the root of the present controversy. . In this general connection, it is agreed that the Roto Baler which allegedly caused Schreiber’s injuries was not manufactured in Mississippi. . It is agreed that under Kansas law the Kansas 2-year statute of limitations bars- only the remedy, and does not extinguish the right. 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_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. The MAMMOTH COAL COMPANY, Respondent. No. 11589. United States Court oí Appeals Third Circuit. Argued Oct. 17, 1955. Decided Nov. 30, 1955. Rehearing Denied Feb. 6, 1956. Robert B. Ross, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Sp. Assts. to Atty. Gen., on the brief), for petitioner. Richard L. Levy, Philadelphia, Pa. (William T. Coleman, Jr., Philadelphia, Pa., Edgar J. Goodrich, Lipman Redman, Washington, D. C., for J. Robert Bazley, Inc. and John Schumacher, respectively, amici curiae, Dilworth, Paxson, Kalish & Green, Philadelphia, Pa., Guggenheimer, Untermyer, Goodrich & Amran, Washington, D. C., on the brief). Fred L. Rosenbloom, Philadelphia, Pa. (Thomas P. Glassmoyer, on the brief), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel, for respondent. John W. Bodine, Philadelphia, Pa. (Frederick E. S. Morrison, Philadelphia, Pa., for Jeddo-Highland Coal Company and the Anthracite Institute, amici curiae on the brief), Drinker Biddle & Reath, Philadelphia, Pa., of counsel. Before McLAUGHLIN, KALODNER, and STALEY, Circuit Judges. STALEY, Circuit Judge. The Commissioner of Internal Revenue appeals from a decision of the Tax Court entered after a determination that for the fiscal years ended August 31, 1947, and August 31, 1948,-the taxpayer, Mammoth Coal Company, in determining its percentage depletion deduction, did not have to eliminate from gross income amounts paid to the Capparell Stripping . & Construction Company, Inc., (the stripper) for strip-mining coal on the taxpayer's property. Since the operative facts in the two fiscal years involved are the same, the 1947 facts will be used in discussion. In December, 1946, the taxpayer and the stripper entered into a written agreement whereby the stripper acquired an exclusive, indefinite right to strip-mine coal on certain property which the taxpayer owned. During the fiscal year ended in 1947, the taxpayer received §1,-369,719.10 from the sale of coal mined under the agreement. Of this total the stripper received §655,929.03. The taxpayer’s position, which was upheld by the Tax Court, is that it should be permitted to use the §1,369,719.10 as its gross income figure in computing its percentage depletion deduction. On the other hand, the government contends that the stripper is entitled to percentage depletion deduction computed on the basis of the §655,929.03 which the stripper received from the mining operation, and, accordingly, the taxpayer must eliminate this same §655,929.03 from its gross income before computing the percentage depletion deduction, under Sections 23 (m) and 114(b) of the Internal Revenue Code of 1939. All parties agree that either the stripper or the taxpayer, but not both, is entitled to a percentage depletion deduction in regard to the §655,929.03. Thus, if the stripper is entitled to the deduction, the taxpayer is not. Under the applicable Treasury Regulation, an “* * * owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place ir standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. * * ” The question of what constitutes an economic interest has been presented to the various courts in numerous instances. There is no general rule that a strip miner is or is not entitled to percentage depletion. The facts in each case determine the result. In the Supreme Court’s most recent decision involving percentage depletion, Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 1946, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062, it was pointed out that what one’s interest in depletable property is called under state law and the nature of the instrument creating such interest is unimportant for federal purposes. The Court noted that the cost of the capital investment to the beneficiary of the depletion is unimportant. “It is the lessor’s, lessee’s or transferee’s ‘possibility of profit’ from the use of his rights over production, ‘dependent solely upon the extraction and sale of the oil,’ which marks an economic interest * 328 U.S. at pages 34-35, 66 S.Ct. at page 867. We think the interest which the stripper acquired in the case at bar was sufficiently significant to entitle it to percentage depletion. Under the agreement the stripper was to excavate, remove, and dispose of all earth and rock, or overburden, overlying the coal veins in the three tracts, to recover all salvageable coal so exposed, and to deliver all material extracted from the veins to petitioner at a specified price per ton, which would vary according to whether the materials were weighed before or after processing through a cleaning plant which the taxpayer was going to erect. Adjustments in the amount of per ton payments were to be made in the event of a general increase or decrease in the wages of employees in the Southern Field anthracite mines of Pennsylvania. The land had been previously deep-mined and strip-mined, and the agreement stated that the taxpayer would not be liable in any way for removal of more overburden than was anticipated or for failure of the stripper to recover any coal. The record is silent as to what the expectations were concerning the anticipated amount of available coal. The stripper had the exclusive right to mine coal in the areas embraced by the agreement. This exclusive right was not limited in time but was to continue indefinitely. The taxpayer did have the right to call for a suspension of mining operations, and in such event under certain conditions regarding time and notice the stripper was free to give up the mining operation, but this was his own choice and unless he voluntarily did so, the taxpayer, though calling for a suspension of operations, could not permit anyone else to mine the area. Thus, for all practical purposes, the stripper had the exclusive right to mine the area to exhaustion. The stripper provided the necessary buildings, equipment, and machinery for the stripping operations. $4,842.72 was expended in erecting buildings and almost a million dollars worth of equipment and machinery was used. (Almost $800,000 worth was new, provided especially for performance of the work contemplated by the contract.) Although all extracted material was to be delivered to the taxpayer, the taxpayer specifically reserved the right to reject any and all coal or coal material delivered to it, and thereupon the stripper would be free to sell the rejected coal to anyone it pleased for its own account. The taxpayer was obligated to pay the agreed price per ton only if it accepted the coal. If it did not accept the coal, there was no personal liability to the stripper for the work and operations in extracting the coal. The stripper was not being paid as a “hired hand” would have been for labor performed. Its situation was entirely different. When the stripper removed coal and other materials from the ground, the taxpayer was entitled to receive it. But the taxpayer was not obligated to take it. If it chose not to, it owed the stripper nothing, and the stripper would be free to sell the coal to anyone at whatever price it could get. To put it another way, the taxpayer gave the stripper the exclusive right to mine coal and sell coal at the stripper’s own expense and for the stripper’s own account, reserving, however, to itself the right to buy any or all of the coal produced by the stripper. Had the agreement provided that the stripper could mine the coal and keep for itself a certain minimum quantity while turning over the rest to the taxpayer, we think it would be clear under the decisions that both the stripper and the taxpayer would have an economic interest in the coal. See Helvering v. Twin Bell Oil Syndicate, 1934, 293 U.S. 312, 321, 55 S.Ct. 174, 79 L.Ed. 383. The fact that, instead of retaining coal, the stripper received so much per ton for that coal which first had to be offered to and accepted by the taxpayer should make no difference, for in any event the stripper had to look to the coal which it mined for return of its investment and profit. On quite similar facts, the Fourth Circuit, in Commissioner of Internal Revenue v. Gregory Run Coal Co., 4 Cir., 1954, 212 F.2d 52, certiorari denied, 1954, 348 U.S. 828, 75 S.Ct. 47, reached the same result, and, we think, correctly. Accordingly, the decision of the Tax Court will be reversed. . 1954, 22 T.C. 571. . The original agreement, amended several times to reflect price changes, continued in effect until April 15, 1949, when the parties executed a mutual release.- . “§ 23. Deductions from gross income. In computing net income there shall be allowed as deductions: ***** “(m) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * ” Int.Rev.Code of 1939, § 23(m), 26 U.S.C.A. § 23(m). “§ 114. Basis for depreciation and depletion * * * * * * <((b) Basis for depletion ***'♦ “(4) Percentage Depletion for coal ft * “(A) In General. The allowance for depletion under section 23 (m) shall be, in the case of coal mines, 5 per centum, * * * of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property * * Int.Rev.Oode of 1939, § 114 (b) (4), 26 TJ.S.O.A. § 114(b) (4). . “§ 29.23(m)-l. Depletion of Mines, Oil and Gas Wells, Other Natural Deposits, and Timber; Depreciation of Improvements. — Section 23 (m) provides that there shall be allowed as a deduction in computing net income in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements. Section 114 prescribes the bases upon which depreciation and depletion are to be allowed. “Under such provisions, the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production. Thus, an agreement between the owner of an economic interest and another entitling the latter to purchase the product upon production or to share in the net income derived from the interest of such owner does not convey a depletable economic interest.” Troas.Reg. Ill, § 29.23 (m)-l, 26 Code Fed.Regs. § 29.23(m)-l (1949 ed.). . The Regulation distinguishes between “economic interest” and “economic advantage.” One who acquires the latter through an agreement with one who possesses the former is not entitled to the depletion deduction. . Some of these decisions are: Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 1946, 328 U.S. 25, 66 S. Ct. 861, 90 L.Ed. 1062; Kirby Petroleum Co. v. Commissioner of Internal Revenue, 1946, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343; Anderson v. Helvering, 1940, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277; Palmer v. Bender, 1933, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489; Commissioner of Internal Revenue v. Gregory Run Coal Co., 4 Cir., 1954, 212 F.2d 52; M-B-K Drilling Co. v. Commissioner of Internal Revenue, 10 Cir., 1952, 194 F.2d 221; Dearing v. Commissioner of Internal Revenue, 5 Cir., 1939, 102 F.2d 91; Weirton Ice & Coal Supply Co. v. Commissioner of Internal Revenue, 1955, 24 T.C. -; Brown v. Commissioner of Internal Revenue, 1954, 22 T.C. 58; Morrisdale Coal Mining Co. v. Commissioner of Internal Revenue, 1952, 19 T.C. 208; Ruston v. Commissioner of Internal Revenue, 1952, 19 T.C. 284; C. A. Hughes & Co., 1955, 14 T.C.M. 172; Hamill Coal Corp. v. Commissioner of Internal Revenue, 1955, 14 T.C.M. 218; Paul E. Barry, Inc. v. Commissioner of Internal Revenue, 1955, 14 T.C.M. 37; Winfield Mining & Contracting Co., 1954, 13 T.C.M. 591. . The agreement also contained provisions for termination in the event of bankruptcy or default by the stripper and for arbitration under certain circumstances. During the taxable years involved, the taxpayer paid all real estate taxes, employed watchmen to guard the property, and paid for power including that used by the stripper. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_constit	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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. David RATKE and Monroe Caine, Defendants-Appellants. No. 14993. United States Court of Appeals Sixth Circuit. April 16, 1963. Milton A. Bass, New York City (Bass & Friend, Solomon H. Friend, New York City, on the brief), for appellants. William H. Merrill, Chief Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. PER CURIAM. Defendants-Appellants, David Ratke and Monroe Caine, were convicted by a jury of violation of Title 18 U.S.C.A. § 1341 (obtaining money by means of false pretenses, etc.). Their motions for direction of acquittal had been denied and, after verdict, their motions for judgment of acquittal notwithstanding the verdict and for a new trial were likewise denied. Judgments were entered upon the verdict. David Ratke was sentenced to prison for a term of one and a half years and fined a total sum of $3,000.00. Monroe Caine was sentenced to prison for one year and fined a total sum of $2,000.00. Among other grounds asserted by appellants for reversal are their claims that there were errors in the District Judge’s charge to the jury, and in his rulings on the admissibility of evidence. We agree. Because the matters charged as giving rise to errors in the Court’s charge, and in the rulings on evidence, are not likely to arise upon a retrial, we deem it unnecessary to review the background to such claimed errors. We are satisfied, however, that the issues were never clearly presented to the jury either by the evidence or by the instructions of the Court. Appellants also attack the sufficiency of the evidence to support the jury’s verdict, and ask that we order that a judgment of acquittal be entered. The record before us lacks the clarity needed for adequate consideration of this asserted ground for reversal. The remedy which we may grant upon a reversal, based upon insufficiency of the evidence, is committed to our discretion. Title 28 U.S.C.A. § 2106; Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Brandt v. United States, 256 F.2d 79 (CA 6, 1958); United States v. Dunn, 299 F.2d 548, 555 (CA 6, 1962). We, accordingly, do not pass on this question, but choose to grant a new trial. Judgment reversed and a new trial ordered. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_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. PUBLICKER INDUSTRIES, INC. v. David COHEN. Appeal of PHILADELPHIA NEWSPAPERS, INC. in Nos. 83-1022 and 83-1041. PUBLICKER INDUSTRIES, INC. v. David COHEN. Appeal of DOW JONES & COMPANY, INC. in Nos. 83-1023 and 83-1055. Nos. 83-1022, 83-1023, 83-1041 and 83-1055. United States Court of Appeals, Third Circuit. Argued Sept. 12, 1983. Decided April 30, 1984. As Amended May 29, 1984. Steven B. Feirson (argued), Amy B. Ginensky, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant Philadelphia Newspapers, Inc. Edward M. Posner (argued), Cynthia J. Giles, Drinker, Biddle & Reath, Philadelphia, Pa., Robert D. Sack, Ann R. Loeb, Patterson, Belknap, Webb & Tyler, New York City, for appellant Dow Jones & Company, Inc. H. Robert Fiebach (argued), Jeffrey S. Saltz, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellee Publicker Industries, Inc. Before WEIS, HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, JR., Circuit Judge. Appellants, Philadelphia Newspapers, Inc. and Dow Jones & Company, Inc., appeal from three decisions of the district court, the first of which closed a hearing on motions for preliminary injunctions to the public and the press. One of these motions asked the district court to order Publicker Industries, Inc., appellee, to disclose certain information at its annual stockholder’s meeting concerning Publicker’s operations which it sought to keep confidential. The district court’s second decision ordered the transcript of the hearing that related to this “confidential” information to be sealed. The third decision ordered appellants’ counsel not to disclose to their clients this “confidential” information even though Publicker’s memorandum of law opposing appellants’ motions for access to the judicial transcripts revealed it. Appellants claim that the district court abused its discretion in each of these three decisions and thereby violated their common law and First Amendment rights of access to the civil trial and judicial records. Appellants also claim that the district court violated their rights to due process as well. These appeals bring to this court an issue of first impression: Does the First Amendment secure to the public and to the press a right of access to civil proceedings? We hold that the First Amendment does secure a right of access to civil proceedings. Because the district court committed certain procedural and substantive errors with respect to its three decisions that impermissibly violated appellants’ First Amendment, common law and due process rights, we will reverse the decisions of the district court. FACTS The weighty constitutional questions presented in these appeals arise from a seemingly unrelated proxy fight to determine control of a publicly traded corporation. The corporation, Publicker Industries, Inc. (“Publicker”), has outstanding over 8,300,000 shares of stock which are traded on the New York Stock Exchange by some 6,000 stockholders. The Neuman family, however, controls approximately 37% of these shares through individuals and through various estates. The defendant in the underlying litigation, David Cohen, sought to gain control of Publicker’s Board of Directors at its annual stockholders’ meeting scheduled for December 8, 1982. Two months earlier Cohen had entered into an agreement with certain members of the Neuman family granting him their irrevocable proxies to be voted at the December meeting. In return, Cohen agreed to purchase a substantial number of Neuman family shares of Publicker stock if he succeeded in gaining control of the board. This agreement was resisted by a member of the Neuman family who brought an action in the Orphans’ Court Division of the Court of Common Pleas of Delaware County, Pennsylvania. The complaint alleged that the agreement violated Pennsylvania Corporate Law, 15 Pa.Cons.Stat.Ann. § 1504 (Purdon 1983), which prohibits any corporate stockholder from selling his voting rights or his proxy. Following a hearing, Orphans Court Judge Francis J. Catania set aside the stock purchase agreement because it was without legal foundation. By this time, Publicker already had commenced the suit from which these appeals arise. On the day of the Delaware County Orphans Court hearing, December 2, 1982, Publicker filed a complaint against Cohen in the United States District Court for the Eastern District of Pennsylvania claiming that Cohen had made misrepresentations and had failed to make material disclosures in Schedules 13D and 14B that he filed with the Securities and Exchange Commission in connection with his planned purchase of Publicker stock. Publicker also filed a Motion for Preliminary Injunction asking the court to enjoin Cohen from soliciting proxies for and voting proxies at the annual meeting on December 8. Informed of Judge Catania’s order of December 2, 1982 setting aside the stock purchase agreement, Publicker filed a Motion for Temporary Restraining Order (“TRO”) on December 3, 1982. Publicker maintained that Judge Catania’s order required Cohen to amend his SEC filings to show that this agreement had been invalidated. The motion asked the district court to prohibit Cohen from soliciting proxies for the December 8 meeting until he amended his filings. The district court held a conference on December 3 to consider the TRO on the day it was filed. It was at this conference that the question was first raised concerning the harmful effects to Publicker if certain information concerning its operations were disclosed at the December 8 meeting. As a result of this conference, the court granted Publicker’s motion for a TRO, but ordered another hearing to be held on December 6. At this second hearing, Cohen filed his own Motion for Preliminary Injunction asking the court to postpone the December 8 stockholders’ meeting until Publicker disclosed to its stockholders the information referred to at the December 3 conference. Cohen claimed that Publicker’s failure to disclose this information violated federal securities laws. Publicker denied this allegation and asserted that disclosure at this time was premature because the nature of the information was such that it might never become material and subject to required disclosure. Publicker also claimed that Cohen violated a confidentiality agreement between him and Publieker in using this information to seek a postponement of the annual meeting. The district court decided to hear Cohen’s and Publicker’s motions for preliminary injunction the next day. This hearing commenced on the morning of December 7 in open court. Two issues were before the district court. First, the court had to decide whether Cohen should be enjoined from soliciting and voting proxies because of his failure to comply with federal and state statutes. Second, the court had to determine whether the information that was the subject of Cohen’s motion for preliminary injunction was of such a nature that Publicker was required to disclose it to its stockholders at its annual meeting the next day. It is not clear from the record whether anyone from the general public attended the morning session of this December 7 hearing. However, when court reconvened after lunch Dick Cooper, a reporter for the Philadelphia Inquirer, was present in the courtroom. At side bar, Publicker immediately requested that the hearing be closed to all except the parties, their counsel and witnesses because of the sensitive nature of the information that was to be discussed and because the very issue before the court was whether this information should remain confidential. After a short recess to afford counsel an opportunity to find authority for excluding the press from the courtroom, the district court granted Publieker’s request to close the hearing. The court explained: It seems to me by permitting the press here now, that the press would be usurping the very function that is reposed in me; namely, deciding whether this information should be revealed or not. That is the very issue of this case... Here, if it is disclosed the press would be making the decision before I made mine and it would make mine moot, and I believe in protection of my own judicial functions in this case I have the power to exclude the press and I will. Joint Appendix (“JA”) at A117. When the court directed members of the press to leave the courtroom, Cooper objected to the closing of the courtroom and asked the court for an opportunity to be heard through counsel. The court acknowledged Cooper’s objection and request and said that it would allow Cooper an opportunity to be heard through counsel. A short time later the court stopped the proceedings to permit another reporter to enter the courtroom. She identified herself as Virginia Inman, a reporter for the Wall Street Journal. She requested a hearing with counsel present in order to determine why the hearing was closed. The court denied her request. Some time later attorneys for both Philadelphia Newspapers, Inc. (“PNI”) and Dow Jones & Company, Inc. (“Dow Jones”), the publishers of the Inquirer and the Wall Street Journal, appeared to ask that the proceedings be opened. The court again stopped the proceedings to afford the newspapers an opportunity to be heard. Counsel for PNI urged the court to open the hearing or, failing that, to close only those parts of the hearing that involved the confidential information while allowing the rest of the hearing to remain open. The court rejected counsel’s request and commented that “[s]o far everything that we have been dealing with has been ‘confidential’ ” Id. at A137. When pressed by counsel to explain its exclusion of the public, the court stated: I can see an over-riding interest of the Court in closing these proceedings because the information that is confidential, at this moment at least, is information which could possibly have adverse effects, but [the] very issue involved before me is whether or not that information should be revealed and whether or not it should be made public. That’s the very issue before me. If I were to permit the newspapers in here you would be usurping my function in deciding the case before I did by revealing the information, even though I [might] ultimately decide that it shouldn’t be revealed. Id. at A134-35. The court later added that “the most intelligible explanation of my conduct is that it is a ‘Cateh-22.’ ” Id. at A140. The proceeding resumed with the public excluded. Counsel for the newspapers immediately applied to this court for a Writ of Mandamus to compel the district court to reopen the hearing on the motions for preliminary injunction. This court denied the petition the next day. By that time, the hearing was completed and the district court had rendered its decision. The court denied Cohen’s motions to enjoin the convening of the December 8, 1982 stockholders’ meeting on the ground that he lacked standing because he had retained no interest in Publicker after the Delaware County court invalidated the stock purchase agreement. The district court also held that “the order for confidentiality [remained] in force.” Id. at A198. It later suggested, however, that it continued the order for confidentiality until it could decide the merits of that issue. It stated, I have not reached the question of whether this is the type of thing, information that should be disclosed or that a Court can compel disclosure, whether this is something that is a sound good faith business decision of the directors, not to disclose it. I have not reached those questions. Id. at A200. PNI filed a motion on December 20, 1982 for immediate access to the transcript of the December 7, 1982 hearing. Dow Jones joined in this motion the next day. Publicker countered with a Motion for Order Respecting Confidentiality to keep confidential portions of its memorandum of law that described the adverse effects that could attend disclosure of the sensitive information. The district court granted this motion in an order of January 6, 1983. Thus, while attorneys for PNI and Dow Jones were informed of the potential harmful effects of disclosure of the confidential information, they were ordered not to disclose this information to their clients. In its memorandum of law in opposition to PNI’s and Dow Jones’ motions for immediate access to the hearing transcript, Publicker included a schedule which listed those portions of the transcript in question that were nonconfidential. By Publicker’s own admission, over two-thirds of this transcript contains no confidential information. Approximately one-third of the transcript of the afternoon session is deemed by Publicker to be nonconfidential. Curiously, almost one-quarter of the transcript relating to the morning session is now labeled confidential. Yet, Publicker did not request that the court close the morning session. In its second order of January 6, 1983, the district court directed Publicker to deliver to PNI and Dow Jones those portions of the transcript designated as nonconfidential. The order also denied the newspapers’ motions for immediate access to the transcript in all other respects. The court did not issue an opinion to explain its order. Thus, the “sensitive” information and those portions of the December 7, 1982 hearing transcript relating to the “sensitive” information remained under seal with no explanation as to why the information should not be disclosed. On January 14, 1983, PNI and Dow Jones filed this appeal from the district court’s orders of December 7, 1982 and January 6, 1983. They maintain that the district court’s closing of the December 7, 1982 hearing to the public and to the press deprived them of their common law and First Amendment rights of access to a civil trial without due process of law. They also claim that the district court’s sealing of portions of the transcript of the December 7, 1982 hearing deprived them of their common law and First Amendment rights of access to the transcript of a civil trial without due process of law. While this appeal was pending, and more than two months after we heard oral argument on appeal, Publicker filed a motion on November 17, 1983 to dismiss this case on grounds of mootness. Publicker supported this motion by informing this court of events that occurred after this appeal was taken that rendered confidentiality unnecessary. Because the confidential material will have been disclosed to Publicker’s stockholders by the time this opinion is filed, we may discuss this material here without compromising Publicker’s interests in this case. The information in question concerns the production process of one of Publicker’s foreign subsidiaries. This subsidiary produces scotch whiskey in Scotland. The subsidiary introduces an enzyme in its production of the grain alcohol used in its scotch whiskey to accelerate the fermentation process. The chairman of Publicker Industries, Stephen Harmelin, informed the district court that the use of this enzyme is not a health hazard and is not discernible chemically. To the best of his knowledge, this practice is engaged in by forty to fifty per cent of the scotch industry. Moreover, the English Company Finance Act explicitly defines “scotch” in a way that permits the introduction of this enzyme in its production with the approval of Customs and Excise. Thus, the subsidiary’s mere use of the enzyme is not what presented the problem. The problem arose from the subsidiary’s failure to get approval for the introduction of the enzyme from Customs and Excise as required by the English Company Finance Act. According to Mr. Harmelin, the subsidiary’s use of the enzyme without the requisite approval raised the danger that the scotch was produced illegally and would have to be withdrawn from the subsidiary's world market with an irreparable financial loss to Publicker in the millions of dollars. Even worse, since most scotch whiskeys are blends of the scotches produced by the many different distilleries, the subsidiary’s scotch affected the legal status of virtually the entire scotch industry. With the legality of the subsidiary’s scotch in doubt, Publicker sought to keep confidential the subsidiary’s unauthorized use of the enzyme in its scotch production until Publicker was able to get clarification from Customs and Excises. One of the two events which Publicker claims renders this case moot is the approval given by Customs and Excise to Publicker’s subsidiary to introduce the enzyme in its production of grain alcohol. With this approval, Publicker claims that disclosure of the confidential information would no longer be premature. In addition, an action was filed on March 21, 1983 by a Publicker shareholder which involved the same confidential information which is the subject of this suit. Publicker Industries, Inc., derivatively by Alma Elias v. Clifford B. Cohn, et al., No. 83-1357. This case was assigned to the same district judge who decided this case below. This derivative action produced a settlement, subject to the district court’s approval after notice to the stockholders and a hearing. The district court accordingly entered an order on November 17, 1983 directing Publicker to send to its stockholders notice of this proposed settlement and setting the hearing for December 28, 1983. The notice to stockholders reveals the confidential information which is the subject of this suit. Consequently, Publicker has decided to no longer oppose disclosure of the information or access to the transcripts of the below. It now asks us to dismiss this case as moot and remand it to the district court with directions to enter an order unsealing the record. It asks alternatively, in the event that we conclude that this case is not moot, for an order unsealing the district court’s records of the proceedings below. I. We address first the question of mootness. Publicker argues that it no longer opposes disclosure of the information or public access to the lower court’s records. Because it is the only party to this action that requested confidentiality, and because it no longer opposes public access to the information and to the court records, Publicker insists that there is no justiciable case or controversy before this court. Therefore, it contends that this case should be dismissed as moot. In this case the test to determine mootness is whether the underlying dispute is “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The Supreme Court has established two conditions that must be satisfied to meet this test: “ ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979) quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975)). The Supreme Court has recognized that criminal trials are generally of such short duration that closure orders typically ‘“will evade review....'" Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980) quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 547, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976). This case concerns a hearing to consider whether certain evidence be deemed confidential. Certainly, no one can seriously argue that a proceeding of this nature is not of a shorter duration than criminal trials. Thus, we conclude that orders closing these types of hearings also will evade review. Moreover, we can be reasonably certain of the recurrence of the exclusion of the public and the press from hearings to decide whether potentially injurious business matters should be kept secret. See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (6th Cir.1983); Joy v. North, 692 F.2d 880 (2d Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930 (1983). Therefore, we can reasonably expect that newspaper publishers such as PNI and Dow Jones “will be subjected to similar closure orders entered by the district courts____” United States v. Criden (Criden II), 675 F.2d 550, 554 (3d Cir.1982). Because the underlying dispute is capable of repetition yet evading review, we will deny Publicker’s motion to dismiss this appeal because of mootness, and now turn to the merits of this appeal. II. Appellants PNI and Dow Jones claim that the district court’s exclusion of the public and the press from the December 7, 1982 hearing concerning the petitions for temporary injunctions violated their common law and First Amendment rights of access to a civil trial without due process of law. They also claim that the district court’s order sealing the transcript of this hearing similarly violated their common law and First Amendment rights of access to judicial records without due process of law. However, Appellants concede that these rights are not absolute and may be regulated and even denied under certain circumstances so long as the denial is made pursuant to procedures that safeguard their right to due process of law. They insist, however, that the court below closed and sealed the transcript of the hearing in disregard of requisite procedural guarantees and therefore denied their common law and First Amendment rights of access to civil trial and judicial records without due process of law. We will address these issues seriatim. A. THE COMMON LAW The existence of a common law right of access to judicial proceedings and to inspect judicial records is beyond dispute. United States v. Criden, (Criden I), 648 F.2d 814, 819 (3d Cir.1981). This common law right of access to judicial proceedings and records usually has been considered by the Supreme Court in connection with criminal trials and proceedings. See, Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 564-69, 580, n. 17, 100 S.Ct. at 2820-23, 2829, n. 17; Gannett Co., Inc. v. DePasquale, 443 U.S. at 368, 386, n. 15, 99 S.Ct. at 2898, 2908, n. 15; Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1978); and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). However, an examination of the authority on which the Supreme Court relied in these cases reveals that the public’s right of access to civil trials and records is as well established as that of criminal proceedings and records. Indeed, the Supreme Court itself recognized this in Gannett Co., v. DePasquale, 443 U.S. at 386, n. 15, 99 S.Ct. at 2908, n. 15. In Gannett, the Court acknowledged that the historical evidence on which petitioner and amici relied in arguing the existence of a criminal defendant’s constitutional right to demand a public trial “is equally applicable to civil and criminal cases____” Id. The Court explained: For many centuries, both civil and criminal trials have traditionally been open to the public. As early as 1685, Sir John Hawles commented that open proceedings were necessary so “that truth may be discovered in civil as well as criminal matters” (emphasis added). Remarks upon Mr. Cornish’s Trial, 11 How.St.Tr. 455, 460. English commentators also assumed that the common-law rule was that the public could attend civil and criminal trials without distinguishing between the two. Id. Therefore, we hold that appellants PNI and Dow Jones possess a common law right of access to civil trials. Although we could rest our decision on a common law right of access, the importance in guaranteeing freedoms at issue here compel us to reach the constitutional issues. B. THE FIRST AMENDMENT It is more difficult to decide whether the First Amendment affords protection against the exclusion of the public from civil trials. The Supreme Court has held that the First Amendment guarantees the public and the press the right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580, 100 S.Ct. at 2829. In his plurality opinion in which a majority of the Court concurred, Chief Justice Warren Burger reasoned that the core purpose of the First Amendment is to assure “freedom of communication on matters relating to the functioning of government.” Id. at 575, 100 S.Ct. at 2826. He observed that the manner in which criminal trials are conducted has been recognized by “the centuries-old history of open trials and the opinions of this Court,” Id., to be a central aspect of government. He also observed that the Bill of Rights was enacted against a backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials “before as many of the people as chuse to attend” was regarded as one of “the inestimable advantages of a free English constitution of government.” 1 Journals 106, 107. Id. The Chief Justice thus concluded that “[i]n guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.” Id. In addition, the Chief Justice noted that the First Amendment guarantee of assembly assured the right of access to places traditionally open to the public for the purpose of exercising other First Amendment rights. Id. at 577-78, 100 S.Ct. at 2827-28. He concluded that “a trial courtroom also is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.” Id. at 578, 100 S.Ct. at 2828 (footnote omitted). Therefore, the Court held that the “right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.’ ” Id. at 580, 100 S.Ct. at 2829 (footnote omitted) (quoting Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972)). The Chief Justice noted, however, that “[wjhether the public has a right to attend trials of civil cases is a question not raised by this case ____” Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580, n. 17, 100 S.Ct. at 2829, n. 17. Moreover, in her concurring opinion in Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 611, 102 S.Ct. 2613, 2623, 73 L.Ed.2d 248 (1982), Justice Sandra Day O’Connor emphasized that she interpreted “neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.” Id. Therefore, we must decide whether the Court’s analysis in Richmond Newspapers, Inc. and in Globe Newspaper Co. leading to its recognition of a First Amendment guarantee of the public’s and press’ right of access to criminal trials is applicable to civil trials. The Supreme Court’s recognition of a First Amendment right of access to criminal trials is predicated on “the common understanding that ‘a major purpose of that Amendment was to protect the free discussion of governmental affairs.’ ” Globe Newspaper Co. v. Superior Court, 457 U.S. at 604, 102 S.Ct. at 2619 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966)). Therefore, the Court declared that, “to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.” Globe Newspaper Co. v. Superior Court, 457 U.S. at 604-05, 102 S.Ct. at 2619-20. In explaining why the First Amendment guarantees a right of access to criminal trials the Court emphasized two features of the criminal justice system. It noted that “the criminal trial historically has been open to the press and general public.” Id. at 605, 102 S.Ct. at 2619. It also observed that “the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole.” Id. at 606, 102 S.Ct. at 2620. Namely, access to criminal trials, enhances the quality and safeguards the integrity of the factfinding process... fosters an appearance of fairness, thereby heightening public respect for the judicial process. And, in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience. Id. (footnotes omitted). Our task, then, is to review the English and American legal authorities to determine whether they reveal a corresponding presumption of openness inhering in the civil trial which “plays a particularly significant role in the functioning of the judicial process and the government as a whole.” Id. Although Chief Justice Burger cautioned in Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580, n. 17, 100 S.Ct. at 2829 n. 17, that the question whether the public has a right of access to civil trials was not before the Court, he nevertheless noted “that historically both civil and criminal trials have been presumptively open.” Id. A survey of the legal authorities explains the Chief Justice’s conclusion. Sir Edward Coke declared in the early Seventeenth century that the Statute of Marlborough of 1267 required court proceedings to be held in public: “These words [In curia Domini Regis ] are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the King’s Courts openly in the King’s Courts, whither all persons may resort ____” 2 E. Coke, Institutes of the laws of England 103 (6th ed. 1681) (emphasis added). Writing almost 150 years later, Sir Matthew Hale not only observed that evidence is given in both civil and criminal trials “in the open Court and in the Presence of the Parties, their Attorneys, Council, and all By-standers, and before the Judge -and Jury____” M. Hale, History of The Common Law of England, 163 (C. Gray ed. 1971), he also offered an explanation for the public nature of civil and criminal trials: Ninthly, The Excellency of this open Course of Evidence to the Jury in Presence of the Judge, Jury, Parties and Council, and even of the adverse Witnesses, appears in these Particulars: 1st, That it is openly; and not private before a Commissioner or Two, and a couple of Clerks, where oftentimes Witnesses will deliver that which they will be ashamed to testify publickly. Id. Hale served as authority for Williams Blackstone when he explained why trials generally were conducted in public: This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. 3 W. Blackstone, Commentaries 373. Thus, more recent commentators agree that “one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access,... appears to have been the rule in England from time immemorial.” E. Jencks, The Book of English Law 73-74 (6th ed. 1967) (emphasis added). See Richmond Newspapers v. Virginia, 448 U.S. at 566-67, 100 S.Ct. at 2821-22. The Supreme Court also recognized that this English common law right of access was transferred to the American colonies. Thus, Chief Justice Warren Burger stated: We have found nothing to suggest that the presumptive openness of the trial, which English courts were later to call “one of the essential qualities of a court of justice,” Daubney v. Cooper, 10 B. & C. 237, 240, 109 Eng.Rep. 438, 440 (K.B.1829), was not also an attribute of the judicial systems of colonial America. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 567, 100 S.Ct. at 2822. Justice Potter Stewart similarly observed one year earlier: The experience in the American Colonies was analogous. From the beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution provided that any person could attend a trial whether it was “civil or criminal,” Concessions and Agreements of West New Jersey (1677), Ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (emphasis added). Similarly, the 1682 and 1776 Pennsylvania Constitutions both provided that “all courts shall be open,” 1 Schwartz, supra, at 140, 271 (emphasis added). Gannett Co. v. DePasquale, 443 U.S. at 386, n. 15, 99 S.Ct. at 2908, n. 15. In addition, Justice Lewis Powell declared that “[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, 435 U.S. at 597, 98 S.Ct. at 1312 (emphasis added). These conclusions rest on profuse authority. See, e.g., In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893); Schmedding v. May, 85 Mich. 1, 48 N.W. 201 (1891). Park v. The Detroit Free Press, 72 Mich. 560, 568, 40 N.W. 731, 734-35 (1888); Cowley v. Pulsifer, 137 Mass. 392 (1884). The explanation for and the importance of this public right of access to civil trials is that it is inherent in the nature of our democratic form of government. United States v. Mitchell, 551 F.2d 1252, 1258 (D.C.Cir.1976), rev’d on other grounds sub nom. Nixon v. Warner Communications, Inc., supra, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Thus, Justice Oliver Wendell Holmes, when he served as a justice on the Massachusetts Supreme Court, declared that public access to civil judicial proceedings was “of vast importance” because of “the security which publicity gives for the proper administration of justice.” Cowley v. Pulsifer, 137 Mass. at 394. “It is desirable that the trial of [civil] causes should take place under the public eye,” Holmes continued, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. Id. See also Joy v. North, 692 F.2d at 893. Wigmore on Evidence reaffirms the beneficial effects of public access to civil judicial proceedings identified centuries ago by Hale and Blackstone. Wigmore observes that public access “plays an important part as a security for testimonial trustworthiness ____” 6 J. Wigmore, Evidence § 1834, p. 435 (J. Chadbourn rev. 1976). Public proceedings are the means by which this testimonial of trustworthiness is achieved. Wigmore identifies other beneficial effects of public access to civil as well as criminal trials. It enhances the quality of justice dispensed by officers of the court and thus contributes to a fairer administration of justice: (a) Subjectively, a wholesome effect is produced, analogous to that secured for witnesses, upon all the officers of the court, in particular, upon judge, jury, and counsel. In acting under the public gaze, they are more strongly moved to a strict conscientiousness in the performance of duty. In all experience, secret tribunals have exhibited abuses which have been wanting in courts whose procedure was public. Id. at 438 (footnote omitted). Public access to civil trials also provides information leading to a better understanding of the operation of government as well as confidence in and respect for our judicial system. (c) The educative effect Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". WINCHESTER THEATRE COMPANY, Plaintiff, Appellant, v. PARAMOUNT FILM DISTRIBUTING CORPORATION et al., Defendants, Appellees. No. 6108. United States Court of Appeals First Circuit. Nov. 18, 1963. Ralph Warren Sullivan, Boston, Mass., with whom James M. Malloy and Malloy, Sullivan & Sullivan, Boston, Mass., were on brief, for appellant. Robert W. Meserve, Boston, Mass., with whom John R. Hally and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellees. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. This is an action brought by Winchester Theatre Company, hereinafter appellant, the operator of a motion picture theatre -in Winchester, Massachusetts, against a number of national film distributors doing business in the Boston area, hereinafter defendants, seeking treble damages and other relief because of an alleged conspiracy ******in violation of sections 1 and 2 of the Sherman Act. At the conclusion of appellant’s case the court directed a verdict for the defendants. This action raises the only question necessary for us to consider. In reviewing the sufficiency of the evidence our task is eased by the fact that in much of the testimony coming from defendants’ employees, called and cross-examined by appellant, and E. M. Loew, appellant’s principal officer and stockholder, there was surprisingly little conflict. Appellant’s theatre was one of thirty-five or forty theatres in the Loew Circuit, so-called. It was relatively small, but well appointed. During the period in question (1954-1958) the defendant distributors each operated under a conventional system of runs and clearances. All gave Boston the first run and, with two irrelevant exceptions, a 21-day clearance. In appellant’s general area all defendants, and at least one other distributor not named as a conspirator, gave to theatres in Malden the second, or so-called first subsequent run, and a 7-day clearance over theatres in Winchester, Medford, Woburn, Melrose, Everett, Stoneham and Wakefield. Theatres in these cities received the third, or what Loew described as the “last,” or “ashcan run.” In 1955 Loew asked each defendant individually to make films available to appellant twenty-one days after Boston, and hence “day and date” with Malden. All refused. Although it is clear that all defendants knew of the uniform pattern with respect to Winchester, there is no direct evidence that it was maintained as a result of any agreement or even consultation. Appellant argues that, nevertheless, such an inference may be drawn. First, it asks us to consider whether known uniform action or “conscious parallelism” can be enough in this case to establish conspiracy. Secondly, it argues that there were additional factors. It is now widely held that the employment by distributors of a system of runs and clearances does not, per se, violate the Act. The plaintiff- must introduce evidence from which the jury could reasonably infer concert of action. We have never recognized conscious parallelism, standing alone, as sufficient to sustain such a finding. See Brown v. Western Massachusetts Theatres, Inc., 1 Cir., 1961, 288 F.2d 302. The present facts are not calculated to cause us to feel differently. Nothing is clearer than that Loew himself wanted, and expected, all defendants to treat appellant alike — he merely wished £he treatment to be better. Thus he admitted that when one distributor earlier advanced Winchester from a 14-day clearance to seven days (see fn. 3, supra) he used that fact as an argument to obtain the same concession from other distributors. A fair reading of his testimony shows that he felt that competition required the others to follow suit. On the record it seems clear that if appellant’s present request for day and date treatment with Malden had been recognized by any defendant, appellant would almost necessarily have received identical treatment from the rest simply as a result of lawful competitive pressures. If parallel action is compelled by competition in this area, we find it difficult to say that such action warrants a finding of an illicit agreement. Indeed, if under these circumstances conscious parallel action is equivalent to an agreement, appellant, in requesting defendants to advance it out of the last-run group, knowing that all must respond equally, is asking for the very type of conduct which it presently condemns, see Dipson Theatres, Inc. v. Buffalo Theatres, Inc., 2 Cir., 1951, 190 F.2d 951, 958-959, cert. den. 342 U. S. 926, 72 S.Ct. 363, 96 L.Ed. 691, and which would automatically expose defendants to suits by all those remaining in the run. Accordingly, on appellant’s hypothesis it would seem that defendants’ only safe recourse would be to promote all Indians alike to Chiefs, and hence jettison the entire system of suburban, and indeed of metropolitan, runs and clearances. We are not prepared, simply on Loew’s speculation that abandoning the system would be economically advantageous to the defendants to put on trial the entire wisdom of their belief that runs and clearances produce the maximum overall revenue. We find no merit in appellant’s alleged additional grounds. The evidence suggests no motive or basis for the defendants, singly or collectively, to benefit themselves at appellant's expense by protecting Malden, other than through the receipt of larger overall rentals. None of the defendants here was shown to be an exhibitor, or to have any personal interest in the Malden theatres. This is not a case such as United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, or Bigelow v. R.K.O. Radio Pictures, 1946, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, in which there was evidence to support an inference that defendants conspired to give affiliated theatres preferential treatment. Nor is there any question of illegal conspiracy effectuating the restraints of trade and monopolistic practices of a powerful combination of exhibitors as in Interstate Circuit, Inc. v. United States, 1939, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; United States v. Griffith, 1948, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236; or Schine Chain Theatres v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245. Indeed, so far as preferring particular customers was concerned, there would seem every reason to prefer the Loew chain over the small1 number of theatres in Malden. Appellant’s principal argument is that a conspiracy could be inferred from the fact that defendants’ conduct was against their apparent best interests. Cf. Dipson Theatres, Inc. v. Buffalo Theatres, Inc., supra, at 958 of 190 F.2d; Milgram v. Loew’s, Inc., 3 Cir., 1951, 192 F.2d 579, 583, cert. den. 343 U.S. 929, 72 S.Ct. 762, 96 L.Ed. 1339. The defendants denied that it was to their economic disadvantage to prefer Malden over Winchester, and all that appellant can affirmatively point to is that their business judgment in giving three competing drive-ins (one of which, singularly enough, was Loew’s) a run and clearance equal to that at the Malden conventional theatres may have been debatable. We do not think even this is a fair statement so far as the summer months were concerned. How defendants may have responded to the problems of drive-ins in winter, an obviously special situation, is no grounds for finding that they were acting against their apparent best interests in preferring Malden’s conventional theatres over Winchester. We must hold on the scant evidence produced that the grant of the directed verdict was not error. Judgment will be entered affirming the judgment of the District Court. . The complaint names as additional conspirators, but not as defendants, certain ■exhibitors in areas adjacent to Winchester, seemingly with the iDtent of establishing conspiracies in addition to the principally horizontal one herein discussed. Appellant makes no present point of this and, as we view the record, properly so. . Appellant’s allegation of an instance of restriction on cross-examination is without merit. A number of questions relating to damages we do not reach. . This treatment was not always so homogeneous. During the early part of the period in issue appellant, and some of the others, had been subject to a 14-day clearance, and there had been other variations not worth detailing. . For a discussion of that system and its economic justification see Park Neponset Corp. v. Smith, 1 Cir., 1958, 258 F.2d 452; Fanchon & Marco v. Paramount Pictures, Inc., D.C.S.D.Cal., 1951, 100 F. Supp. 84, aff’d, 9 Cir., 1954, 215 F. 2d 167, cert. den. 348 U.S. 912, 75 S.Ct. 293, 99 L.Ed. 715; United States v. Paramount Pictures, Inc., D.C.S.D.N.Y., 1946, 66 F.Supp. 323, 341-46, rev’d on other grounds, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); Gary Theatre Co. v. Columbia Pictures Corp., 7 Cir., 1941, 120 F.2d 891; Westway Theatre, Inc. v. Twentieth Century-Fox Film Corp., D.C. D.Md., 1940, 30 F.Supp. 830, aff’d on opinion below, 4 Cir., 113 F.2d 932. . We are not, of course, to be taken as saying that consciously parallel action can never be considered as an element of a plaintiff’s case simply because it accords with the defendants’ economic self-interest. See generally, Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655 (1962). . Loew testified, over objection because he gave no basis for his opinion, that if Winchester, alone, were moved up to Malden, its gross would increase 50%. In support of this, on cross-examination, he stated he felt that appellant would get patronage from Medford and Stoneham. Asked what would happen if Medford and Stoneham were likewise moved up, he said appellant would still get the 50%. Defendants then inquired whether if the entire group were moved up they would all get a 50% increase. Loew replied that they would, and that he “did not say” that the additional customers would come from Malden. Defendants may be forgiven if they declined to believe that such an influx of customers would, as counsel put it, “come out of the woodwork.” . It cannot be contended that there was an affirmative policy to discriminate against Loew. Admittedly, a number of his theatres, including appellant, fn. 3, supra, had been “moved up” from time to time. . The testimony indicates that drive-ins, generally, in the Metropolitan Boston area were given 21-day clearances. . Loew testified, also, that appellant offered to pay more in film rental, chiefly through instituting longer runs, in the event it obtained an advance. But, except as in fn. 6, supra, there was no attempted showing, and certainly none that was sufficient in the light of undisputed testimony of the probable effect such a move-up would have on defendants’ relations with the other competitive third-run theatres, that such increases would be to the ultimate economic advantage of any defendant. See also Brown v. Western Massachusetts Theatres, Inc., 1 Cir., 1961, 288 F.2d 302, 305 n. 7; Panchoón & Marco v. Paramount Pictures, Inc., D.C.S.D.Cal., 1951, 100 F.Supp. 84, 96. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Melvin STEVENS et al., Appellants, v. ROCK SPRINGS NATIONAL BANK, a Bank Corporation chartered under the United States banking statutes, et al., Appellees. No. 73-1728. United States Court of Appeals, Tenth Circuit. May 22, 1974. Philip P. Whynott, Cheyenne, Wyo., for appellants. Gary M. Greenhalgh, Rock Springs, Wyo., for appellee, Rock Springs National Bank. Ted O. Simóla, Cheyenne, Wyo., for appellee, Adams Sales, Inc. Frederick G. Loomis, of Loomis, Lazear, Wilson & Pickett, Cheyenne, Wyo., for appellee, Redman Industries, Inc. Before CLARK, Associate Justice Retired, and HILL and SETH, Circuit Judges. Of the Supreme Court of the United States, Sitting by Designation. SETH, Circuit Judge. The appellants, Mr. and Mrs. Melvin Stevens and Mr. and Mrs. Samuel Hinkle, filed this action on behalf of themselves and others similarly situated, alleging as their principal claim that the appellees, Adams Sales, Incorporated, and Rock Springs National Bank, failed to make various disclosures required by the Truth in Lending Act (15 U.S.C. § 1601 et seq.) in connection with the financing of mobile homes purchased by the appellants. A pendent state claim was also asserted under Wyo.Stat. § 40-2-403 which provides generally that a seller in a consumer credit transaction may not accept a negotiable instrument other than a check as evidence of the buyer’s obligation. An additional pendent claim was asserted by the Stevens’ against Adams Sales and Redman Industries, Incorporated, based on allegedly fraudulent representations as to the condition of the trailer which they purchased. On motion by the defendants and after receiving affidavits submitted by the parties, the district court dismissed the Truth in Lending Act claim for the reason that the one-year limitations period prescribed in 15 U.S.C. § 1640(e) had run as to the named plaintiffs. The pendent state claims were thereupon dismissed for lack of subject matter jurisdiction. A finding was also made that the prerequisites for a class action had not been shown. The principal issue on this appeal is the construction of 15 U.S.C. § 1640(e), which provides: “Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” (Emphasis added.). The other subsections of section 1640 establish the civil liability of creditors and, in certain instances, their assignees when disclosures required by the Truth in Lending Act have not been made. It is readily apparent that subsection (e) is both a grant of subject matter jurisdiction and a statement of limitations. It is the latter aspect which we must consider here, particularly the reference point which is somewhat ambiguously described as the “date of the occurrence of the violation.” A chronology of events is helpful in presenting the issues. The record shows that Mr. and Mrs. Stevens arranged for the purchase of their mobile home on July 19, 1971, at which time they executed a purchase agreement, a promissory note, and a security agreement, each on a form provided by the seller, Adams Sales. The purchase agreement form which they signed contained spaces in which terms pertaining to the financing of the purchase could be written. For the most part, these spaces were completed on the Stevens agreement, and in addition Rock Springs National Bank was identified as the creditor. Mr. and Mrs. Hinkle’s purchase followed a different pattern. On April 4, 1972, they signed a purchase agreement form similar to the one signed by the Stevens. On this form, however, the spaces provided for the credit information were left blank and no identification of the creditor was made. The agreement simply indicated a lump sum which the Hinkles intended to finance. Furthermore, it was not until about two weeks later that the Hinkles signed a promissory note and security agreement in favor of Rock Springs National Bank. This action commenced with the filing of the complaint on April 13, 1973. Having been enacted in 1968, the Truth in Lending Act and particularly its limitations provisions have been the subject of relatively little litigation. To our knowledge only one other Circuit has considered the meaning of section 1640(e) as applied to circumstances similar to these. This was Wachtel v. West, 476 F.2d 1062 (6th Cir.), which involved the alleged failure to make Truth in Lending Act disclosures in connection with a loan secured by a second mortgage on the plaintiffs’ home. The transaction there occurred on October 28, 1970, and the complaint was filed on April 25, 1972. The plaintiffs argued that the duty to make the disclosures was continuing and that the one-year period had therefore not run. This contention was rejected by the Sixth Circuit with the following analysis: “It thus appears that a credit transaction which requires disclosures under the Act is completed when the lender and borrower contract for the extension of credit. The disclosures must be made sometime before this event occurs. If the disclosures are not made, this violation of the Act occurs, at the latest, when the parties perform their contract ... In the present case performance of the contract and violation of the disclosure requirement took place on October 28, 1970, and the one-year statute of limitations began to run on that date.” While in this opinion we do not necessarily adopt the Sixth Circuit’s reference to the date of “performance” as the date on which the violation occurs, we nevertheless agree generally with the proposition that violation of the disclosure requirements, with the possible exception of those respecting the limited right of rescission under 15 U.S.C. § 1635, occurs at a specific time from which the statute will then run. Thus it does not necessarily become a continuing failure or breach. Additional support for this proposition is provided by other provisions of the Act, and by Regulation Z (12 C.F.R. § 226), the administrative interpretation of the Act by the Board of Governors of the Federal Reserve System. 15 U.S.C. § 1639 identifies the disclosures which must be made with respect to particular types of consumer loans. Subsection (b) of that section requires that, with certain exceptions, those disclosures “shall be made before the credit is extended.” Such timing seems consistent with and essential to the principal objective of the Act which, as stated in 15 U.S.C. § 1601, is to enable the consumer “to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” Regulation Z more definitely prescribes the timing requirement by requiring, that the disclosure be made “before the transaction is consummated.” 12 C.F.R. § 226.8(a). Consummation is defined in another subsection which provides: “The transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.” (12 C.F.R. § 226.2(cc); emphasis added). In the case of Bissette v. Colonial Mortgage Corp. of D.C., 155 U.S.App.D.C. 360, 477 F.2d 1245, the District of Columbia Circuit considered these same provisions in holding that where no contractual relationship had arisen between the mortgagor and mortgagee prior to the time of closing, and where the required disclosures had been made at that time, no violation of the Act occurred. We might also note that in that case the mortgagor had also executed a purchase agreement several months prior to the closing. Thus, we must hold that under the Act and current regulation, the disclosure requirements may be satisfied without penalty at any time prior to the contracting to extend credit, and no violation can occur until such a credit contract is executed. Accordingly, we agree with the district court that the one-year limitations period had run as to the Stevens, and they are barred from maintaining their claim under the Act. Since the pendent claim asserted in the third count is theirs alone, dismissal of it was also proper. A different situation exists with the Hinkle’s claim. The April 4th purchase agreement, aside from indicating an amount to be financed, contained no terms relating to the extension of credit and did not identify the prospective creditor. Thus it does not appear that the Hinkles became bound on the credit aspects of their purchase until April 17, 1972, when they signed the note and security agreement. In view of our discussion, and the cited authorities, we fail to see how the asserted violations could have occurred prior to that time. When the Hinkles filed their complaint on April 13, 1973, they were therefore within the one-year period, and dismissal of the action as to them was improper. Rock Springs National Bank urges us to affirm dismissal as to it in any event for the reason that it was never responsible for making the disclosures to the Hinkles. This is a matter, however, for the consideration of the trial court. The second count of the complaint, stating a pendent state claim under a Wyoming statute by the Hinkles, was dismissed because the supporting federal claim had been dismissed. The dismissal is set aside, but in so doing we express no view as to whether it should be entertained as a pendent claim. Such a decision is within the sound discretion of the trial court. The relationship between the limited right of rescission under 15 U.S.C. § 1635, which must also be disclosed in appropriate transactions, and the one-year limitations period prescribed in section 1640(e) presents special problems outside the scope of this decision. Finally, we note that the district court found that the prerequisites for a class action had not been shown. While in Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir.), we acknowledged that a class action might be brought under the Truth in Lending Act, we do not believe the trial court abused its discretion in not allowing this action to be so maintained. The record demonstrates that the facts varied considerably between the Stevens and Hinkle transactions. Such variations would likely affect the rights and liabilities of the parties and would presumably occur in Adams Sales’ other transactions as well. This alone would be sufficient reason to deny the class action. The judgment of the district court is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent herewith. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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 "utilities". Your task is to determine what subcategory of business best describes this litigant. AMERICAN POWER & LIGHT CO. v. SECURITIES AND EXCHANGE COMMISSION. No. 3966. Circuit Court of Appeals, First Circuit. June 19, 1944. R. A. Henderson, A. J. G. Priest, James S. Regan, and Reid & Priest, all of New York City, for petitioner for review. Homer Kripke, Asst. Sol., Roger S. Foster, Sol., and Morton E. Yohalem, Counsel, Public Utilities Division and Alfred Hill, all of Philadelphia, Pa., for respondent. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. This case is now before us on respondent’s motion to dismiss a petition filed in this court by American Power & Light Company under § 24(a) of the Public Utility Holding Company Act of 1935, 49 Stat. 834, 15 U.S.C.A. § 79x(a), to review portions of an order of the Securities and Exchange Commission. The Commission on July 10, 1941, instituted proceedings under §§ 11(b)(2), 12(b) (c) and (C) and 15(f) of the Act, 15 U.S.C.A. §§ 79k(b)(2), 79Z(b, c, f), 79» (f), against Florida Power & Light Company, American Power & Light Company (the present petitioner) and Electric Bond & Share Company. Florida is a public utility company incorporated in the state of Florida and is engaged in the business of supplying electricity and gas to a large number of communities in that state. All the common stock of Florida is held by American, a registered holding company incorporated in the state of Maine. American in turn is controlled by Bond & Share as the top holding company. The proceedings raised issues as to the existence of substantial write-ups in the plant account of Florida; the adequacy of its depreciation reserve; the necessity for stopping dividends on preferred and common stocks held by American and interest on the debentures owned by American; the existence of an unfair and inequitable distribution of voting power among Florida’s various classes of securities and security holders; the steps necessary to cure such inequities, if found to exist, including subordination to publicly held securities of holdings by American of Florida’s preferred stock and debentures-; and'the treatment to be accorded certain sums received by American from Florida on or about July 1, 1941, as dividends on preferred stocks. By way of partial answer to the matters complained of by the Commission, Florida and American filed joint applications, and subsequent amendments thereto, seeking approval of proposals for recapitalization and refinancing of Florida involving, among other things, certain alterations in the securities of Florida held' by American. By order of the Commission these applications were consolidated for hearing with the aforesaid proceedings which had been instituted by the Commission. On December 28, 1943, the Commission filed its findings, opinion and order in the consolidated proceedings. The order granted the applications of Florida and American for approval of their proposals for the recapitalization and refinancing of Florida. Except in so far as it granted such applications, the order required no changes in Florida’s capital structure or in American’s holdings of Florida’s securities. The order did, however, in paragraphs 2 and 4, direct Florida to make certain accounting entries relating to matters not covered by the proposals contained in the applications which had been filed by Florida and American. These two paragraphs of the order are the only ones which American seeks now to have us review in the pending petition. These paragraphs of the order read as follows: “(2) It is further ordered that Florida Power & Light Company shall classify in Account 107 and eliminate from the plant account by charge to earned surplus not later than December 31, 1944, an amount of $1,815,655 consisting of capitalized intra-system profits paid to affiliated companies as construction and engineering fees; * * * “(4) It is further ordered that pending final determination of the amount and disposition to be made of Account 100.5 items presently in the plant account of Florida, Florida shall annually beginning with the calendar year 1944 appropriate out of earned-surplus to a contingency reserve at least $700,000, such act of appropriation to be without prejudice, however, to respondents’ right to contest the validity of any definitive order with respect to such items as may ultimately be issued; * * Paragraph 2 of the order, above quoted, relates to certain engineering and construction fees capitalized by Florida in its plant account and paid to Phoenix Utility Company, a wholly owned construction subsidiary of Bond & Share, in connection with the construction of interconnections and additional generating facilities. Paragraph 4 of the order, above quoted, was based on the fact that American had paid a greater sum for the properties transferred by it to Florida at the latter’s organization than the original cost of those properties to the persons who had first devoted them to public service. The object of the Commission’s order was to require Florida ultimately to value the properties transferred to it by American on the basis of the original cost of those properties to such persons. The same object was sought by the Commission with respect to those properties purchased by Florida itself after organization. It was indicated that the adjustment on account of these two items might exceed $10,000,000. With reference to this matter, the Commission stated in its opinion: “We are cognizant, however, of the fact that the exact amount includible in Account 100.5 has not been finally established and will not be until the original cost study of the company is completed and has been reviewed by us. We believe that in the interests of orderly procedure, the company should be afforded an opportunity to complete its study and to have that study reviewed by us before we take definitive action either with respect to classification in the appropriate account or with respect to a formal program of disposition. However, since all present indications are that there will be approximately $10,500,000 of such acquisition adjustments ultimately to be disposed of, conservative accounting requires that the company should begin now to make provision for such disposition. We will therefore order (subject to further order of the Commission in connection with the company’s original cost study or otherwise) that commencing in 1944, the company annually appropriate out of earned surplus to a contingency reserve, the sum of at least $700,000, such act of appropriation, however, to be without prejudice to its right to contest the validity of such definitive order with respect to the matter as may ultimately be issued.” Section 24 of the Act, under which American seeks to have this court review paragraphs 2 and 4 of the Commission’s order, reads as follows: “Sec. 24. (a) Any person or party aggrieved by an order issued by the Commission under this title may obtain a review of such order in the circuit court of appeals of the United States within any circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall be forthwith served upon any member of the Commission, or upon any officer thereof designated by the Commission for that purpose, and thereupon the Commission shall certify and file in the court a transcript of the record upon which the order complained of was entered. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part. * * * ” Paragraphs 2 and 4 of the order are directed only to Florida; American is not mentioned therein nor required to do anything or refrain from doing anything. No doubt Florida is a “party aggrieved”, entitled to have the order reviewed in the appropriate circuit court of appeals, in fact, after the Commission filed its motion to dismiss American’s petition at bar, Florida filed in the Circuit Court of Appeals for the Fifth Circuit a petition in substantially identical terms seeking review of paragraphs 2 and 4 of the Commission’s order. The Commission contends, in support of its motion to dismiss, that Florida is the only “party aggrieved” by the order, and that American, whose only interest in the matter is derived through its holding of the common stock of Florida, has no independent standing to seek a review of the order pursuant to § 24(a). On the other hand, American contends: “While some of the grounds of objection to the Orders complained of are available to both Florida and American, American is the party entitled to urge that the appropriations from earned surplus required by the Orders will deprive American of dividends from the money so appropriated. Undoubtedly the Commission will contend that Florida cannot complain that American is being deprived of dividends as a result of the Orders.” The Commission denies that its motion to dismiss is a procedural manoeuvre designed to block the Florida-American interests out of arguments which should be available to them. In its brief the Commission states that it does not contend that “Florida lacks standing to seek judicial review of an order directing the manner in which it shall keep its accounts, and we recognize that among the matters which may properly be considered on such review is the question whether the order improperly interferes with any right of the corporation to pay dividends and of its stockholders to receive them, and with the value of its outstanding securities.” This position counsel for the Commission reaffirmed in a most explicit manner at the oral argument before us. Upon familiar principles of corporation law, whether a corporation shall institute litigation to enforce a corporate right, like other business questions, is ordinarily a matter of internal management left to the discretion of the directors in the absence of instruction by vote of the stockholders. “Courts interfere seldom to control such discretion iutra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; and, as a rule, only after application to the stockholders, unless it appears that there was no opportunity for such application, that such application would be futile (as where the wrongdoers control the corporation), or that the delay involved would defeat recovery.” United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 263, 264, 37 S.Ct 509, 510, 61 L.Ed. 1119. The mere fact that the refusal of a corporation, through its management, to engage in litigation, may result in a diminution of dividends to stockholders, does not give a stockholder standing to invoke the aid of a court of equity in overriding the judgment of the management. Hawes v. Oakland, 1881, 104 U.S. 450, 462, 26 L.Ed. 827. Consistently with these principles, if the board of directors of Florida had on their own initiative, in good faith and in the exercise of their business judgment, made the accounting changes which paragraphs 2 and 4 of the Commission’s order directed Florida to make, a minority stockholder would not have been heard to complain, even though such change resulted in some temporary curtailment of dividends. Whether to contest the Commission’s order to this effect is equally a matter of internal corporate management committed in the first instance to the discretion of Florida’s board of directors. And, of course, in circumstances like the present, American does not need the aid of a court to compel the assertion of a corporate right, because as controlling stock-, holder in Florida, American can cause Florida to file a petition for review of the Commission’s order. In Pittsburgh & West Virginia Ry. Co. v. United States, 1930, 281 U.S. 479, 50 S.Ct. 378, 74 L.Ed. 980, the Interstate Commerce Commission had authorized the New York Central Railroad and other rail carriers to join in establishing a union station at Cleveland through a jointly owned subsidiary. The Wheeling & Lake Erie Railroad had for some years owned and maintained its independent station at Cleveland on the approach to the union terminal. Wheeling was persuaded to sell its site and become a tenant of the new station at a comparatively low rental, and filed with the Commission an application for authorization to do so. The Pittsburgh & West Virginia Railway, a minority stockholder in Wheeling, intervened and was heard before the Commission in opposition to the plan on various grounds, one of which was that it might imperil Wheeling’s financial condition. The Commission, however, approved the plan, and Pittsburgh brought suit in a three-judge district court under the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 219, 220, 28 U.S.C.A. § 47, to suspend and set aside the Commission’s order. The District Court denied relief on the merits; upon appeal the Supreme Court held that Pittsburgh had no standing to sue and that the bill should have been dismissed without inquiry into the merits. Justice Brandeis, speaking for the court, said, 281 U.S. at page 487, 50 S.Ct. 381, 74 L.Ed. 980: “Finally, the claim that the order threatens the Wheeling’s financial stability, and consequently appellant’s financial interest as a minority stockholder, is not sufficient to show a threat of the legal injury necessary to entitle it to bring a suit to set aside the order. This financial interest does not differ from that of every investor in Wheeling securities or from an investor’s interest in any business transaction or lawsuit of his corporation. Unlike orders entered in cases of reorganization, and in some cases of acquisition of control of one carrier by another, the order under attack does not deal' with the interests of investors. The injury feared is the indirect harm which may result to every stockholder from harm to the corporation. Such stockholder’s interest is clearly insufficient to give the Pittsburgh a standing independently to institute suit to annul this order.” Pittsburgh & West Virginia Ry. Co. v. United States was recently cited with approval in Boston Tow-Boat Co. v. United States, 321 U.S. 632, 64 S.Ct. 776, decided by the Supreme Court April 3, 1944. See also United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119; Westmoreland Asbestos Co., Inc., v. Johns-Manville Corp., D.C.S.D.N. Y., 1939, 30 F.Supp. 389, affirmed on opinion below, 2 Cir., 1940, 113 F.2d 114; NY Pa NJ Utilities Co. v. Public Service Commission, D.C.S.D.N.Y., 1938, 23 F. Supp. 313. It is true that the Urgent Deficiencies Act, under which review of the order of the Interstate Commerce Commission was sought in Pittsburgh & West Virginia Ry. Co. v. United States, does not provide, as does § 24 (a) of the Public Utility Holding Company Act, that “any person or party aggrieved” may seek a review of the administrative order, but leaves the moving party’s standing to seek review to be determined upon general principles. But the phrase “any person or party aggrieved” is not one of exact meaning; and we have no reason to think that Congress thereby intended to confer upon a stockholder the independent right to seek a review of the type of administrative order, directed only against the corporation, involved in the case at bar. It may be that so far as concerns the constitutional requirement of “case” or “controversy” Congress might have power to disregard the “corporate veil”, to treat the controversy as one subsisting between the Commission and the stockholders of the corporation which has been ordered by the Commission to make the accounting changes here involved, and to confer upon such stockholders the independent right, in their own names, to seek review of the Commission’s order. But we think it is clear that if Congress had intended any such departure from the ordinary principles of corporation law, it would have expressed such intention in explicit language. In applying to the case at bar the phrase “any person or party aggrieved”, it is immaterial that American was a party to the administrative proceedings before the Commission. Pittsburgh & West Virginia Ry. Co. v. United States, 1930, 281 U.S. 479, 486, 50 S.Ct. 378, 74 L.Ed. 980; Alexander Sprunt & Son, Inc., v. United States, 1930, 281 U.S. 249, 254, 255, 50 S.Ct. 315, 74 L.Ed. 832. Under § 19 of the Public Utility Holding Company Act, 49 Stat. 832, 15 U.S.C.A. § 79s, the Commission has broad discretion in admitting interested persons as parties to the administrative proceedings, but it by no means follows that all persons who properly participate as interested parties in the administrative proceedings are “parties aggrieved” within the meaning of the review provisions in § 24(a). As a matter of fact, in view of the inclusive nature of the issues projected in the proceedings initiated by the Commission in the present case, American was necessarily made a party respondent, because, among other things, one of the issues raised was whether it was necessary to subordinate to publicly held securities of Florida the holdings by American of Florida’s preferred stock and debentures. But so far as concerns paragraphs 2 and 4 of the Commission’s order, which are the only portions of the order now sought to be reviewed, proceedings to that end could have been instituted by the Commission against Florida alone, without joining American as a party respondent. We shall refer briefly to some of the cases relied upon by petitioner. In Northwestern Electric Co. v. Federal Power Commission, 1944, 321 U.S. 119 64 S.Ct. 451, the Commission made an accounting order against Northwestern Electric Company, an operating utility all of whose common shares are owned by American Power & Light Company. Northwestern filed in the proper circuit court of appeals a petition to review the order. American joined in the application for court review. Since the particular circuit court of appeals undoubtedly had jurisdiction to review the order there was no point in challenging American’s standing to join in the petition, and the Commission made no such challenge. Neither in the opinion of the circuit court of appeals nor in that of the Supreme Court was there any discussion of the question whether American had an independent standing to seek review of the accounting order against the corporation of which it was the controlling stockholder. In Federal Communications Commission v. Sanders Bros. Radio Station, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037, one holding a license to operate a broadcasting station, over whose objection the Commission had granted a permit for the erection of a rival station, was held to be a “person aggrieved or whose interests are adversely affected” by the decision of the Commission, within the meaning of § 402(b)(2) of the Communications Act of 1934, 48 Stat. 1064, 1093, 47 U.S.C.A. § 402(b)(2), and hence entitled to appeal from the Commission’s decision to the Court of Appeals of the District of Columbia. The private economic injury which the said licensee suffered as a result of the Commission’s decision was deemed sufficient to give the licensee a standing, as a sort of “private attorney general,” to present questions of public interest and convenience on appeal from the order of the Commission. The court pointed out, 309 U.S. 470, at page 477, 60 S.Ct. 693, 698, 84 L.Ed. 869, that it ascribed this meaning to the flexible phrase “person aggrieved or whose interests are adversely affected” in order to effectuate the purposes of the particular statute and because, otherwise, § 402(b)(2) would be deprived of any substantial effect. No comparable situation is presented in the case at bar. Neither in the Sanders case, supra, nor in Federal Communications Commission v. National Broadcasting Co., Inc., 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374, nor in Associated Industries, Inc., v. Ickes, 2 Cir., 1943, 134 F.2d 694, was the question presented whether a stockholder is a “person or party aggrieved” by an accounting order directed solely against the corporation, an order which the corporation is fully empowered to bring for review before the appropriate circuit court of appeals. In Todd v. Securities and Exchange Commission, 6 Cir., 1943, 137 F.2d 475, the standing of a stockholder to seek review of a dissolution order pursuant to § 11(b)(2) of the Public Utility Holding Company Act was not challenged by the Commission, and the court’s decision makes no allusion to the point. In Okin v. Securities and Exchange Commission, 2 Cir., 1943, 137 F.2d 398, 400, a stockholder sought review of an order of the Commission granting an application by the corporation for authority to sell the securities of a wholly owned subsidiary. The stockholder had appeared before the Commission in opposition to the application, charging fraud, and after being allowed a limited participation in the hearing, he was eventually ordered by the examiner to leave the room, and upon his refusal the examiner closed the hearing. The court stated that the only question before it was “whether, as petitioner so strenuously asserts, he was denied the essentials of a fair hearing.” If the stockholder was entitled to be heard before the Commission on his charges of fraud, and had been denied the essentials of a fair hearing, it may well be that he should be deemed a person aggrieved by the ensuing order of the Commission. - The court after examination of the record of the administrative proceedings concluded “that no error which could possibly affect the result occurred” and affirmed the Commission’s order. Finally, the petitioner relies heavily on our decision in Lawless v. Securities and Exchange Commission, 1 Cir., 1939, 105 F. 2d 574. In that case, as this court understood the Commission’s order, its effect was to cast doubt upon the validity of the new common stock and common stock purchase warrants which would be issued to petitioner in pursuance of a proposed recapitalization. In such a case a minority stockholder whose rights are affected is a person aggrieved by the Commission’s order within the meaning of § 24(a), and has an independent standing to seek judicial review. In so far as the language of the Lawless opinion may intimate that the petitioner was a “person or party1 aggrieved” merely by virtue of the fact that he had been admitted to participation in the proceedings before the Commission, we do not think that it is correct. Respondent’s motion to dismiss the petition for review is granted, and the petition is dismissed for lack of jurisdiction. See Kripke, A Case Study in the Relationship of Law and Accounting: Uniform Accounts 100.5 and 107, 57 Harv. L.Rev. 433 (April, 1944); see also Pacifie Power & Light Co. v. Federal Power Commission, 9 Cir., 1944, 141 F.2d 602. This principle is embodied now in Rule 23(b) of the Federal Rules of Givil Procedure, 28 U.S.C.A. following section 723c. White Rule 23(b) is applicable only to district courts, we see no reason why the accepted principle, which antedated Rule 23(b), should not be applicable to review in the circuit courts of appeals under § 24(a) of the Public Utility Holding Company Act. gee Douglas, J., dissenting, in Federal Communications Commission v. National Broadcasting Co., Inc., 1043, 319 U.S. 239, 265, note 1, 63 S.Ct. 1035, 87 L.Ed. 1374. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". What subcategory of business best describes this litigant? A. nuclear power plants B. other producers of power C. telephone D. other utilities E. unclear Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Elizabeth SMITH, Appellant, v. UNITED STATES of America, Appellee. No. 5238. United States Court of Appeals Tenth Circuit. Feb. 14, 1956. Roy C. Lytle, Oklahoma City, Okl., for appellant. Kenneth E. Levin, Washington, D. C. (H. Brian Holland; Asst. Atty.' Gen., Robert N. Anderson and A. F. Prescott, Washington, D. C., were with him on the brief; Paul W. Cress, U. S. Atty., and Leonard L. Ralston, Asst. U. S. Attys., Oklahoma City, Okl.), for appel-lee. Before BRATTON, Chief Judge, and MURRAH and PICKETT, Circuit Judges. PICKETT, Circuit Judge. This appeal involves a deficiency in income taxes for the year 1945, in the sum of $25,253.61. The item of income in question was rental from a lease covering property owned by the plaintiff, Elizabeth Smith, and received after July 26, 1945, the effective date of the Oklahoma Community Property Act of 1945, Okl.Sess.Laws 1945, p. 118, Title 32 Secs. 1, 2, 3 (herein referred to as “the Act”), but earned prior to that date. In their income tax returns for the year 1945, the plaintiff and her husband, J. H. Smith, treated the rentals as community property. The Commissioner of Internal Revenue held that it was the separate property of Elizabeth and computed the deficiency accordingly. The deficiency was paid and this action brought to recover the same. The trial court agreed with the Commissioner and denied recovery. The lease was for business property in Oklahoma City, Oklahoma and for a term of five years, beginning October 1, 1944. The lessor agreed to pay as rental three and one-half percent of its ordinary gross sales and one and three-quarters percent of the gross military sales, with a minimum guaranteed rental of $3,000 per month, payable on the first day of each month during the term of the lease. The gross sales were to be computed at the end of each year of occupancy; after deducting the $3,-000 monthly payments, the balance, if any, was to be paid to the lessor within fifteen days after the close of each lease year. For 1945 this balance amounted to $63,202.98, and was paid to Elizabeth on October 15th of that year. The percentage rentals for the months of August and- September exceeded the minimum requirements. The Commissioner computed the percentage rentals which were earned prior to the effective date of the Act and found them to be $47,-845.59. There is no dispute as to the mathematical computations; it is agreed that the sole question is whether the percentage earnings prior to the effective date of the Act, but paid after-wards under the provisions of a lease, are taxable to Elizabeth as separate income or are community property of Elizabeth and her husband. The pertinent sections of the Oklahoma Community Property Act of 1945 read: “Wife’s Separate Property. “Section 2. All property of the wife, both real and personal, owned or claimed by her before marriage or before the effective date of this Act, whichever is later, and that acquired afterwards by gift, devise, or descent, or received as compensation for personal injuries, shall be her separate property. “Community Property. “Section 3. All property acquired by either the husband or the wife during marriage and after the effective date of this Act, except that which is the separate property of either as hereinabove defined, shall be deemed the community or common property of the husband and wife, and each shall be vested with an undivided one-half interest therein; and all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains unless the contrary be satisfactorily proved.” The status of property depends upon the state law as declared by its statutes and its courts. Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Trapp v. United States, 10 Cir., 177 F.2d 1, certiorari denied 339 U.S. 913, 70 S.Ct. 573, 94 L.Ed. 1339. The Oklahoma statutes provide that property owned or claimed by one spouse before marriage or before the effective date of the Community Property Act remains the separate property of that spouse. All property “acquired” by either spouse during marriage and after the effective date of the Community Property Act is deemed to be community property. It is conceded here that the minimum rentals which were paid prior to August 1945 were the separate property of Elizabeth and that those paid afterward were community property. The contention is that the percentage rentals, not being payable and, it is alleged, not even computable, until after the effective date of the Act, were not “acquired” until received, therefore were community property. The exact question here has not been before the Oklahoma courts, but we think they have charted a clear course. The 1939 Community Property Act was considered in Harmon v. Oklahoma Tax Commission, 189 Okl. 475, 118 P.2d 205. It was there held that the profits from the sale of an oil and gas lease owned by the husband before the effective date of the Act, but sold afterwards, was the separate income of the husband. It was also held that the income from the sale of oil and gas from the lease after the effective date of the Act was not a sale of the corpus of real estate and community property. This is not authority for the proposition that sales of oil prior to the effective date of the Act but paid for afterwards would be community income. In Clanton v. Oklahoma Tax Commission, 208 Okl. 92, 253 P.2d 562, it was held that profit arising from the sale of corporate stock owned or claimed by the husband prior to the effective date of the Act constituted separate income of the husband even though sold after the effective date of the Act. It was stated that the term “acquired”, as used in the Act, means the inception of the title to property, not the completion or ripening of it. In the Clanton ease the court relied upon Wrightsman v. Commissioner, 5 Cir., 111 F.2d 227, 228, which discussed the meaning of the word “acquired” as used in the Texas Community Property Law, Vernon’s Ann.Civ.St. art. 4619 In the Wrights-man case the taxpayer was a resident of the State of Oklahoma and an employee of a Delaware corporation. After he became a resident of Texas on December 24, 1936, he was allowed and paid $50,000 as salary for the year 1936 and contended that this was community property. The court denied the claim, stating that “it is settled law in Texas that as used in the statute (Vernon’s Ann.Civ.St. art. 4619), ‘acquired’ refers to the origin or inception of the right or title, rather than the completion or ripening of it.” It is conceded that the sales percentages, prior to the effective date of the Act, created an obligation on the part of the lessee to pay those amounts to Elizabeth. It makes no difference that these amounts were not to be computed until after the date of the Act. The obligation to pay existed and Elizabeth had a right to receive, which could not be divested. Even if there had been no sales at all during the two months after the date of the Act, Elizabeth’s fight to full payment for prior months would not be divested. The total amount she would receive as a lump sum payment would be less, but that would merely amount to payment of each month’s income at one time, with no element of divestment of prior months’ income involved. The obligation was one which she could enforce at a later date and was as much her property as were the $3,000 monthly payments, everu though they were not determined amdl received until later. They were “acquired” as of the date upon which they were earned and the right to them vested at that time. Commissioner of Internal Revenue v. King, 5 Cir., 69 F.2d 639; Veit v. Commissioner, 8 T.C. 809. Judgment affirmed. . The appellant’s brief states the proposition as follows: “There is no dispute about the income being reportable in 1945. The difference of opinion involves the character or the ownership of the percentage rents when received on October 15, 1945. Was the $47,845.59 separate property because it was payable under a lease executed prior to the effective date of the community property law on sales made prior to the effective date of the community property law, although computed and received subsequent to the effective date of that law? Or, was the $47,845.59 community property because it was acquired by the appellant and her husband in October 1945?” . The Oklahoma Community Property Act of 1945 was taken largely from the Texas Act. Swanda v. Swanda, 207 Okl. 186, 248 P.2d 575. . In referring to the origin or inception of a right, the court said: “ * * * Whether a claim of right or title to property is to be regarded as the origin or inception, and therefore for the purpose of determining its character as separate or community, the acquisition of it is not to be determined by whether the claim was when first asserted, legally enforceable. What is important is, was the claim to the right or title asserted in good faith; was it pursued and persisted in until the right or title ripened; that is, was the ripening of the title or right, in law and in fact, referable to the claim.” 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_jurisdiction	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". In re LIPPOW. LIPPOW v. ED. SCHUSTER & CO. et al. No. 6272. Circuit Court of Appeals, Seventh Circuit. Nov. 3, 1937. David Beznor and Lee K. Beznor, both of Milwaukee, Wis., for appellant Jacob H. Beuscher and Beuscher & Beuscher, all of Milwaukee, Wis., for ap-pellees. Before SPARKS and MAJOR, Circuit Judges and LINDLEY, District Judge. MAJOR, Circuit Judge. This appeal is from an order of the District Court dated April 3, 1937, sustaining specifications of objection and denying appellant’s application for discharge. The specification here relied upon is that appellant concealed, or permitted to be concealed, his property with the intent to hinder, delay, and defraud his creditors, in violation of section 32, paragraph b, title 11 U.S.C.A. Appellant’s petition for adjudication was filed January 13, 1936, when it was shown he owed $512.37 for merchandise purchased by him and members of his family during the preceding months of November and December from five different Milwaukee stores. Among the items purchased were thirteen dresses, five hats, two suits and an overcoat, ten pairs of shoes and sixteen pairs of hose. Other minor items are included, consisting of wearing apparel and a few small household articles for appellant and his family, which consisted of a wife, two daughters, and appellant’s mother-in-law. In the appropriate part of the schedule filed by appellant is the following item: “Household goods and furniture, household stores,, wearing apparel and ornaments of the person, viz.: Household goods, furniture and wearing apparel belonging to Petitioner (Claimed Exempt) Value... .$200.00.” It seems to be the contention of appel-lee, sustained by the lower court, that the failure of appellant to itemize the property claimed as éxempt, and failure to schedule the property recently acquired by him and his family, above referred to, shows a concealment. We are unable to thus construe the law. Title 11 U.S.C.A. § 110(a) provides: “The trustee * * * shall * * * be vested by operation of law with the title of the bankrupt * * * except in so far as it is to property which is exempt.” The act also allows bankrupts such exemptions as are prescribed by the state laws of his domicile at the time of the filing of his petition. The pertinent sections of the Wisconsin statute are: Subsec. (5), section 272.18, Wisconsin Statutes, 1935: “All wearing apparel of the debtor and his family; all beds, bedsteads and bedding kept and used for the debtor and his family; all stoves and appendages put up or kept for the use of the debtor and his family; all cooking utensils and all other household furniture not herein enumerated, not exceeding two hundred dollars in value.” Section 272.18 (23) : “No property exempted by the provisions of this section shall be exempt from execution or attachment brought by any person for the recovery of the whole or any part of the purchase money of the same property.” It will be noted that the only limitation as to value upon property exempted is that “all cooking utensils and all other household furniture not herein enumerated [shall not exceed] $200.00 in value.” It is immaterial under this statute as to the amount or value of other classes of property therein designated'. Inasmuch as the property claimed to have been omitted from debtor’s schedule was all thus included, there was no requirement that he itemize or value the same. The court cannot assume from the mere failure to specifically mention such property that it was not included in the general description contained in appellant’s schedule; nor does the Bankruptcy Act (11 U.S.C.A. § 1 et seq.) contain any such requirement. It is true the caption to' the. official form of schedule makes such suggestion, but this is merely directory, and not mandatory. This court in Re Freidrich et al., 100 F. 284, 285 on page 285, said: “The act thus clearly indicates that the severance in fact of exempt property from the general estate is to be made by the trustee, not by the debtor, and the value of that so severed is to be determined in the first instance by the trustee, not by the debt- or. The bankrupt law allows to debtors the exemptions provided by the law, but the manner in which the exemptions are to be claimed, set apart, and awarded is regulated by the bankrupt act. The provision is wholesome, for much abuse of the beneficent law allowing exemptions might arise if with respect to a general stock of goods, the debtor should be permitted to place upon selected articles his own estimate of value. It is sufficient, we think, if the debtor manifest by his petition in bankruptcy his claim of exemptions which the law allows to him. This is a sufficient negative of an intention to waive them.” It is said in Burke v. Guarantee Title & Trust Co. (C.C.A.) 134 F. 562, on page 564: “ ‘Having given notice of his claim, it was not his duty, but that of the trustee (section 47a, subd. 11, 30 Stat. 557 (U.S.Comp.St.1901, p. 3439 [11 U.S.C.A. § 75(a) (11)]), to “set apart” the bankrupt’s exemptions and report the items and estimated value thereof to the court.’ And there is not a word in the statute to warrant the conjecture that Congress intended that the bankrupt himself should make an itemization and estimate which the trustee, in performing the function expressly assigned to him, might wholly disregard.” In Re Andrews & Simonds (D.C.) 193 F. 776, on page 779, the court said: “In other words, if the bankrupt has clearly indicated his intention not to waive his exemption and has also specified the particular class of property owned by him from which he claims his exemption, it then becomes the duty of the trustee to select and sever the exemption from the mass of property belonging to the estate of the character and in the class indicated. . This view is supported by authority.” We think there is little significance to be attached to the fact that appellant valued property claimed as exempt at $200, and certainly the conclusion cannot be reached from this circumstance that the property alleged to be concealed was not included in his exemption claim. This is especially true in view of our conclusion that it was not incumbent upon appellant to either itemize or value such property. It is insisted by appellee, however, that by reason of the provision of the Wisconsin statute, secondly above quoted, the property alleged to have been concealed was nonexempt, as the purchase price or a part of the same had not been paid. If this be a sound position as to a particular credited-to whom the act is applicable, it cannot apply to general creditors. Title and possession of the goods in question passed to appellant, and the mere fact that certain creditors claimed superior rights does not preclude debtor from claiming such property as exempt. Remington on Bankruptcy, volume 3 (3d Ed. 1923) page 149, lays down the rule as follows: “Nevertheless, the law is settled differently, and seems to be, in brief, that the sole question to be determined by the bankruptcy court is whether or not the property is exempt against creditors m general. If it be so exempt, then it is to be set apart, and further administration of it refused, notwithstanding that, as to some creditors, it might not be exempt.” The procedure to be followed by a creditor in protecting such rights as are provided by section 217.18 (23), supra, is not pertinent to the issues presented. Even if it be conceded that the debtor intended to defraud his creditors, something more is required. As was said by this court in In re Groth (Groth v. Krueger), 36 F.(2d) 41, on page 43: “The substance of the offense is the withholding of assets; so that the true inquiry is whether, with fraudulent intent, he withheld from his schedule property belonging £o his creditors. Apart from the withholding of assets, the intent constitutes no cause for denying a discharge; and the lists omitted, constituting no part of the property coming to the creditors, as already stated, there was no withholding of assets, and no cause made out for a refusal of the discharge.” The facts in this record, in our judgment, do not justify the conclusion that the bankrupt concealed, or permitted to be concealed, his property with the intent to hinder, delay, and defraud his creditors. The order of the District Court is reversed, with directions to allow appellant’s discharge. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_subst	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. David Bernard BARASH, Appellant. No. 459, Docket 30432. United States Court of Appeals Second Circuit. Argued June 24, 1966. Decided Aug. 3, 1966. Louis Bender, New York City, Lloyd A. Hale, New York City, of counsel, for appellant. Robert L. King, New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York; Neal J. Hurwitz, John E. Sprizzo, Asst. U. S. Attys., of counsel), for appellee. Before MOORE, FRIENDLY and FEINBERG, Circuit Judges. FRIENDLY, Circuit Judge: A grand jury in the District Court for the Southern District of New York returned a rather confusing 32 count indictment against David Bernard Barash, a certified public accountant and attorney, relating to improper payments to internal revenue agents in connection with their office audit examinations of income tax returns of Barash’s clients. Counts . 1-12 charged him with giving money to Agents Clyne, Montello and DeSibio in 1960, 1961, 1962 and on January 18, 1963, with intent to influence their official acts in violation of 18 U.S. C. § 201, and counts 13-16 charged him with gifts to Agents Clyne, Montello, Wolf and an agent subsequently identified as Coady for a similar purpose later in 1963 in violation of 18 U.S.C. § 201 (b) as the statute now stands. Counts 17-20 charged him with making the same gifts alleged in counts 13-16 for and because of the agents’ official duties, in violation of 18 U.S.C. § 201(f), added in the amendment of October 23, 1962, which became effective 90 days after passage. Finally counts 21-32, which related to the same payments alleged in counts 1-12, charged him with aiding and abetting Clyne, Montello and DeSibio in receiving illegal fees for the performance of their duties in violation of 26 U.S.C. § 7214(a) (2). After trial before Judge MacMahon and a jury, Barash was acquitted on the six counts relating to Montello and Wolf but found guilty on the twenty-six (involving thirteen transactions) which concerned Clyne, DeSibio and Coady. He was sentenced to imprisonment of a year and a day on each count, the sentences to run concurrently. Thé Government’s case was presented through the agents. Clyne and DeSibio had pleaded guilty to offenses charged in the instant indictment and to others; Coady had been operating in an undercover capacity. Clyne, who was the receiving party in ten of the thirteen incidents resulting in convictions, testified to a pattern of conduct substantially as follows.: Barash would inform Clyne of clients who had received “call-in” letters instructing them to appear for audit of their returns before the group of agents that included Clyne. In violation of office procedures Clyne would obtain the returns and related papers from his supervisor’s file and assign the audits to himself. Barash would suggest relatively small disallowances in unsubstantiated deductions for travel and entertainment expenses, and would offer Clyne compensation for thus passing the returns. When Clyne obliged, Barash would make payments ranging from $20 to $50 per return. DeSibio, who figured in two incidents in 1961, gave similar testimony except that he did not say Bar-ash had taken the initiative in getting the audits assigned to him. Coady testified that in July 1963 Barash, after being introduced to him by a fellow-employee, Jeanne Lupescu, asked if Coady could get a tax return from the files and assign it to himself; when Coady answered in the affirmative, Barash furnished him the details, requested a “no-change” report the next day and, on Coady’s assent, said he had an envelope for him and shortly returned with one containing $50. The theory of the defense was that Clyne and DeSibio had implicated Ba-rash in order to get favorable consideration as to their sentences for other crimes, and that Coady had distorted an incident that was wholly innocent. Ba-rash denied offering anything to the agents in connection with the audits, although he admitted having given Christmas presents of $25 or $50 to Clyne in 1960,1961 and 1962 and making a $50 payment in January 1963, having DeSibio to lunch, and having made a $50 gift to Coady in appreciation of the latter’s expediting the audit and in response to a remark, admittedly made by Coady, that he was soon going off to Marine Corps summer camp. Barash also testified as to pressure from Clyne, beginning with a mild suggestion on an audit in the spring of 1961 and mounting in intensity thereafter, all of which Clyne had denied on cross-examination, and was again to deny on rebuttal. Barash raises many claims of trial error; the Government defends the judge’s rulings and instructions and argues in the alternative that any error can be quarantined to particular counts and is immaterial in view of the concurrent sentences. See Lawn v. United States, 355 U.S. 339, 359, 362, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). However, as Judge Clark made clear for us, the doctrine of the one good count is not a fetish; we must inquire whether “the nature of the error committed below or other circumstances suggest that the accused might have received a longer sentence than otherwise would have been imposed, or that he has been prejudiced by the results of the proceedings.” United States v. Hines, 256 F.2d 561, 563 (2 Cir. 1958). We begin with the two counts relating to Coady, the single agent whose slate was clean and whose testimony may thus have carried particular weight. Cross-examination had emphasized that Barash had given him $50 only after the audit had been concluded and therefore could not have intended the payment to influence any action on his párt. The Government sought to counter this by asking Coady on redirect whether prior acts had led him to believe he would be paid. He mentioned three— the suggestion that he pull the return and assign it to himself, the request for a no-change without substantiation, and, over objection, the introduction of Ba-rash to him by Jeanne Lupescu “because Miss Lupescu had never introduced me to anyone except someone who was going to pay me off.” Granted that a promise to pay can be conveyed only by a wink of the eye, it is questionable whether even if all this evidence were properly received, the Government made out enough to go to the jury on the bribery count with respect to Coady. But the testimony as to Lupescu should not have been admitted. Its hearsay nature, which would have been obvious if Coady had said Lupescu had told him that Barash had previously paid her or other agents and thus was an accountant of the paying kind, was not removed because she conveyed her meaning without the use of words. The guiding principle was stated long ago by Baron Parke in the leading case of Wright v. Tatham, 7 Ad. & E. 313, 388-389, 112 Eng.Rep. 488, 516-17 (1837): “ * * * proof of a particular fact which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.” See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 190-192 (1948); McCormick, Evidence § 229 (1954), and cases cited. The Government, not seriously challenging this, argues that the evidence was nevertheless admissible since, without regard to the truth of the implicit assertion, it showed that when Coady dealt with Barash, he expected to be paid. It is true enough that evidence admissible for one purpose is not rendered inadmissible “because it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the latter capacity,” and that under such circumstances the opponent of the evidence will not- prevail by interposing a general objection and is entitled only to a limiting instruction on timely request. 1 Wigmore, Evidence § 13, at 300 (3d ed. 1940); Malatkofski v. United States, 179 F.2d 905, 914 (1 Cir. 1950); United States v. Smith, 283 F.2d 760, 764 (2 Cir. 1960), cert. denied, 365 U.S. 851, 81 S.Ct. 815, 5 L.Ed.2d 815 (1961); United States v. Mont, 306 F.2d 412, 415-416 (2 Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962). But here Coady’s state of mind was irrelevant unless induced by Barash, a fact as to which the Lupescu story was hearsay; it was thus inadmissible for any purpose. Since the evidence was highly material and the jury cannot realistically be supposed to have considered it only in relation to the bribery count, the convictions on both Coady counts would have to be reversed if they stood alone. Another error occurred in the course of cross-examination of Clyne. When defense counsel asked if he had ever threatened Barash, Clyne answered in the negative. Counsel then proceeded to cross-examine on the basis of tape recordings, furnished to him by the Government, which Coady had made of a “bull-session” at a hotel between himself, Clyne and another corrupt agent, wherein Clyne frankly revealed his practice of putting pressure on accountants to pay off. In sharp contradiction of what Clyne had just testified and in support of what Barash was later to testify, counsel developed, without objection, that Clyne boasted of having told Barash he was “getting away with murder”; that on discovering Barash was trying to have some audits done without paying off, Clyne told him he had cut his throat in Clyne’s group; that he complained of how in another case Barash had beaten him out of fifty dollars, and on this or another occasion Clyne had asked $150 but got only $100; and that he had compared Barash unfavorably with Eugene Kenner, see 354 F.2d 780, who “when he comes in on a case, you never have to ask him.” Inexplicably a question whether Clyne remembered having told Coady “you get your money’s worth with Gene Kenner; you’ll get robbed * triggered an objection. The judge sustained this, saying, in the presence of the jury, that he had been waiting for it all afternoon and that if the Assistant United States Attorney had objected earlier, “We might have saved an awful lot of time.” Defense counsel then asked whether Clyne told Coady “about a particular case that you had where you set the taxpayer up by being very tough on the audit. * * * ” At this point the judge asked counsel to approach the bench, said the court had been very patient with him all afternoon, admonished that the tape could be used only for impeachment, and concluded “you are needlessly prolonging this cross-examination by going into all this stuff and you are not using it for the purpose of impeachment. Now, cut it out!” Impeachment was the precise enterprise in which defense counsel had been properly engaging, and to good effect. Clyne had denied ever having any trouble with Barash, ever trying to get money from him, ever saying Barash would be subjected to delays, and ever stating that Barash had cut his own throat by failing to pay an agent in the group. Quite apart from possible relevancy on the issue of intent to bribe, Clyne’s making of unsuccessful threats and his dislike of Barash were pertinent on the score of bias, and self-contradiction could properly be shown. 3 Wig-more, Evidence §§ 1021, 1022. Indeed, so far as concerns cross-examination as distinguished from extrinsic proof, impeachment as to prior inconsistent statements is proper even with respect to “collateral” matters “which the witness has testified to on direct or cross.” McCormick, Evidence § 36; 3 Wigmore, Evidence § 1023. For the defense to establish that Clyne had lied about not making threats would have an importance transcending that particular issue; the jury might well have concluded that, having lied on one subject, he had lied on all. If the judge had followed his own bent and prevented any cross-examination as to the tapes, the convictions on the twenty counts relating to Clyne would surely have to be reversed. However, due to the United States Attorney’s lack of objection, defense counsel was able to get a large amount of the recordings before the jury — enough to include the point in his summation. Under such circumstances we would normally decline to entertain a claim of erroneous exclusion of evidence in the absence of an offer of proof that would enable us to determine whether the evidence was relevant and more than cumulative. See Wigmore, Evidence § 20, at 357 n. 6; F.R.Civ.P. 43 (c); Price v. United States, 68 F.2d 133, 134-135 (5 Cir.), cert. denied, 292 U.S. 632, 54 S.Ct. 640, 78 L.Ed. 1486 (1934); Davis v. R. K. O. Radio Pictures, Inc., 191 F.2d 901, 903-904 (8 Cir. 1951). But we are not disposed to be thus insistent when an attorney who, while pursuing an appropriate line of cross-examination in a criminal trial, has been curtly commanded to “cut it out.” Moreover, the judge’s remarks on sustaining the first objection and on rebuttal, see fn. 6, in effect instructed the jury to disregard the impeaching evidence that had already been elicited. We also think the charge was in error, in two respects. Although the instruction that only a threat of death or serious bodily injury would make out the defense of duress appears correct enough, cf. D’Aquino v. United States, 192 F.2d 338, 358-359 (9 Cir.), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1951); ALI, Model Penal Code § 2.09 (Proposed Official Draft 1962), that was only part of the story since Barash had also requested instructions as to the bearing of threats of economic harm on the intent required for conviction. This court has recently observed that “The intent to influence, accompanying the corrupt giving or accepting of something of value, is an essential element” of the offense of bribery defined in 18 U.S.C. § 201(b), United States v. Irwin, 354 F.2d 192, 197 (2 Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966). We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery. Cf. United States v. Miller, 340 F.2d 421, 425 (4 Cir. 1965). While it is arguable that this is also true with respect to giving gratuities under 18 U.S.C. § 201(f), or to being an accessory to the receipts prohibited by 26 U.S, C. § 7214(a), offenses which have no requirement of specific intent, see United States v. Irwin, supra, 354 F.2d at 197, and carry a significantly lower punishment, we incline to the view that as to these offenses economic pressure is irrelevant. The other error also relates to the bribery counts. After correctly instructing that the Government must prove “money was offered or promised or given knowingly and wilfully with a corrupt intent to influence” the employee, and that this may be proved not only by what was said by the accused “but also from his acts and conduct and the circumstances and reasonable inferences to be drawn from them,” the judge went on to say: “It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done. So unless the contrary appears from the evidence, you may draw an inference that the defendant intended the natural consequences which one standing in his circumstances and possessing his knowledge should reasonably have expected from any of his acts which he knowingly did.” He continued that if the jury found “circumstances of secrecy or intrigue or of the deviousness or of the use of cash or attempts to conceal the real nature of the acts or transactions,” it might consider these as bearing on the defendant’s criminal intent. Despite its ancient vintage, see Agnew v. United States, 165 U.S. 36, 53, 17 S.Ct. 235, 41 L.Ed. 624 (1897), utterance of the quoted platitude serves no useful purpose, since insofar as the statement has logical validity the jury would know it anyhow; more important, in a bribery case it creates a serious risk that the jury might think the Government’s burden of showing the required specific intent could be met by proof of payment alone “unless the contrary appears from the evidence”- — -presumably evidence the defense would have to present. Many courts of appeals' have looked askance on such an instruction in criminal trials, and some decisions have reversed because of its use, Bloch v. United States, 221 F.2d 786, 788-789 (9 Cir. 1955); Chappell v. United States, 270 F.2d 274, 279 (9 Cir. 1959); Mann v. United States, 319 F.2d 404, 407-410 (5 Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964). Although others have held reversal was not required when the instruction as a whole sufficiently insured against the jury’s being misled, Sherwin v. United States, 320 F.2d 137, 148-151 (9 Cir. 1963), cert, denied, 375 U.S. 964, 84 S.Ct. 481, 11 L.Ed.2d 420 (1964); Estes v. United States, 335 F.2d 609, 615-617 (5 Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559 (1965); United States v. Denton, 336 F.2d 785, 788 (6 Cir. 1964); United States v. Releford, 352 F.2d 36, 40 (6 Cir. 1965), cert. denied, 382 U.S. 984, 86 S.Ct. 562, 15 L.Ed.2d 562 (1966), we are not satisfied that was the case here. On the contrary, when this instruction was combined with the charge on duress and the judge’s observation that “One of the purposes of the bribery laws is to nip corruption in the bud, and citizens are obliged in such circumstances not to go along with a crime, but to complain about it to the proper authorities,” the jury could well have thought that the Government satisfied. its burden under the bribery counts by proof of payment alone. It follows that the convictions on all the bribery counts, 1-6, 8-12, 14 and 16, are subject to reversal for the last mentioned error in the charge; that the convictions on the Clyne bribery counts relating to payments after threats of serious economic harm, namely, 2, 11, 12 and 14, are further subject to reversal for failure to instruct that the jury could consider threats of this as bearing on specific intent to the extent indicated above; that the convictions on all the Clyne counts, namely, 1-6, 9, 11, 12, 14, 18, 21-26, 29, 31 and 32, are subject to reversal for erroneous restriction of cross-examination; and that the convictions on the Coady counts, 16 and 20, are subject to reversal for the erroneous admission of the statement concerning Lupescu. This leaves only two counts, 28 and 30, charging Barash with aiding and abetting DeSibio in the receipt of two payments of $25. We are dealing here with an attorney and certified public accountant of hitherto unblemished reputation, vouched for, among others, by the Surrogate of Westchester County, a Justice of the Supreme Court of New York, and the County Executive of Westchester. We are far from being certain that the restriction and deprecation of the impeachment of Clyne, the chief Government witness, and the admission of the Lupescu hearsay statement in the testimony of Coady, the undercover agent, did not have a spill-over effect on the DeSibio counts; that the jury might not have exercised its prerogative of leniency if these charges alone had been before it; or that the judge would have given the same sentence for convictions on these two aiding and abetting counts as he did for those on the twenty-six, including convictions for bribery. Applying the rule of United States v. Hines, supra, 256 F.2d 561, we think our duty to “require such further proceedings to be had as may be just under the circumstances,” 28 U.S.C. § 2106, demands a reversal and a remand for a new trial. Reversed. . So far as concerns the offense of bribery, the amendment effected by 76 Stat. 1119 (1962) was only a rewording and made no change of substance. . Specifically Barash testified that in November 1961, on the audit of the returns mentioned in counts 11 and 31, Clyne refused to loot at his substantiation, saying that unless he were paid from $100 to $200 per audit, Barash would never get a ease approved in Clyne’s group and Clyne would “louse” him up in other groups; and in the summer of 1962, Clyne said “You cut your throat in this particular group, and as far as I am concerned, you may have cut it in other groups.” . An additional claim, that a payor to an internal revenue officer cannot be an aider and abettor of the latter’s violation of 26 U.S.C. § 7214(a), is foreclosed by United States v. Kenner, 354 F.2d 780, 785 (2 Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). On its facts the Kenner decision would also rule out a claim that the Government may not proceed against a payor both as a principal under 18 U.S.C. § 201 and as an aider and abettor of a violation of 26 U.S.C. § 7214(a). The point, however, was not raised or discussed in Kenner, and has likewise not been raised in this case. We thus have no occasion to consider whether Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), is applicable to offenses such as those here at issue. . We therefore need not consider defendant’s further complaint as to the charge on entrapment by Coady. Although what the judge said as to burden of proof was indeed in conflict with our decisions in United States v. Sherman, 200 F.2d 880, 882-883 (2 Cir. 1952), and United States v. Pugliese, 346 F.2d 861, 862-863 (2 Cir. 1965), it is questionable whether there was any showing of inducement sufficient to raise the issue. Cf. United States v. Riley, 363 F.2d 955 (2 Cir. 1966). . “Throat” and “dollars” were preceded by an adjective that in former days would have been characterized as “unprintable.” . When Government counsel returned to the subject on redirect and asked Olyne what he meant by saying he made a “charge” with respect to a return, the judge interrupted and “sustained” his own objection, saying “I have told both of you, and I will now charge the jury— maybe I will get it home to counsel — that even if he did charge, even if he did demand the money, that would not constitute an offense as charged unless he put the defendant in serious threat of bodily injury or death. Now, that is the law. So let us have no more of this wandering all over Robinson’s barn on the business of whether he charged or whether he asked for it. That is of no moment.” Defense counsel excepted. Irrespective of whether this is “the law” the judge’s remarks improperly ignored and told the jury to ignore the testimony as impeachment. . The statute, 18 U.S.C. § 201, provides: “(b) Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official * * * with intent— (1) to influence any official act; or (2) to influence such public official * * * to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (3) to induce such public official * * * to do or omit to do any act in violation of his lawful duty, * * Shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both. * * * ” The case put would plainly not come under subdivisions (2) or (3) and a jury could conclude that a payment solely to eliminate a roadblock to what a citizen is entitled is not to “influence” any official act. . “(f) Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official * * * Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” . Due exception to this was taken. . We may as well express our views as to one matter that will probably arise on such a trial. Clyne was allowed to state, over objection, that in August 1960 Ba-rash had arranged for him to receive ten “call-in” letters, and that he obtained the returns and related papers, assigned the audits to himself, went to Barash’s office for the audits and, after completing them, received $225. The objection was that since only three of these returns figured in the indictment — the Government having been unable to identify the others — -the prosecution had been improperly allowed to introduce evidence of other crimes. As explained in our recent opinion in United States v. Bozza, 365 F.2d 206, 212-214 (1966), the rule applied on this subject in the federal courts does not require any such artificial truncation of a single piece of evidence. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_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 assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration 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. Benjamin CLAYTON, doing business under the fictitious name and style of Refining, Unincorporated, Petitioner, v. Honorable Wilson WARLICK, District Judge of the United States District Court for the Western District of North Carolina, Respondent. No. 7148. United States Court of Appeals Fourth Circuit. Argued March 22, 1956. Decided April 9, 1956. Charles M. Thomas, Washington, D. C. (John M. Robinson, Charlotte, N. C., and Barron F. Black, Norfolk, Va., on the brief), for petitioner. James B. Craighill, Charlotte, N. C., for respondent. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PARKER, Chief Judge. This is an application for a writ of mandamus or prohibition to restrain Honorable Wilson Warlick, District Judge for the Western District of North Carolina from entering an order in accordance with an opinion he has rendered, transferring a patent infringement suit from the Western District of North Carolina to the Northern District of Illinois. Plaintiff is a resident of Houston, Texas, and has no place of business in the Western District of North Carolina. The federal court of that district has jurisdiction of the cause under an allegation that the defendant is guilty of infringement and has an established place of business within the district. Defendant is incorporated under the laws of Illinois and has its principal place of business in the Northern District of that state, where its main offices, principal laboratories, main research staff and principal records are located. The suit for infringement was originally instituted in the Eastern District of Virginia, but upon motion to dismiss or remove being made and, upon the judge’s intimating that he would grant the motion, Clayton v. Swift & Co., 132 F.Supp. 154, plaintiff dismissed that suit and instituted one in the Western District of North Carolina. Defendant made a motion there under 28 U.S.C. § 1404(a) to remove the case to the Northern District of Illinois for the convenience of parties and witnesses and in the interest of justice. Affidavits were filed in support of and against the motion, and Judge Warlick filed a memorandum opinion finding the facts and stating that he would grant it. The pertinent facts are set forth in the memorandum as follows: “It is evident that the trial of the case will be largely technical and will require the testimony of experts as witnesses who are technically trained and who supposedly know what they are talking about. The patent involves certain processes successful in refining vegetable matter. I am told that defendant has been paying royalties to the plaintiff over the whole of the period since the patent was granted to his predecessor in title. The trial will involve the extension of the life of the patent beyond its seventeen year period, and accordingly the proposed rights and the factors that such will likely cover will require a great amount of technical testimony, and obviously will involve many witnesses on both sides and will require much research and likely many tests. This undoubtedly will necessitate the use of the facilities which each side possesses in either the Chicago or the New York area. -» # * * * “I am therefore of the opinion that to try this case in Charlotte would convenience no- one. The witnesses for each side would have to come there. Records would likewise have to be brought along. Each one concerned would travel hundreds of miles and inconvenience after inconvenience would naturally come about. Charlotte, though a grand city, has nothing in common with this trial. Hence I conclude that a more convenient trial of the issues can be had and all parties and witnesses more nearly convenienced and the interest of justice better served, by transferring the cause to the United States District Court for the Northern District of Illinois, Eastern Division. This I consequently do. It is so ordered.” Plaintiff frankly admits that he desires to try his case in this Circuit because of our decision in Proctor & Gamble Mfg. Co. v. Refining, Inc., 4 Cir., 135 F.2d 900. He contends that a contrary view of the patent law controlling a vital aspect of the case is taken by the Court of Appeals of the 7th Circuit, as evidenced by the decision of that court in Weatherhead Co. v. Drillmaster Supply Co., 7 Cir., 227 F.2d 98; and, while admitting that it would be more convenient to the parties to try the case in Chicago, he contends that he has the right to choose the forum and that, in view of the alleged conflict in decision on the patent law between the circuits, it was an abuse of discretion on the part of the District Judge to order the case removed and thus deprive him of the benefit of trying the case in a circuit where the law has been decided in his favor. As the suit might have been brought in the Northern District of Illinois, there can be no question as to the power of the court to order it removed to that district under 28 U.S.C. § 1404(a), which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” And it is well settled that an order entered under this statute is an interlocutory order from which no appeal lies. That question was before us in Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360, 361, where we said: “The motion to dismiss must be granted on the ground that the order transferring the case is not a final order from which an appeal lies under 28 U.S.C.A. § 1291. As was said by the Supreme Court in Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L.Ed. 371: ‘It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction.’ ” (citing cases.) See also Clinton Foods v. United States, 4 Cir., 188 F.2d 289. What applicants are seeking is to review by application for mandamus an interlocutory order from which Congress has not seen fit to grant a right of appeal. This may not be done. In Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718, we dealt with an attempt to use a writ of prohibition to review an interlocutory order refusing to dismiss a patent infringement suit on the ground that defendant did not reside or have a regular and established place of business within the district. There, as here, a question of venue was involved and, if the interlocutory order was erroneous, a great loss of time and money might result from its not being promptly reversed. We held, nevertheless, that there was no power in this court to review it by mandamus or prohibition, saying: “It is admitted that the order denying the motions is not a final order and that petitioner cannot appeal from it. See Beury v. Beury, 4 Cir., 222 F.2d 464; E. I. Du Pont De Nemours Co., Inc., v. Hall, 4 Cir., 220 F.2d 514. We think it equally clear that writ of prohibition cannot be used as substitute for an appeal in such a case. Until Congress amends the statute so as to permit appeals from interlocutory orders of this character, we do not think that appellate courts should attempt to circumvent the law by the use of writs of prohibition or mandamus. In re Sylvania Electric Products, Inc., 1 Cir., 220 F.2d 423; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457. Cf. C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695.” We made the same holding in the case of Southern Railway Co. v. Madden, 4 Cir., 224 F.2d 320, where an interlocutory order, which we thought erroneous, had been entered granting a new trial confined to the issue of damages, and in Atlantic Coast Line R. Co. v. Sonenshine, 4 Cir., 226 F.2d 220, where an interlocutory order had been entered granting plaintiff a new trial on the issue of damages in the face of a contention by defendant that it was entitled to a judgment n. o. v. on the ground that no liability had been established and that the new trial would involve needless delay and expense. In the Madden case we said: “It is clear that the order which we are asked to review is not a final order in the case and hence is not appealable. And we do not think that the statute which allows appeal only from final orders, except in a limited class of cases, can be evaded by the simple device of asking this court to issue one of its extraordinary writs, such as certiorari, or mandamus or prohibition. Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718; Hartford Accident & Indemnity Co. to Use of Silva v. Interstate Equipment Corporation, 3 Cir., 176 F.2d 419, certiorari denied 338 U.S. 899, 70 S.Ct. 250, 94 L.Ed. 553; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554.” In the case of E. I. Du Pont De Nemours Co., Inc. v. Hall, 4 Cir., 220 F.2d 514, we pointed out that cases of the sort dealt with above illustrated the wisdom of the recent proposal approved by the Judicial Conference of the United States that the statute relating to interlocutory appeals be amended so as to grant a limited right of review of interlocutory orders, but adding: “The amendment of the statute, however, is a matter for Congress, not for the courts”. It seems manifest that, if an interlocutory order involving error of law, may not be reviewed by mandamus or otherwise, review may not be had of one which involves merely an exercise of discretion. All of this is in accord with the rule laid down by the Supreme Court in United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 1124, where it was said: “The traditional use of such writs both at common law and in the federal courts has been, in appropriate cases, to confine inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so. In re Chetwood, 165 U.S. 443, 462, 17 S.Ct. 385, 392, 41 L.Ed. 782 (citing Tidd’s Prac. 398, and Bac. Ab., Certiorari); Whitney v. Dick, supra, 202 U.S. [132] 139, 140, 26 S.Ct. [584] 587, 50 L.Ed. 963; Ex parte [Republic of] Peru, supra, 318 U.S. [578] 583, 63 S.Ct. [793] 796, 87 L.Ed. 1014, and cases cited. It is evident that hardship is imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from a final judgment. But such hardship does not necessarily justify resort to certiorari or other of the extraordinary writs as a means of review. In such cases appellate courts are reluctant to interfere with decisions of lower courts, even on jurisdictional questions, which they are competent to decide and which are reviewable in the regular course of appeal. In re Tampa Suburban R. Co., supra [168 U.S. 583, 18 S.Ct. 177, 42 L.Ed. 589]; Ex parte Harding, 219 U.S. 363, 369, 31 S.Ct. 324, 325, 55 L.Ed. 252; Roche v. Evaporated Milk Ass’n, supra, 319 U.S. [21] 30, 31, 63 S.Ct. [938] 943, 944, 87 L.Ed. 1185, and cases cited; cf. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. The writs may not be used as a substitute for an authorized appeal ; and where, as here, the statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews. Roche v. Evaporated Milk Ass’n, supra, 319 U.S. 30, 63 S.Ct. 943, 87 L.Ed. 1185, and cases cited; and see Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783.” We see no reason why this rule should not apply where mandamus is sought to review an interlocutory order entered under 28 U.S.C. § 1404(a). The Supreme Court did not find it necessary to decide the question in Norwood v. Kirkpatrick, 349 U.S. 29, 33, 75 S.Ct. 544, 99 L.Ed. 789, just as we did not find it necessary in Clinton Foods v. United States, 4 Cir., 188 F.2d 289, and the expressions of the various circuits are in hopeless conflict. It is argued that review by mandamus is necessary to allow review by the Court of Appeals of che circuit of the- transferring court; but there is no reason why a review by the Court of Appeals of the circuit to which the case is transferred is not sufficient. The only power to issue the writ is that contained in the “all writs” statute, 28 U.S.C. § 1651, which makes the writ available in aid of jurisdiction, and the jurisdiction on appeal can be protected as well by the latter as by the former. This was considered by Judge Learned Hand in Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866, 869, where he said: “We do not believe that our power to protect our own jurisdiction extends to protecting it as against the jurisdiction of another federal court of equal jurisdiction, or that a suit- or has any legally protected interest in having his action tried in any particular federal court, except in so far as the transfer may handicap his presentation of the case, or add to the costs of trial. “ * * * There are therefore at least plausible grounds why we should issue the writ. On the other hand, whatever power of review we may have, the Court of Appeals for the Seventh Circuit has the same; and that court will be in a much better position than we to pass upon at least the first of the two questions involved; i. e., the extent to which any review of the transfer will be open upon appeal from a final judgment against the plaintiff. It is true that the same considerations would determine the answer, whether we, or the Seventh Circuit, decide it; but it does not follow that the decision would be the same in each court; and, since the absence of any relief upon appeal from final judgment is so critical in the decision, surely it is appropriate for that court to decide it, which will decide the appeal itself.” Of course mandamus or prohibition will lie to compel the district judge to exercise his discretion under the statute or to prevent his transferring the case to a district to which, as a matter of law, it is not transferable and, so far, except in one case, the relief granted has not gone beyond this, although in some cases where the writ has been denied, the denial has been based on the ground that no abuse of discretion has been shown. There is strong reason, however, why mandamus or prohibition should not be held to afford a right of review where the judge has exercised the power conferred upon him by law and the only question is whether he has properly exercised or has abused that power. As was well said by Judge Goodrich, speaking for the Third Circuit, in All States Freight v. Modarelli, 3 Cir., 196 F.2d 1010, 1011: “The second danger which threatens the usefulness of Section 1404 (a) comes from the appellate courts. It is settled in this Circuit and elsewhere that an order either making a transfer or refusing a transfer is not appealable. Now the effort is being made both in this court and elsewhere to substitute for appeal a review by mandamus whenever the losing party on a motion to transfer wants an advance review of the ruling on this point. “We think that this practice will defeat the object of the statute. Instead of making the business of the courts easier, quicker and less expensive, we now have the merits of the litigation postponed while appellate courts review the question where a case may be tried. “Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too. But the risk of a party being injured either by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus. “We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon. * * * “ * * * we cannot escape the conclusion that it will be highly unfortunate if the result of an attempted procedural improvement is to subject parties to two lawsuits: first, prolonged litigation to determine the place where a case is to be tried; and, second, the merits of the alleged cause of action itself.” See also In re Josephson, 1 Cir., 218 F.2d 174, 183, where Chief Judge Magruder, speaking for the Court of Appeals of the First Circuit, quoted the above language with approval and added: “Accordingly, we serve notice that in the future, except in really extraordinary situations the nature of which we shall not undertake to formulate in advance, we shall stop such mandamus proceedings at the very threshold, by denying leave to file the petition for a writ of mandamus.” The Court of Appeals of the Fifth Circuit expressed the same view in Ex parte Chas. Pfizer & Co., Inc., 5 Cir., 225 F.2d 720, 721, 722, where the court said: “There is some judicial support for the view that a Court of Appeals has no power under § 1651(a) to grant mandamus to review an interlocutory order of transfer. See the concurring opinion of Judge Swan in Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 332, citing De Beers Consol. Mines v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566. The Eighth Circuit has held that mandamus will not lie to review an order entered under § 1404(a). Carr v. Donohoe, 8 Cir., 1953, 201 F.2d 426. “In the majority opinion of Judge Frank in Ford Motor Co. v. Ryan, supra (182 F.2d 332), it was held that mandamus would lie to review orders of transfer, and that the District Judge must guess and the Court of Appeals ‘should accept his guess unless it is too wild’. By order of the majority of the Court a Writ of Mandamus was issued directing a District Judge to enter an order of transfer in Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 7 Cir., 1955, 220 F.2d 299. The more restrictive view is that mandamus does not lie where the. District Judge has considered the interest stipulated in the statute and made an order in the exercise of his discretion. Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766; All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; In re Josephson, 1 Cir., 1954, 218 F.2d 174. It is our opinion that, in the absence of a failure of the District Court to correctly construe and apply the statute, or to consider the relevant factors incident to ruling upon a motion to transfer, or unless it is necessary to correct a clear abuse of discretion, a Court of Appeals should not entertain motions for Writs of Mandamus to direct District Courts to enter or vacate orders of transfer under § 1404(a).” See also the decision of the Court of Appeals of the Second Circuit in Torres v. Walsh, 2 Cir., 221 F.2d 319, 321, where the court said it was not called upon to act except in a “ ‘really extraordinary cause’ ” and quoted with approval the statement of Judge Learned Hand in Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra, “ ‘We do not believe that our power to protect our own jurisdiction extends to protecting it as against the jurisdiction of another federal court of equal jurisdiction’ The correct rule to be applied, we think, is the same as that applied in the case of other interlocutory orders, i. e., where the judge has exercised a power conferred upon him by law, mandamus may not be availed of to review the exercise of the power in the face of the restriction placed by Congress on the review of interlocutory orders. The distinction which we think applicable was that drawn by the Supreme Court in De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566, where the court said: “When Congress withholds interlocutory reviews, § 262 [now 28 U.S.C. § 1651] can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power. But when a court has no judicial power to do what it purports to do — when its action is not mere error but usurpation of power — the situation falls precisely within the allowable use of § 262.” See also the concurring opinion of Judge Swan in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 332, and the decision of the Court of Appeals of the Second Circuit in Ward Baking Co. v. Holtzoff, 2 Cir., 164 F.2d 34, 36 where the court said: “Section 262 of the Judicial Code, 28 U.S.C.A. § 377, [now 28 U.S.C. § 1651] cannot be availed of to correct a mere error in the exercise of conceded juicial power, but may be used to prevent usurpation of power, if ‘the lower court is clearly without jurisdiction.’ ” If we assume, however, that the court has jurisdiction to review by writ of mandamus orders of transfer entered under 28 U.S.C. § 1404(a) for abuse of discretion on the part of the judge, we think it clear that there was no abuse of discretion in ordering the case here transferred. Unquestionably it would be more convenient to litigants and witnesses to try the case in Chicago rather than in Charlotte, and the same law, the federal patent law, will be applied wherever it is tried. We are not impressed by the argument that such transfer should be denied because of an alleged conflict of decision between this Circuit and the Seventh on an important question of law involved in the case. If there be such conflict, this presents a matter for consideration by the Supreme Court on application for certiorari, not for consideration by a district judge on application for transfer under 28 U.S.C. § 1404(a). We have no sympathy with shopping around for forums. As we said in Carbide & Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 4 Cir., 140 F.2d 47, 49, “the courts of one District or Circuit must be presumed to be as able and as well qualified to handle litigation as those in another.” Application denied. . Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111; Wiren v. Laws, 90 U.S.App.D.C. 105, 194 F.2d 873. See also C-O-Two Fire Equip. Co. v. Barnes, 7 Cir., 194 F.2d 410. . Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; Shapiro v. Bonanza Hotel Co. Inc., 9 Cir., 185 F.2d 777; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766. . Chicago Rock Island & Pacific R. Co. v. Igoe, 7 Cir., 220 F.2d 299. . Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329; Nicol v. Koscinski, 6 Cir., 188 F.2d 537; Ex parte Chas. Pfizer & Co., 5 Cir., 225 F.2d 720; General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316; Goodman v. Clancy, 2 Cir., 195 F.2d 235. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Carmen Maria SANTIAGO et al., Plaintiffs-Appellants, v. CORPORACION DE RENOVACION URBANA Y VIVIENDA DE PUERTO RICO et al., Defendants-Appellees. No. 71-1079. United States Court of Appeals, First Circuit. Heard Nov. 15, 1971. Decided Jan. 5, 1972. A. G. Hermida, Rio Piedras, P. R., for appellants. Berta Font De Estades, for appellees. Before COFFIN, Circuit Judge, VAN OOSTERHOUT, Senior Circuit Judge, and STEPHENSON, Circuit Judge. Of the Eighth Circuit, sitting by designation. VAN OOSTERHOUT, Senior Circuit Judge. This is an appeal by the multiple plaintiffs in an action brought on June 15, 1970, on their own behalf and for persons similarly situated, from the dismissal of their complaint against Corporacion de Renovacion Urbana Y Vivienda de Puerto Rico, et al., hereinafter CRUV (Puerto Rico’s urban renewal and housing agency), its executive director, and the members of its board of directors. Plaintiffs seek declaratory and injunc-tive relief from the following asserted practices of CRUV: “(a) of not permitting certain persons desiring and entitled to public housing to file applications for such public housing, without giving any grounds for such action; (b) of accepting applications for public housing made by persons desiring and entitled to same, and then either not taking any action on such applications or denying such applications, without giving any grounds for their action or lack of action; (c) of refusing to act on applications made by persons already residing in public housing projects who desire and are entitled to a transfer from one apartment (or project) to another, without any grounds for their refusal to act.” It is asserted that such practices engaged in under the color of state law violate plaintiffs’ federal constitutional rights to due process and equal protection of the law, and that such practices fail to conform to the regulations and instructions promulgated by HUD which are binding upon defendants. This action is brought under 42 U.S. C.A. § 1983; jurisdiction is based on 28 U.S.C.A. § 1343(3) and (4), and 28 U. S.C.A. §§ 2201, 2202. Plaintiffs seek the convocation of a three-judge court, pursuant to 28 U.S.C. A. §§ 2281 and 2284, upon the basis that the federal constitutional violations asserted are bottomed upon unconstitutional state statutes and statewide administrative regulations authorized by state law. No interlocutory or temporary relief was sought in the complaint. Subsequently on July 2, 1970, one of the individual plaintiffs, Santiago, on behalf of herself only, filed a motion for temporary restraining order. The court entered an order, dated July 1, 1970, requiring defendants to show cause why a three-judge court should not be convened and why a preliminary injunction should not be granted as requested. Hearing thereon was set for July 9. Defendants on July 9 filed a motion to dismiss and/or in opposition to a three-judge court and preliminary injunction. Said motion asserts that the plaintiffs’ petition does not raise a substantial constitutional question and hence no three-judge court should be convened; that no preliminary injunction is appropriate; that all actions of CRUV have been taken in good faith; that there is not enough housing to meet demands; that any mistakes made have been unintentional; and that proper service has not been made. Hearing was held on the show-cause order on July 9. Arguments were made and briefs were submitted. Plaintiffs’ counsel requested an opportunity to present evidence in support of the Santiago request for a temporary restraining order. Evidence was presented on this limited issue by both parties. Such evidence related principally if not exclusively to the factual situation with respect to Santiago and did not develop the facts relating to the other plaintiffs. The issues submitted were taken under advisement. An order of the court dated December 29, 1970, filed December 30, makes findings of fact and the conclusion of law-that none of the violations alleged by plaintiffs were committed and that the problem was one of nonavailability of dwellings, and that no constitutional question was involved. The case was dismissed. Plaintiffs on January 8, 1971, filed a „ motion to amend or vacate the judgment, pursuant to Rule 59(e), Fed.R. Civ.P., urging the action could be dismissed only by a three-judge court; and more importantly, that the dismissal could not be based upon testimony offered and received solely for the purpose of supporting the Santiago application for temporary restraining order, absent notice that the court was treating the hearing as one on the merits. The motion was overruled on January 15. This timely appeal followed. The court did not expressly pass on the Santiago application for temporary restraining order. The order dismissing the action carried with it an implied dismissal of such request. Plaintiffs expressly state in their brief that they are not contesting the denial of the restraining order. Hence, such issue is not before us. The issues before us are: I. Did the court correctly determine that no three-judge court was required and that a single judge has jurisdiction to dismiss the action. II. Did the court err in dismissing the action. I. The court properly determined that no three-judge court is required. Twenty-eight U.S.C.A. § 2281 provides that a single judge cannot issue an interlocutory or permanent injunction “restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, * * * upon the ground of the unconstitutionality of such statute * * and that such action can only be taken by a three-judge court constituted under 28 U.S.C.A. § 2284. It is proper for a single judge to whom the request for a three-judge court is made to determine whether a substantial constitutional attack is made upon a state statute or a state-wide regulation such as to require the convening of a three-judge court. Ordinarily such determination will be made upon the basis of the pleadings. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. In our present case, plaintiffs, in their brief or elsewhere, have not pointed out any specific provision of a state statute or regulation which they claim to be unconstitutional. Rather their claim appears to be that the state statutes and regulations do not go far enough in spelling out the procedure required. We adopt the responses made to a similar attack in a similar situation by the Second Circuit in Johnson v. Harder, 2 Cir., 438 F.2d 7, 13, where it is said: “The appellant’s complaint is therefore not that the state regulation is unconstitutional either on its face or even as applied to the appellant, but rather that appellee is administering an otherwise constitutional regulation in an unconstitutional manner. In such circumstances it has been held that a single judge has the power to dispose of the claim. [Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940); eases cited 1 Barron & Holtzoff (Wright ed.) § 52 n. 98.1.] Neither, of course, are three judges required as to appellant’s claim that the state régulation conflicts with federal provisions which, by virtue of the Supremacy Clause, are controlling. [Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).] See Like v. Carter, 8 Cir., 448 F.2d 798, 802. Included in the appendix is a circular dated June 24, 1970, RHM 7465.1, promulgated by HUD which details the procedure to be followed by public housing authorities in processing applications. The provisions of the HUD circular on the basis of the Supremacy Clause of the United States Constitution must be followed by local housing authorities under federally assisted housing projects and such provisions apply to proceedings commenced prior to the date of the issuance of the circular. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474. The housing project here involved is a federally assisted project. Thus any essential details with respect to processing applications which may be lacking in the state regulations are supplied under the federal preemption doctrine by the instructions prescribed by HUD, which circular and regulations were issued pursuant to federal law. Plaintiffs have failed to demonstrate that the trial court erred in determining the disposition of this case does not require the convening of a three-judge court. II. The court erred in dismissing the complaint. The complaint goes beyond merely challenging the constitutionality of the state statutes and regulations. Violation of civil rights under 42 U.S.C.A. § 1983 are asserted, based upon colorable claims of violating due process and equal protection in the handling of plaintiffs’ housing applications. Jurisdiction, based on 28 U.S.C.A. §§ 1343(3) and (4), is established. See Johnson v. Harder, supra; Like v. Carter, supra. Plaintiffs urge the court erred in dismissing the complaint on the basis of findings made upon evidence which was introduced solely in support of the Santiago application for temporary restraining order when no notice or warning was given by the court that the court was trying the case on its merits. We upheld a similar contention in T.M.T. Trailer Ferry, Inc. v. Union de Tronquistas de Puerto Rico, Local 901, 1 Cir., 453 F.2d 1171. We there recognized that the trial court has a right under Federal Rules of Civil Procedure, Rule 65(a), to advance the hearing on the merits and consolidate the hearing on the application for a preliminary injunction with the trial on the merits and held, citing supporting authorities, that “the exercise of that power is tempered by the requirement that the court inform the parties ‘before or after the commencement of the hearing’ that such action is contemplated.” We have searched the record carefully and find no notice or warning was given by the court at any time before its decision that it was consolidating the trial on the merits with the hearing on the restraining order. The order fixing the hearing, heretofore referred to, did not so state or fairly imply. The evidence introduced was permitted in response to a request for an opportunity to offer evidence in support of the motion of Santiago for a restraining order. No contention is made that there was any express or implied agreement on the part of counsel to submit the case on the merits. The dismissal might well be proper on the basis of the motion to dismiss if the complaint on its face fails to state a cause of action. Such is not the situation. The court did not elect under Rule 12(c) to treat the motion as one for summary judgment and did not afford the parties an opportunity to present all matters material to a summary judgment as required by the rule. In any event, it is apparent that disputed material factual issues are presented which would preclude summary judgment treatment. This is reflected by the court’s basing its dismissal on findings of fact based on the evidence offered on the preliminary injunction issue and its reliance upon such findings to support a dismissal. Plaintiffs are entitled to a fair evi-dentiary hearing upon the merits of their claim. We express no view as to the merits of this litigation. The judgment of dismissal is reversed. This case is remanded for further proceedings consistent with the views expressed in this opinion. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_appel2_7_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the 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"). Joseph KELLY and Cynthia Kelly, Appellants, v. CROWN EQUIPMENT COMPANY, Appellee. No. 91-1908. United States Court of Appeals, Third Circuit. Argued May 20, 1992. Decided July 29, 1992. Rehearing and Rehearing In Banc Denied Aug. 25, 1992. Walter J. Timby, Jr. (argued), Timby, Brown & Timby, Philadelphia, Pa., for appellants. Morton F. Daller (argued), Eileen M. Johnson, Rawle & Henderson, Philadelphia, Pa., for appellee. Before: HUTCHINSON, COWEN and SEITZ, Circuit Judges. Hon. Collins J. Seitz, Senior United States Circuit Judge, was limited to voting for panel rehearing. OPINION OF THE COURT SEITZ, Circuit Judge Joseph Kelly and his wife Cynthia Kelly (“plaintiffs”) appeal the order of the district court denying their motion for a new trial in a products liability action under Pennsylvania law against Crown Equipment Company (“defendant”). Defendant removed the case to federal court as authorized by 28 U.S.C. § 1441, invoking the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction under 28 U.S.C. § 1291. I. FACTUAL BACKGROUND Joseph Kelly was injured in the course of his employment when he dismounted from a stock picker forklift. The forklift was constructed so that the operator could stand on a platform which could be lowered closer to the ground for a safe exit. Rather than lowering the platform and stepping off, however, Kelly jumped off the equipment from a height of one and one/half or two feet above the ground. The O-ring on his safety belt caught on a ring attached to a pole at the rear of the platform. He was jerked back onto the platform and injured his back. Plaintiffs sued defendant, the manufacturer of the forklift, under a strict liability theory. They alleged that the forklift was defectively designed within the provisions of Section 402A of the Restatement (Second) of Torts (1965). A jury returned a verdict for the defendant finding, in answer to a special interrogatory, that the forklift was not defective. Accordingly, the district court entered judgment for the defendant. Subsequently, the court denied plaintiffs’ motion for a new trial. II. DISCUSSION On appeal, plaintiffs allege that the district court erred in denying their motion for a new trial. This court reviews the district court’s ruling for abuse of discretion. Honeywell v. American Standards Testing Bureau, 851 F.2d 652, 655 (3d Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 787 (1989). To the extent the denial was based upon a legal precept, our review is plenary. Id. A. Application of Federal Evidentiary Rule 407 Plaintiffs sought to introduce evidence at trial that the defendant altered the design of its forklifts after the manufacture of the forklift here involved, but before the accident. Their proffer showed that defendant removed the ring on the pole and added a mechanism that lowered the pole into the platform when the operator entered or exited the platform. The district court excluded this post-manufacture, pre-accident evidence under Rules 407 and 403 of the Federal Rules of Evidence. Thus, this appeal. Federal Rule of Evidence 407 provides: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. (emphasis added). This court has consistently held that Rule 407 applies to strict liability suits even though the language in the rule refers to inadmissibility to prove negligent or culpable conduct. Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982); Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir.1979). We have also held that Rule 407 applies to exclude evidence of pre-acci-. dent remedial measures where the manufacturer is sued under a failure to warn theory. Petree v. Victor Fluid Power, Inc., 831 F.2d 1191 (3d Cir.1987) (“Petree I”). Plaintiffs first assert that Rule 407 is inapplicable to strict liability design defect cases. They say that this argument is available to them notwithstanding our previous rulings because in Josephs and Knight plaintiffs asserted both design defect and failure to warn theories. In addition, they point out that the rule announced in Petree I was in the context of liability predicated only on a failure to warn. They rely on this court’s explanation in that case that: where the manufacturer’s liability is predicated on a theory of failure to warn of danger from improper use of a product by the customer, the negligence concept of foreseeability has insinuated itself into the strict liability cause of action.... Consequently the policies supporting Rule 407 counsel exclusion of proof of subsequent remedial measures when offered in strict liability cases as an admission that the product was effective at the time of sale. Petree I, 831 F.2d at 1198 (emphasis added). They contend that, unlike warning cases, concepts of negligence play no part whatsoever in the determination of a manufacturer’s liability for a product that was defective at the time it was sold. Thus, we must consider whether the policies and goals of Rule 407 would be advanced by applying the exclusionary rule to design defects as well as failure to warn cases. Rule 407 is based upon two grounds. First, “Rule 407 rejects the suggested inference that fault is admitted when remedial measures are taken subsequent to an injury.” Petree I, 831 F.2d at 1198. This is because “[s]uch conduct is equally.consistent with injury through accident or contributory negligence.” Id. Secondly, Rule 407 is supported by public policy which encourages manufacturers to make improvements for greater safety. Exclusion of subsequent remedial evidence, regardless of the theory of the case, advances the policy behind Rule 407 of promoting safety. As one court commented: The rule ... represents a common sense recognition that people are loath to take actions which increase the risk of losing a lawsuit_ Since the policy underlying Rule 407 not to discourage persons from taking remedial measures is relevant to defendants sued under either [negligence or strict liability], we do not see the significance of the distinction. A potential defendant must be equally concerned regardless of the theoretical rubric under which this highly prejudicial and extremely damaging evidence is admitted. Cann, 658 F.2d at 60; see also Werner, 628 F.2d at 857 (“From a defendant’s point of view it is the fact that the evidence may be used against him [and not the theory of liability] which will inhibit subsequent repairs or improvements.”). The reasons for refusing to differentiate between negligence actions and strict liability claims apply with equal force to the more subtle differences between failure to warn and design defect theories. In our previous cases applying Rule 407 to strict liability actions, we have not distinguished between the failure to warn and the design defect theories of recovery. Josephs, 677 F.2d at 991; Knight, 596 F.2d at 91-92. We believe that these cases may be read to apply Rule 407 to products liability actions generally regardless of the specific theory advanced. Therefore, plaintiffs’ argument that Rule 407 is inapplicable to claims alleging only a design defect is negated by our previous decisions. Plaintiffs next assert that Rule 407 by its own terms does not govern the admission of evidence of post-manufacture, pre-accident remedial measures relying on the “after an event” language in the rule. In Petree I this court considered whether Rule 407 applied to the manufacturer’s preaccident conduct. There the defendant began attaching warning labels to its product after some products had been sold without labels, but before plaintiff’s accident. This court ruled that the Rule 407 policy of encouraging people to take steps to make their products safer was “equally as supportive of exclusion of evidence of safety measures taken before someone is injured by a newly manufactured product, even if those measures are taken in response to experience with an older product of the same or similar design.” Petree I, 831 F.2d at 1198 (emphasis added). In reaching its conclusion that the Rule can properly be applied to pre-accident conduct, this court approached the matter in terms of effectuating social policy. It apparently did not confront the language of the Rule which specifically limits its application to measures taken “after an event ... which, if taken previously, would have made the event less likely to occur....” Fed.R.Evid. 407 (emphasis added). Cf. Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1481-82 (10th Cir.1990). Nevertheless, since Petree I rules directly on this issue we, as a panel, are not free to entertain plaintiffs’ argument based upon the language of the rule. IOP Chapter 9.1 [In Banc Consideration] (1990). Plaintiffs next argue that construing Rule 407 to exclude evidence of post-manufacture, pre-accident design changes in a diversity action arguably places the Federal Rules of Evidence in conflict with Pennsylvania law. In Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984), the court held that the Pennsylvania subsequent repair rule, see Baron v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902), did not apply in products liability actions. Plaintiffs’ argument that state law governs where the Federal Rules of Evidence are inapplicable is obviously foreclosed since we have held that Rule 407 applies in the design defect context. Plaintiffs’ reliance on Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984), suggests, however, their belief that state law prevails where a direct conflict arises between federal and state rules on the admissibility of evidence of subsequent remedial measures. This court applied Rule 407 in Petree I, subsequent to the Superior Court’s ruling in Matsko, without any discussion of conflict of law. To our knowledge, this is the first time a party has challenged the application of Rule 407 on the ground that Pennsylvania law governs. Because of the arguable conflict between the Federal Rules of Evidence and Pennsylvania law, we must determine which law controls. Salas by Salas v. Wang, 846 F.2d 897, 905 (3d Cir.1988). In Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), the Supreme Court said that where a conflict of law arises in a diversity case, a federal rule of procedure falling within the uncertain area between substance and procedure, must be applied if it is rationally capable of classification as either. Id. at 472. Thus, we must apply “the federal rules so long as they can rationally be viewed as procedural.” Salas by Salas, 846 F.2d at 906. We cannot accept the view expressed in Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 932 (10th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984), that a state’s admission of evidence of subsequent change in a product evidences a state’s public policy that is so closely related to the cause of action that it must be viewed as substantive. The fact that Rule 407 represents a substantive judgment intertwined with procedural considerations, Flaminio, 733 F.2d at 471, does no more than place the rule in “the uncertain area between substance and procedure,” Hanna, 380 U.S. at 472, 85 S.Ct. at 1144, subjecting it to the Hanna conflict of law test. Rule 407 is one of several relevancy provisions contained in Federal Rules of Evidence 406 through 412. McInnis v. A.M.F., Inc., 765 F.2d 240, 245-46 (1st Cir.1985). It operates on the presumption that undue prejudice is likely in certain situations, see id., expressing a distrust of a jury’s ability to draw the proper inferences from the evidence. Flaminio, 733 F.2d at 472. Thus, we conclude that Rule 407 is “ ‘arguably procedural/ ” Salas by Salas, 846 F.2d at 905 (quoting Hanna, 380 U.S. at 476, 85 S.Ct. at 1146 (Harlan, J., concurring)), and therefore governs in this diversity action notwithstanding Pennsylvania law to the contrary. Our view is in accord with the majority of appellate courts that have considered the issue. See e.g., McInnis, 765 F.2d at 245; Flaminio, 733 F.2d at 472; and Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d 883, 885 (5th Cir.1983). Plaintiffs argue, in the alternative, that even if Rule 407 applies, it provides an exception where the evidence is used for impeachment purposes. They contend that the evidence was admissible to impeach defendant’s expert, Dr. Watkins, who testified that the forklift involved in the accident was properly designed even though he knew that the design had been altered for more recently manufactured machinery. In Petree v. Victor Fluid Power, Inc., 887 F.2d 34 (3d Cir.1989) (“Petree II”), the defendant’s expert testified that use of its hydraulic press posed no inherent danger and that misuse was not reasonably foreseeable. He opined that there was no need, therefore, to affix a warning label to the press. This court held that the trial court impermissibly excluded evidence that the company in fact began using warning labels. That holding was based upon the fact that the proffered evidence would have directly impeached the testimony of the expert that warnings were unnecessary. Plaintiffs’ reliance on Petree II to support the admission of the design change evidence here is misplaced. Dr. Watkins testified that the forklift involved in the accident was of an excellent and proper design. Evidence that the forklift's design had been altered does not contradict that statement since alteration did not compel the conclusion that the first design was defective. Flaminio, 733 F.2d at 471. Plaintiffs refer this court, however, to Public Service Co. v. Bath Iron Works Corp., 773 F.2d 783 (7th Cir.1985), cited in Petree II. In Public Service, the Court of Appeals for the Seventh Circuit reversed the trial court’s exclusion of evidence for impeachment purposes where the expert witness testified that the manufacturer advertised that the instructions accompanying its equipment were part of a continuing effort to enable consumers to achieve a particular result. There, the fact that the company modified the plans to include greater detail impeached the witness’ testimony that the earlier plans were adequate and that no further direction was necessary. Dr. Watkins did not make a statement that the forklift’s design was the best or the only one possible. He said only that it was an excellent and proper design. Thus, evidence of subsequent changes cannot serve to impeach his statements. Indeed the court in Public Service specifically addressed this situation when it stated that evidence was not admissible where it was offered to show that the original instructions “were inadequate because they did not include some arguably better feature that was added in the 1983 plans.” Public Service, 773 F.2d at 793. Defining the term “impeachment” in a less stringent manner would permit the exception to swallow the rule since “any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach [a party’s] testimony....” Flaminio, 733 F.2d at 468. We therefore conclude that the district court properly excluded the post-manufacture, pre-accident design evidence pursuant to Rule 407. B. Disclosure of Expert Witness Testimony Plaintiffs next argue that the defendant failed to comply with a court order to supply the opposing party with a report identifying the expert who was going to testify and what was going to be said. In response to the court’s inquiry at the beginning of the trial, defendant stated that he would provide the information about the expert witness to opposing counsel in letter form the following day. Plaintiffs received the letter, but requested a copy of Dr. Watkin’s expert report. Opposing counsel informed the court that there was no such report and that the letter contained a summary of what the expert would say on the stand. Plaintiffs made no further objections to defendant’s disclosure until after the trial. Plaintiffs complain on appeal, however, that they were unable to adequately prepare due to the lack of notice. The district court, in its opinion considering the motion for a new trial, found that defendant complied with its order in which the court specifically stated on the record that the information could be provided in the form of a letter. Although the disclosure letter is not part of the record on appeal, we find no abuse of discretion in the court’s acceptance of the letter as complying with its own earlier directive to the parties concerning disclosure of information pertaining to expert witnesses. Plaintiffs have also asserted error in the fact that another witness testified as an expert without any forewarning. The court determined that this witness, one of defendant’s employees, did not testify as an expert and, therefore, defendant was not required to so identify him. Upon review of the record, we agree with the district court that defendant’s employee did not testify as an expert when he explained the company’s use of the forklift and his personal investigations of the accident. Defendant’s counsel specifically limited his direct examination of this witness to non-expert matters as dictated by the court in response to plaintiffs’ objections. C. Use of the Written Interrogatories During the trial, defendant read aloud an interrogatory that asked whether plaintiffs had made any claims that may have been covered by worker’s compensation. Plaintiffs argue that this reference to possible collateral compensation prejudiced the jury by giving rise to a negative inference that plaintiffs might have already received payment for the injury. They assert that the error must be regarded as harmful notwithstanding the judge’s curative instructions. The court instructed the jury that it must “ignore any reference to workmen’s compensation proceedings in this or any other proceeding before, since it has nothing to do with this trial_” In denying the motion for a new trial, the court emphasized that any error related to defendant’s reference to worker’s compensation was harmless. It reasoned that if the jury inferred that plaintiffs may have already recovered monetary relief, this inference might affect the its award of damages, but not the determination of whether the product was defectively designed. The court pointed out that an inference that a person was previously able to recover against his employer could, in fact, work to plaintiffs’ benefit because it would appear that plaintiffs had asserted a successful claim in the past. See Davin v. Shur-Line Mfg. Co., 45 Pa.D. & C.3d 8, 11 (1986). It is the “ ‘general rule that if evidence which may have been taken in the course of a trial, be withdrawn from the consideration of the jury by the direction of the presiding judge, that such direction cures any error which may have been committed by its introduction.’ ” Lionti v. Lloyd’s Ins. Co., 709 F.2d 237, 243 (3d Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 490, 78 L.Ed.2d 685 (1983), (quoting Throckmorton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 480, 45 L.Ed. 663 (1901)). The general rule arises from our presumption that “a jury will follow an instruction to disregard inadmissible evidence ... unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions, and a-strong likelihood that the effect of the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1986) (citations omitted). Under the circumstances, we agree with the district court that any error was cured by its instructions. For the foregoing reasons, we will affirm the order of the district court denying plaintiffs’ motion for a new trial. . Our view is in accord with the majority of appeals courts that have considered the question. Flaminio v. Honda Motor Co. Ltd., 733 F.2d 463 (7th Cir.1984); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., 695 F.2d 883 (5th Cir.1983); Hall v. American Steamship Co., 688 F.2d 1062 (6th Cir.1982); Cann v. Ford Motor Co., 658 F.2d 54 (2d Cir.1981). cert. denied, 456 U.S. 960, 102 S.Ct. 2036, 72 L.Ed.2d 484 (1982); Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981); Roy v. Star Chopper Co., 584 F.2d 1124 (1st Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979). . Like this court, other courts of appeals that have applied Rule 407 to strict liability suits have not distinguished between failure to warn and design defect theories. See supra, note 1. . See also Flaminio v. Honda Motor Co., Ltd. 733 F.2d 463 (7th Cir.1984) (applying Rule 407 where only design defect was alleged). . In view of our application of Rule 407, we need not consider defendant’s argument with respect to Rule 403 relevancy. . Although plaintiffs also assert that the evidence was admissible to show feasibility, the argument is without merit since the witness' testimony did not controvert feasibility as is required by the rule. See Josephs, 677 F.2d at 991. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the 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:
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. SKELLY OIL CO. et al. v. PHILLIPS PETROLEUM CO. No. 221. Argued December 9, 1949. — Decided June 5, 1950. Charles L. Black argued the cause for petitioners. With him on the brief were W. P. Z. German, Alvin F. Molony, Hawley C. Kerr, Donald Campbell, Ray S. Fellows, Dan Moody, Walace Hawkins, Earl A. Brown and Raymond M. Myers. Harry D. Turner argued the cause for respondent. With him on the brief were Don Emery, Rayburn L. Foster, George L. Sneed, S. E. Floren, Jr. and Eugene 0. Monnett. Mr. Justice Frankfurter delivered the opinion of the Court. In 1945, Michigan-Wisconsin Pipe Line Company-sought from the Federal Power Commission a certificate of public convenience and necessity, required by § 7 (c) of the Natural Gas Act, 52 Stat. 825, as amended, 15 U. S. C. § 717f (c), for the construction and operation of a pipe line to carry natural gas from Texas to Michigan and Wisconsin. A prerequisite for such a certificate is adequate reserves of gas. To obtain these reserves Michigan-Wisconsin entered into an agreement with Phillips Petroleum Company on December 11, 1945, whereby the latter undertook to make available gas from the Hugoton Gas Field, sprawling over Kansas, Oklahoma and Texas, which it produced or purchased from others. Phillips had contracted with petitioners, Skelly Oil Company, Stanolind Oil and Gas Company, and Magnolia Petroleum Company, to purchase gas produced by them in the Hugoton Field for resale to Michigan-Wisconsin. Each contract provided that “in the event Michigan-Wisconsin Pipe Line Company shall fail to secure from the Federal Power Commission on or before [October 1, 1946] a certificate of public convenience and necessity for the construction and operation of its pipe line, Seller [a petitioner] shall have the right to terminate this contract by written notice to Buyer [Phillips] delivered to Buyer at any time after December 1, 1946, but before the issuance of such certificate.” The legal significance of this provision is at the core of this litigation. The Federal Power Commission, in response to the application of Michigan-Wisconsin, on November 30, 1946, ordered that “A certificate of public convenience and necessity be and it is hereby issued to applicant [Michigan-Wisconsin], upon the terms and conditions of this order,” listing among the conditions that there be no transportation or sale of natural gas by means of the sanctioned facilities until all necessary authorizations were obtained from the State of Wisconsin and the communities proposed to be served, that Michigan-Wisconsin should have the approval of the Securities and Exchange Commission for its plan of financing, that the applicant should file for the approval of the Commission a schedule of reasonable rates, and that the sanctioned facilities should not be used for the transportation of gas to Detroit and Ann Arbor except with due regard for the rights and duties of Panhandle Eastern Pipe Line Company, which had intervened before the Federal Power Commission, in its established service for resale in these areas, such rights and duties to be set forth in a supplemental order. It was also provided that Michigan-Wisconsin should have fifteen days from the issue of the supplemental order to notify the Commission whether the certificate “as herein issued is acceptable to it.” Finally, the Commission’s order provided that for purposes of computing the time within which applications for rehearing could be filed, “the date of issuance of this order shall be deemed to be the date of issuance of the opinions, or of the supplemental order referred to herein, whichever may be the later.” 5 F. P. C. 953, 954, 956. News of the Commission’s action was released on November 30, 1946, but the actual content of the order was not made public until December 2, 1946. Petitioners severally, on December 2, 1946, gave notice to Phillips of termination of their contracts on the ground that Michigan-Wisconsin had not received a certificate of public convenience and necessity. Thereupon Michigan-Wisconsin and Phillips brought suit against petitioners in the District Court for the Northern District of Oklahoma. Alleging that a certificate of public convenience and necessity, “within the meaning of said Natural Gas Act and said contracts” had been issued prior to petitioners’ attempt at termination of the contracts, they invoked the Federal Declaratory Judgment Act for a declaration that the contracts were still “in effect and binding upon the parties thereto.” Motions by petitioners to have Michigan-Wisconsin dropped as a party plaintiff were sustained, but motions to dismiss the complaint for want of jurisdiction were denied. The case then went to the merits, and the District Court decreed that the contracts between Phillips and petitioners had not been “effectively terminated and that each of such contracts remain [sic] in full force and effect.” The Court of Appeals for the Tenth Circuit affirmed, 174 F. 2d 89, and we brought the case here, 338 U. S. 846, because it raises in sharp form the question whether a suit like this “arises under the Constitution, laws or treaties of the United States,” 28 U. S. C. § 1331, so as to enable District Courts to give declaratory relief under the Declaratory Judgment Act. 48 Stat. 955, as amended, now 28 U. S. C. § 2201. “[T]he operation of the Declaratory Judgment Act is procedural only.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240. Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, “jurisdiction” means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was asked. But the requirements of jurisdiction — the limited subject matters which alone Congress had authorized the District Courts to adjudicate — were not impliedly repealed or modified. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 300; Colegrove v. Green, 328 U. S. 549, 551-52. If Phillips sought damages from petitioners or specific performance of their contracts, it could not bring suit in a United States District Court on the theory that it was asserting a federal right. And for the simple reason that such a suit would “arise” under the State law governing the contracts. Whatever federal claim Phillips may be able to urge would in any event be injected into the case only in anticipation of a defense to be asserted by petitioners. “Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.” Gully v. First National Bank, 299 U. S. 109, 115; compare 28 U. S. C. § 1257, with 28 U. S. C. § 1331. Ever since Metcalf v. Watertown, 128 U. S. 586, 589, it has been settled doctrine that where a suit is brought in the federal courts “upon the sole ground that the determination of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character.” But “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 464. The plaintiff’s claim itself must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U. S. 74, 75-76; Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152. These decisions reflect the current of jurisdictional legislation since the Act of March 3, 1875, 18 Stat. 470, first entrusted to the lower federal courts wide jurisdiction in cases “arising under this Constitution, the Laws of the United States, and Treaties.” U. S. Const. Art. Ill, § 2. “The change is in accordance with the general policy of these acts, manifest upon their face, and often recognized by this court, to contract the jurisdiction of the Circuit Courts [which became the District Courts] of the United States.” Tennessee v. Union & Planters’ Bank, supra at 462. See also Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 188, and Gully v. First National Bank, supra at 112-14. With exceptions not now relevant Congress has narrowed the opportunities for entrance into the federal courts, and this Court has been more careful than in earlier days in enforcing these jurisdictional limitations. See Gully v. First National Bank, supra at 113. To be observant of these restrictions is not to indulge in formalism or sterile technicality. It would turn into the federal courts a vast current of litigation indubitably arising under State law, in the sense that the right to be vindicated was State-created, if a suit for a declaration of rights could be brought into the federal courts merely because an anticipated defense derived from federal law. Not only would this unduly swell the volume of litigation in the District Courts but it would also embarrass those courts — and this Court on potential review — in that matters of local law may often be involved, and the District Courts may either have to decide doubtful questions of State law or hold cases pending disposition of such State issues by State courts. To sanction suits for declaratory relief as within the jurisdiction of the District Courts merely because, as in this case, artful pleading anticipates a defense based on federal law would contravene the whole trend of jurisdictional legislation by Congress, disregard the effective functioning of the federal judicial system and distort the limited procedural purpose of the Declaratory Judgment Act. See Developments in the Law — Declaratory Judgments — 1941-1949, 62 Harv. L. Rev. 787, 802-03 (1949). Since the matter in controversy as to which Phillips asked for a declaratory judgment is not one that “arises under the . . . laws ... of the United States” and since as to Skelly and Stanolind jurisdiction cannot be sustained on the score of diversity of citizenship, the proceedings against them should have been dismissed. As to Magnolia, a Texas corporation, a different situation is presented. Since Phillips was a Delaware corporation, there is diversity of citizenship. Magnolia had qualified to do business in Oklahoma and appointed an agent for service of process in accordance with the prevailing Oklahoma statute. Okla. Stat. Ann. tit. 18, § 452 (1937). Magnolia claimed that the subject matter of this proceeding did not arise in Oklahoma within the meaning of its consent to be sued. This contention was rejected below, and we do not reexamine the local law as applied by the lower courts. Under the doctrine of Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, venue was properly laid in Oklahoma; that the declaratory remedy which may be given by the federal courts may not be available in the State courts is immaterial. Therefore, in the case of Magnolia we must reach the merits. They relate to two matters: (1) the clause in the contract with Phillips permitting its termination at any time after December 1, 1946, but before the “issuance” of “a certificate of public convenience and necessity” by the Federal Power Commission; and (2) whether this provision was satisfied by Magnolia’s notice of termination of December 2, 1946, despite the Commission’s order of November 30, 1946. The phraseology “certificate of public convenience and necessity” in the contract is identic with the phrase in § 7 (c) of the Natural Gas Act. The Court of Appeals equated the term of the contract with that in the statute and in effect deemed its problem to be the proper construction of what constitutes the “issuance” of a “certificate of public convenience and necessity” within the meaning of § 7 (c). So viewing the matter, the court held that the order of November 30, 1946, satisfied the requirement of the contract, and that therefore a certificate of public convenience and necessity had been issued within the terminal period of the contract, and that its termination was not timely. It will be recalled that the order of November 30,1946, had three parts: (A) it stated that “A certificate of public convenience and necessity be and it is hereby issued to applicant [Michigan-Wisconsin]”; (B) it imposed certain conditions upon the grant, some of which were to be set forth in a supplemental order; and (C) it said that “For the purpose of computing the time within which applications for rehearing may be filed, the date of issuance of this order shall be deemed to be the date of issuance of the opinions, or of the supplemental order referred to herein, whichever may be the later.” 5 F. P. C. at 954, 956. The course of reasoning by which the Court of Appeals concluded that the order of November 30, 1946, satisfied the statutory requirement for a certificate of public convenience and necessity can be briefly summarized. It relied on the grammatical argument that the Commission used the present tense in its order and subsequently referred to it as an order “issuing a certificate of public convenience and necessity,” e. g., 6 F. P. C. 1, 37; the conditional nature of the order was not deemed to impair its efficacy since § 7 (e) of the Natural Gas Act authorized the Commission “to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require”; and the provision of the order connecting the date of the order’s issuance with the time defined for securing a rehearing was thought relevant only to the supplemental order. We are not persuaded now to rest decision on the analysis of the Court of Appeals which led to its conclusion. We need not linger long on the merely grammatical argument of that court; it is given more weight than it can bear. Of course, the Commission has considerable administrative discretion to decide when an order may fairly be deemed to have been “issued.” Section 16 of the Act provides that “Orders of the Commission shall be effective on the date and in the manner which the Commission shall prescribe.” But surely a certificate cannot be said to have been issued for purposes of defining rights and the seeking of reconsideration by an aggrieved person if its substance is merely in the bosom of the Commission. Knowledge of the substance must to some extent be made manifest. Here the content of the order of November 30, 1946, was not made public until December 2,1946, the date of the termination notice. The Commission itself in its rule for computing rehearing time distinguishes between “adoption” of an order and its “issuance.” However, as a matter of usage, the Commission has referred to an order as having “issued” a certificate on a particular date when in fact the date was that of “adoption.” See, e. g., Arkansas Louisiana Gas Co., 5 F. P. C. 813, 897; cf. Pacific Gas & Elec. Co., 5 F. P. C. 824, 901. Finally, the restriction of the Court of Appeals of the rehearing provision of Part C to the supplemental order finds no support on the face of the order of November 30, 1946. There is nothing to indicate that Part C was not to apply to the entire order for purposes of § 19 of the Act, which allows a rehearing by a party aggrieved “within thirty days after the issuance of such order” and makes such rehearing a prerequisite to judicial review. See 6 F. P. C. 323. Since the requirements of the Natural Gas Act for the issuance of “a certificate of public convenience and necessity” may be distributive in scope, varying with the different contexts in which the question must be examined, this is not the occasion to decide that these requirements have a single uniform content. Whether the statutory requirement here was satisfied is not a question of fact, the finding of which by the District Court is to be respected unless clearly erroneous. The District Court merely found that the content of the piece of paper dated November 30, 1946, was that day agreed upon in executive session of the Commission and that that fact was made known. But this leaves untouched the legal significance of this action of the Commission, and the Court ought not now in darkness to pronounce on this question. We are not restricted to disposition of the controversy on so truncated a treatment of the issues that underlie the record. Considering the fact that so to dispose of the case would involve determination of an important problem concerning a regulatory statute with implications of public importance that private litigants naturally enough do not wholly represent and that on these matters neither the courts below nor this Court had the benefit of the experience and illumination of the agency entrusted with the enforcement of the Act, the due administration of justice requires that we should exercise our discretionary power in reviewing cases to “require such further proceedings to be had as may be just under the circumstances.” 28 U. S. C. § 2106; Honeyman v. Hanan, 300 U. S. 14, 25. Accordingly, we think that the proper disposition requires that we vacate the judgment as to Magnolia and remand the case in order that the Court of Appeals either itself or by sending the case back to the District Court can further explore, through ways that may be appropriate, the issues which have been laid bare. See Kennedy v. Silas Mason Co., 334 U. S. 249. The impact of the litigation both here and below was on the proper construction of § 7 (c). Even though the language of the contract may be identic with that of § 7 (c), this language in the contract may have a scope independent of the proper construction of § 7 (c). The same words, in different settings, may not mean the same thing. Compare opinion of Mr. Justice Holmes in Towne v. Eisner, 245 U. S. 418, with his dissent in Eisner v. Macomber, 252 U. S. 189, 219. Parties do not necessarily endow statutory language in a contract with the scope of the statute, particularly when the same term may have variant meanings for different applications of the statute. See Standard Oil Co. v. Johnson, 316 U. S. 481, 483. Of course the statutory meaning in the context of the entire Natural Gas Act may not be irrelevant. In remanding the case we do not mean to foreclose this line of inquiry. In respect to Magnolia, the judgment of the Court of Appeals is vacated and the cause remanded for further proceedings not inconsistent with this opinion. As to Skelly and Stanolind, we reverse the judgment with directions that the cause be dismissed. It is so ordered. Mr. Justice Black agrees with the Court of Appeals and would affirm its judgment. Mr. Justice Douglas took no part in the consideration or disposition of this case. Mr. Chief Justice Vinson, with whom Mr. Justice Burton joins, dissenting in part. I concur in that part of the Court’s judgment that directs dismissal of the cause as to Skelly and Stanolind. I have real doubts as to whether there is a federal question here at all, even though interpretation of the contract between private parties requires an interpretation of a federal statute and the action of a federal regulatory body. But the Court finds it unnecessary to reach that question because it holds that the federal question, if any, is not a part of the plaintiff’s claim and that jurisdiction does not, therefore, attach. While this result is not a necessary one, I am not prepared to dissent from it at this time. But I am forced to dissent from the vacation and remand of the cause in respect to Magnolia. I think that, as to this petitioner, the judgment of the Court of Appeals should be affirmed. The Court decides that the Court of Appeals erred in holding that the Federal Power Commission had issued a certificate of public convenience and necessity to Michigan-Wisconsin Pipe Line Company on November 30, 1946, despite the fact that on that date the Commission adopted an order stating that “A certificate of public convenience and necessity be and it is hereby issued to Applicant, upon the terms and conditions of this order, . . . .” This disregard for what the District Court found to be the Commission’s express intention is based upon two alternative grounds. First, it is suggested that while the order issuing the certificate was “adopted” on November 30, it was not “issued” until December 2. Second, it is said that Part C of the November 30 order, which concerned the date of issuance of the order for purposes of applications for rehearing, precludes a finding that a certificate was issued on November 30. Neither of these grounds, in my judgment, supports the Court’s conclusion. As to the first, which was not argued here nor in the Court of Appeals, it is true that the Commission’s rules provide that an order is not to be deemed “issued” until the full text is mimeographed and mailed to the parties to the proceeding. This usually follows within two or three days after the order is “adopted.” The only purpose of the postponement of the date of issuance of the order, so far as we are informed, is to postpone the running of the 30-day period for applications for rehearing until the full text is available to the parties who have standing to ask for rehearing. But the Commission uniformly refers to the date of adoption of the order as the date upon which the certificate of public convenience and necessity was “issued.” It did so in this case, when, on March 12, 1947, it issued a supplemental order referring to its “order of November 30, 1946, issuing a certificate of public convenience and necessity.” Furthermore, the District Court found as a fact that “On November 30, a Saturday, the Commission in executive session made an order granting, with conditions, a certificate of public convenience and necessity to the Michigan-Wisconsin Pipe Line Company. During this session as the members of the Commission came to agreement as to the wording of the order, Mr. Fuquay, the secretary of the Commission, prepared the order in full and exact text. The secretary was directed by the Commission to release the order immediately.” Following adjournment on that day, the secretary sent a telegram to the parties to the proceeding, informing them that the “Commission today . . . adopted Opinion and Order, in Docket No. G-669, issuing certificate, with conditions, to Michigan Wisconsin Pipe Line Company.” On the same day, releases to the press were made announcing the action taken by the Commission. Skelly, Stanolind and Magnolia were not parties to this proceeding. It may very well be that the date of issuance of the order granting the certificate is December 2 or some later date — for purposes of rehearing upon application of the parties. But I think there is no question that the certificate, as distinguished from the order, was issued on November 30. That is the Commission’s view, as indicated by its supplemental order. The fact that it takes a few days to get its orders mimeographed and the Commission has adopted a rule that, in fairness to the parties, the time for rehearing shall not begin to run until such orders, in full text, are available, does not mean that the issuance of the certificate is also held in abeyance until that time. The second argument requires but short answer. Part C provides that “For the purpose of computing the time within which applications for rehearing may be filed, the date of issuance of this order shall be deemed to be the date of issuance of the opinions, or of the supplemental order referred to herein, whichever may be the later.” The paragraph means just what it says. I do not understand the Court to hold that the Commission cannot thus postpone the running of the time for rehearing. Computation of that time, as I have indicated, has no necessary relation to the date of issuance of the certificate. I think that the Commission intended to and did issue a certificate of public convenience and necessity to Michigan-Wisconsin Pipe Line Company on November 30, 1946, whatever the date of its order, for purposes of computation of time for rehearing. The crucial clause of the contract refers to “the issuance of such certificate [of public convenience and necessity].” By their inclusion of a provision dependent upon the action of a federal agency, it is obvious that the parties intended that the contract should be construed with reference to the effective date of agency action under the statutes and the practices of the Commission. The District Court so concluded. I can see no reason, therefore, to remand the cause for further proceedings. In my view, effective agency action was taken on November 30, 1946. As to Magnolia, I would affirm the judgment of the Court of Appeals. Rule 13 (b) of the Commission’s Rules of Practice and Procedure provides: “In computing any period of time involving the date of the issuance of an order by the Commission, the day of issuance of an order shall be the day the Office of the Secretary mails or delivers copies of the order (full text) to the parties or their attorneys of record, or makes such copies public, whichever be the earlier. . . . The day of issuance of an order may or may not be the day of its adoption by the Commission.” 18 C. F. R. § 1.13 (b). A deposition taken of the' Secretary of the Commission gave light on this point. The Commission’s previous rule on rehearing time is in 18 C. F. R. Cum. Supp. § 50.75. Rule 13 (c) provides: “Orders of the Commission shall be effective as of the dates of issuance unless otherwise specifically provided in the orders.” 18 C. F. R. § 1.13 (c). This provision may be of significance if the effectiveness of a certificate is an issue in proceedings under § 20 or § 21 of the Act. The Court of Appeals did not discuss the bearing of these rules upon this case. The significance of the conditions in qualifying what is formally called a “certificate” in the order of November 30, 1946, is precisely one of those matters upon which Commission practice and experience may shed helpful light. In its conclusions of law, the District Court stated: “The certificate issued by the Commission to Michigan-Wisconsin on November 30, 1946, although containing terms and conditions, was and is a certificate issued under the requirements of the Natural Gas Act and one that is provided for by that act. A consideration of the contracts between plaintiff and defendants, together with the contract between plaintiff and Michigan-Wisconsin, compels a conclusion that such certificate was one within the contemplation of the parties and satisfied the terms of the contracts.” The context suggests that in the second sentence the District Court may still have been focusing upon statutory meaning. See, e. g., Arkansas Louisiana Gas Co., 5 F. P. C. 813, 897; Pacific Gas & Elec. Co., 5 F. P. C. 824, 901. The District Court stated as one of its conclusions of law: “The certificate issued by the Commission to Michigan-Wisconsin on November 30, 1946, although containing terms and conditions, was and is a certificate issued under the requirements of the Natural Gas Act and one that is provided for by that act. A consideration of the contracts between plaintiff and defendants, together with the contract between plaintiff and Michigan-Wisconsin, compels a conclusion that such certificate was one within the contemplation of the parties and satisfied the terms of the contracts.” Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
sc_respondent	045	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. EDMONDS v. COMPAGNIE GENERALE TRANSATLANTIQUE No. 78-479. Argued March 19, 1979 Decided June 27, 1979 White, J., delivered the opinion of the Court, in which BtjRGER, C. J., and Brennan, Stewart, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 273. Powell, J., took no part in the consideration or decision of the case. Calvin W. Breit argued the cause for petitioner. With him on the briefs was C. Arthur Rutter, Jr. Charles F. Tucker argued the cause for respondent. With him on the brief was John B. King, Jr. Briefs of amici curiae urging reversal were filed by David R. Owen for Liberty Mutual Insurance Co.; and by Thomas D. Wilcox for the National Association of Stevedores. Briefs of amici curiae urging affirmance were filed by Randall C. Cole- man for American Export Lines, Inc., et al.; and by Gray don S. Staring for the Pacific Merchant Shipping Association. Paul S. Edelman, Arthur Abarbanel, and Bernard M. Goldstein filed a brief for the Association of Trial Lawyers of America as amicus curiae. Mr. Justice White delivered the opinion of the Court. On March 3, 1974, the S.S. Atlantic Cognac, a container-ship owned by respondent, arrived at the Portsmouth Marine Terminal, Va. Petitioner, a longshoreman, was then employed by the Nacirema Operating Co., a stevedoring concern that the shipowner had engaged to unload cargo from the vessel. The longshoreman was injured in the course of that work, and he received benefits for that injury from his employer under the Longshoremen’s and Harbor Workers’ Compensation Act. 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seg. In addition, the longshoreman brought this negligence action against the shipowner in Federal District Court. A jury determined that the longshoreman had suffered total damages of $100,000, that he was responsible for 10% of the total negligence resulting in his injury, that the stevedore’s fault, through a co-employee’s negligence, contributed 70%, and that the shipowner was accountable for 20%. Following an established principle of maritime law, the District Court reduced the award to the longshoreman by the 10% attributed to his own negligence. But also in accordance with maritime law, and the common law as well, the court refused further to reduce the award against the shipowner in proportion to the fault of the employer. The United States Court of Appeals for the Fourth Circuit, with two judges dissenting, reversed en banc, holding that the 1972 Amendments to the Act, 86 Stat. 1251, had altered the traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault. 577 F. 2d 1153, 1155-1156 (1978). Other Courts of Appeals have reached the contrary conclusion. We granted certiorari to resolve this conflict, 439 U. S. 952 (1978), and, once again, we have before us a question of the meaning of the 1972 Amendments. I Admiralty law is judge-made law to a great extent, United States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975); Fitzgerald v. United States Lines Co., 374 U. S. 16, 20 (1963), and a longshoreman’s maritime tort action against a shipowner was recognized long before the 1972 Amendments, see Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 413-414 (1953), as it has been since. As that law had evolved by 1972, a longshoreman’s award in a suit against a negligent shipowner would be reduced by that portion of the damages assignable to the longshoreman’s own negligence; but, as a matter of maritime tort law, the shipowner would be responsible to the longshoreman in full for the remainder, even if the stevedore’s negligence contributed to the injuries. This latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor’s negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident. The problem we face today, as was true of similar problems the Court has dealt with in the past, is complicated by the overlap of loss-allocating mechanisms that are guided by somewhat inconsistent principles. The liability of the ship to the longshoreman is determined by a combination of judge-made and statutory law and, in the present context, depends on a showing of negligence or some other culpability. The longshoreman-victim, however, and his stevedore-employer— also a tortfeasor in this case — are participants in a workers’ compensation scheme that affords benefits to the longshoreman regardless of the employer’s fault and provides that the stevedore’s only liability for the longshoreman’s injury is to the longshoreman in the amount specified in the statute. 33 U. S. C. § 905. We have more than once attempted to reconcile these systems. We first held that the shipowner could not circumvent the exclusive-remedy provision by obtaining contribution from the concurrent tortfeasor employer. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282 (1952); Pope & Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106, 111-113 (1974). As a matter of maritime law, we also held that a longshoreman working on a vessel was entitled to the warranty of seaworthiness, Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), which amounted to liability without fault for most onboard injuries. However, we went on to hold, as a matter of contract law, that the shipowner could obtain from the stevedore an express or implied warranty of workmanlike service that might result in indemnification of the shipowner for its liability to the longshoreman. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). Against this background, Congress acted in 1972, among other things, to eliminate the shipowner’s liability to the longshoreman for unseaworthiness and the stevedore’s liability to the shipowner for unworkmanlike service resulting in injury to the longshoreman — in other words, to overrule Sieracki and Ryan. See Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 260-261, and n. 18 (1977); Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, at 113 n. 6. Though admitting that nothing in either the statute or its history expressly indicates that Congress intended to modify as well the existing rules governing the longshoreman’s maritime negligence suit against the shipowner by diminishing damages recoverable from the latter on the basis of the proportionate fault of the nonparty stevedore, 577 F. 2d, at 1155, and n. 2, the en banc Court of Appeals found that such a result was necessary to reconcile two sentences added in 1972 as part of 33 U. S. C. § 905 (b). The two sentences state: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.” 33 U. S. C. §905 (b). The Court of Appeals described the perceived conflict in this fashion: “The first sentence says that if the injury is caused by the negligence of a vessel the longshoreman may recover, but the second sentence says he may not recover anything of the ship if his injury was caused by the negligence of a person providing stevedoring services. The sentences are irreconcilable if read to mean that any negligence on the part of the ship will warrant recovery while any negligence on the part of the stevedore will defeat it. They may be harmonized only if read in apportioned terms.” 577 F. 2d, at 1155. For a number of reasons, we are unpersuaded that Congress intended to upset a “long-established and familiar principle]” of maritime law by imposing a proportionate-fault rule. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). A In the first place, the conflict seen by the Court of Appeals is largely one of its own creation. Both sides admit that each sentence may be read so as not to conflict with the other. The first sentence addresses the recurring situation, reflected by the facts in this case, where the party injured by the negligence of the vessel is a longshoreman employed by a steve-doring concern. In these circumstances, the longshoreman may sue the vessel as a third party, but his employer, the stevedore, is not to be liable directly or indirectly for any damages that may be recovered. This first sentence overrules Ryan and prevents the vessel from recouping from the stevedore any of the damages that the longshoreman may recover from the vessel. But the sentence neither expressly nor implicitly purports to overrule or modify the traditional rule that the longshoreman may recover the total amount of his damages from the vessel if the latter’s negligence is a contributing cause of his injury, even if the stevedore, whose limited liability is fixed by statute, is partly to blame. The second sentence of the paragraph is expressly addressed to the different and less familiar arrangement where the injured longshoreman loading or unloading the ship is employed by the vessel itself, not by a separate stevedoring company— in short, to the situation where the ship is its own stevedore. In this situation, the second sentence places some limitations on suits against the vessel for injuries caused during its steve-doring operations. Whatever these limitations may be, there is no conflict between the two sentences, and one arises only if the second sentence is read, as the Court of Appeals read it, as applying to all injured longshoremen, whether employed by the ship or by an independent stevedore. Nothing in the legislative history advises this construction of the sentence, and we see no reason to depart from the language of the statute in this respect. Respondent insists that, even though the two sentences may deal with different business arrangements, problems still arise. If under the first sentence a third-party suit against the vessel is authorized when any part of the negligence causing the injury is that of the vessel, it is argued that suit against the vessel under the second sentence should be barred when any part of the negligence causing the injury is that of a coworker also providing stevedoring services to the vessel. Under this interpretation, the employee of the independent stevedore could recover from the ship where the stevedore was responsible for 99% of the negligence, though a ship’s employee performing stevedoring services could not hold the vessel liable if his co-worker’s negligence was the slightest cause of the injury. This is said to be preposterous and contrary to the legislative intent to treat the vessel that provides its own stevedoring services just like other shipowners when and if it negligently causes injury in its capacity as a shipowner and just like other stevedores when it negligently injures in the course of providing its own loading or unloading services. Aside from the fact that the problem suggested would arise only in the application of the second sentence, which is not involved in this case, the argument that the words “caused by the negligence of” in the two sentences must be given the same meaning and that they cannot have the meaning ascribed to them by petitioner’s construction of the first sentence, logically leads to the conclusion that the injured longshoreman should never be able to bring suit against the vessel unless it is the sole cause of the injury. This is a doubly absurd conclusion. It is supported by no one, and to avoid it, it is necessary only to construe the second sentence to permit a third-party suit against the vessel providing its own loading and unloading services when negligence in its nonstevedoring capacity contributes to the injury. The second sentence means no more than that all longshoremen are to be treated the same whether their employer is an independent stevedore or a shipowner-stevedore and that all stevedores are to be treated the same whether they are independent or an arm of the shipowner itself. This leaves the question of the measure of recovery against a shipowner, whether or not it is doing its own stevedoring, when as shipowner it is only partially responsible for the negligence, but we are quite unable to distill from the face of the obviously awkward wording of the two sentences any indication that Congress intended to modify the pre-existing rule that a longshoreman who is injured by the concurrent negligence of the stevedore and the ship may recover for the entire amount of his injuries from the ship. B The legislative history strongly counsels against the Court of Appeals’ interpretation of the statute, which modifies the longshoreman’s pre-existing rights against the negligent vessel. The reports and debates leading up to the 1972 Amendments contain not a word of this concept. This silence is most eloquent, for such reticence while contemplating an important and controversial change in existing law is unlikely. Moreover, the general statements appearing in the legislative history concerning § 905 (b) are inconsistent with what respondent argues was in the back of the legislators’ minds about this specific issue. The Committees repeatedly refer to the refusal to limit the shipowner’s liability for negligence, which they felt left the vessel in the same position as a land-based third party whose negligence injures an employee. Because an employee generally may recover in full from a third-party concurrent tortfeasor, these statements are hardly indicative of an intent to modify the law in the respect found by the Court of Appeals. At the very least, one would expect some hint of a purpose to work such a change, but there was none. The shipowner denies that the legislative history is so one-sided, relying upon statements that vessels “will not be chargeable with the negligence of the stevedore or [the] employees of the stevedore.” S. Rep. 11; see 577 F. 2d, at 1156 n. 2. But in context these declarations deal only with removal of the shipowner’s liability under the warranty of seaworthiness for acts of the stevedore — even nonnegligent ones. C Finally, we note that the proportionate-fault rule adopted by the Court of Appeals itself produces consequences that we doubt Congress intended. It may remove some inequities, but it creates others and appears to shift some burdens to the longshoreman. As we have said, § 905 permits the injured longshoreman to sue the vessel and exempts the employer from any liability to the vessel for any damages that may be recovered. Congress clearly contemplated that the employee be free to sue the third-party vessel, to prove negligence and causation on the vessel’s part, and to have the total damages set by the court or jury without regard to the benefits he has received or to which he may be entitled under the Act. Furthermore, under the traditional rule, the employee may recover from the ship the entire amount of the damages so determined. If he recovers less than the statutory benefits, his employer is still liable for the statutory amount. Under this arrangement, it is true that the ship will be liable for all of the damages found by the judge or jury; yet its negligence may have been only a minor cause of the injury. The stevedore-employer may have been predominantly responsible ; yet its liability is limited by the Act, and if it has lien rights on the longshoreman’s recovery it may be out-of-pocket even less. Under the Court of Appeals’ proportionate-fault rule, however, there will be many circumstances where the longshoreman will not be able to recover in any way the full amount of the damages determined in his suit against the vessel. If, for example, his damages are at least twice the benefits paid or payable under the Act and the ship is less than 50% at fault, the total of his statutory benefits plus the reduced recovery from the ship will not equal his total damages. More generally, it would appear that if the stevedore’s proportionate fault is more than the proportion of compensation to actual damages, the longshoreman will always fall short of recovering the amount that the factfinder has determined is necessary to remedy his total injury, even though the diminution is due not to his fault, but to that of his employer. But the impact of the proportionate-fault rule on the longshoreman does not stop there. Under § 933 (b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman’s rights against the third party unless the longshoreman sues within six months. And a corresponding judicially created lien in the employer’s favor operates where the longshoreman himself sues. In the past, this lien has been for the benefits paid up to the amount of the recovery.' And under § 933 (c), which Congress left intact in 1972, where the stevedore-employer sues the vessel as statutory assignee it may retain from any recovery an amount equal in general to the expenses of the suit, the costs of medical services and supplies it provided the employee, all compensation benefits paid, the present value of benefits to be paid, plus one-fifth of whatever might remain. Under the Court of Appeals’ proportionate-fault system, the longshoreman would get very little, if any, of the diminished recovery obtained by his employer. Indeed, unless the vessel’s proportionate fault exceeded the ratio of compensation benefits to total damages, the longshoreman would receive nothing from the third-party action, and the negligent stevedore might recoup all the compensation benefits it had paid. Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect. Further, the 1972 Amendments make quite clear that “the employer shall not be liable to the vessel for such damages directly or indirectly,” 33 U. S. C. § 905 (b) (emphasis supplied), and that with the disappearance of the ship’s contribution and indemnity right against the stevedore the latter should no longer have to appear routinely in suits between longshoreman and shipowner. Consequently, as we have done before, we must reject a “theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts... a remedial Act... Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 278-279. II Of course, our conclusion that Congress did not intend to change the judicially created rule that the shipowner can be made to pay all the damages not due to the plaintiff’s own negligence does not decide whether we are free to and should change that role so as to make the vessel liable only for the damages in proportion to its own negligence. Indeed, some amici in support of respondent share the view that Congress did not change the rule but argue that this Court should do so. We disagree. Though we recently acknowledged the sound arguments supporting division of damages between parties before the court on the basis of their comparative fault, see United States v. Reliable Transfer Co., 421 U. S. 397 (1975), we are mindful that here we deal with an interface of statutory and judge-made law. In 1972 Congress aligned the rights and liabilities of stevedores, shipowners, and longshoremen in light of the rules of maritime law that it chose not to change. “One of the most controversial and difficult issues which [Congress was] required to resolve... concern [ed] the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations.” S. Rep. 8. By now changing what we have already established that Congress understood to be the law, and did not itself wish to modify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in these circumstances. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S., at 112; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S., at 285-286. Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned. Indeed, Congress might have intended to adopt the existing maritime rule even for third-party actions under the Act that are not within the admiralty jurisdiction, though we need not and do not reach that issue today. Accordingly, we reverse the judgment below and remand for proceedings consistent with this opinion. It is so ordered. Mr. Justice Powell took no part in the consideration or decision of this case. The District Court set aside a jury verdict for the longshoreman in an earlier trial because of errors in the jury instructions. The plaintiff’s negligence is not an absolute bar to recovery under maritime law, which accepts the concept of comparative negligence of plaintiff and defendant. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 408-409 (1953); The Max Morris, 137 U. S. 1, 15 (1890); see n. 23, infra. A panel of the Court of Appeals had earlier reached a similar conclusion. 558 F. 2d 186, 193-194 (1977); see n. 26, infra. Zapico v. Bucyrus-Erie Co., 579 F. 2d 714, 725 (CA2 1978); Samuels v. Empresa Lineas Maritimas Argentinas, 573 F. 2d 884, 887-889 (CA5 1978), cert. pending, No. 78-795; Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d 669, 671-673 (CA9 1975), cert. denied, 425 U. S. 944 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_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. Ernest BROOKS, Plaintiff-Appellant, v. CENTER TOWNSHIP, a municipality incorporated in Marion County, Indiana, and Benjamin A. Osborne, Center Township Trustee and Overseer of the Poor in Center Township, Defendants-Appellees. No. 72-1921. United States Court of Appeals, Seventh Circuit. Argued May 22, 1973. Decided Oct. 3, 1973. John T. Manning, Louis F. Rosenberg, Indianapolis, Ind., for plaintiff-appellant. Ernest P. Schnippel, Indianapolis, Ind., for defendants-appellees. Before CLARK, Associate Justice, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge. The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation. Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation. KILEY, Circuit Judge. Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs’ rent and food assistance.- On motion of defendants the district court dismissed the complaint. Brooks alone has appealed. We reverse. The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants’ practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants’ pre-termination procedure under Indiana law, and that they were, not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971). We take the allegations well pleaded by Brooks as true, for purposes of this appeal. He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18 (1971). Brooks contends that he was not required to exhaust the Indiana “remedy” before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). I The district court’s application of the exhaustion rule was premised upon plaintiff’s failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That “poor relief” statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the “township trustee as overseer of the poor.” The statute contains no procedural requirements at the “trustee or overseer of the poor” level. Brooks’ claim of denial of due process is not aimed at the uneonstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief. The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the “trustee as overseer.” The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given. We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Defendants’ arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S.Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right. The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana’s “township poor relief program ... is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance” but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The Civil Rights Act was intended to “override certain kinds of state laws.” Id. at 173, 81 S.Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act. II We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare recipients before filing his civil rights action. The Supreme Court has been careful to avoid trespassing upon state jurisdiction in the civil rights area. See McNeese v. Board of Education, 373 U.S. 668, 673, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Beginning with Monroe v. Pape, however, the Court has persisted in holding that the civil rights remedy under 42 U.S.C. § 1983 is supplementary to any state administrative remedies and that federal jurisdiction may be invoked without exhaustion of state remedies. In Pape the remedy was used in a search and seizure framework. In Mc-Neese the holding in Pape was repeated in the context of alleged segregation of students in an Illinois school. The holding was reasserted in a per curiam opinion in Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), an action under § 1983 involving the California welfare laws. In Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), a per curiam opinion, where a prisoner claimed his civil rights were denied by state confiscation of legal materials, the Court stated that “resort to” remedies of state was unnecessary in the light of Pape, McNeese and Damico. Still another per curiam opinion, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), held that a three-judge court improperly dismissed a complaint under § 1983 for failure to exhaust a state remedy. Carter involved aid to dependent children, and the court on authority of Damico, “an indistinguishable ease,” held “exhaustion” was not required. In a civil rights action by Illinois relief recipients this court in Metcalf v. Swank, 444 F.2d 1353 (7th Cir. 1971), affirmed dismissal for failure to exhaust state remedy. The Supreme Court vacated and remanded for further consideration in the light of Carter v. Stanton. Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972). In Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the court cited McNeese and Damico for the proposition that the court had “expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983.” The court however qualified that statement by saying it need not decide “[wjhether this is invariably the case.” In a factual situation such as the one there, where the state remedy was initiated and pending and the individual would be deprived of nothing until completion of the state proceeding, the question of exhaustion “remains open.” Gibson is inapposite here because no Indiana state proceeding was or is pending with which a district court decision would interfere. For the reasons given the district court judgment is reversed and the cause is remanded with directions to reinstate Brooks to the Center Township of Marion County, Indiana relief rolls from which he was unconstitutionally dropped; and for further proceedings with respect to what just compensation is due him from defendants for what injury the evidence shows he suffered as a result of the unconstitutional arbitrary termination of his “poor relief” benefits. Reversed and remanded with directions. . The court assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4). . The district court granted leave to appeal in forma pauperis. . The assistance record of Brooks appended to defendants’ brief is not to be considered at this stage of the proceeding. 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	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. OHIO v. GALLAGHER No. 74-492. Argued December 2, 1975 Decided April 5, 1976 Herbert M. Jacobson argued the cause for petitioner. With him on the brief was Lee C. Falke. Jack T. Schwarz, by appointment of the Court, 421 U. S. 985, argued the cause and filed a brief for respondent. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Theodora Berger, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal. Per Curiam. We granted certiorari to determine whether the' admission in evidence of statements made by an accused in response to in-custody questioning by his parole officer violates the rule of Miranda v. Arizona, 384 U. S. 436 (1966). On June 21, 1972, the respondent, Terry L. Gallagher, was arrested and later charged with the armed robbery of a food store. On the morning following his arrest, two detectives advised respondent of his rights under Miranda and then questioned him. Four days later, respondent’s parole officer, William Sykes, went to the jail to talk to him about the food store robbery as a possible violation of parole. Respondent refused to discuss it, but on a return visit a week later, Gallagher gave Sykes a detailed account of his participation in the crime. It is undisputed that, at no time, did the parole officer advise Gallagher that he had a right to remain silent or that any statements he made would be used as evidence against him. At trial, the parole officer was called as a prosecution witness and testified, over defense objection, to the incriminating statements made to him by Gallagher. Respondent was convicted of armed robbery in the Ohio Court of Common Pleas. The Ohio Court of Appeals affirmed. 36 Ohio App. 2d 29, 301 N. E. 2d 888 (1973). The Supreme Court of Ohio granted respondent’s motion for leave to appeal and reversed the judgment of conviction. 38 Ohio St. 2d 291, 313 N. E. 2d 396 (1974). In its opinion, the state court defined the question presented by respondent’s appeal as “whether testimony, concerning certain statements made by [respondent] to his parole officer about his involvement in a crime, was received at trial in violation of [respondent’s] privilege against self-incrimination, as guaranteed by Section 10, Article I of the Ohio Constitution, and the Fifth Amendment to the United States Constitution.” Id., at 294, 313 N. E. 2d, at 398-399. The Ohio Supreme Court held that testimony relating the statements of an accused in response to questions by his parole officer is inadmissible at trial if, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent and his right to be provided with counsel prior to questioning, and to warn him that any statement might be used as evidence against him. Id., at 297, 313 N. E. 2d, at 400. From the briefs and oral argument, we are unable to determine whether the Ohio Supreme Court rested its decision upon the Fifth and Fourteenth Amendments to the Constitution of the United States, or Art. I, § 10, of the Ohio Constitution, or both. In its full opinion, the Ohio court cited with approval an excerpt from the opinion of the Court of Appeals for the Fifth Circuit in United States v. Deaton, 468 F. 2d 541 (1972), a case which, in the view of the state court, presented the precise question then before it. We are unsure whether the Ohio court made reference to Deaton merely to lend support to its view that a parolee is under heavy-pressure to cooperate with his parole officer or whether the court intended to demonstrate its reliance on a federal constitutional ground. Indeed, we cannot be certain that the Ohio court did not construe its constitutional provision to be identical to that contained in the Fifth Amendment and thus render judgment simultaneously under both state and federal law. We also note that, except for per curiam opinions, it is the settled rule in Ohio that its Supreme Court speaks as a court only through the syllabi of its cases. See Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N. E. 2d 64 (1967); see also Beck v. Ohio, 379 U. S. 89, 93 (1964). The italicized headnote which appears in the instant syllabus can be read as a holding based only on points of criminal law and the law of evidence; it contains nothing to indicate that a point of federal constitutional law is decided. Because we decline to speculate from the choice of words used in the syllabus and the authorities cited by the author of the opinion as to which constitutional provision formed the basis for the judgment of the state court, we vacate the judgment of the Supreme Court of Ohio and remand the cause to permit that court to explicate whether or not its judgment relies on federal law. California v. Krivda, 409 U. S. 33 (1972); Mental Hygiene Dept. v. Kirchner, 380 U. S. 194 (1965); Minnesota v. National Tea Co., 309 U. S. 551 (1940). We intimate no view on the merits of the Fifth and Fourteenth Amendment issue presented. Vacated and remanded. Mr. Justice Stevens took no part in the consideration or decision of this case. 420 U. S. 1003 (1975). Statements elicited from the respondent during this police interrogation were later suppressed by the trial court on the ground that they were induced by promises of leniency and, as such, were involuntary. 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_subevid	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". THE PRICE BROADCASTERS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Times and News Publishing Company, The Monocacy Broadcasting Company, Intervenors. THE MONOCACY BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Times and News Publishing Company, The Price Broadcasters, Inc., Intervenors. Nos. 16039, 16043. United States Court of Appeals District of Columbia Circuit. Argued May 17, 1961. Decided Aug. 22, 1961. Petition for Rehearing En Banc Denied Sept. 21, 1961. Mr. John B. Kenkel, Washington, D. C., with whom Mr. Arthur H. Schroeder, Washington, D. C., was on the brief, for The Price Broadcasters, Inc., appellant in No. 16039 and intervenor in No. 16043. Mr. John P. Southmayd, Washington, D. C., for The Monocacy Broadcasting Co., appellant in No. 16043 and interven- or in No. 16039. Mr. Richard M. Zwolinski, Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, and Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. James T. Brennan, Jr., Counsel, Federal Communications Commission, also entered an appearance for appellee. Mr. Robert M. Booth, Jr., Washington, D. C., with whom Mr. John L. Tierney, Washington, D. C., was on the brief, for intervenor Times and News Publishing Co. Before DANAHER, BASTEAN and BURGER, Circuit Judges. DANAHER, Circuit Judge. The Commission consolidated for hearing three applications for construction permits for standard broadcast stations on the same frequency, 1320 kc. Price sought a construction permit for a station at Frederick, Maryland. Monocacy, already operating WFMD at Frederick, sought a permit to establish a new station to operate unlimited time at Gettysburg, 32 miles away. WGET sought to change its existing Gettysburg facilities from 1450 kc, unlimited time, to 1320 kc, 1 kw daytime and 500 w nighttime. The examiner concluded that the need for a second local station at Frederick exceeded the need either (1) for a second station at Gettysburg or (2) for improving the broadcasting facilities of WGET. He recommended an award to Price even though the two Gettysburg applicants proposed to operate from Gettysburg both day and night, whereas Price, the Frederick applicant, proposed only daytime service. Nevertheless, the Commission after oral argument on exceptions filed by the parties concluded that the intendment of section 307(b) of the Act, 47 U.S.C.A. § 307(b), would better be fulfilled by a grant of either of the fulltime proposals for Gettysburg. The Commission decided that it was more important that even a comparatively small number of persons in the Gettysburg service area receive a primary nighttime service and supplemental daytime service than that a larger number of persons in Frederick receive additional daytime service. We are satisfied that the record establishes an adequate basis for the Commission's conclusion that a fair, efficient and equitable distribution of radio service would be accomplished more certainly than would be the case if the grant had followed Price’s Frederick proposal for service daytime only. The Commission then went on to conclude that the Monocacy proposal to bring a second local service to Gettysburg, important though it might be, was of secondary significance since WGET was found to be substantially superior to Monocacy “in virtually every area of standard comparative consideration.” Factors so weighed and found in favor of WGET included past broadcast performance, awareness of the needs of the Gettysburg service area, local residence, diversification of business interests and participation in the civil affairs of Gettysburg. The Commission’s decision reflected its further determination that WGET would better serve the public interest than would Monocacy, not only because WGET was deemed markedly superior to Monocacy on the basis of past performance and like factors but because WGET with the changed facilities and expanded coverage would continue to provide the only local service to Gettysburg. Specific details predicating the Commission’s determination on this aspect may be perceived from certain of its conclusions which we set forth verbatim: “Monocacy would bring a second local service to Gettysburg. Daytime, it would serve virtually 100% of the land area of Adams County, and would serve a total interference-free area of 1,211 sq. mi. having a population of 93,676. In addition to WGET’s present operation, Gettysburg presently receives primary service daytime from Stations WBAL, Baltimore, WHVR, Hanover, and WHP, Harrisburg. The whole of Monocacy’s 0.5.mv/m area is presently served with such a signal by the foregoing stations, and within this area is presently received a minimum of six and a maximum of twelve other primary services. The 2.0 mv/m contour of Monocacy would encompass the city of Littlestown and would bring that city a fourth such primary service. “Daytime, WGET would serve 96% of the land area of Adams County, and would serve a total interference-free area of 1,233 sq. mi. having a population of 113,470. This would be a gain of 65,224 persons, 14,985 of whom live in the cities of Littlestown, McSherrystown and Hanover, Pennsylvania. Each of the latter two cities presently receives at least five other 2.0 mv/m signals, 50% of Hanover receiving six. Within the WGET gain area there is presently received a minimum of five 0.5 mv/m signals and a maximum of thirteen. ****** “The WGET nighttime interference-free contour would encompass 29.8 sq. mi. having a population of 9,276. Within the foregoing area are 18.3 sq. mi. wherein 1,348 persons presently receive no nighttime primary service from any source. A grant of the WGET application, then, would bring a first nighttime service to all of these areas and persons. On the other side of the coin, however, such a grant would recreate white areas totaling 2.4 sq. mi. having a population of 217. The net white area gains of WGET would thus be 15.9 sq. mi. containing 1,131 persons. The Monocacy nighttime interference-free contour would encompass 23.3 sq. mi. with a population of 8,278. Of these, 7,717 would be receiving only their second nighttime primary service, and 561 would be receiving their first. In view of the considerations set forth here— the white area proposal of WGET and the white and gray area proposals of Monocacy — we believe that there is ample reason for preferring either of the Gettysburg applications to that of the lone application for Frederick.” The findings in the examiner’s Initial Decision, except as modified in the light of the exceptions, were adopted. Not disturbed was his appraisal that “The manner in which Station WGET has served Gettysburg and Adams County was documented in minute detail,” including its “most generous” offers of its facilities to the numerous civic, religious, educational, social and other public service organizations in Gettysburg and Adams County. He found that if WGET is the “successful applicant, its programming will be modified so as to devote more time and attention to the activities in the areas and communities which do not now receive primary service from the station.” It is our view that ample basis was shown for the Commission’s ultimate conclusion that WGET is entitled to a substantial preference over Monocacy. The Commission concluded that the public interest would better be served by permitting a superior existing station to expand its coverage than by making an award to a new but inferior competitor. Before we could overturn the Commission on this important aspect of the case, we would be bound to say that the Commission’s conclusion as a matter of law was arbitrary and capricious. The record simply does not justify our doing so, for exercise of the decisional process in so close a case was singularly within the Commission’s prerogative, not ours. That the frequency to be vacated by WGET as a result of the award would thereafter be available for assignment to some other applicant is an important by-product of the Commission’s final decision. In sum, the Commission’s ultimate judgment is well within the area of its allowable discretion and rests upon appropriate and adequately fortified public interest criteria. We have examined the record and considered carefully the arguments advanced by the competing applicants. We are satisfied that the contested conclusions of the Commission do not lack substantial support in the record as a whole. No error of law having been exhibited to us with respect to the Commission’s decision, our review function is at an end. The Commission’s decision is Affirmed. . We may take it as undisputed “that the Frederick region has been growing at a substantially faster rate than has the Gettysburg region,” as the Commission later notea. ' ■ ' . Cf. F. C. C. v. Allentown Broadcasting Co., 1955, 349 U.S. 358, 362, 863, 76 S.Ct. 855, 99 L.Ed. 1147. . Cf. Kentucky Broadcasting Corp. v. Federal Communications Comm., 1949, 84 U.S.App.D.C. 383, 174 F.2d 38. . As the Commission was aware, not unrelated to the problem of assignments in the Frederick area were the issues raised in Richard Lewis, Jr., Inc., (Monocacy Broadcasting Co.) v. F. C. C., 1961, 110 U.S.App.D.C. 269, 292 F.2d 762. . Universal Camera Corp. v. National Labor Relations Bd., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_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. TAKAHASHI v. FISH AND GAME COMMISSION et al. No. 533. Argued April 21-22, 1948. Decided June 7, 1948. A. L. Wirin and Dean Acheson argued the cause for petitioner. With them on the brief were Charles A. Horsky and Fred Okrand. Ralph Winfield Scott, Deputy Attorney General of California, argued the cause for respondents. With him on the brief was Fred N. Howser, Attorney General. Briefs of amici curiae urging reversal were filed by Attorney General Clark, Solicitor General Perlman, Philip Elman and James L. Morrisson for the United States; Arthur Garfield Hays and Edward J. Ennis for the American Civil Liberties Union; William Maslow, William Strong and Ambrose Doskow for the American Jewish Congress; Phineas Indritz and Jacob W. Rosenthal for the American Veterans Committee; Edward J. Ennis for the Home Missions Council of North America et al.; Saburo Kido for the Japanese American Citizens League; and Thurgood Marshall and Marian Wynn Perry for the National Lawyers Guild et al. Mr. Justice Black delivered the opinion of the Couri. The respondent, Torao Takahashi, born in Japan, came to this country and became a resident of California in 1907. Federal laws, based on distinctions of “color and race,” Toyota v. United States, 268 U. S. 402, 411-412, have permitted Japanese and certain other non-white racial groups to enter and reside in the country, but have made them ineligible for United States citizenship. The question presented is whether California can, consistently with the Federal Constitution and laws passed pursuant to it, use this federally created racial ineligibility for citizenship as a basis for barring Taka-hashi from earning his living as a commercial fisherman in the ocean waters off the coast of California. Prior to 1943 California issued commercial fishing licenses to all qualified persons without regard to alienage or ineligibility to citizenship. From 1915 to 1942 Taka-hashi, under annual commercial fishing licenses issued by the State, fished in ocean waters off the California coast, apparently both within and without the three-mile coastal belt, and brought his fresh fish ashore for sale. In 1942, while this country was at war with Japan, Takahashi and other California residents of Japanese ancestry were evacuated from the State under military orders. See Korematsu v. United States, 323 U. S. 214. In 1943, during the period of war and evacuation, an amendment to the California Fish and Game Code was adopted prohibiting issuance of a license to any “alien Japanese.” Cal. Stats. 1943, ch. 1100. In 1945, the state code was again amended by striking the 1943 provision for fear that it might be “declared unconstitutional” because directed only “against alien Japanese”; the new amendment banned issuance of licenses to any “person ineligible to citizenship,” which classification included Japanese. Cal. Stats. 1945, ch. 181. Because of this state provision barring issuance of commercial fishing licenses to persons ineligible for citizenship under federal law, Takahashi, who met all other state requirements, was denied a license by the California Fish and Game Commission upon his return to California in 1945. Takahashi brought this action for mandamus in the Superior Court of Los Angeles County, California, to compel the Commission to issue a license to him. That court granted the petition for mandamus. It held that lawful alien inhabitants of California, despite their ineligibility to citizenship, were entitled to engage in the vocation of commercial fishing on the high seas beyond the three-mile belt on the same terms as other lawful state inhabitants, and that the California code provision denying them this right violated the equal protection clause of the Fourteenth Amendment. The State Supreme Court, three judges dissenting, reversed, holding that California had a proprietary interest in fish in the ocean waters within three miles of the shore, and that this interest justified the State in barring all aliens in general and aliens ineligible to citizenship in particular from catching fish within or without the three-mile coastal belt and bringing them to California for commercial purposes. 30 Cal. 2d 719, 185 P. 2d 805. To review this question of importance in the fields of federal-state relationships and of constitutionally protected individual equality and liberty, we granted certiorari. We may well begin our consideration of the principles to be applied in this case by a summary of this Court’s holding in Truax v. Raich, 239 U. S. 33, not deemed controlling by the majority of the California Supreme Court, but regarded by the dissenters as requiring the invalidation of the California law. That case involved an attack upon an Arizona law which required all Arizona employers of more than five workers to hire not less than eighty (80) per cent qualified electors or native-born citizens of the United States. Raich, an alien who worked as a cook in a restaurant which had more than five employees, was about to lose his job solely because of the state law’s coercive effect on the restaurant owner. This Court, in upholding Raich’s contention that the Arizona law was invalid, declared that Raich, having been lawfully admitted into the country under federal law, had a federal privilege to enter and abide in “any State in the Union” and thereafter under the Fourteenth Amendment to enjoy the equal protection of the laws of the state in which he abided; that this privilege to enter in and abide in any state carried with it the “right to work for a living in the common occupations of the community,” a denial of which right would make of the Amendment “a barren form of words.” In answer to a contention that Arizona’s restriction upon the employment of aliens was “reasonable” and therefore permissible, this Court declared: “It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration — to admit or exclude aliens- — -is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of .an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.” Truax v. Raich, supra at 42. Had the Truax decision said nothing further than what is quoted above, its reasoning, if followed, would seem to require invalidation of this California code provision barring aliens from the occupation of fishing as inconsistent with federal law, which is constitutionally declared to be “the supreme Law of the Land.” However, the Court there went on to note that it had on occasion sustained state legislation that did not apply alike to citizens and non-citizens, the ground for the distinction being that such laws were necessary to protect special interests either of the state or of its citizens as such. The Truax opinion pointed out that the Arizona law, aimed as it was against employment of aliens in all vocations, failed to show a “special public interest with respect to any particular business . . . that could possibly be deemed to support the enactment.” The Court noted that it had previously upheld various state laws which restricted the privilege of planting oysters in the tidewater rivers of a state to citizens of that state, and which denied to aliens within a state the privilege of possessing a rifle and of shooting game within that state; it also referred to decisions recognizing a state’s broad powers, in the absence of overriding treaties, to restrict the devolution of real property to non-aliens. California now urges, and the-State Supreme Court held, that the California fishing provision here challenged falls within the rationale of the “special public interest” cases distinguished in the Truax opinion, and thus that the state’s ban upon commercial fishing by aliens ineligible to citizenship is valid. The contention is this: California owns the fish within three miles of its coast as a trustee for all California citizens as distinguished from its non-citizen inhabitants; as such trustee-owner, it has complete power to bar any or all aliens from fishing in the three-mile belt as a means of conserving the supply of fish; since migratory fish caught while swimming in the three-mile belt are indistinguishable from those caught while swimming in the adjacent high seas, the State, in order to enforce its three-mile control, can also regulate the catching and delivery to its coast of fish caught beyond the three-mile belt under this Court’s decision in Bayside Fish Co. v. Gentry, 297 U. S. 422. Its law denying fishing licenses to aliens ineligible for citizenship, so the state’s contention goes, tends to reduce the number of commercial fishermen and therefore is a proper fish conservation measure; in the exercise of its power to decide what groups will be denied licenses, the State has a right, if not a duty, to bar first of all aliens, who have no community interest in the fish owned by the State. Finally, the legislature’s denial of licenses to those aliens who are “ineligible to citizenship” is defended as a reasonable classification, on the ground that California has simply followed the Federal Government’s lead in adopting that classification from the naturalization laws. First. The state’s contention that its law was passed solely as a fish conservation measure is vigorously denied. The petitioner argues that it was the outgrowth of racial antagonism directed solely against the Japanese, and that for this reason alone it cannot stand. See Korematsu v. United States, supra at 216; Kotch v. Board of River Pilot Comm’rs, 330 U. S. 552, 556; Yick Wo v. Hopkins, 118 U. S. 356; In re Ah Chong, 2 F. 733, 737. We find it unnecessary to resolve this controversy concerning the motives that prompted enactment of the legislation. Accordingly, for purposes of our decision we may assume that the code provision was passed to conserve fish in the California coastal waters, or to protect California citizens engaged in commercial fishing from competition by Japanese aliens, or for both reasons. Second. It does not follow, as California seems to argue, that because the United States regulates immigration and naturalization in part on the basis of race and color classifications, a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living. 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. See Hines v. Davidowitz, 312 U. S. 52, 66. 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. Moreover, Congress, in the enactment of a comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization, has broadly provided: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 16 Stat. 140, 144, 8 U. S. C. § 41. The protection of this section has been held to extend to aliens as well as to citizens. Consequently the section and the Fourteenth Amendment on which it rests in part protect “all persons” against state legislation bearing unequally upon them either because of alienage or color. See Hurd v. Hodge, 334 U. S. 24. The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide “in any state” on an equality of legal privileges with all citizens under non-discriminatory laws. All of the foregoing emphasizes the tenuousness of the state’s claim that it has power to single out and ban its lawful alien inhabitants, and particularly certain racial and color groups within this class of inhabitants, • from following a vocation simply because Congress has put some such groups in special classifications in exercise of its broad and wholly distinguishable powers over immigration and naturalization. The state’s law here cannot be supported in the employment of this legislative authority because of policies adopted by Congress in the exercise of its power to treat separately and differently with aliens from countries composed of peoples of many diverse cul-. tures, races, and colors. For these reasons the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits. Third. We are unable to find that the “special public interest” on which California relies provides support for this state ban on Takahashi’s commercial fishing. As before pointed out, California’s claim of “special public interest” is that its citizens are the collective owners of fish swimming in the three-mile belt. It is true that this Court did long ago say that the citizens of a state collectively own “the tide-waters . . . and the fish in them, so •far as they are capable of ownership while running.” McCready v. Virginia, 94 U. S. 391, 394. Cf. United States v. California, 332 U. S. 19, 38; Toomer v. Witsell, ante, p. 385. The McCready case upheld a Virginia law which prohibited citizens of other states from planting oysters in a Virginia tidewater river. Though the Mc-Cready case has been often distinguished, its rationale has been relied on in other cases, including Geer v. Connecticut, 161 U. S. 519. That decision, where only the commerce clause was involved, sustained a state law that, in order to restrict the use of game to the people of the state, prohibited the out-of-state transportation of game killed within the state. On the other hand, where Louisiana laws declared that the state owned all shrimp within the waters of the state, but permitted ultimate sale and shipment of shrimp for consumption outside that state’s boundaries, Louisiana was denied power under the commerce clause to require the local processing of shrimp taken from Louisiana marshes as a prerequisite to out-of-state transportation. Foster Packing Co. v. Haydel, 278 U. S. 1. In the absence of overriding federal treaties, this Court sustained a state law barring aliens from hunting wild game in the interest of conserving game for citizens of the state against due process and equal protection challenges. Patsone v. Pennsylvania, 232 U. S. 138. Later, however, the Federal Migratory Bird Treaty Act of 1918, 40 Stat. 755, was sustained as within federal power despite the claim of Missouri of ownership of birds within its boundaries based on prior statements as to state ownership of game and fish in the Geer case. Missouri v. Holland, 252 U. S. 416. The Court was of opinion that “To put the claim of the State upon title is to lean upon a slender reed.” P. 434. We think that same statement is equally applicable here. To whatever extent the fish in the three-mile belt off California may be “capable of ownership” by California, we think that “ownership” is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so. This leaves for consideration the argument that this law should be upheld on authority of those cases which have sustained state laws barring aliens ineligible to citizenship from land ownership. Assuming the continued validity of those cases, we think they could not in any event be controlling here. They rested solely upon the power of states to control the devolution and ownership of land within their borders, a power long exercised and supported on reasons peculiar to real property. They cannot be extended to cover this case. The judgment is reversed and remanded for proceedings not inconsistent with this opinion. Reversed. The comprehensive laws adopted by Congress regulating the immigration and naturalization of aliens are included in Title 8 of the U. S. Code; for codification of laws governing racial and color prerequisites of aliens to citizenship see 8 U. S. C. § 703. An act adopted by the first Congress in 1790 made “free white persons” only eligible for citizenship. 1 Stat. 103. Later acts have extended eligibility of aliens to citizenship to the following groups: in 1870, “aliens of African nativity and . . . persons of African descent,” 16 Stat. 254, 256; in 1940, “descendants of races indigenous to the Western Hemisphere,” 54 Stat. 1137, 1140; in 1943, “Chinese persons or persons of Chinese descent,” 57 Stat. 600, 601; and in 1946, Filipinos and “persons of races indigenous to India,” 60 Stat. 416. While it is not wholly clear what racial groups other than Japanese are now ineligible to citizenship, it is clear that Japanese are among the few groups still not eligible, see Oyama v. California, 332 U. S. 633, 635, n. 3, and that, according to the 1940 census, Japanese aliens constituted the great majority of aliens living in the United States then ineligible for citizenship. See concurring opinion of Mr. Justice Murphy in Oyama v. California, supra at 650, 665, 666, nn. 20 and 22. Report of the California Senate Fact-Finding Committee on Japanese Resettlement, May 1, 1945, pp. 5-6. As amended the code section now reads: “Persons required to procure license: To whom issuable. Every person who uses or operates or assists in using or operating any boat, net, trap, line, or other appliance to take fish, mollusks or crustaceans for profit, or who brings or causes fish, mollusks or crustaceans to be brought ashore at any point in the State for the purpose of selling the same in a fresh state, shall procure a commercial fishing license. “A commercial fishing license may be issued to any person other than a person ineligible to citizenship. A commercial fishing license may be issued to a corporation only if said corporation is authorized to do business in this State, if none of the officers or directors thereof are persons ineligible to citizenship, and if less than the majority of each class of stockholders thereof are persons ineligible to citizenship.” Cal. Fish and Game Code § 990. In 1947 the code was amended to permit “any person, not a citizen of the United States,” to obtain hunting and sport fishing licenses, both of which had been denied to “alien Japanese” and to persons “ineligible to citizenship” under the 1943 and 1945 amendments. Cal. Stats. 1947, c. 1329; Cal. Fish and Game" Code §§427, 428. The Superior Court first ordered issuance of a commercial fishing license authorizing Takahashi to bring ashore “catches of fish from the waters of the high seas beyond the State’s territorial jurisdiction.” After appeal to the State Supreme Court by the State Commission the Superior Court amended its judgment so as to order a commercial license authorizing Takahashi to bring in catches of fish taken from the three-mile ocean belt adjacent to the California coast as well as from, the high seas. The State Supreme Court held that the Superior Court was without jurisdiction to amend its judgment after appeal and accordingly treated the amended judgment as void. California argues here that its State Fish and Game Commission is authorized by statute to issue only one type of commercial fishing license, namely, one permitting ocean fish to be brought ashore whether caught within or without the three-mile belt, that the Superior Court’s first judgment ordering issuance of a license limited to catches of high seas fish directed the Commission to do something it was without authority to do, and that on this ground we should affirm the state court’s denial of the requested license. The State Supreme Court did not, however, decide the case on that ground, but ruled against petitioner on the ground that the challenged code provision was valid under the Federal Constitution and that the Commission’s refusal to grant a license was required by its terms. Since the state court of last resort relied solely upon federal grounds for its decision, we may properly review its action here. The opinion cited the following cases: McCready v. Virginia, 94 U. S. 391; Patsone v. Pennsylvania, 232 U. S. 138; Hauenstein v. Lynham, 100 U. S. 483; and Blythe v. Hinckley, 180 U. S. 333. Truax v. Raich, supra; Chy Lung v. Freeman, 92 U. S. 275, 280; see Hines v. Davidowitz, supra at 65-68. Yick Wo v. Hopkins, supra at 369; United States v. Wong Kim Ark, 169 U. S. 649, 696; In re Tiburcio Parrott, 1 F. 481, 508-509; Fraser v. McConway & Torley Co., 82 F. 257. Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326. See Oyama v. California, 332 U. S. 633, 646, 649, 672. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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). Thelma Geraldine WALDROP, Appellant, v. UNITED STATES of America, Appellee. No. 23090. United States Court of Appeals Fifth Circuit. Dec. 13, 1966. Thomas M. Haas, Mobile, Ala., for appellant. D. Broward Segrest, Asst. U. S. Atty., Mobile, Ala., for appellee. Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, District Judges. PER CURIAM: There was more than ample evidence to warrant submission to the jury the question whether appellant was guilty as an aider and abettor of the bank robbery for which she was convicted. There being no substantial legal questions raised on the appeal, the judgment 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)". 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_origin	A	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. NEAL v. UNITED STATES No. 11177. Circuit Court of Appeals, Eighth Circuit. April 3, 1939. WOODROUGH, Circuit Judge, dissenting. Harry S. Swensen, of Minneapolis, Minn. (Eugene A. Rerat and John Ott, both of Minneapolis, Minn., on the brief), for appellant. Victor E. Anderson, U. S. Atty., of St. Paul, Minn. (Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States. Before STONE, WOODROUGH, and THOMAS, Circuit Judges. THOMAS, Circuit Judge. The appellant William Squire Neal, hereinafter called defendant, was indicted, tried and convicted in the court below upon both counts of an indictment containing two counts, and he appeals. The first count of the indictment charged defendant with being an accessory after the fact to a felony committed by John L. Neal; and the second count charged misprision of the same felony committed by John L. Neal. The defendant was sentenced to serve in a penitentiary for two years on each count, the sentences to run concurrently and not consecutively. Before trial the defendant interposed a demurrer to count one of the indictment, which was overruled. At the close of.the evidence he moved for a directed verdict upon both counts on the ground of insufficiency of evidence to support a verdict of guilty, which motion was overruled. On this appeal the defendant urges that the trial court erred (1) in overruling his demurrer to count one of the indictment, (2) in overruling his motion for a directed verdict on both counts, (3) in the admission of certain evidence over his objection, (4) in permitting misconduct of the prosecuting attorney in his argument to the jury, and (5) in giving certain instructions to the jury. Since the sentences run concurrently,.if the defendant was properly convicted upon either count of the indictment, there can not be a reversal even if there were reversible error on the trial of one of the counts. The defendant in that situation is not prejudiced by the sentence on the count in which the conviction is tainted with error. Roberts v. United States, 8 Cir., 96 F.2d 39, 40; Little v. United States, 8 Cir., 93 F.2d 401, 409; Taran v. United States, 8 Cir., 88 F.2d 54, 59; Mad-delin v. United States, 7 Cir., 46 F.2d 266; United States v. Trenton Potteries Co., 273 U.S. 392. 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989. The alleged error most seriously pressed upon our attention, and the one involving the greatest difficulty, relates to the sufficiency of the evidence to support a conviction upon cither count. If this assignment of error be sustained the court erred in overruling defendant’s motion for a directed verdict and the judgment must be reversed. In that event it will be unnecessary to consider the other alleged errors. This question requires a consideration of the indictment and a review of the government’s evidence. The defendant and John Neal are brothers. At all times material to this case they lived in Minneapolis, Minnesota. The defendant was married and operated an undertaking establishment. His brother John was a bachelor and lived in defendant’s home. John had been employed as a clerk or messenger in the office of the treasurer of the Soo Line railroad at Minneapolis for 32 years prior to December 28, 1937. In February, 1938, John was indicted in the United States District Court of Minnesota and charged in ten counts with stealing and carrying away various sums of money from the First National Bank and Trust Company of Minneapolis. Pie pleaded guilty on five counts and was sentenced to 15 years in a peniten-' tiary. The indictment was predicated upon the amendment of August 24, 1937, to section 2(a) of the Act of May 18, 1934, 48 Stat. 783, 12 U.S.C. § 588b, 12 U.S.C. A. § 588b. The original statute made bank robbery a crime. The pertinent part of the amendment added: “whoever shall take and carry away, with intent to steal or purloin, any property or money or any other tiling of value exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” The counts of the indictment to which John Neal pleaded guilty and on which he was sentenced charged him with stealing and carrying away from the bank $97.-50. on December 27, 1937; $97.50 on December 24, 1937; $97.50 on December 23, 1937; $95 on December 22, 1937; and $97.50 on December 21, 1937. The crimes of accessory after the fact and misprision of felony being dependent or subsidiary offenses the indictment upon which the defendant was tried alleged two crimes in each count. John L. Neal is referred to as principal, or the one who committed the primary felony, and the defendant is charged with the dependent offenses. In each count the felony attributed to John L. Neal is that between August 24, 1937 (the date of the amendment to the bank robbery statute supra), and December 28, 1937, he stole and carried away from the possession of the First National Bank and Trust Company of Minneapolis many thousands of dollars. In the first count the crime of which the defendant is accused is that he knowing that the principal had committed and completed the felony above described became on January 7, 1938, an accessory after the fact thereto in that he aided and assisted the principal in secreting the fruits and proceeds of the felony by clandestinely placing $5,903 of the stolen money in a golf bag in his living quarters, thus suppressing important evidence, to the end that the principal might escape punishment. In the second count it is alleged that on or about January 7, 1938, the defendant committed the crime of misprision of felony in that with full knowledge of the felony committed by John L. Neal he concealed and failed to disclose and make known such felony as soon as might be to some one of the judges of the United States District Court of Minnesota or to the Attorney General of the United States or to the United States Attorney or to other persons in civil authority. It is further charged that the defendant took two affirmative steps to conceal the crime committed by his brother J ohn: first, he concealed $5,903 of the stolen money in a golf bag at his living quarters; and, second, he altered and expunged from the account books of the Neal Funeral Home operated by him entries showing the investment therein by John L. Neal of the stolen moneys. To warrant a conviction by the jury on the first count of the indictment the burden was upon the government to establish beyond a reasonable doubt: (1) That John L. Neal, the principal, had committed and completed the felony charged, that is, that between August 24 and December 28, 1937, he had unlawfully taken and carried away from the First National Bank and Trust Company of Minneapolis many thousands of dollars; (2) that the defendant had knowledge that the principal had committed the felony; and (3) that having such knowledge, defendant aided and assisted the principal to escape punishment by suppressing important evidence against him in that he concealed $5,903 which constituted a large part of tfie fruits and proceeds of the offense. To sustain a conviction on count two for misprision of felony it was incumbent upon the government to prove beyond a reasonable doubt (1) that John L. Neal, the principal, had committed and completed the felony alleged prior to January 7, 1938; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took two affirmative steps to conceal the crime of the principal, viz., (a) he concealed $5903 of the stolen money in a golf bag, and (b) he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of John L. Neal therein, which, money so invested was a part of the stolen money. In brief the evidence introduced by the government to prove the crime of the principal John L. Neal tended to establish the following facts: John L. Neal, as a clerk or messenger in the office of the Treasurer of the Soo Line railroad company, received a salary of $140 a month. Under its system of doing business the railroad company had its station agents send their daily collections directly to the bank for deposit to the credit of the company, with the exception of rent money which they were instructed to send directly to the treasurer of the company at Minneapolis. The agent before sending the money made a deposit slip in quadruplicate one of which he retained. The money, the original and one copy of the deposit slip were sent directly to the bank and one copy was sent to the auditor of the railroad company. The envelopes containing the deposits were delivered every morning to the teller in the "railroad cage” at the bank. John L. Neal called at the teller’s cage about 10:30 in the morning and obtained the extra copy of the deposit slip and took it to the office of the treasurer of the railroad company where he made a record of receipt by the bank of the deposit after which he turned the deposit slip over to the auditor as notice that the money had been received by the bank. The auditor then returned one copy of the slip to the agent to serve as a receipt to him for the deposit. In many instances the agents sent rent collections with the deposit to the bank instead of sending such items directly to the treasurer of the company. The rent item was separately enclosed and had an identifying mark on it indicating that it was not for deposit but was for the treasurer of the company. The railroad teller at the bank would turn over the rent items to John L. Neal for delivery to the treasurer when John called at the bank in the morning. For a period of approximately seven years immediately preceding December 27, 1937, John L. Neal made a practice of telling the bank teller when he made his usual call that of the general deposit received from a particular agent a part thereof, for instance $97.50, was rent money and that it should be turned over to him for delivery to the treasurer. The statement was false, but the teller relying on it would turn over the amount demanded. The money turned over was not taken from the funds remitted by the particular agent "designated, but from money generally on deposit at the cage. The original deposit slip held by the bank would then be changed accordingly but not the copy which Neal took to the treasurer’s office. The money so received by him he kept. He kept an account of the items thus abstracted and covered up his offense by false entries and forged deposit slips. Neal’s record showed that the amount of money thus taken by him over the seven year period amounted to $118,280. The bank’s record showed the amount to be $82,872.50. During the entire year 1937 the amount taken was about $53,000, and after August 24, 1937, approximately $18,000 or $19,000. John L. Neal had no express authority to withdraw money from the bank, and the teller at the bank had no instructions to turn the money over to him. The defendant claims that both John L. Neal and the bank teller had implied authority to handle the moneys the way they did, but the evidence was not such as to require the jury so to find. The evidence on the trial of the defendant tended to show that he lived with his family upstairs over his funeral parlor in Minneapolis. His brother John lived with him. In 1935 he had his business incorporated under the name Neal Funeral Home, Inc. He was president, his wife vice president, John L. Neal treasurer, and an employee, Otis Allen, secretary. The defendant treated the business as his own. He paid no salaries to the officers and he handled the money himself. The obligations of the business were in his name, and he owned the home. His income in 1935 was $2,385.46, and in 1936, $2,739.15. Yet he had property in excess of the amount usually owned by one of such moderate income. John furnished the groceries for the family amounting to $75 to $80 a week. He also made investments in the business. During 1935, 1936, and 1937 he contributed to the business the sum of $12,970.71 in various amounts and at various times, and he withdrew during the same period the sum of $3,150, leaving a net balance of $9,820.71. John L. Neal disappeared on the night of December 27, 1937. About 2:00 a. m. on the morning of December 28, 1937, the defendant found - on the premises $5,903 in paper currency in an old iron box. He removed the money and placed it in an old laundry bag which he placed in his closet. When questioned by officers he admitted finding only $15 of John’s money. On the evening of December 29, 1937, the defendant called the bookkeeper for the funeral home and employed him to delete John L. Neal’s name from the books. The bookkeeper rewrote about 30 sheets having John L. Neal’s name thereon, omitting the name and substituting other explanations for the items. The rewritten sheets and the originals were turned over to defendant’s secretary Allen on January 31, 1938, but the bookkeeper then took the originals and kept them until February 17, 1938. The evidence discloses that the defendant knew where John L. Neal was in hiding following December 27, 1937, but although examined frequently by federal investigators denied all knowledge of his whereabouts until in January, 1938. On January 5, 1938, he directed an officer to John’s hiding place, and John was arrested. On January 6, the defendant told thé officers that he had found $5,903 in an old iron box in John’s room and had placed it in a golf bag upstairs in his room. As applicable to both counts we think there was substantial evidence to support the conclusion of the jury that John L. Neal, the principal, was guilty of the felony charged against him, and that the defendant had knowledge of that fact as alleged in the indictment. There is no claim that the defendant believed or was informed that his brother John earned or had by any honest means obtained the large sums of money which he contributed to the funeral home or from which he paid the family grocery bills. The close relationship between the two brothers precluded ignorance of each others’ resources. His conduct on and after December 28, 1937, and his concealing information of John’s whereabouts were proper subjects for the consideration of the jury, and all the circumstances taken together virtually compelled a finding of guilty knowledge. Kcliher v. United States, 1 Cir., 193 F. 8, 9; McDonald v. United States, 8 Cir., 89 F.2d 128. The serious question under count one of the indictment is whether there is substantial evidence to support the charge that the defendant aided and assisted the principal to escape punishment by suppressing evidence against him by concealing the $5,903 found in the old iron box in a golf bag. The charge in the indictment is that the defendant concealed $5,903 which constituted a large part of the fruits and proceeds of the offense of the principal and was important evidence against him. The proof does not show when the $5,903 was placed in the old iron box by John. John’s salary was only $140 a month. Over a period of seven years he stole approximately $118,000. During 1937 he stole $53,000 of this sum, and after August 24th of that year he had taken approximately $18,000 of the amount. The money stolen prior to August 24, 1937, did not constitute a federal offense, and the stealing of money prior to that date is not charged to be a crime in the indictment. The defendant’s testimony is that when he opened the iron box on December 28, 1937, the paper money contained in it appeared to be old and was covered with a thick layer of dust. Early in January, 1938, the money was turned over to the officers, and they do not deny defendant’s testimony with reference to its condition. The money consisted of 813 one-dollar bills and $5,090 of five, ten, twenty and fifty dollar bills. The proof clearly does not tend to show that the $5,903 was a part of the “fruits or' proceeds of the offense” of the principal, that is, that it was money stolen by John after rather than before August 24, 1937. Evidence which is consistent with each of two "hypotheses proves neither, Prudential Insurance Company v. King, 8 Cir., 101 F.2d 990, decided February 25, 1939; and when all of the substantial evidence is as consistent with innocence as it is with guilt, it is the duty of the appellate court to reverse a conviction, Shama v. United States, 8 Cir., 94 F.2d 1, 4; Fulbright v. United States, 8 Cir., 91 F.2d 210; Planing v. United States, 8 Cir., 21 F.2d 508; Wright v. United States, 8 Cir., 227 F. 855. Nor is there any presumption in the absence of proof that the $5,903 was a part of the money stolen after August 24, 1937, rather than that it was a part of the money stolen before that date. United States F. & G. Co. v. Des Moines Nat. Bank, 8 Cir., 145 F. 273, 279. The government does not deny that the allegations and the proof upon this point do not correspond, but counsel say the variance is not material. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct 629, 630, 79 L.Ed. 1314, is relied upon. The test of a material variance is there stated to be “(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” We are of the opinion that the variance in this instance is material and prejudicial. The indictment informed the defendant that the government would prove that the $5,903 was a part of that stolen after August 24, 1937, and not that it might be a part of that taken sometime during the preceding seven years. The defense, had it been alleged that the $5,903 was a part of the money taken before that date, would be altogether different from the defense if it were alleged that it was taken afterwards. Even though the description were unnecessary in the indictment it devolved upon the government to prove it as laid. Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 39 L.Ed. 214. It is insisted further that the indictment charges that the $5,903 found in John’s room after his disappearance on December 28, 1937, constituted evidence admissible against the principal, had he been tried for the felony charged against him, and that it is therefore admissible against the defendant. This theory would regard the allegation that the money was the fruit of the offense as surplusage. It fails also to distinguish between admissibility of evidence against the principal and evidence which constitutes substantial proof of the dependent offense. This argument is sufficiently plausible and important, however, to make it expedient to examine the question of whether or not, were the record on the trial of the principal the same as the record in this case, the $5,903 found in the iron box would be relevant evidence against him. The general rule in favor of the admission of such evidence is stated thus in 36 C.J. 894: “When money has been stolen and the evidence against the accused is largely circumstantial, it has been held proper to admit in evidence * * * as showing a possible motive for the crime. * * * The possession by accused of money immediately or shortly after the theft * * * and for stronger reason is such evidence admissible when there is proof both of the impecuniosity of accused before the larceny and the possession by him of considerable money for a person in his circumstances immediately afterward, as such a sudden accession of wealth by defendant, contemporaneous with the larceny of money, tends strongly to connect him with the crime. To contradict this evidence accused may show that he had money just prior to the theft. sf! Jjs C» In short the evidence of possession of a large sum of money by the defendant immediately after a theft raises a presumption of fact that the money found is a part of the stolen money and that the defendant was connected with the theft. Under this general rule the foundation for the introduction of such evidence includes proof of (1) the “impecuniosity” of the defendant just before the theft, (2) and the “sudden accession” of wealth (3) contemporaneous with the theft. O’Shea v. United States, 6 Cir., 93 F.2d 169; People v. Connolly, 253 N.Y. 330, 171 N.E. 393; Davis v. Commonwealth, 154 Ky. 774, 159 S.W. 607; Perrin v. State, 81 Wis. 135, 50 N.W. 516; 17 R.C.L. p. 68. down by the Supreme ther burden upon the government ing some necessary or natural connection between the sums in defendant’s possession and those he is charged with taking. Williams v. United States, 168 U.S. 382, 396, 397, 18 S.Ct. 92, 97, 42 L.Ed. 509. In the cited case the defendant was convicted under an indictment charging extortion. Evidence was introduced under the general rule stated above showing that during the period of about three months when the extortions were taking place the defendant deposited in the bank $4750 although his salary was only $140 a month. In reversing the judgment of conviction, in connection with the statement of the rule quoted above, the court observed that “no sum so deposited corresponded in amount with the sums which he was charged with having extorted.” This case is criticized by Prof. Wigmore in 1 Evidence § 154, where he states the rule thus: “Another mode, however, of making the fact of money-possession relevant is to show its sudden possession i.e. to show that before the time of taking the person was without money, while immediately after that time he had a great deal; this reduces the hypothesis to such as involve sudden acquisition, and a dishonest acquisition thus becomes a natural and prominent hypothesis. On such conditions the possession of unidentified money becomes relevant.” The rule laid Court adds the fur-of show- Upon the trial the government introduced facts in evidence in this case which destroy the presumption of fact and render the finding of the $5,903 irrelevant. While it was shown that the principal, John L. Neal, was receiving a salary of only $140 a month it was also shown that during the preceding seven years he had in addition to his salary received approximately $100,000, and that during the 9 months preceding August 24, 1937, his income had been approximately $200 a day. Here was no sudden acquisition of wealth after August 24th. It is true his large income prior to that date was the result of stealing, but such stealing was not a federal crime; and his possession of $5,903 after August 24th, without proof of acquisition after that date, would not raise a presumption that its acquisition was unlawful, or that it was a part of the fruits of his federal offense. As the record stood at the close of the evidence there was no relevant evidence to support a verdict of guilty on count one of the indictment. The defendant’s motion as to this count should have been sustained. The second count of the indictment charges an offense under Title 18 U.S.C.A. § 251 (Cr.Code § 146), which provides that: “Whoever, having knowledge of the actual commission of the crime of murder, or other felony cognizable by the courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges of other persons in civil or military authority under the United States, shall be fined not more than $500, or imprisoned not more than three years, or both.” The elements of the offense under the statute are two: There must be (1) a concealment of something such as suppression of the evidence or other positive act and (2) a failure to disclose. Proof of one of the elements only, and not of both, is not sufficient to support a conviction. Bratton v. United States, 10 Cir., 73 F.2d 795, 797; United States v. Farrar, D.C.Mass., 38 F.2d 515, 517. The sufficiency of the charge is not assailed, but it is claimed that defendant did not fail to disclose “as soon as may be”; that he did in fact as shown by the government’s evidence disclose all that he knew on the fourth, fifth and sixth of January, 1938. The evidence also shows that he made no disclosures until after he had been frightened into doing so by the federal officers who were investigating the crime. He might have given them such information on the 28th of December, 1937, but instead of doing so he “threw dust in their eyes” when they interviewed him and gave them misleading information. Under the evidence it was a question for the jury to determine whether he made the disclosure “as soon as may be” to satisfy the requirements of the law. We next consider the charge in the indictment that the defendant did two affirmative acts to “conceal” the crime of the principal. The first act charged was that he concealed $5,903 in a golf bag, “which moneys unlawfully and feloniously had been taken and carried away by the said John L. Neal, with intent to steal the same, from the possession of” the bank; and, second, that he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of moneys by John L. Neal, which moneys had unlawfully been taken and carried away from the possession of the bank by John with intent to steal the same. The first alleged act, that the defendant concealed $5,903 of the money stolen by John L. Neal between August 24 and December 28, 1937, is not, as shown above, supported by the evidence. Neither is the second alleged affirmative act of the defendant to conceal the crime of John L. Neal supported by substantial evidence. That charge is that the defendant expunged from the books of the funeral home the entries showing John L. Neal’s investment of the stolen moneys in that business. There are only two entries in the books showing investments of John L. Neal in the funeral business after August 24, 1937. One of these shows that on October 15, 1937, he “advanced” $125 and the other that on October 19th he “advanced” the further sum of $100. There is. no evidence whatever connecting these sums with the money unlawfully taken and carried away from the bank; and the amount is not sufficient to raise a presumption of fact that they were not honest savings from- his salary. The basis in the evidence upon which the charge is founded is that the defendant did on December 29, 1937, instruct the bookkeeper to delete John L. Neal’s name from the entries in the books. His name or his initials appeared in connection with certain entries on about 30 different sheets of the books. The bookkeeper took these sheets home with him and copied them substituting for the name or initials of John L. Neal other explanations such as “administration fees” or “W. Squire Neal.” He returned them to the office of the funeral home on December 31, 1937, and delivered them to Otis Allen. He then took the original sheets home with him without the defendant’s knowledge and made a second copy for himself. The originals were returned to the office on February 17, 1938, and placed in the books, where they remained and were produced at the trial unaltered. The defendant did not direct that the original sheets be destroyed, although the bookkeeper suggested that they be burned. An intent to conceal from the government, i'f such intent existed, that is not carried out is not an offense under the statute. The government argues that for a few days after December 27, 1937, the defendant aided in concealing John L. Neal, and that he is therefore guilty of misprision of felony. The evidence shows that he did know where John was in hiding and may have advised with him about escaping; but failure to inform the officers is not sufficient alone to constitute a crime under the statute. Bratton v. United States, supra. The government having failed to produce any competent evidence to sustain one of the essential elements of the offense charged in count two of the indictment the motion for a directed verdict should have been sustained as to that count also. Because the evidence fails to support the charges in each count of the indictment the 'judgment is reversed and the case remanded with instructions to grant a new trial. 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_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). Marie Melrose MONTI and California State Employees Association, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. DEPARTMENT OF INDUSTRIAL RELATIONS, STATE OF CALIFORNIA, Raymond Barrier and Donald Vial, Defendants-Appellees. No. 77-3731. United States Court of Appeals, Ninth Circuit. Sept. 26, 1978. Helen B. Culiner, San Francisco, Cal., for plaintiffs-appellants. Gordon Zane, San Francisco, Cal., for defendants-appellees. Before TRASK and SNEED, Circuit Judges, and RICHEY, District Judge. Hon. Mary Anne Richey, United States District Judge, for the District of Arizona, sitting by designation. SNEED, Circuit Judge: Plaintiffs appeal from an order of the district court denying their motion for class certification. In light of the Court’s recent decision in Gardner v. Westinghouse Broadcasting Co., -U.S. -, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), this court lacks appellate jurisdiction under 28 U.S.C. § 1292(a)(1) to review the class certification denial. Alternatively, plaintiffs seek a writ of mandamus pursuant to 28 U.S.C. § 1651, to compel the district court to certify the class. The issuance of such a writ is inappropriate in this case. We therefore dismiss the appeal. I. Plaintiff-appellant Monti brought this suit as a class action against the California Department of Industrial Relations (Department) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Appellant Monti later joined the California State Employees Association as co-plaintiff. Appellants charged the Department with systematically engaging in a pattern of employment discrimination against female employees. Specifically, appellants accused the Department of restricting female employment to certain divisions within the Department; limiting female employment to the lower-salaried professional levels within each division; and denying female employees promotional opportunities equal to those available to male employees. Plaintiffs prayed for declaratory relief, a permanent injunction, and compensatory promotions and awards. Plaintiffs moved for an order certifying their action as a class action on behalf of themselves and a class of past, present, and future female employees, applicants, and potential applicants. After a complete hearing, the district court denied the motion to certify the class action in an order filed October 25, 1977. Appellants perfected their appeal to this court without obtaining a § 1292(b) certification from the district judge. Upon appellants’ motion this court ordered a stay of the proceedings in the district court and expedited the hearing on appeal. II. Subsequent to the filing of appellants’ appeal, but prior to oral argument before this court, the Supreme Court rendered its decision in Gardner v. Westinghouse Broadcasting Co., -U.S. -, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). Gardner controls the disposition of this case. A district court’s denial of a motion for class certification may not immediately be appealed under 28 U.S.C. § 1292(a)(1). Gardner, 98 S.Ct. at 2452. The exception to the congressionally established policy against piecemeal appeals embodied in § 1292(a)(1) is a narrow one “keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Id. at 2453 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 99 L.Ed. 233 (1955)). As was true in Gardner, the order denying class certification in this case does not have any such irreparable effect. It is subject to review both prior to and after final judgment, it does not affect the merits of appellants’ own claims, and it does not pass on the legal sufficiency of any claims for injunctive relief. See Gardner, 98 S.Ct. at 2453-54. Although Gardner was announced during the pendency of this appeal, we are convinced that no “manifest injustice” will result from our decision to adhere to the principle that “an appellate court must apply the law in effect at the time that it renders its decision.” Bradley v. School Board of Richmond, 416 U.S. 696, 711, 714, 94 S.Ct. 2006, 2017, 40 L.Ed.2d 476 (1974) (quoting Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)); Wasserman v. Municipal Court of Alhambra Judicial District, 543 F.2d 723, 725 (9th Cir. 1976). Appellants also have urged this court to exercise its authority to issue a writ of mandamus compelling the district court to certify the class. We are convinced that such an act is singularly inappropriate in this case and would emasculate attempts to preserve “the integrity of the congressional policy against piecemeal appeals.” Gardner, 98 S.Ct. at 2454 (quoting Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966)). See Coopers & Lybrand v. Livesay, - U.S. -, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Accordingly, this appeal is dismissed. DISMISSED. 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_appbus	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. 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. Harry W. NICHOALDS, Jr., Compass Corporation and Trilon Oil Company, Inc., Appellants, v. Charles E. McGLOTHLIN, Appellee. No. 7315. United States Court of Appeals Tenth Circuit. April 20, 1964. George J. Francis, Denver, Colo., for appellants. Robert D. Means (of Holland & Means), Denver, Colo. (Robert E. Holland, Stanley H. Johnson and H. A. Nikkel, Denver, Colo., on the brief), for appellee. Before LEWIS and SETH, Circuit Judges, and KERR, District Judge. KERR, District Judge. Appellee instituted this diversity action in the United States District Court for Colorado against Harry W. Nichoalds, Jr., Compass Corporation and Trilon Oil Company, Inc., seeking judgment in the amount of $13,600.00. The complaint was in three counts. The first count avers that misrepresentations were made by Nichoalds to induce appellee to enter into an agreement for the purchase and sale of stock, and that on February 2, 1961, McGlothlin elected to rescind the transaction, tendered his stock in Compass Corporation to Nichoalds and asked for the return of his money. The second and third counts, made in the alternative, are also grounded in misrepresentation. McGlothlin alleges that subsequent to his giving notice of rescission, defendants proceeded to sell all the assets in the Compass Corporation in which McGlothlin had purchased shares of stock, and that this transfer was done without giving notice to MeGlothlin and without complying with corporate laws, all in furtherance of a conspiracy to deprive McGlothlin of, his equity in the Compass Corporation. The third count demands an accounting and other equitable relief. The following salient facts are established by the evidence: Compass Corporation owned the ranch properties involved in this dispute. All of the shares of stock of Compass were owned by Nichoalds, who was its principal officer. In addition to Compass Corporation, Nichoalds was the principal officer and in control of Trilon Oil Company, Inc., owning 15,000 of the 25,000 outstanding shares of Trilon stock. Nichoalds conducted his business operations by this three-cornered arrangement, using Trilon to finance Compass. Loans were made by Trilon to Compass for operating expenses of the ranch. The corporate activities were actions of Nichoalds, who had the full and complete control of both corporations. At one time McGlothlin was employed by the United States Forest Service. Having had experience in ranching, though little business experience, Mc-Glothlin wished to invest his savings in ranch property. He met Nichoalds through a Billings, Montana, realtor, with whom Nichoalds had listed for sale the ranch property located near Lame Deer, Montana. The list price was $89,-000.00. At the time of the proposed sale, title to the ranch was in the name of Compass Corporation. Following preliminary negotiations McGlothlin examined the ranch property, the cattle, and the equipment, and then consulted Nichoalds regarding the ranch holdings. Nichoalds stated that he valued the entire property at $140,000.00 or $145,000.00. He represented that the liabilities against the ranch consisted of $36,666.00 owed to the seller of the ranch; $2,000.00 payment due on 440 acres of additional lands acquired after the purchase of the ranch; and $1,000.00 balance due on recently acquired bulls. He further represented that there was adequate money to pay all expenses. McGlothlin offered $15,000.00 which Nichoalds accepted and a contract for sale was' executed December 20, 1960. Under the terms of the agreement 2,310 shares of Compass Corporation stock, valued at $6.50 per share, were issued to McGlothlin for the $15,000 agreed upon but not yet paid. The balance of 5,690 shares of Compass stock were placed in escrow to assure McGlothlin that 50% of the shares would become his property. Nichoalds retained 8,000 shares in accordance with the intention that each party would eventually own 50 % of the Compass Corporation. Following these negotiations and the execution of the contract McGlothlin learned from Nichoalds that there was an additional loan of $27,000.00 due a bank in Hardin, Montana, which Nichoalds had not previously disclosed. Mc-Glothlin learned that even when the parties were negotiating for the sale of the property Nichoalds was dealing with the Farm Home Association for a loan to pay off the $27,000.00 obligation. McGlothlin protested to Nichoalds regarding this undisclosed indebtedness and Nichoalds thereupon re-evaluated the stock from $6.50 to $4.85 per share. On December 30, 1960, McGlothlin delivered his first check to Nichoalds in the amount of $12,000.00 and took over as manager of the ranch at a salary of $250.00 per month, plus housing allowance. Immediately thereafter McGlothlin learned that a herd of cattle, purchased by Nichoalds in Nebraska, had been branded with the ranch brand and were pledged to the bank at Hardin, Montana, as security for the $27,000.00 loan. McGlothlin testified that he had been led to believe that the cattle were owned by the Compass Corporation. The evidence revealed, however, that the cattle had been acquired by Nichoalds in his own name. Shortly after McGlothlin took over the management of the ranch numerous bills arrived, among which were a lumber bill for $900.00, a bill for $1,-000.00 due on bulls, and $3,300.00 due on ranch equipment. In January 1961 McGlothlin learned for the first time that Compass Corporation had no cash and that operating expenses had to be paid from the funds of the Trilon Company. Contrary to Nichoalds’ previous representations that there was adequate money to operate the ranch, he finally admitted on February 2, 1961, that there was not enough money to operate the ranch and that further stock would have to be issued. McGlothlin then told Nichoalds that he wished to rescind the agreement for the purchase and sale of stock, and that he wanted his money returned to him. On February 12, 1961, Nichoalds and McGlothlin met in Sheridan, Wyoming, and prepared a written Memorandum Agreement for McGlothlin’s withdrawal from the ranch and corporate operations, Nichoalds agreeing to return the $13,600.00 on or before November 15, 1961. Nichoalds took the agreement to consult with his own lawyer, but never returned it to McGlothlin and did not sign it. On February 13, 1961, McGlothlin’s attorney notified Nichoalds of his rescission of the agreement, offered to return the stock, and demanded return of the purchase price. At the time the Memorandum was drawn up, McGlothlin agreed to leave the ranch one week after March 9, 1961. He fulfilled his part of the agreement though he did not hear from Nichoalds until the following May. The crux of the decision is whether the misrepresentations were such as to justify rescission. There is little doubt that Nichoalds failed to fully and fairly disclose a number of important material facts. There was no disclosure of the $27,000.00 obligation, nor of the debts which McGlothlin discovered after making the initial payment. After McGlothlin discovered the true conditions he gave notice of his election to rescind. Rescission is, of course, a proper remedy where, as here, the contract has been induced by misrepresentation and fraud. In Brown v. Alkire, 295 F.2d 411, at page 414, 10 Cir., the court stated: “* * * Generally, fraud consists of some deceitful practice or willful device resorted to for the purpose of inducing another, in reliance upon it, to surrender property or legal rights. 37 C.J.S. Fraud § 1 (1943); 23 Am. Jur. Fraud and Deceit § 2 (1939); Black’s Law Dictionary 788, (4th Ed. 1951). It connotes perjury, falsification, concealment and misrepresentation. Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500.” To the same effect, in Junius Const. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672, at page 674, Judge Cardozo, Chief Justice of the New York Court of Appeals, said: “ -* * * ipjjg se]jer was not at liberty in good conscience to list among the incumbrances the two unopened streets, which, even if opened, would leave the value unimpaired, and, while listing these, suppress the existence of a third unopened street, which, if opened, would destroy the value for the use intended by the buyer. No one can say with reason that the plaintiff would have signed this contract if informed of the likelihood that its factory, when built, would be bisected by a street, to say nothing of the possibility that a permit to build would be denied altogether. Misrepresentation, if there was any, as to a risk so vital was something that went to the very essence of the bargain. We do not say that the seller was under a duty to mention the projected streets at all. That question is not here. What we say is merely this, that having undertaken or professed to mention them, he could not fairly stop halfway, listing those that were unimportant and keeping silent as to the other. The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase. The result is the same whether the silence of the seller as to the presence of a bisecting street was innocent or deceitful. Misrepresentation, even though innocent, sustains the rescission of the contract * * We think the evidence and legal principles support only one conclusion, namely, that Nichoalds concealed from McGlothlin material facts which equity and good conscience required him to disclose fully and honestly. Nichoalds entered into and closed the transaction without revealing knowledge of certain facts while partially disclosing other facts. McGlothlin acted without full knowledge of all the facts, to his damage. This constitutes fraud under Colorado law. See Morrison v. Goodspeed, et al., 100 Colo. 470, 68 P.2d 458. There is another reason for concluding that a judgment of rescission was correctly entered. Nichoalds discharged McGlothlin as ranch manager. Naturally, when McGlothlin departed from the ranch he expected the return of the purchase price which he paid for stock in the Compass Corporation. Nichoalds treated the contract as rescinded as he Immediately transferred the ranch property out of Compass Corporation into the El Sol Corporation, another corporation controlled by Nichoalds. From the day McGlothlin was discharged as manager of the ranch, Nichoalds treated the property as his own. He is now precluded from denying that the contract was rescinded, and McGlothlin is entitled to the return of the money he paid to defendants. There is substantial evidence to support the findings of the trial court. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_circuit	L	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. Bert F. DUESING, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. George Hall DOUGLASS, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Gene B. GRAHAM, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Rodney L. JOHNSTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. H. Willard NAGLEY, Jr., Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. E. E. RASMUSON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Milan RAYKOVICH, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Robert B. ATWOOD, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Nos. 17358, 17403-17409. United States Court of Appeals District of Columbia Circuit. Argued May 26, 1965. Decided June 30, 1965. Petition for Rehearing En Banc Denied Sept. 23, 1965. Mr. Max Barash, Washington, D. C., for appellant in No. 17358. Mr. H. St. John Butler, Washington, D. C., for appellants in Nos. 17403-17409. Mr. Edmund B. Clark, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark, Messrs. Roger P. Marquis and Herbert Pittle, Attys., Dept. of Justice, were on the brief, for appellee. Before Danaher, Circuit Judge, Bastian, Senior Circuit Judge, and Leventhal, Circuit Judge. LEVENTHAL, Circuit Judge: These are appeals from orders granting summary judgment to appellee, Secretary of the Interior, and dismissing the complaints of appellants. The lawsuits sought to establish the invalidity of the decision of the Secretary of the Interior closing the southern half of the Kenai National Moose Range in Alaska for oil and gas leasing, in consequence of which appellants’ noncompetitive applications were rejected. We affirm. The Moose Range was created in 1941 by Executive Order No. 8979, 6 F.R. 6471, by which approximately two million acres of the public domain were set aside “as a refuge and breeding ground for moose.” Between December 1955 and January 1958, noncompetitive oil gas lease applications relating to acreage in the southern half of the Moose Range were filed by appellants pursuant to section 17 of the Mineral Leasing Act, as amended (30 U.S.C. § 226). Appellants contend that these offers, which were consistent with, and it is claimed “invited” by, the regulations then in effect (Circular 1945, approved December 6, 1955, 20 F.R. 9009), conferred a vested right in appellants which was unlawfully impaired and cancelled by the Secretary’s actions in refusing to lease, done pursuant to revision of the regulation (Circular 1990, January 8, 1958, 23 F.R. 227). The background of the regulations pertaining to leasing of wildlife refuge lands (see 43 C.F.R. 192.9), and a description of their increasingly restrictive quality, are set forth in Udall v. Tallman, 380 U.S. 1, at 5-14, 85 S.Ct. 792, 13 L.Ed. 2d 616 (1965). The 1955 regulation was more restrictive than an initial 1947 regulation, which had simply required that leases be subject to an approved unit plan and required the Secretary’s consent prior to drilling. By an inter-agency memorandum dated August 31, 1953, the Interior Department suspended action on all pending oil and gas lease applications for lands within wildlife refuges, pending completion of a study and possible revision of policy and regulations. The 1955 regulation gave increased power to the Fish and Wildlife Service to avoid impairment of usefulness of the lands for wildlife conservation purposes. Certain areas were declared “not available for leasing,” other areas were available under restrictions. As to the areas in question the regulation provided : “Oil and gas leases may be issued for other lands administered by the Fish and Wildlife Service” provided they contain specified conditions requiring approval by the Fish and Wildlife Service of the type of prospecting to be conducted, and adoption by the lessee of a unit plan approved by the Service. In 1956 bills were introduced seeking Congressional restriction of oil and gas leasing in wildlife refuges. Instead, an arrangement was worked out, for an experimental period, whereby proposals for lease would be submitted, for approval or disapproval within 60 days, to the House Committee on Merchant Marine and Fisheries. In July 1956, that Committee concluded that administrative proposals for leases for 71,680 acres in the northern half of the Moose Range “would not be detrimental to the wildlife values of the Moose Range” and concurred therein. The Secretary’s 1958 revision of the regulation “represented a near total victory for the conservationists.” It was a general prohibition of oil and gas leasing in wildlife refuges. Alaska was an exception and here it was provided that agreements were to be reached by the Bureau of Land Management and the Fish and Wildlife Service, specifying lands not subject to leasing and provisions required in leases on the remaining lands, to be effective upon approval by the Secretary. The Secretary published notice in the Federal Register on August 2, 1958, 23 F.R. 5883, of an agreement he had approved July 24, 1958, which set forth that certain lands in the Moose Range (essentially the southern half comprising about 1,689 square miles) “are hereby closed to oil and gas leasing because such activities would be incompatible with management thereof for wildlife purposes.” About 1,525 square miles covering the northern half of the range was left open to leasing. I Appellants fail in their contention that they obtained a vested right with their applications since it lay entirely within the discretion of the Secretary whether or not to issue leases on the lands involved. Section 17 of the Mineral Leasing Act of 1920, 41 Stat. 437, 30 U.S.C. § 181, as amended to and including the Act of August 8, 1946, 60 Stat. 950, read insofar as pertinent: “Sec. 17. All lands subject to disposition under this Act which are known or believed to contain oil or gas deposits may be leased by the Secretary of the Interior. When the lands to be leased are within any known geological structure of a producing oil or gas field, they shall be leased to the highest responsible qualified bidder by competitive bidding under general regulations, * * *. When the lands to be leased are not within any known geological structure of a producing oil or gas field, the person first making application for the lease who is qualified to hold a lease under this Act shall be entitled to a lease of such lands without competitive bidding.” Under section 17 it is permissive or discretionary whether or not the Secretary will issue a lease on lands believed to contain oil or gas deposits. What is mandatory is who is to get the lease if it is decided that a lease will be issued —if there is a known geologic structure, the highest bidder; if not, the applicant first in line. As we said in Haley v. Seaton, 108 U.S.App.D.C. 257, 262, 281 F.2d 620, 625 (1960), the legislative intent was “to give the Secretary of the Interior discretionary power, rather than a positive mandate to lease.” More recently the Supreme Court said in Tollman (380 U.S. at 4, 85 S.Ct. at 795): “Although the Act directed that if a lease is issued on such a tract [not within a known geologic structure of a producing oil and gas field], it must be issued to the first qualified applicant, it left the Secretary discretion to refuse to issue any lease at all on a given tract.” The filing of an application which has not been accepted does not give any right to a lease, or generate a legal interest which reduces or restricts the discretion vested in the Secretary whether or not to issue leases for the lands involved. II Without specifying which appellants make which arguments, we address ourselves to a collection of contentions assailing the Secretary’s exercise of his discretion. It is contended that the Secretary’s authority permits refusal to lease “on a given tract” (see Tollman), but not on a large area of 1,689 square miles. A subsidiary contention is that the Secretary’s 1958 action amounted to an indirect “withdrawal” that did not comply with the Pickett Act of June 25, 1910, 36 Stat. 847, 43 U.S.C. § 141 et seq., which requires that withdrawals be reported to Congress, and further did not comply with the regulations providing for notice and public hearings prior to making withdrawals. Circular 1982, August 12, 1957, 22 F.R. 6613, 43 C.F.R. 295. Assistant Secretary Caiwer’s thoughtful decision in the case of Richard K. Todd et al., 68 I.D. 291, pointed out that the Secretary of Interior had not exercised his withdrawal power. Thus the Secretary had not designated his action as “public land orders” which is required as to withdrawal by Executive Order No. 10355 of May 26, 1952 (17 F.R. 4831), whereby the President expressly delegated to the Secretary the authority to withdraw public lands. Mr. Carver further stated (68 I.D. at 296): “Stripped of all authority to withdraw lands, the Secretary would still have his discretionary authority to refuse to issue leases where he thinks issuance would not be in the public interest. “The formal exercise by the Secretary of his discretionary authority is nothing new in the administration of the Mineral Leasing Act.” Reference is made to actions whereby the Department formalized the cessation of leasing in New Mexico in 1939 (4 F.R. 1012), in Iranpah Valley, California in 1942, and in the wilderness areas of the Los Padres National Forest, California, and the Sante Fe National Forest, New Mexico, in 1953 (Departmental Order 2714, 18 F.R. 700). We show great deference to the construction and application of a statute by the officers charged with its administration, Udall v. Tallman, swpra, at 16, and cases cited. The construction recorded in the Todd decision presents 'a reasonable viewpoint, supported by the administrative practice cited therein. We find that the Secretary has not exceeded his authority under section 17. Appellant Duesing starts off from the general proposition that an agency’s authority to issue implementing regulations contemplates regulations in furtherance of the act and winds up with the conclusion that the Secretary can only exercise his discretion under the Mineral Leasing Act by taking action in furtherance of the objective of that act to promote mineral development in the public domain. We reject the argument that in answering the question, to lease or not to lease, the Secretary must ignore the primary objectives of holding and using the land and consider solely the purpose of the lease. This tail wags dog construction is not put forward as supported by legislative history and we see no warrant for overturning what is at least a reasonable administrative construction. Indeed the argument would not even merit discussion were it not stressed by counsel knowledgeable in the field and supported by vigorous statements of the late Senator O’Mahoney, former Chairman of the Subcommittee on Public Lands. Of course Senator O’Mahoney’s 1958 and 1959 comments are no part of the legislative history of the Mineral Leasing Act, passed in 1920 and amended through 1946. His spark did not catch fire with the other members of his Committee, and the hearings he requested were never held. The 1956 House Committee actions described above reflect a contrary approach. It is not insignificant that when the Mineral Leasing Act was amended in 1960, section 17 was left substantially intact, notwithstanding obvious Congressional awareness of the Secretary’s construction of the law, and his deliberate adherence to that construction notwithstanding Senator O’Mahoney’s sharp protest against alleged executive usurpation of authority. The implication of legislative approval is heightened by the fact that the 1960 amendment was enacted after extensive hearings held on the bill and predecessor measures sponsored by Senator O’Mahoney, and that the bill was described as having two purposes: First, to make certain changes of substance in the Mineral Leasing Act shown by experience to be desirable; second, to restate sections 17 and 27 (described as amended so much over the years “that they have become something of a hodgepodge”), restating them “in their entirety to clarify the language.” The initial sentence of section 17, which was dominant in the thinking of the Secretary and the courts, was left intact. Finally, some appellants allege that the Secretary’s closing of the southern half of the Moose Range from leasing was arbitrary and capricious, because “oil and gas exploration and development is compatible with the management of the Range for wildlife purposes.” Or in the words of the Todd decision, appellants purport “to demonstrate that ‘oil is compatible with moose’ or that the division made is illogical.” Appellants do not contradict Assistant Secretary Carver’s statement in the Todd decision that at the hearing held December 9 and 10, 1957, on the proposed revision of 43 C.F.R. 192.9, there was testimony both in support of and in opposition to advocates of leasing. The agreement by the Bureau of Land Management and the Fish and Wildlife Service represented their considered judgment that the division made is the proper method of balancing the several components of the public interest in this area. In a case like this the court does not seek to make a de novo determination. It suffices if there was reasonable basis for the executive department to reach its conclusion. Appellants have not made a tender sufficient to overcome the presumption of validity of administrative action. The court does not presume to substitute its discretion for that of the Secretary. Affirmed. . Senator O’Mahoney’s letter of January 24, 1958, to the Chainnan of the Senate Committee on Interior and Insular Affairs, and his letter of January 26, 1959, to the members of the Committee, appear in “Executive Modification of the Mineral Leasing Act on Federal Wildlife Lands” 1, iii, 85th Cong., 2d Sess. (Comm. Print 1959). . National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496 (1920); Boesche v. Udall, 373 U.S. 472, 482-483, 83 S.Ct. 1373, 10 L.Ed.2d 491 (1963); Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 790-791 (2d Cir.1946). . S. Rep. No. 1549, 86th Cong. 2d Sess. 1 (1960) U.S.Oode Congressional and Administrative News, p. 3313. . The hearing was held pursuant to notice in the Federal Register of October 11, 1957 (22 F.R. 8088), which clearly stated that all or part of the Alaska wildlife areas might be closed to mineral leasing. In view of this notice and hearing we see no merit in the contention that there was a procedural defect in the adoption of the regulation. Sec. 4 of the Administrative Procedure Act, 5 U.S.C. § 1003, is inapplicable, since this was' a regulation relating to “public property.” McNeil v. Seaton, 108 U.S.App.D.C. 296, 301, 281 F.2d 931, 936 (1960). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Mary G. BRUCE, Administratrix of the Estate of Walter B. Bruce, Deceased, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a corporation, Appellee. No. 6956. United States Court of Appeals Fourth Circuit. Argued April 20, 1955. Decided May 10, 1955. Robert N. Simms, Jr., and Clyde A. Douglass, Raleigh, N. C. (John M. Simms, Raleigh, N. C., on brief), for appellant. Murray Allen, Raleigh, N. C. (R. P. Upchurch, Raleigh, N. C., on brief), for appellee. Before PARKER, C. J., and SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. This suit is brought by the Adminis-tratrix of Walter B. Bruce, deceased, against Lumbermens Mutual Casualty Company to secure a judgment in the sum of $10,000 under a policy of insurance issued to W. L. Aldridge, Jr. and O’Neals Flying Service, Inc. The declarations in the policy disclose that the business of the assured is the use of aircraft for business and pleasure, instruction of students, and commercial and passenger carrying for hire, and that the aircraft would be used in the United States, Canada and 100 miles into Mexico. The Insurance Company agreed in the policy, amongst other things, to pay on behalf of the insured all sums which the insured should become obligated to pay because of bodily injury sustained by any passenger while in or upon, entering or alighting from the aircraft, caused by accident and arising out of the ownership, maintenance or use of the aircraft. Liability to a passenger was incurred by the insured on June 1, 1947, during the life of the policy, when Walter B. Bruce, the deceased, was killed while riding as a passenger in a plane covered by the policy. The accident occurred during an air show at the flying field of the insured for which admission was charged. Three planes were sent up, each designed to carry two passengers. Bruce went up with the pilot as a passenger in the lead plane. The plan was that the planes were to be put into spiral spins in a demonstration of safe flying. Such maneuvers are deviations from normal flight, and are known in the industry as aerobatic flights. The plane in which the deceased was a passenger took part in the maneuvers as planned but fell to the ground and crashed, and both occupants were killed. At the time certain regulations were in effect which had been passed by the Civil Aeronautics Authority, the agency of the United States in charge of the operation of civilian aircraft in the United States under the provisions of 49 U.S.C.A. § 401 et seq. Section 60.9 of Part 50 of the Civil Air Regulations as to Air Traffic Rules defined the term aerobatic as “the performance of any intentional and unnecessary maneuvers involving an abrupt change in altitude of an aircraft, an abnormal altitude, or an abnormal speed.” Part 43 of Civilian Air Regulations General Operation Rules contained the following paragraph. “43.-409. Aerobatic Flight. No pilot shall intentionally fly an aircraft in aerobatic flight carrying passengers unless all occupants are equipped with approved parachutes.” Neither of the occupants of the plane which crashed was equipped with a parachute. The evidence, however, shows that parachutes would have been of no avail to save the lives of the occupants, because the pilot continued to execute the spins until the plane was so near the ground that parachutes could not have been used effectively. The administratrix of the estate of the deceased brought a wrongful death action against the Flying Service in the Superior Court of Wake County, North Carolina, and secured a judgment in the sum of $15,600 which was affirmed on appeal. Payment of the judgment was demanded and refused, and subsequently the present action against the Insurance Company was brought and resulted in a judgment in its favor. D.C., 127 F. Supp. 124. This appeal of the adminis-tratrix ensued. The defense to the present suit in the trial court and on this appeal is based on the ground that the accident was not covered by the policy, but was within an exclusion of the policy which provided in effect that the policy should not apply “(d) to liability with respect to bodily injury or damage caused by the operation of the aircraft with the knowledge of the named insured; (1) if used for any unlawful purpose, or, during flight or attempt thereat, in violation of any government regulation for civil aviation.” There is no doubt that the plane in which the deceased was killed was operated in violation of the quoted regulation, since the pilot did intentionally fly the aircraft in aerobatic flight with a passenger and the occupants were not equipped with approved parachutes. The appellant contends, however, that this exclusion does not apply in the present case (1) because the only exclusions applicable to passengers are found in subsequent provisions of the policy and do not preclude the present claim, and (2) because there was no causal connection between the violation of the regulation and the fatal crash. The subsequent exclusions in the policy refer in express terms to Coverage A-Bodily Injury Liability, Excluding Passengers, Coverage B-Bodily Injury Liability — Passengers, and Coverage C-Property Damage Liability. Under Coverage B it is provided that the policy does not apply “to liability with respect to bodily injury to any passenger caused by the operation of the aircraft with the knowledge of the named insured: (1) during flight or attempt thereat, between sunset and sunrise unless all night flying requirements of the Civil Aeronautics Authority are complied with; (2) if the aircraft is carrying passengers in excess of the policy passenger capacity as stated in the declarations, or is loaded in excess of the gross weight permitted by the Civil Aeronautics Authority in the Type Certificate issued for the make and type of the aircraft, or in the certificate issued to the aircraft, whichever is more limited.” It is conceded that the last mentioned exclusions do not of themselves preclude recovery in this case since the flight in question did not take place at nighttime and there was no carriage of passengers in excess of the capacity of the plane. It is therefore contended that since these exclusions refer in express terms to the liability of the insured for bodily injury to passengers, they should govern the decision of this controversy rather than the general exclusion first above described. The appellant invokes the rule, as set out in 17 C.J.S., Contracts, § 312, that the expression in a contract of things of a class implies the exclusion of all not expressed, even though all would have been implied had none been expressed. The rule is generally given effect when a clause which sets out with particularity the subject matter that the parties have in mind is followed by a clause expressed in general terms, in which case the latter is controlled or restricted by the former; Cleveland Trust Co. v. Consolidated Gas, E. L. & P. Co., 4 Cir., 55 F.2d 211 and where there is an inconsistency between general provisions and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions. See Restatement of Contracts § 236 (c); Southern R. Co. v. Coca Cola Bottling Co., 4 Cir., 145 F.2d 304; Fox Realty Co. v. Montgomery Ward & Co., 7 Cir., 124 F.2d 710, 714; Southern Surety Co. v. Town of Greenville, 6 Cir., 261 F. 929, 932; Nance v. Southern R., 149 N.C. 336, 371, 63 S.E. 116; In re Steelman, 219 N. C. 306, 13 S.E.2d 544. This rule, however, is subject to the general standards applied in the interpretation of contracts which require that an interpretation which gives a reasonable effect to all the manifestations of intention in an agreement is preferred to an interpretation which leaves a part of such manifestations unreasonable or of no effect; Restatement of Contracts § 236(a); or as said in 17 C.J.S., Contracts, § 313, if both general and special provisions may be given reasonable effect, both are to be retained. It is noteworthy that there is no conflict between the particular and the general exclusions of the policy set out above. It is true that there would seem to have been no need to exclude from the risk the specific violations of the regulations of the Civil Aeronautics Authority contained in the particular clauses in view of the sweeping terms of exclusion (d) which excludes from coverage any liability for bodily injury caused by any operation of the plane in violation of any government regulation for civil aviation; but each class of exclusions may be given effect without impairing the force of the other. More impressive in this connection is the distorted result which would follow if the general exclusions relating to passenger injuries should be restricted to those which are particularized. Heretofore we have referred only to paragraph (d) (1) of the general exclusions, but there are additional paragraphs under this head. Thus, paragraphs (d)2 and (3) exclude from coverage liability for bodily injury caused by operation of the aircraft if its Civil Aeronautics Authority’s certificate has been revoked or suspended, or if the certificate of the pilot has been restricted, revoked, suspended or has expired. It is unreasonable to suppose that the Insurance Company was willing to assume the great risk of injury to passengers involved in the operation of a plane whose certificate had been revoked or suspended, or whose pilot’s right to operate the plane had been withdrawn by government authority, and intended to confine its exclusions as to passengers to flying at night and to the carriage of passengers in excess of the capacity of the plane in violation of the regulations. Since there is no ambiguity in the policy and no conflict between its provisions, all parts of the contract should be given effect. Stanback v. Winston Mutual Life Ins. Co., 220 N.C. 494, 17 S.E.2d 666; Lineberry v. Security Life & Trust Co., 238 N.C. 264, 267, 77 S.E.2d 652. The second contention of the appellant, that the judgment must be reversed because no causal connection between the violation of the regulations and the accident was shown, must also be rejected. The clear meaning of the policy is not as the appellant suggests that the risk is excluded if the injury is caused by a violation of the regulations, but that the risk is excluded if the injury is caused by the operation of the plane while it is being used in violation of the regulation. It is established by the great preponderance of authority in the decisions of this and other courts that an insurer need not show a causal connection between the breach of an exclusion clause and the accident, if the terms of the policy are clear and unambiguous, since the rights of the insured flow from the contract of insurance and not from a claim arising in tort. See Myers v. Ocean Accident & Guarantee Corp., 4 Cir., 99 F.2d 485, 491 and cases cited. In Travelers’ Protective Ass’n of America v. Prinsen, 291 U.S. 576, 54 S. Ct. 502, 78 L.Ed. 999, the evidence showed that an explosion took place as the result of a collision between a motor truck containing dynamite and a train, and the occupants of the truck were killed. Suit was brought on a policy of insurance which excluded liability for death of a person which occurs in the transportation of explosives, and it was contended that the insurer was liable because the death of the occupants of the truck might have been caused by the collision without more. The court rejected the contention, 291 U.S. at pages 581-582, 54 S.Ct. at page 504, saying: “The contract does not say that the holder of the policy is to have no claim against the insurer if he dies ‘by reason of’ his participation in the carriage of explosives. The contract says that he is to have no claim against the insurer if he dies ‘when’ he is participating in the carriage of explosives, just as it provides for a like result when he is acting as a sailor or a soldier, or is participating in war or riot, or is under the influence of narcotics or of intoxicating liquors. Courts of high authority have held that in policies so phrased there is no need of any causal nexus between the injury or death and the forbidden forms of conduct. While the proscribed activity continues, the insurance is suspended as if it had never been in force.” Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
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. WESTERN AIR LINES, INC., et al. v. BOARD OF EQUALIZATION OF THE STATE OF SOUTH DAKOTA et al. No. 85-732. Argued November 3, 1986 Decided February 24, 1987 O’Connor, J., delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, post, p. 135. Raymond J. Rasenberger argued the cause for appellants. With him on the briefs were Rachel B. Trinder and C. West-brook Murphy. Mark V. Meierhenry, Attorney General of South Dakota, argued the cause for appellees. With him on the brief was John Dewell, Assistant Attorney General. James E. Landry filed a brief for the Air Transport Association of America as amicus curiae urging reversal. James W. McBride and Gregory G. Fletcher filed a brief for the Railway Progress Institute et al. as amid curiae. Justice O’Connor delivered the opinion of the Court. In this case we consider whether the South Dakota Airline Flight Property Tax, S. D. Codified Laws, ch. 10-29 (1982), violates the Airport and Airway Improvement Act of 1982, 49 U. S. C. App. § 1513(d). We conclude that because the South Dakota Airline Flight Property Tax is an “in lieu tax which is wholly utilized for airport and aeronautical purposes,” 49 U. S. C. App. § 1513(d)(3), the tax does not violate § 1513(d). I The federal provision at issue is part of a series of congressional actions dedicated to improving the Nation’s air transportation system. Aloha Airlines, Inc. v. Director of Taxation, 464 U. S. 7, 8-10 (1983). In 1970, following findings that “substantial expansion and improvement of the airport and airway system is [sic] required to meet the demands of interstate commerce, the postal service, and the national defense,” H. R. Conf. Rep. No. 91-1074, p. 29 (1970), Congress required the Secretary of Transportation to prepare a plan for the development of public airports, and authorized the Secretary to make grants to States and localities for airport development. Airport and Airway Development Act of 1970, Pub. L. 91-258, 84 Stat. 219. Congress also established an Airport and Airway Trust Fund, maintained by federal aviation taxes, to finance airport development projects. §208, 84 Stat. 250. Soon afterward, Congress acted to limit state taxation of air transportation. Concluding that state passenger use taxes placed “an unnecessary burden on interstate commerce,” and had “a stifling effect on air transportation,” H. R. Rep. No. 93-157, p. 4 (1973), Congress prohibited such taxes in the Airport Development Acceleration Act of 1973, Pub. L. 93-44, §7(a), 87 Stat. 90. In the Airport and Airway Improvement Act of 1982, 96 Stat. 701, Congress added a §7(d) to the Airway Development Acceleration Act of 1973, prohibiting the imposition of discriminatory property taxes on air carriers. That prohibition, as codified at 49 U. S. C. App. § 1513(d), reads: “(d) Acts which unreasonably burden and discriminate against interstate commerce; definitions “(1) The following acts unreasonably burden and discriminate against interstate commerce and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: “(A) assess air carrier transportation property at a value that has a higher ratio to the true market value of the air carrier transportation property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property; “(B) levy or collect a tax on an assessment that may not be made under subparagraph (A) of this paragraph; or “(C) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. “(2) In this subsection— “(D) ‘commercial and industrial property’ means property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy; . . . “(3) This subsection shall not apply to any in lieu tax which is wholly utilized for airport and aeronautical purposes.” The South Dakota Airline Flight Property Tax, which appellants allege violates § 1513(d), was enacted in 1961. Flight property is defined as “all aircraft fully equipped ready for flight used in air commerce.” S. D. Codified Laws § 10-29-1(4) (1982). The portion of the value of flight property subject to the tax is based on flight tonnage, flight time, and revenue ton miles, § 10-29-10, and this value is taxed at the “average mill rate,” § 10-29-14. The statute also provides that “[t]he taxes imposed by this chapter shall be allocated by the secretary of revenue to the airports where such airlines companies make regularly scheduled landings and shall be used exclusively by such airports for airport purposes . . . .” §10-29-15. The South Dakota statute provides that “[fjlight property of airline companies operating in the state shall be assessed for the purpose of taxation by the department of revenue and not otherwise,” § 10-29-2. Airline flight property is 1 of 10 specific categories of property that are centrally assessed for purposes of taxation. (The other categories are certain property of railroads, private car-line companies, express companies, telephone companies, telegraph companies, electric, heating, water and gas companies, rural electric companies, rural water supply companies, and pipeline companies. See S. D. Codified Laws chs. 10-28 through 10-37.) Each of these categories was an exception from the general South Dakota scheme of local property tax assessment a1 the county level. S. D. Codified Laws § 10-3-16 (1982). In 1978, South Dakota exempted from ad valorem taxation all personal property that was locally rather than centrally assessed, §10-4-6.1. In May 1983, appellants, four airline companies operating in South Dakota, paid their flight property taxes for the first six months of 1983 under protest. Appellants then sued the appropriate county treasurers for a refund. Appellants alleged that, because airline flight property was subject to taxation while most other personal property was exempt, the South Dakota flight property tax violated §§ 1513(d)(1)(A) and (C). In each case the county answered that the state flight property tax was “utilized wholly for airport and aeronautical purposes and is in lieu of property taxes and is therefore permitted by 49 U. S. C. [App. §] 1513(d)(3).” App. 10-11. Following an unsuccessful request to seven county boards of commissioners to abate and refund flight property taxes paid after the effective date of the Airport and Airway Improvement Act of 1982, appellants sued the county commissions for abatement and refund. App. 17. Finally, appellants appealed the property tax assessment to the South Dakota State Board of Equalization. The Board of Equalization unanimously denied the appeal, holding that “the airline flight property tax is in lieu of personal property tax and is totally utilized for airport and aeronautical purposes, therefore, in conformity with Section [1513](d)(3), this tax is lawful and not a violation of Federal law.” Id., at 31. All the lawsuits described above were consolidated in the Circuit Court for the Sixth Judicial Circuit in Hughes County, South Dakota. That court agreed with the counties and the Board of Equalization that the flight property tax was permitted under § 1513(d)(3). App. to Juris. Statement 19a-21a. On appeal, the Supreme Court of South Dakota disagreed with the conclusion that the flight property tax was authorized under § 1513(d). 372 N. W. 2d 106 (1985). In order to be an “in lieu tax,” the court reasoned, the flight property tax must be a substitute for another tax on flight property. “In the case at bar, however, the tax is not a substitute for an ad valorem personal property tax. It is in fact the first imposition of personal property tax on the airline flight property.” Id., at 109. The State Supreme Court affirmed the Circuit Court, however, on an alternative ground. Under §§ 1513(d)(1)(A) and (C), the discriminatory nature of assessment ratios or tax rates applied to airline property is determined by comparison to the ratios and rates applied to other “commercial and industrial property.” “Commercial and industrial property” is defined as “property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial and industrial use and subject to a property tax levy. ” § 1513(d)(2)(D) (emphasis supplied). Because locally assessed personal property was not subject to a property tax levy, the State Supreme Court concluded that such property “cannot be included as commercial or industrial property for comparison under either” §§ 1513(d)(1)(A) or (C). 372 N. W. 2d, at 110. Because appellants’ claims under § 1513(d) were based on a comparison between flight property and property no longer subject to a tax levy, the court concluded that the claims must be rejected. South Dakota Supreme Court Justice Henderson concurred in the court’s interpretation of the “in lieu tax” provision, but dissented from the court’s interpretation of “ ‘commercial and industrial property.’” The State Supreme Court holding, Justice Henderson observed, permitted “-‘greater discrimination when the [commercial and industrial] property is completely exempt than when it is taxed, but at a lower rate.’” Id., at 112, quoting Northwest Airlines v. State Board of Equalization, 358 N. W. 2d 515, 517 (1984). Such an interpretation of the federal antidiscrimination provisions was unreasonable, Justice Henderson concluded. “Since the level of assessment on commercial and industrial personal property is zero, the level of assessment of the airlines’ personal property must be reduced to zero.” 372 N. W. 2d, at 112. In their jurisdictional statement to this Court appellants challenged the Supreme Court of South Dakota’s interpretation of “commercial and industrial property” under § 1513(d). Appellees defended the judgment on the basis of the same reasoning used by the Supreme Court of South Dakota. We noted probable jurisdiction, 475 U. S. 1008 (1986). Following oral argument, we requested supplemental briefing from the parties, and called for the views of the United States, on the following questions: (1) Is the question whether a state tax is an “in lieu tax which is wholly utilized for airport and aeronautical purposes,” one of state or federal law, and “(2) If federal law governs the question whether a tax is an in lieu tax under § 1513(d)(3), is the South Dakota Airline Flight Property Tax ... an ‘in lieu tax’ under § 1513(d)(3)?” 479 U. S. 958 (1986). Because our conclusions on these two questions resolve this case, we do not reach the question of the interpretation of “commercial and industrial property” under § 1513(d). II The parties and the United States agree that the question whether a state tax is an “in lieu tax which is wholly utilized for airport and aeronautical purposes,” under § 1513 (d)(3), is ultimately one of federal law. The general principle that, absent a clear indication to the contrary, the meaning of words in a federal statute is a question of federal law has especial force when the purpose of the federal statute is to eliminate discriminatory state treatment of interstate commerce. Indeed, in Aloha Airlines, Inc. v. Director of Taxation, 464 U. S., at 13-14, this Court held that a state legislature’s characterization of a tax could not shield the tax from application of another subsection of §1513. In the present case, as in Aloha Airlines, supra, we must examine the “purpose and effect” of the state tax in light of the policy embodied in the federal provision. Congress has given us little material with which to interpret the in lieu tax exception. The provision was added to the Act at conference, and there is no legislative history specifically discussing it. The language of § 1513(d)(3) itself, and the policies reflected in the Airport and Airway Improvement Act of 1982, however, lead us to the conclusion that the in lieu tax provision exempts the South Dakota Airline Flight Property Tax from the restrictions of § 1513(d). Section 1513(d)(3) uses two characteristics to identify a group of airline property taxes that are exempted from the restrictions of § 1513(d)(1). First, and perhaps most important, to fall under the protection of § 1513(d)(3) a tax must be “wholly utilized for airport and aeronautical purposes.” Section 1513(d) is modeled on similar provisions in the 4-R Act and the Motor Carrier Act of 1980. See 49 U. S. C. §§ 11503, 11503a. The legislative history of the antidiscrimi-nation provision in the 4-R Act demonstrates Congress’ awareness that interstate carriers “are easy prey for State and local tax assessors” in that they are “nonvoting, often nonresident, targets for local taxation,” who cannot easily remove themselves from the locality. S. Rep. No. 91-630, p. 3 (1969). The Department of Transportation had observed that “[s]tate and local governments derive substantial revenues from taxes on property owned by common carriers. ” Id., at 4. It is this temptation to excessively tax nonvoting, nonresident businesses in order to subsidize general welfare services for state residents that made federal legislation in this area necessary. The ability to use taxes levied on an interstate carrier to subsidize general welfare spending does not exist, of course, when the proceeds are allocated directly and entirely to the benefit of the carrier. Not only is the possibility of discriminatory benefits to state residents eliminated, but also the specter of discriminatory burdens on the carrier is avoided by the recycling of the tax revenues into the specific facilities used by the carrier. Second, the phrase “in lieu tax” restricts the protection of § 1513(d)(3) to property taxes applied to the exclusion of any other tax on the property, in other words, to taxes applied in lieu of any other possible property tax. This requirement reinforces the policy reflected in the “wholly utilized for airport and aeronautical purposes” phrase. If the revenues collected pursuant to a property tax are specifically used for the benefit of those from whom the tax was collected, then, as explained above, the tax does not discriminatorily take from some in order to benefit others. If the same property is also subjected to tax used to subsidize general state expenditures, however, then the potential for abuse remains. Two individually nondiscriminatory taxes — a tax used for general welfare spending that meets the assessment ratio and rate restrictions of § 1513(d)(1), and a tax the proceeds of which are devoted entirely to the industry from which it is collected — obviously can become discriminatorily burdensome when combined. South Dakota levies a tax on airline flight property, the proceeds of which are wholly utilized for airport and aeronautical purposes. See S. D. Codified Laws § 10-29-15 (1982), quoted supra, at 126. The South Dakota Airline Flight Property Tax establishes a method of taxing a particular type of property to the exclusion of any other tax on that property. It therefore stands in lieu of the generally applicable ad valorem property tax that had been assessed on most other commercial and industrial property in the State at the time the airline flight property tax was established. The language and logic of § 1513(d)(3), therefore, lead to the conclusion that the South Dakota Airline Flight Property Tax falls under the in lieu tax exemption. Appellants argue, however, that these characteristics alone are not sufficient for a tax to be exempted by § 1513(d)(3). Appellants advocate the position taken by the Supreme Court of South Dakota, that in order to be exempted under this provision a tax must take the place of another tax that historically had been applied to the airline property. The fact that a property tax is applied to the exclusion of all other property taxes is immaterial, appellants assert, unless some past tax was actually replaced by the present tax. Because South Dakota’s taxation of airline flight property has always taken the form of the taxation scheme at issue in this case, appellants argue, the South Dakota Airline Flight Property Tax is not a true “in lieu tax.” Admittedly the phrase “in lieu tax” is open to this interpretation. The illogical results of applying such an interpretation, however, argue strongly against the conclusion that Congress intended these results when it drafted § 1513(d)(3). Under the interpretation appellants advocate, the question whether a tax would be exempted under the in lieu tax provision would, at best, turn on historical fortuity. The identical taxation scheme South Dakota utilizes would be exempted under § 1513(d)(3) if South Dakota had at one time applied some other taxation scheme to airline flight property. Thus, if at one time the proceeds of the airline flight property tax had gone to general state expenditures rather than directly to the benefit of airports and airlines, the present tax would be exempted. Because South Dakota has always chosen to devote its taxes on airline flight property solely to the benefit of those airlines, it is not exempted, according to appellants. Why a State that has consistently chosen to levy, to the exclusion of all other property taxes, a tax utilized wholly for aeronautical purposes should be penalized for its consistency is unexplained. At worst, appellants’ interpretation of § 1513(d)(3) would do no more than place a meaningless hurdle before state legislatures seeking to conform their tax scheme to the requirements of this provision. A closer examination of how this proposed replacement requirement would operate in practice illustrates the point. Appellants do not suggest— and have no basis upon which to suggest — that in order to be an “in lieu tax” under § 1513(d)(3) the airline flight property tax must have replaced some other tax by the effective date of the federal provision. If one tax must replace another, therefore, the replacement could take place at any time. Moreover, it could not be a condition of § 1513(d)(3) coverage that the “in lieu tax” replace a tax that had met the antidis-crimination restrictions of § 1513(d). If the tax described in § 1513(d)(3) could replace only a tax that met all the requirements of § 1513(d)(1), then § 1513(d)(3) would not be an exemption at all; it would simply add a restriction on how the taxes could be spent with no corresponding latitude on how they may be collected. Ultimately, therefore, South Dakota could satisfy appellants’ interpretation of § 1513(d)(3) by simply amending its tax code so that its airline flight property tax took some other form, then the following session substituting for that tax a tax utilized wholly for aeronautical purposes. This exercise of replacing one tax with another, while contributing somewhat to a state legislature’s workload, would contribute nothing to the policies of the Airport and Airway Improvement Act. In sum, the language of § 1513(d)(3), while at first glance ambiguous, should be interpreted in a manner that comports with the policies of the Airport and Airway Improvement Act. That interpretation is that § 1513(d)(3) exempts from the antidiscrimination provisions of § 1513(d)(1) a tax on airline flight property, applied to the exclusion of any other possible tax on that property, the proceeds of which are wholly utilized for airport and aeronautical purposes. Because the South Dakota Airline Flight Property Tax fits this description, it does not violate the antidiscrimination provisions of § 1513(d). For this reason, the judgment of the Supreme Court of South Dakota is Affirmed. The United States and appellants have directed our attention to a 1975 Report of the House Committee on Interstate and Foreign Commerce on H. R. 10979, the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act). As we note infra, at 131, the antidiscrimination provisions of 49 U. S. C. App. § 1513(d) were modeled on a similar provision in the 4-R Act. This Report used the phrase “in lieu tax” to describe special taxes on common carriers that operate differently from the generally applicable property tax schemes. H. R. Rep. No. 94-725, pp. 77, 78 (1975). The House Report seems to have used the phrase “in lieu tax” to describe a broad range of taxes. This sliver of legislative history supports our interpretation of the phrase, see infra, at 131-132. Appellants submit an affidavit of John L. Zoraek, an attorney who “rep-resentes] clients in a variety of legislative matters before the United States Congress.” App. to Supplemental Brief for Appellants in No. 14560 (Sup. Ct. S. D.) B-l, B-2. Affiant Zoraek states that he was “involved” — in an unexplained capacity — in the passage of the legislation that ultimately became § 1513(d). According to affiant Zoraek, the “in lieu” provision “was intended to ensure that the Act would not invalidate state taxes which are a legitimate substitute for other taxes on air carrier transportation property and which are not imposed in an effort to tax such property at rates higher than those imposed on other comparable commercial and industrial property.” This would be an incongruous justification for the “in lieu” provision, however, since airline property taxes that are not imposed at rates higher than those imposed on other comparable commercial and industrial property are not threatened by the antidiscrimination provisions of § 1513(d). Mr. Zoraek adds that the in lieu provision “was inserted to take care of Minnesota’s objection to an earlier version.” “To my knowledge no other state made any representation at the time that it wished to be protected by the in lieu provision,” Mr. Zorack concludes. Id., at B-2, B-3. On the basis of this affidavit, appellants argue that to be covered by the in lieu provision a state tax must resemble the Minnesota airflight property tax, which was a substitute for other property taxes previously imposed on airlines. As we note, infra, at 133, the interpretation of an “in lieu tax” as a tax that actually replaced a tax previously imposed is admittedly a possible one. Appellants’ attempt at the creation of legislative history through the post hoc statements of interested onlookers is entitled to no weight, however. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Vincenzo ANSELMO, Appellant, v. H. L. HARDIN, District Director of Immigration and Naturalization for the 21st Immigration District. No. 12259. United States Court of Appeals Third Circuit. Argued Nov. 8, 1957. Decided Feb. 25, 1958. Filindo B. Masino, Philadelphia, Pa. (Frank M. Lario, Camden, N. J., on the brief), for appellant. Charles H. Nugent, Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., on the brief), for appellee. Before MARIS, KALODNER and STALEY, Circuit Judges. KALODNER, Circuit Judge. Does the doctrine of res judicata apply with respect to a judgment of a United States district court granting a writ of habeas corpus in a deportation proceeding which was premised on the judicial determination that the rights of the alien were governed by the Immigration Act of 1917 and that he was not de-portable under its provisions? That issue is presented by this appeal by Vincenzo Anselmo from the judgment of the United States District Court for the District of New Jersey dismissing his action for a declaratory judgment under the Federal Declaratory Judgment Act and for review under the Administrative Procedure Act, with respect to a ruling of the Immigration and Naturalization Service that he is deportable and as such is to be deported to his native country, Italy. Necessary to the consideration of this appeal are the following facts: On November 15, 1938, the Secretary of Labor issued a Warrant for Anselmo’s deportation to Italy pursuant to his determination that Anselmo had entered the United States at New York “about 1930” and “that at the time of his entry he was not in possession of an unexpired immigration visa” and was accordingly deportable under the Immigration Act of 1924. Anselmo, in his Declaration of Intention to be naturalized, filed on November 16, 1934, had stated that he had arrived at New York on June 28, 1924, and on examination by the Immigration Service on May 14, 1936 and at subsequent hearings, conducted by the Service, he made the same contention. The time of Anselmo’s entry into the United States was the critical and dis-positive factor in the 1938 deportation proceedings inasmuch as July 1, 1924 was the effective date of the Immigration Act of 1924 and had Anselmo entered prior to that date he would have attained a non-deportable status under the provisions of Section 19 of the Immigration Act of 1917, which established a five-year statute of limitations (the deportation proceedings were not commenced until January 17, 1938, when the Warrant For Arrest of Alien was issued). Subsequent to the issuance of the deportation warrant Anselmo, on March 2, 1939, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The late Judge Avis of that Court, following hearing, in a Memorandum Opinion dated May 23, 1940, made these findings: “ ‘There is no direct testimony which sustains the position of the respondent [Secretary of Labor]. The indirect evidence does not substantially support the finding. It follows that the order of deportation is arbitrary and capricious, and cannot be sustained under the evidence presently before the court. However, a reading of the record indicates that a proper investigation would develop facts upon which to base a determination one way or the other. The writ will be held for a reasonable time and the matter referred to the Department of Labor for further investigation and determination.’ ” [See 150 F.Supp. 294.] Apparently no further investigation was made by the immigration authorities because, as Government counsel asserts in his brief here “Due to the conditions in Italy as a result of the war, further investigation at that time was impossible.” On March 24, 1944, Chief Judge For-man of the District Court for the District of New Jersey (Judge Avis having died), upon application of Anselmo’s counsel, after hearing, entered an order granting the writ of habeas corpus, and directed that Anselmo be discharged from custody. The Government did not appear in opposition to the writ, and, it may be noted parenthetically that the record discloses that “There appears on this order a pencil notation that the Assistant United States Attorney, Rossbaeh, had no objection to the entry of the order.” No appeal was taken by the Government from the order of March 24, 1944. In October, 1947, Chief Judge Forman denied the Government’s request to reopen the habeas corpus proceeding. Thereafter, on December 2, 1947, tl^e Acting Commissioner of Immigration filed a Motion with the Board of Immigration Appeals “* * * that the outstanding order of deportation be withdrawn and proceedings cancelled without prejudice.” On January 16, 1948 in a formal “Opinion of Immigration Board”, the Acting Commissioner’s Motion was denied. In doing so the Board, in its Opinion, stated: “It is our opinion that the action of the District Court in granting the writ of habeas corpus and discharging respondent from custody effectively terminated the deportation proceeding. Hence, there is nothing before us to consider.” A new deportation proceeding was begun on March 11, 1948 by issuance of a Warrant of Arrest based on the identical charge of lack of an unexpired visa set forth in the original Warrant of Arrest of January 17, 1938. Hearings were held in December, 1950, December, 1951, February and March, 1952, and in February, 1953. At the last mentioned hearing the Government added the additional charge that Anselmo had entered the United States without inspection. On July, 6, 1953, the Special Inquiry Officer found Anselmo deportable on the charges contained in the Warrant of Arrest. On October 28, 1954, the Board of Immigration Appeals denied Anselmo’s appeal and thereafter on November 3, 1954, an order of deportation was entered. Anselmo then brought the action below for declaratory judgment and review. In his petition for declaratory judgment and review Anselmo recited the prior action of the District Court in granting the writ of habeas corpus earlier here detailed and asserted (Par. 13) that accordingly he had “* * * acquired the status of immunity from de-portion * * * which status is preserved and protected under the provisions of the Savings Clause contained in Section 405(a) of the Immigration and Nationality Act of 1952 [8 U.S.C.A. § 1101 note].” He further asserted that the second deportion warrant of 1954 was “arbitrary and capricious” and not sustained by the evidence. The District Court in granting the Government’s motion for summary judgment dismissing Anselmo’s petition held (1) “ * * * the principle of res judi-cata is not applicable in this particular case” and (2) “ * * * there is substantial evidence to warrant the findings of the administrative body * * .” It must immediately be noted that we are here focusing our attention on the res judicata phase of the District Court’s disposition. Upon review of the record we cannot say that the administrative action was. “unsupported by substantial evidence” and “unwarranted by the facts.” Coming now to the issue as to whether the District Court erred in holding that “the principle of res judicata is not applicable in this particular case.” As already noted, the first Warrant For Arrest of Alien, issued January 17, 1938, was premised on the charge that in violation of the Immigration Act of 1924, “ * * at the time of his entry he [Anselmo] was not in possession of an unexpired immigration visa” and the first deportation warrant, issued November 15, 1938, made the same charge in identical terms. Because of their pertinence to the issue of res judicata these additional facts must be stated: The second Warrant For Arrest of Alien, issued March 11, 1948, was premised on the charge that in violation of the Act of 1924 “* * * at the time of entry, he [Anselmo] was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof * * and the second deportation warrant, issued November 3, 1954, made the same charge in identical terms and added to it that in violation of Sec. 241(a) (2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a) (2) “* * * he entered the United States without inspection.” With respect to the issue of res judi-cata these well-settled principles are applicable : A final judgment by a court of competent jurisdiction is res judicata as to the parties not only as to all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not. Specifically, “a question of fact or of law distinctly put in issue and directly determined * * * cannot after-wards be disputed between the same parties”, Frank v. Mangum, 1915, 237 U.S. 309, 334, 35 S.Ct. 582, 590, 59 L.Ed. 969, and where “ * * * the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and resolved in the [prior] opinion” the decree entered pursuant to such opinion is res judicata as to the litigated issue. State of Wyoming v. State of Colorado, 1932, 286 U.S. 494, 507, 52 S.Ct. 621, 626, 76 L.Ed. 1245. (Emphasis supplied.) The circumstance that the final judgment on the issue raised was premised on the failure of the losing party to support its position by sufficient evidence does not impair the binding effect of the judgment rendered. Heiser v. Woodruff, 1946, 327 U.S. 726, 735, 66 S.Ct. 853, 90 L.Ed. 970. A judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata “ * * * of the issues of law and fact necessarily involved in that result.” Collins v. Loisel, 1923, 262 U.S. 426, 430, 43 S.Ct. 618, 619, 67 L.Ed. 1062. Applying the principles stated we are of the opinion that Judge Madden erred in ruling in the instant case that the prior 1944 judgment granting Anselmo a writ of habeas corpus in the 1938 deportation proceeding did not operate as res judicata with respect to the 1954 deportation action. The single issue in the habeas corpus proceeding was whether Anselmo’s status as to deportation was determinable under the Immigration Act of 1917 or the Immigration Act of 1924. Whether the 1917 Act or the 1924 Act was applicable hinged solely on the factual question as to the date of Anselmo’s entry into the United States. If he had entered prior to July 1, 1924, he was not deportable for having entered without an immigration visa because under Section 19 of the 1917 Act there was a five-year statute of limitations with respect to entry without a visa. If he had entered on July 1, 1924, or thereafter, he was deportable under Section 14 of the 1924 Act, which had repealed all of the limitation provisions of Section 19 of the 1917 Act. The foregoing was placed in sharp focus by Judge Avis in his Memorandum in the habeas corpus proceeding and by Judge Madden in his opinion in the instant case. Judge Avis, after stating “The determination of the issue [presented by the application for the writ of habeas corpus] depends entirely upon the date when the relator actually entered the United States” said: “He claims that he arrived * * * on June 28, 1924. Respondent claims that relator did not enter the United States until some time in the year 1930. If he entered on June 28, 1924 he is not deportable because of the fact that he resided in the United States for a period of five years after his entry and his rights are governed by the Act of 1917. If he arrived in the United States after July 1,1924 his rights are controlled by the 1924 Act and he is liable to deportation at any time.” (Emphasis supplied.) Judge Madden in his Opinion, D.C. D.N.J.1957, 150 F.Supp. 293, at page 294, stated: “The prime question throughout is the date of the petitioner’s entry into this country. Both parties are in agreement that if he entered, even illegally, before July 1, 1924, he is not deportable, for then he would have acquired a non-deportable status under the Immigration Act of 1917; but if he entered after said date, he would be subject to the Immigration Act of 1924 and deporta-ble at any time.” (Emphasis supplied.) It is clear that the judgment in the habeas corpus proceeding was a determination that Anselmo had entered the United State prior to July 1, 1924, and that accordingly his status was governed by the provisions of the Immigration Act of 1917 and that being so he could not be deported under the five-year limitation provision of Section 155 of the 1917 Act. The 1954 deportation proceeding was premised on the Government’s determination that Anselmo had entered the United States after July 1, 1924 and tfiat accordingly his status was governed by the provisions of the Immigration and' Nationality Act of 1952, and that being so he was deportable under Section 241(a) (2) of that Act. To avoid the impact of the res judicata doctrine, the Government urges here (1) the,habeas corpus judgment was “not a decision on the merits” as to Anselmo’s depprtability; (2) “even if [it] was a decision on the merits the doctrine of res. judicata or estoppel by judgment does not apply here so as to bar new administrative proceedings to determine petitioner’s [Anselmo’s] deportability, based on new process and new evidence”; (3) Anselmo “does not have any status of immunity from deportation” preserved to him under the 1952 Act, and (4) “even assuming, arguendo, that Judge Forman’s 1944 Order precluded re-lodging- the ‘entry without a visa’ charge * f * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he entered without inspection, in violation of the Immigration Act of 1917” making him deportable under Section 241(a) (2) of the 1952 Act. The contention that the habeas corpus judgment was “not a decision on the merits” does not require extended discussion. The “merits” involved in that judgment were inextricably intertwined —whether he had arrived prior to July 1, 1924 and was thus subject to the 1917 Act or had- arrived subsequent to that date and was thus subject to the 1924 Act. Judge Avis flatly ruled, as earlier quoted, “There is no direct testimony which sustains the position of the respondent [Government], The indirect evidence does not substantially- support the finding [that Anselmo had entered the United States subsequent to July 1, 1924].” Further, Judge Avis allowed the Government “a reasonable time” to produce evidence in support of its position and it was only after almost four years in which the Government failed to produce such evidence or to offer any evidence at all, that Judge Forman, following notice, entered judgment granting the habeas corpus writ. In this connection it will be recalled that, as earlier pointed out, the Government did not appear in opposition to the writ in 1944 and it was noted on the record “that the Assistant United States Attorney, Ross-bach,- had no objection -to the entry of the order.” Implicit, of course, in the grant of the habeas corpus judgment was the judicial determination that Anselmo had entered the United States prior, to July 1, 1924, and that he was subject to the provisions of the 1917 Act and was not deportable under them; The Government’s second contention that “even if [it] was a decision on the merits, the doctrine of res judicata or estoppel by judgment does not apply here to bar new administrative proceedings * * * based on new process and new evidence” falls of its own weight. Clearly dispositive are the well-settled principles, earlier cited, that “a question of fact or of law distinctly put in issue and directly determined * * * cannot afterwards be disputed between the same parties”, and where “the question of priority in time and right * * * was directly presented by the pleadings and evidence and distinctly dealt with and 'resolved in the [prior] opinion” that the decree entered pursuant to, such opinion is res judicata as to the litigated issues. The fact that “new administrative proceedings * * * based on new process and new evidence” were invoked in the 1954 deportation phase cannot avoid the res judicata impact of the habeas corpus judgment. As was pointed out in Heiser v. Woodruff, supra, 327 U.S. at page 735, 66 S.Ct. at page 857, the binding effect of the earlier judgment was “ * * * ' not any the less so * * * because the moving parties failed to support their allegations by evidence.” It is unnecessary to here resolve Anselmo’s contention that he has an immunity from deportation preserved to him under the 1952 Act and the Government’s third point that he does not because of our view of the applicability of the doctrine of res judicata. As to the Government’s remaining contention that “even assuming, argu-endo, that Judge Forman’s Order precluded re-lodging the ‘entry without a visa’ charge * * * that Order has no effect on the charge * * * that at the time of his entry on a date subsequent to July 1, 1924, he [Anselmo] entered without inspection in violation of the Immigration Act of 1917” so as to make him deportable under Section 241(a) (2) of the 1952 Act: The stated premise of this contention is that “Prior to the enactment of the 1952 Act, the charge of entry without inspection was contained in Section 19 of the Act of February 5, 1917 * * * and had to be brought within three years after entry. But Section 241(a) (2) of the Immigration and Nationality Act of 1952 provides that the charge of entry without inspection may be brought without regard to time limitation. Whereas Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing, he became subject to that charge under this provision in the 1952 Act during the second deportation proceeding.” (Emphasis supplied.) The Government’s stated premise is, colloquially speaking, “shot through with holes”, as a matter of law and affords no foundation whatsoever for the contention which it is designed to support. The Government has consistently maintained throughout the first and second deportation proceedings, and in the habeas corpus action, that Anselmo entered the United States after July 1, 1924. In the first deportation proceeding, both in the Warrant of Arrest and the Warrant of Deportation, it was charged that Anselmo entered “about 1930” and that he was subject to deportation under Section 19 of the 1917 Act because “at the time of his entry he was not in possession of an unexpired visa” as required by the 1924 Act. At the time of the issuance of the Warrant of Arrest on January 17, 1938, which was the initial step in the first deportation proceeding, Anselmo, had he entered the United States after July 1, 1924, could have been deported for “entry without inspection” and the Government’s stated premise that “Anselmo was not amenable to an entry without inspection charge at the time of his first deportation hearing [in February 1938]” is a startling mis-statement of law. The Supreme Court of the United States had twice in 1931, some seven years prior to the institution of the first deportation proceeding, declared that with respect to all aliens entering the United States after July 1, 1924 (as charged here by the Government) Section 14 of the 1924 Act had repealed all limitations contained in Section 19 of the 1917 Act. The Government’s injection of the “entry without inspection” charge into the second deportation proceeding in February, 1953 — almost five years after they were commenced on March 11, 1948 —constitutes an attempt at interposition of the 1952 Act to avoid the effect of the habeas corpus judgment. Its contention that Section 241(d) of the 1952 Act “expressly excepts the charge of deport-ability for entry without inspection from the application of the ‘savings clauses’ in Section 405(a)” is tantamount to an assertion in the instant case that the 1952 Act has made inapplicable to deportation proceedings the doctrine of res judicata. We cannot subscribe to such a contention. If we did we would be compelled to consider the constitutionality of the provisions of the 1952 Act relied on by the Government. The cases cited by the Government are inapposite. So are Lehmann v. United States ex rel. Carson, 1957, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122, and Mulcahey v. Cata-lanotte, 1957, 353 U.S. 692, 77 S.Ct. 1025, 1. L.Ed.2d 1127. In the latter two cases there had not been a judgment prior to the deportation proceedings determining the non-deportable status of the alien sought to be deported as there was in the instant case. In plain terms the Government is seeking here to scrap the doctrine of res judicata as far as its applicability to habeas corpus is concerned. It is attempting to deprive Anselmo of the rule which we stated in United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, at page 468, namely, a “ ‘rule of evidence’ * * * ‘which accords to the accused the right to claim finalty with respect to a fact or group of facts previously determined in his favor upon a previous trial.’ ” (Emphasis supplied.) The “fact or group of facts” here determined by the habeas corpus judgment was Anselmo’s entry into the United States prior to July 1, 1924, and the applicability of the provisions of the 1917 Act under which he was not deportable. The cases are legion that, as earlier stated, a judgment in habeas corpus proceedings discharging the petitioner for the writ is res judicata. To Collins v. Loisel, supra, may be added the early case of United States v. Chung Shee, 9 Cir., 1896, 76 F. 951, 956, a deportation proceeding; Harris v. Biszkowicz, 8 Cir., 1939, 100 F.2d 854, also a deportation case; and the recent case of In re Bailleaux, 1956, 47 Cal.2d 258, 302 P.2d 801, 802, 803. See also Cruz-Sanchez v. Robinson, D.C. S.D.Cal.1955, 136 F.Supp. 52, affirmed 9 Cir., 1957, 249 F.2d 771. Pertinent to the instant case is the observation made in Heikkila v. Barber, 1953, 345 U.S. 229, at page 237, 73 S.Ct. 603, at page 607, 97 L.Ed. 972: “Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases [deportation] in order to minimize opportunities for repetitious litigation and consequent delays * * (Emphasis supplied.) The doctrine of res judicata comprehends the particular matter decided and here, the habeas corpus judgment having determined that Anselmo entered prior to July 1, 1924 and that his status was governed by the 1917 Act, the doctrine should have been applied by the District Court and its error in failing to do so requires reversal of its judgment of dismissal of Anselmo’s action for declaratory judgment. For the reasons stated the judgment of the District Court will be reversed and the cause remanded with directions to proceed in accordance with this opinion. . 28 U.S.C. § 2201 et seq. . 5 U.S.C.A. § 1001 et seq. . 8 U.S.C. § 201 et seq. (1940 ed.) ; Immigration Act of 1924, May 26, 1924, P.L., c. 190, 43 Stat. 153 et seq. . 8 U.S.C. § 155 (1926 ed.); Sec. 19 of the Immigration Act of February 5, 1917, 39 Stat. 889. . The District Court’s opinion is reported at D.C.D.N.J.1957, 150 F.Supp. 293. . The Administrative Procedure Act of 1946, c. 324, Sec. 10, 60 Stat. 243, 5 U.S. C.A. § 1009(e). . Mr. Justice Frankfurter, in Angel v. Bul-lington, 1947, 330 U.S. 183, 192-193, 67 S.Ct. 657, 662, 91 L.Ed. 832, stated the rule as follows: “The doctrine of res judicata reflects the refusal of law to tolerate needless litigation. Litigation is needless if, by fair process, a controversy has once gone through the courts to conclusion. * * * And it has gone through, if issues that were or could have been dealt with in an earlier litigation are raised anew between the same parties.” (Emphasis supplied.) To the same effect see Commissioner v. Sunnen, 1948, 333 U.S. 591, 597, 68 S. Ct. 715, 92 L.Ed. 898; Jackson v. Irving Trust Co., 1941, 311 U.S. 494, 503, 61 S.Ct. 326, 85 L.Ed. 297; United States v. Oppenheimer, 1916, 242 U.S. 85, 88, 37 S.Ct. 68, 61 L.Ed. 161; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468. . See Note 4, supra. . 8 U.S.C. Sec. 214 (1940 od.) . Philippides v. Day, 1931, 283 U.S. 48, 51 S.Ct. 358, 75 L.Ed. 833; United States v. Vanbiervliet, 1931, 284 U.S. 590, 52 S.Ct. 132, 76 L.Ed. 509; see also United States v. Prince Line, 2 Cir., 1951, 189 F.2d 386, 389; United States ex rel. Vounas v. Hughes, 3 Cir., 1940, 116 F.2d 171, 174; United States ex rel. Fink v. Reimer, 2 Cir., 1938, 96 F.2d 217. . 8 U.S.C.A. § 1101 et se?, . See Note 10, supra. . Although extraneous to the issues presented in this appeal we cannot refrain from commenting that the Government might well have unsheathed the sword of its might in a worthier cause than that presented here. We are prompted to do so by the observation made by Judge Madden in his opinion at page 298 of 150 E.Supp.: “Here is a man now approaching 50 years of age who has lived in this country for approximately 25 years without a criminal record, sustaining himself in an industrious way, and in most respects conducting himself in the law-abiding manner of a good resident if not a good citizen. The executive branch of the government desires to deport him while at the same time. the same branch of the government, and properly so, is bringing in the persecuted peoples of Europe by the thousands. It makes it difficult for some to understand.” 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_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Florence W. BOSWORTH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 100, Docket 22125. United States Court of Appeals Second Circuit. Argued Jan. 16, 1952. Decided Feb. 5, 1952. Milbank, Tweed, Hope & Hadley, New York City, Weston Vernon, Jr., Robert C. Barnett, Robert T. Molloy and Robert L. Woodford, all of New York City, of counsel, for petitioner. Ellis N. Slack, Acting Asst. Atty. Gen., and Richard D. Harrison, Sp. Asst, to Atty. Gen., for respondent. Before AUGUSTUS N. HAND and CLARK, Circuit Judges, and BRENNAN, District Judge. PER CURIAM. Affirmed on opinion of Arundell, J., 16 T. C. 572, and also on authority of Commissioner, of Internal Revenue v. Western Union Telegraph Co., 2 Cir., 141 F.2d 774. 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_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. SKEE-TRAINER, INC., and Stewart J. Leonard, Appellants, v. GARELICK MFG. CO., Appellee. No. 18067. United States Court of Appeals Eighth Circuit. June 8, 1966. Marcus B. Finnegan, of Finnegan & Henderson, Washington, D. C., Warren A. Sturm, of Carlsen, Carlsen & Sturm, Minneapolis, Minn., on the brief, for appellant. Mark W. Gehan, C. H. Lauder, St. Paul, Minn., on the brief, for apellee. Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge. VAN PELT, District Judge. This is an action against Garelick Manufacturing Company (Garelick) for infringement of Patent No. 3,125,060 issued to plaintiff Stewart J. Leonard on March 17, 1964 and later assigned to plaintiff Skee-Trainer, Inc. Plaintiffs requested a permanent injunction enjoining defendant from infringing the patent in issue and treble damages for deliberate and willful infringement. The device in issue is an aid to people who are learning to water ski and is marketed under the name of “Skee-Trainer.” The trial court, finding the patent invalid for want of invention, entered judgment for the defendant. From that judgment, plaintiffs have appealed. Jurisdiction is established by virtue of 35 U.S.C.A. § 281 and 28 U.S.C.A. § 1338. The issue before the court concerns the validity of the trial court’s interpretation of the words “prior art” found in 35 U.S.C.A. § 103 which provides: “A patent may not be obtained * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made-to a person having ordinary skill in the art to which said subject matter pertains.” After rejecting two possible interpretations, the trial court adopted the following: “3. Prior art, with respect to any simple mechanical device utilizing universally known principles, may be thought to refer to the field of mechanics itself. Regardless of the field in which he works, every prospective inventor is charged with knowledge of basic mechanical principles. If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious’, then it will not be patentable even though nothing really like it has existed before. More specifically, although the simplicity of a mechanical innovation will not automatically render it unpatentable, simplicity is itself strong evidence that ‘invention’ is lacking.” Relying on Caldwell v. Kirk Mfg. Co., 269 F.2d 506 (8th Cir. 1959), cert. denied, 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959), the court held the patent to be invalid for want of invention. The task for this court is to ascertain whether the trial court applied the proper interpretation of the words “prior art” in determining the validity of the patent and, if the interpretation is valid, to decide whether the patent satisfies the requirements for patentability. There is no issue as to whether the patent satisfies the elements of “novelty” and “utility” enumerated in 35 U.S.C.A. §§ 101, 102. If the trial court applied the improper standard, the judgment must be reversed. Caldwell v. Kirk Mfg. Co., supra at 508-509. Prior to the argument in this case the United States Supreme Court accepted for argument a group of patent cases, including three from this circuit. These have since been argued and decided. In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), an Eighth Circuit case, the court construed section 103, supra, and explained its effect upon patentability of an invention. Arguments were also had in two other cases from this Circuit, the Cook Chemical cases [Calmar, Inc. v. Cook Chemical Co.], reported at D.C., 220 F.Supp. 414 and 336 F.2d 110. They were decided at the same time as Graham, (See 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545). The Cook Chemical cases were reversed. Graham was affirmed. It was argued in these cases “that the first sentence of § 103 was intended to sweep away judicial precedehts and to lower the level of patentability” (p. 16, 86 S.Ct. p. 693). The Court concluded that Congress by the revision did not intend “to change the general level of patentable invention.” (p. 17, 86 S.Ct. p. 693) and that “[T]he 1952 Act was intended to codify judicial precedents embracing the principle long ago announced by [13 L.Ed. 683] this Court in Hotchkiss v. Greenwood, 11 How. 248 (1850), and that, while the clear language of § 103 places emphasis on an inquiry into obviousness, the general level of innovation necessary to sustain patentability remains the same.” (3-4, 86 S.Ct. 686) The Court went on to say: “Approached in this light, the § 103 additional condition, when followed realistically, will permit a more practical test of patentability. The emphasis on non-obviousness is one of inquiry, not quality, and, as such, comports with the constitutional strictures.” (17, 86 S.Ct. 693) It is thus clear that Hotchkiss still controls. The net result of the decision is that the standard of invention, as enunciated over 100 years ago, remains the same and has not been altered either by intervening judicial interpretations or the congressional enactment of Section 103. The rule in Hotchkiss, in essence, is that a patentable invention must evidence more ingenuity and skill than that possessed by an ordinary mechanic acquainted with the business. One striking aspect of the decision is the Court’s total rejection of the suggestion that the Court, prior to Graham, had been imposing supposedly stricter standards of patentability. “We have been urged to find in § 103 a relaxed standard, supposedly a congressional reaction to the ‘increased standard’ applied by this Court in its decisions over the last 20 or 30 years. The standard has remained invariable in this Court.” (19, 86 S.Ct. 694) (Emphasis added.) The Court in a note explained the “flash of genius” phrase used in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58, saying it “was but a rhetorical embellishment of language going back to 1833.” “Rather than a more exacting standard, Cuno merely rhetorically restated the requirement that the subject matter sought to be patented must be beyond the skill of the calling. It was the device, not the invention, that had to reveal the ‘flash of creative genius.’ ” (383 U.S. 15, 16, 86 S.Ct. 693) Although the Court was unequivocal in stating that the standard as to patentability “has remained invariable in this Court” it used this language following the quoted words: “Technology, however, has advanced— and with remarkable rapidity in the last 50 years. Moreover, the ambit of applicable art in given fields of science has widened by disciplines unheard of a half-century ago. It is but an evenhanded application to require those persons granted the benefit of a patent monopoly be charged with an awareness of these changed conditions. The same is true of the less technical, but still useful arts. He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office.” (19, 86 S.Ct. 695) The effect of Graham has recently been considered by this court in American Infra-Red Radiant Co., Inc. v. Lambert Industries, Inc., Cases, 8 Cir., 360 F.2d 977, decided May 20, 1966, and Kell-Dot Industries, Inc. v. Graves, 8 Cir., 361 F.2d 25, decided May 18, 1966. In Lambert it was stated: “The Court made it clear that the statute merely codified the decisional law and the necessary level of innovation previously demanded by the courts had not been changed by the statute.” 360 of 984 F.2d. We now conclude that Graham does not invalidate the meaning the trial court gave to the words “prior art”. In fact the trial court’s statement “If, by whatever criteria of invention may be invoked, courts decide that his innovation is too ‘obvious,’ then it will not be patentable even though nothing really like it has existed before,” is now supported by the teachings of Graham. We conclude, as did the trial court, that “prior art” may include not only earlier devices and publications but also similar devices whether or not in related areas to the patented device and with respect to a simple mechanical device utilizing universally known principles permits referring to the field of mechanics itself. Graham teaches: “Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy.” (17-18, 86 S.Ct. 694) We must next determine whether by the standards of Graham the trial court reached a proper conclusion. BACKGROUND OF THE SKEETRAINER: As previously stated, the device relates to a method of aiding beginning water skiers to learn to water ski quickly and efficiently. Allegedly, it overcomes the problem of teaching beginners to maintain a proper skiing position. Many methods have previously been employed to achieve this objective; such as attachments- to the skis, special launching platforms, poles suspended from the side of the tow boat, and special water skiing schools. Plaintiff Leonard, a champion skier, embarked on a project to build a simple, cheap, and safe device. His efforts culminated in the construction of the “SkeeTrainer” which achieved commercial success. To describe the structure and the use of the device, the court adopts the language utilized by the trial court. “The Skee-Trainer itself is very simple. It consists of two wooden bars placed across the open end of a U-shaped piece of aluminum tubing. One of the bars is at the very tip of the forward end of the Trainer, the other is a few inches back and parallel to the first. The rear bar has a loop of metal fixed in the center to which a tow rope may be attached. The trainer is twenty-two inches long and its width is about twenty-one inches in the front, tapering to about eighteen inches at the rear. “In order to use the Trainer, a skier affixes a tow rope to the metal loop, puts on his water skis and then places the front tip of his skis between the wooden bars. By pressing downward, on the closed end of the U-shaped piece of tubing, he can clamp his skis firmly between the two wooden bars. The dimensions of the Trainer are such that, when the skis are clamped, they will automatically be spaced and directed properly for water skiing. The skier will also be held in the crouched position needed for starting. “As the skier begins to be pulled through the water, he gradually releases the, downward pressure on the handle of the Trainer. This reduces the clamping pressure of the wooden bar and the Trainer slips smoothly off the skis and merely functions as a handle on the tow rope. “In mechanical terms, the SkeeTrainer is a lever arm which transmits force to two parallel bars used as a friction clamp.” PRIOR ART: Without discussing the prior art in the use of the principles of friction and leverage, it is necessary to examine devices similar to the Trainer in use or structure. At trial, two water ski aids previously patented were introduced into evidence: No. 2,938,220 for a “Water Ski Attachment” issued to R. G. Puckett, and No. 2,946,305 for a “Water Ski Towing Device” issued to T. G. Hill. Neither device, however, resembles the Skee-Trainer as each require a permanent or semi-permanent attachment to the skis. Other devices similar to the Trainer were introduced into evidence. None of them, as found by the trial court, resemble “the Skee-Trainer or anticipate any of its basic features.” Despite the above conclusions, this court believes, and so holds, that the “Trainer” could have been developed and constructed by an individual with knowledge and skill in the field of mechanics. INVALIDITY OF THE PATENT: Although the Trainer- is simple in structure, the court is required not to equate simplicity with obviousness. However, an invention, although new in the sense that nothing like it has previously existed, may still not be patentable if the difference between the new thing and what was known before is not sufficiently great to warrant a patent. Examination of the entire record convinces this court that the construction of the “Skee-Trainer” involved only the application of mechanical ability. While the device may perform a functional use by aiding beginning skiers and although nothing comparable to it has previously been constructed, the court concludes that the device is obvious to a person having ordinary skill in the art. Congress did not authorize or tend to authorize the issuance of patents as a reward for mechanical skill. Thus, the trial court’s judgment is affirmed in all respects. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_state	33	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". Harry G. FROMBERG, as Trustee of Grand National Pictures, Inc., Appellant, v. James A. DAVIDSON, as Trustee of Educational Pictures, Inc., Appellee. No. 187. Circuit Court of Appeals, Second Circuit. Feb. 17, 1941. Julius M. Arnstein, of New York City, for appellant. A. Walter Socolow, of New York City, for appellee. Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges. PER CURIAM. Order affirmed on opinion below, In re Educational Pictures, 34 F.Supp. 807. 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_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. TEXAS v. NEW MEXICO No. 65, Orig. Argued March 24, 1980 Decided May 19, 1980 Douglas G. Caroom, Assistant Attorney General of Texas, argued the cause for plaintiff. With him on the briefs were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General. Richard A. Simms, Special Assistant Attorney General of New Mexico, argued the cause for defendant. With him on the briefs were Jeff Bingaman, Attorney General, and G. Emlen Hall, Charles M. Tansey, and Jay F. Stein, Special Assistant Attorneys General. Solicitor General McCree filed a memorandum for the United States as intervenor. Per Curiam. Upon consideration of the report filed October 15, 1979, by Senior Judge Jean S. Breitenstein, Special Master, and the exceptions thereto, and on consideration of briefs and oral argument thereon, It Is Adjudged, Ordered, and Decreed that all exceptions are overruled, the report is in all respects confirmed, and the ruling of the Special Master on the “1947 condition” as that term appears in Arts. II (g) and III (a) of the Pecos River Compact is approved. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES v. DUNNIGAN No. 91-1300. Argued December 2, 1992 Decided February 23, 1993 Kennedy, J., delivered the opinion for a unanimous Court. 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. Brent E. Beveridge argued the cause and filed a brief for respondent. Justice Kennedy delivered the opinion of the Court. The question presented is whether the Constitution permits a court to enhance a defendant’s sentence under United States Sentencing Commission, Guidelines Manual §3C1.1 (Nov. 1989), if the court finds the defendant committed perjury at trial. We answer in the affirmative. I Respondent, Sharon Dunnigan, was charged in a single count indictment with conspiracy to distribute cocaine in violation of 21 U. S. C. § 846. After entering a plea of not guilty, she stood trial. The case in chief for the United States consisted of five witnesses who took part in, or observed, respondent’s cocaine trafficking during the summer of 1988. The first witness was Freddie Harris, a cocaine dealer in Charleston, West Virginia. Harris testified that respondent traveled between Charleston and Cleveland, Ohio, numerous times during the summer in question to purchase cocaine for him. He further stated that either he or his associate John Dean accompanied respondent on several of these trips. Dean was the second witness, and he recounted his trips to Cleveland with respondent during the same period to purchase cocaine. He also described meetings with both respondent and Harris for the purpose of delivering cocaine. Three more Government witnesses followed. Andre Charlton testified that respondent, at her own apartment, delivered several ounces of cocaine to Charlton and Harris. Charlton also attested to receiving cocaine from Dean which Dean said he and respondent had bought in Cleveland. Tammy Moore testified next. She described conversations during which respondent vouched for the high quality of the cocaine in Cleveland and suggested Moore accompany her on a trip to Cleveland. Then came the testimony of Wynema Brown, who repeated respondent’s admissions of trips to Cleveland to purchase cocaine for Harris. Brown also stated she saw cocaine powder at respondent’s apartment and witnessed respondent and her daughter convert the powder into crack cocaine for the daughter to sell. This ended the Government’s case in chief. Respondent elected to take the stand and was the sole witness in her own defense. She denied all criminal acts attributed to her. She admitted going to Cleveland with Harris once but claimed it was for an innocent purpose, not to buy or sell cocaine. She admitted knowing John Dean but denied traveling with him to Cleveland. Last, she denied knowing that cocaine was brought into or sold from her apartment. On cross-examination, the Government questioned respondent regarding the testimony of the five prosecution witnesses. Respondent denied their inculpatory statements and said she had not possessed or distributed cocaine during the summer in question or at any other time. The Government also asked whether Edward Dickerson had been in her apartment or bought crack cocaine from her. Respondent answered no. The defense rested, and the Government began its rebuttal with the testimony of Dickerson. He testified to purchasing crack cocaine from respondent on July 12, 1988, in a transaction monitored by law enforcement authorities. The Government also recalled Moore, who claimed respondent sold her crack cocaine about five times and provided cocaine powder to her and respondent’s daughter to convert into crack cocaine for resale. According to Moore, the money from the resale was paid over to respondent. The jury returned a verdict of guilty. Respondent was sentenced pursuant to the United States Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual (Nov. 1989). Her base offense level was set at 22, and the Government requested that the base be increased by two offense levels under USSG §3C1.1, entitled “willfully obstructing or impeding proceedings,” because respondent perjured herself at trial. After arguments from both sides, the District Court ruled on the request: “The court finds that the defendant was untruthful at trial with respect to material matters in this case. The defendant denied her involvement when it is clear from the evidence in the case as the jury found beyond a reasonable doubt that she was involved in the conspiracy alleged in the indictment, and by virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case, the court concludes that the false testimony at trial warrants an upward adjustment by two levels.” App. 29. Based upon the enhanced offense level 24 and a criminal history category I, the District Court sentenced respondent to 51 months’ incarceration, which was at the low end of the Guidelines range. Respondent appealed her sentence, and the Court of Appeals reversed the District Court’s decision to increase respondent’s offense level under USSG §3C1.1. 944 F. 2d 178 (CA4 1991). The Court of Appeals did not take issue with the District Court’s factual findings or rule that further findings were necessary to support a §3C1.1 enhancement. Instead, the court held that a §3C1.1 enhancement based on a defendant’s alleged perjury at trial would be unconstitutional. The court reasoned that “every defendant who takes the stand and is convicted [would] be given the obstruction of justice enhancement.” Id., at 183. Citing some of the incentives for an accused to elect not to testify, including the risk of impeachment by prior convictions, the court ruled that a mechanical sentencing enhancement for testifying was unconstitutional: “With an automatic §3C1.1 enhancement added to the ante, the defendant may not think testifying worth the risk.” Id., at 184. Referring to United States v. Grayson, 438 U. S. 41 (1978), where we upheld a sentence increase based on an accused’s false testimony at trial, the Court of Appeals found that precedent distinguishable on two grounds. First, in Gray-son we justified the sentence increase as based on the District Court’s assessment of the defendant’s greater need for rehabilitation. Id., at 51-53. The Court of Appeals thought this justification was inapplicable, viewing the §3C1.1 enhancement as a punishment for obstructing justice without the time and expense of a separate perjury prosecution. 944 F. 2d, at 184. Second, the Grayson Court cautioned that “[n]othing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false.” 438 U. S., at 55. According to the Court of Appeals, “[t]he guidelines supply precisely the ‘wooden or reflex’ enhancement disclaimed by the Court,” 944 F. 2d, at 184, and this rigidity “makes the §3C1.1 enhancement for a disbelieved denial of guilt under oath an intolerable burden upon the defendant’s right to testify in his own behalf,” id., at 185. Over a dissent by four of its judges, the Court of Appeals declined to rehear the case en banc. 950 F. 2d 149 (CA4 1991). We granted certiorari. 504 U. S. 940 (1992). II A Sentencing Guideline §3C1.1 states in full: “If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the [defendant’s] offense level by 2 levels.” USSG §3C1.1 (Nov. 1989). See also USSG §3C1.1 (Nov. 1992). Both parties assume the phrase “impede or obstruct the administration of justice” includes perjury, and the commentary to §3C1.1 is explicit in so providing. In pertinent part, the commentary states: “This section provides a sentence enhancement for a defendant who engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges, in respect to the instant offense. “1. The following conduct, while not exclusive, may provide a basis for applying this adjustment: “(c) testifying untruthfully or suborning untruthful testimony concerning a material fact,... during a preliminary or grand jury proceeding, trial, sentencing proceeding, or any other judicial proceeding.” USSG §3C1.1, comment., n. 1(c) (Nov. 1989). See also USSG 53C1.1, comment., n. 3(b) (Nov. 1992) (“The following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies: . . . (b) committing, suborning, or attempting to suborn perjury”). Were we to have the questioh before us without reference to this commentary, we would have to acknowledge that some of our precedents do not interpret perjury to constitute an obstruction of justice unless the perjury is part of some greater design to interfere with judicial proceedings, In re Michael, 326 U. S. 224, 228 (1945); Ex parte Hudgings, 249 U. S. 378, 383 (1919). Those cases arose in the context of interpreting early versions of the federal criminal contempt Btatute, which defined contempt, in part, as “misbehavior of any person ... as to obstruct the administration of justice.” 28 U. S. C. §385 (1940 ed.) (Judicial Code §268), derived from the Act of Mar. 2, 1831, Rev. Stat. § 725. See also 18 U. S. C. §401(1) (same). In Hudgings and Michael, we indicated that the ordinary task of trial courts is to sift true from false testimony, so the problem caused by simple perjury was not so much an obstruction of justice as an expected part of its administration. See Michael, 326 U. S., at 227-228. Those cases, however, were decided against the background rule that the contempt power was to be confined to “‘the least possible power adequate’ ” to protect “the administration of justice against immediate interruption of its business.” Id., at 227 (quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821)). In the present context, on the other hand, the enhancement provision is part of a sentencing scheme designed to determine the appropriate type and extent of punishment after the issue of guilt has been resolved. The commission of perjury is of obvious relevance in this regard, because it reflects on a defendant’s criminal history, on her willingness to accept the commands of the law and the authority of the court, and on her character in general. Even on the assumption that we could construe a sentencing guideline in a manner inconsistent with its accompanying commentary, the fact that the meaning ascribed to the phrase “obstruction of justice” differs in the contempt and sentencing contexts would not be a reason for rejecting the Sentencing Commission’s interpretation of that phrase. In all events, the Commission’s interpretation is contested by neither party to this case. In determining what constitutes perjury, we rely upon the definition that has gained general acceptance and common understanding under the federal criminal perjury statute, 18 U. S. C. § 1621. A witness testifying under oath or affirmation violates this statute if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. See § 1621(1); United States v. Debrow, 346 U. S. 374, 376 (1953); United States v. Norris, 300 U. S. 564, 574, 576 (1937). This federal definition of perjury by a witness has remained Unchanged in its material respects for over a century. See United States v. Smull, 236 U. S. 405, 408, and n. 1 (1915) (tracing history of § 1621’s predecessor, Act of Mar. 4, 1909, ch. 321, § 125, 35 Stat. 1111). It parallels typical state-law definitions of perjury, see American Law Institute, Model Penal Code §241.1 (1985); 4 C. Torcía, Wharton’s Criminal Law § 601 (14th ed. 1981), and has roots in the law dating back to at least the Perjury Statute of 1563, 5 Eliz. I, ch. 9, see Gordon, The Invention of a Common Law Crime: Perjury and the Elizabethan Courts, 24 Am. J. Legal Hist. 145 (1980). See also 1 Colonial Laws of New York, 1664-1719, ch. 8, pp. 129-130 (reprinting “An Act to prevent wilfull Perjury,” enacted Nov. 1, 1683). Of course, not every accused who testifies at trial and is convicted will incur an enhanced sentence under §3C1.1 for committing perjury. As we have just observed, an accused may give inaccurate testimony due to confusion, mistake, or faulty memory. In other instances, an accused may testify to matters such as lack of capacity, insanity, duress, or self-defense. Her testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent. For these reasons, if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice, or an attempt to do the same, under the perjury definition we have set out. See USSG §6A1.3 (Nov. 1989); Fed. Rule Crim. Proc. 32(c)(3)(D). See also Burns v. United States, 501 U. S. 129, 134 (1991). When doing so, it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding. The district court’s determination that enhancement is required is sufficient, however, if, as was the case here, the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury. See App. 29 (“The court finds that the defendant was untruthful at trial with respect to material matters in this case. [B]y virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case, the court concludes that the false testimony at trial warrants an upward adjustment by two levels” (emphasis added)). Given the numerous witnesses who contradicted respondent regarding so many facts on which she could not have been mistaken, there is ample support for the District Court’s finding. B We turn next to the contention that an enhanced sentence for the willful presentation of false testimony undermines the right to testify. The right to testify on one’s own behalf in a criminal proceeding is made explicit by federal statute, 18 U. S. C. §3481, and, we have said, it is also a right implicit in the Constitution, see Rock v. Arkansas, 483 U. S. 44, 51-53 (1987); Nix v. Whiteside, 475 U. S. 157, 164 (1986). Respondent cannot contend that increasing her sentence because of her perjury interferes with her right to testify, for we have held on a number of occasions that a defendant’s right to testify does not include a right to commit perjury. Id., at 173; United States v. Havens, 446 U. S. 620, 626 (1980); Grayson, 438 U. S., at 54. Nor can respondent contend §3C1.1 is unconstitutional on the simple basis that it distorts her decision whether to testify or remain silent. Our authorities do not impose a categorical ban on every governmental action affecting the strategic decisions of an accused, including decisions whether or not to exercise constitutional rights. See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978); McGautha v. California, 402 U. S. 183, 216-217 (1971); United States v. Knox, 396 U. S. 77, 82-83 (1969). No doubt to avoid these difficulties, respondent’s argument comes to us in a different form. It is that §3C1.1 carries a risk that a district court will order enhancement even when a defendant’s testimony is truthful, either because the court acts without regard to the truth or makes an erroneous finding of falsity. That §3C1.1 creates such a risk, respondent claims, makes the enhancement unconstitutional. This argument does not survive scrutiny. The concern that courts will enhance sentences as a matter of course whenever the accused takes the stand and is found guilty is dispelled by our earlier explanation that if an accused challenges a sentence increase based on perjured testimony, the trial court must make findings to support all the elements of a perjury violation in the specific case. And as to the risk of incorrect findings of perjury by district courts, that risk is inherent in a system which insists on the value of testimony under oath. To uphold the integrity of our trial system, we have said that the constitutionality of perjury statutes is unquestioned. Grayson, supra, at 54. See also Nix, supra, at 173-174; Havens, supra, at 626-627. The requirement of sworn testimony, backed by punishment for perjury, is as much a protection for the accused as it is a threat. All testimony, from third-party witnesses and the accused, has greater value because of the witness’ oath and the obligations or penalties attendant to it. Cf. G. Neil-son, Trial By Combat 5 (1891) (“A means of ensuring the truth in human testimony has been a thing desired in every age”). Neither can we accept respondent’s argument that the §3C1.1 sentence enhancement advances only “the impermissible sentencing practice of incarcerating for the purpose of saving the Government the burden of bringing a separate and subsequent perjury prosecution.” Grayson, supra, at 53. A sentence enhancement based on perjury does deter false testimony in much the same way as a separate prosecution for perjury. But the enhancement is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to the principal crime, including the goals of retribution and incapacitation. See 18 U. S. C. § 3553(a)(2); Mistretta v. United States, 488 U. S. 361, 367 (1989). It is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures herself in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process. The perjuring defendant’s willingness to frustrate judicial proceedings to avoid criminal liability suggests that the need for incapacitation and retribution is heightened as compared with the defendant charged with the same crime who allows judicial proceedings to progress without resorting to perjury. Weighed against these considerations, the arguments made by the Court of Appeals to distinguish Grayson are wide of the mark. The court is correct that rehabilitation is no longer a goal of sentencing under the Guidelines. 28 U. S. C. § 994(k); Mistretta, supra, at 367. Our lengthy discussion in Grayson of how a defendant’s perjury was relevant to the potential for rehabilitation, however, was not meant to imply that rehabilitation was the only permissible justification for an increased sentence based on perjury. As we have said, the §3C1.1 enhancement serves other legitimate sentencing goals. Neither does our cautionary remark that the enhancement in Grayson need not be imposed “in some wooden or reflex fashion” compel invalidation of § 3C1.1, as the Court of Appeals believed. When contested, the elements of perjury must be found by the district court with the specificity we have stated, so the enhancement is far from automatic. And that the enhancement stems from a congressional mandate rather than from a court’s discretionary judgment cannot be grounds, in these circumstances, for its invalidation. See Chapman v. United States, 500 U. S. 453, 467 (1991); McMillan v. Pennsylvania, 477 U. S. 79, 92 (1986). Upon a proper determination that the accused has committed perjury at trial, an enhancement of sentence is required by the Sentencing Guidelines. That requirement is consistent with our precedents and is not in contravention of the privilege of an accused to testify in her own behalf. The judgment of the Court of Appeals is reversed. It is so ordered. 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_usc1sect	1338	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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". WHAM-O-MFG. CO., a corporation, Appellant, v. PARADISE MANUFACTURING CO., a corporation, Appellee. No. 18442. United States Court of Appeals Ninth Circuit. Jan. 31, 1964. Christie, Parker & Hale, and Robert R. Thornton, Pasadena, Cal., for appellant. William C. Babcock and G. Merle Bergman, Long Beach, Cal., for appel-lee. Before MERRILL and KOELSCH, Circuit Judges, and BOWEN, District Judge. KOELSCH, Circuit Judge. Wham-O-Mfg. Co., the owner of Carrier patent [U.S. Letters Patent #2982547, issued May 2, 1961] brought this suit against Paradise Manufacturing Co. for patent infringement and unfair competition. Both parties are corporations organized under the laws of California and have their principal places of business in that state. The district court, concluding that the patent was invalid and not infringed, dismissed the infringement claim on defendant’s motion for summary judgment; and at the same time the court acting sua sponte dismissed the claim for unfair competition. Plaintiff has appealed. Finding no reversible error, we affirm the judgment. The patent relates to an amusement device in the form of a slide. The patent claims comprise a combination consisting of a smooth strip of flexible material, such as vinyl plastic, and a sprinkler or “irrigating means” to moisten the surface of the material. The two components are integrated by attachment of the water conduit, either along a side or at an end of the strip. The contrivance is useful for a sport (?) referred to as “body planing.” Thus, when the slide is laid out and the surface wetted a player can hurl his body in a horizontal plane upon it and slide like a flat stone skipping upon a pond. The district court declared that the presumption of validity arising from the grant of the Carrier patent [35 U.S.C.A. § 282, Neff Inst. Corp. v. Cohu Electronics Inc., 298 F.2d 82 (9th Cir. 1962)] was “upset” because the patent examiner had failed to consider the latest pertinent prior art during the prosecution of the patent application. Gomez v. Granat Bros., 177 F.2d 266 (9th Cir. 1949), cert. den. 338 U.S. 937, 70 S.Ct. 351, 94 L.Ed. 578 (1950). We disagree. It appears that the Carrier patent did not list as references any patents which disclosed an irrigating means like the one comprising an element of the claimed combinations, but the defendant in support of its motion submitted as an exhibit an earlier patent to one Summers (U.S. Letters Patent #2,314,525 issued May 13, 1943). We do not understand how this omission could in any way affect the presumption. In Nordell v. International Filter Co., 119 F.2d 948 (7th Cir. 1949) and Himmel Bros. Co. v. Serrick Corp., 122 F.2d 740 (7th Cir. 1941), eases relied upon by the defendant, it appeared that the combination itself was anticipated by a single patent not listed as a reference in the patent under attack. See also A. R. Inc. v. Electro-Voice Inc., 311 F.2d 508 (7th Cir. 1952). That is not true here, for Summers at best discloses only one of the constituent parts of the patented combination. And indeed, plaintiff readily acknowledges that these parts individually are all old. It has long been settled that the separate presence in the prior art of each of the elements of a combination will not prevent the finding of invention. But the question remains whether the concept of the joinder of the parts evidences invention. In Great Atlantic and Pacific Tea Corp. v. Supermarket Equipment Corp., 340 U.S. 147, 150, 71 S.Ct. 127, 129, 95 L.Ed. 162 (1950) the Supreme Court said that: “While this Court has sustained combination patents, it has never ventured to give a precise and comprehensive definition of the test to be applied in such cases.” And numerous decisions demonstrate that the Court’s inquiries have proceeded along at least two different lines. For example, in Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corporation, supra, Hailes v. Van Wormer, supra, and Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749, the Court looked to find whether all the component parts of the combination cooperated with one another to produce a single new and useful result and, having ascertained that each operated independently, held the claims invalid for lack of invention. However, in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005 (1937) and Concrete Appliance Corp. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222 (1925), the inquiry was not so much directed to the functioning of the various elements as it was to the degree of skill evidenced by their assemblage into the new combinations; and in those cases the Court invalidated the patents on the ground that to conceive such combinations required no more than ordinary mechanical skill (35 U.S.C.A. § 103). We need not pause in the case at bar to determine whether the material and the sprinkler operate in combination to produce the requisite new unitary result. Even if we were of the opinion'— which we are not — [See Grinnell Washing Machine Co. v. E. E. Johnson Company, 247 U.S. 426, 38 S.Ct. 547, 62 L.Ed. 1196 (1918)] that they do, it is clear to us beyond any doubt that bringing them together did not evidence the “inventive genius,” often spoken of by the Supreme Court as a test for invention. See Mr, Justice Douglas, concurring in Great Atlantic & Pacific Tea Co., 340 U.S. 154, 71 S.Ct. 131, 95 L.Ed. 162. Slides, of course, are not novel and we have no hesitancy in recognizing that they were a common type of amusement device long before the date of Carrier’s patent (May 2, 1961). The fact is likewise well known that a film of water will lower the co-efficient of friction of a smooth surface — in short, that a slide can be made more slippery than it otherwise would be by adding lubricant through means of a sprinkler. We think, as did the trial court, that the combination was obvious. Particularly apt are the following extracts from Glagovsky v. Bowcraft Trimming Co., 267 F.2d 479 (1st Cir. 1959), cert. den. 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959), a case very much like the one before us: “The prior art and the patent claims are so simple that they can be readily understood by any normally intelligent person without the aid of expert testimony. There was, therefore, no error below in disposing of the plaintiff’s suit on the motions for summary judgment and their supporting affidavits, depositions and exhibits.” (267 F.2d p. 480). “* * * The plaintiff’s advance may well be useful and ingenious. But making full allowance for the presumption that the patent is valid and placing the burden of establishing its invalidity on the defendant, 35 U.S.C. § 282, it does not seem to us that even in the light of plaintiff’s commercial success it can be said that the plaintiff’s contribution, viewed either against the background of the allied prior arts * * * or against the background of the particular prior art * * * can be called an invention without defining that term to describe no more than the sort of advance to be expected from any ordinarily skillful mechanic conversant with any of the arts involved.” (267 F.2d p. 482). By its judgment the District Court also determined and decreed that defendant’s slide, marketed under the name “Surf N’Glide” did not infringe any claims of the Carrier patent. In view of our conclusion that the patent was invalid, we do not reach the issue of infringement. A valid patent is essential to such a claim. Bergman v. Aluminum Lock Shingle Corp., 251 F.2d 801 (9th Cir. 1958); Diversey Corp. v. Charles Pfizer & Co., 255 F.2d 60 (7th Cir. 1958). The propriety of the district court’s dismissal of the claim of unfair competition presents a more difficult question. Plaintiff had alleged in its complaint that the subject matter was within the pendent jurisdiction of the district court by virtue of 28 U.S.C.A. § 1338(b). That section provides that a district court may entertain and adjudicate “a claim of unfair competition when joined with a substantial and related claim under the * * * patent * * laws.” The district court clearly was of the view that loss of jurisdiction over the dependent claim was a necessary corollary of its ruling of patent invalidity. It opined that “The second count being for unfair competition finds no jurisdictional support in 28 U.S.C.A. 1338 (b), inasmuch as judgment goes against the plaintiff on the first count [i. e. patent infringement] and hence there is no ‘substantial and related claim’ under the patent law to support jurisdiction of the unfair competition count.” In this the court erred. The Supreme Court in Hurn v. Ours-ler, 289 U.S. 238, 243, 53 S.Ct. 586, 77 L.Ed. 1148 (1933) said: “This court [has] held that the circuit court, having acquired jurisdiction by reason of the federal questions involved, ‘had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.’ ” It is true that this statement was made with reference to a complaint disclosing two grounds, one federal and the other local, for recovery on a single cause of action and not to a complaint covering two distinct claims— one of which was non-federal. But Section 1338(b) was thereafter enacted. And as we noted in Stauffer v. Exley, 184 F.2d 962, 964 (9th Cir. 1950), “In construing the sections of title 28 weight should be given to the reviser’s notes which were included in the committee reports when the legislation was before Congress. See Ex parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed.1207, 10 A.L.R.2d 921; United States v. National City Lines, 1949, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226. The reviser’s note to § 1338 states: ‘Subsection (b) is added and is intended to avoid' “piecemeal” litigation to enforce common-law and statutory copyright, patent,, and trade-mark rights by specifically permitting such enforcement in a single civil action in the district court. While this is the rule under Federal decisions, this section would enact it as statutory authority. The problem is discussed at length in Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and in Musher Foundation v. Alba Trading Co., 2 Cir., 1942, 127 F.2d 9, majority and dissenting opinions.’ ” Thus, in O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, (3d Cir. 1961) it was recognized that the involuntary dismissal of the claim of patent infringement, at the conclusion of plaintiff’s evidence, did not oust the trial court of jurisdiction to continue with the non-federal claim of unfair competition. And in Schreyer v. Casco Products Corp., 190 F.2d 921 (2d Cir. 1951), cert. den. 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952), the Second Circuit held that where the federal claim of patent infringement was “substantial” and “related” to its non-federal companion claim of unfair competition so as to bring it within the purview of § 1338(b), the reversal of the judgment holding the patent valid and infringed would not deprive of jurisdictional support that part of the judgment determining the defendant liable for unfair competition. But as Judge Magruder, concurring in Strach-inan v. Palmer, 177 F.2d 427, 433 (1st Cir. 1949) aptly stated: “Federal courts should not be overeager to hold onto the determination of issues that might be more appropriately left to settlement in state court litigation merely because they have ‘jurisdiction’ to do so by virtue of a complaint making an unfounded claim of federal right. In Hurn v. Oursler, supra, there was a persuasive practical reason for the exercise of such pendent jurisdiction, for in that case the district court, in order to dispose of the federal claim of copyright infringement, was required to take the entire evidence necessary to resolve the almost parallel non-federal claim of unfair competition, and it would obviously serve everyone’s convenience for the court to adjudicate the whole case, both in its federal and non-federal aspects. But in the present case it was not necessary to go to trial to dispose of the federal claim on its merits. That claim could have been disposed of as a matter of law upon motion to dismiss. If such motion had been made, I am not prepared to say that the district court would have been in error in dismissing the whole case. * * * ” And in the case before us, although we are satisfied the district court did have jurisdiction over the non-federal subject matter, we believe that on this record the court, in the exercise of a sound discretion, had no choice but to dismiss the complaint with respect to that claim. Unlike Hurn v. Oursler, commented upon by Judge Magruder, or Telechron, Inc. v. Parissi, 197 F.2d 757 (2d Cir. 1952) where dismissal was ordered after sixteen days of trial during which plaintiff had adduced evidence covering both federal and non-federal claims and where the federal claim was still before the court, here neither the plaintiff’s energy nor the court’s time had been so occupied, the federal claim no longer existed and the claim remaining was one more appropriately belonging in a state rather than a federal court. Moynahan v. Pari-Mutuel Employees Guild of Calif., 317 F.2d 209 (9th Cir. 1963). The district court dismissed the unfair competition claim, but since the merits were not reached, the dismissal should have been of the complaint and not the claim. This will permit plaintiff, if it so desires, to litigate the competition claim in an appropriate state court. The judgment is modified to recite that plaintiff’s complaint, as to the Second Count, is dismissed without prejudice to litigate any such cause of action in an appropriate state forum. As modified, the judgment is affirmed. Costs to appellee. . The Summers patent teaches that a length of garden hose having one end closed and the other fitted with a coupling for attachment to a hydrant; holes at intervals along the hose permits discharge of water along the adjoining area. . “Where a thing patented is an entirety consisting of a single device or combination of old elements incapable of division or separate use, the respondent cannot escape the charge of infringement by alleging or proving that a part of the entire thing is found in one prior art patent or printed publication or machine and another part in another prior exhibit and still another part in a third one, and from the three, or any greater number of such exhibits, draw the conclusion that the patentee is not the original and first inventor of the patented improvement.” Bates v. Coe, 98 U.S. 31, 48, 25 L.Ed. 68 (1878). See also Hailes v. Van Wormer, 87 U.S. 353, 20 Wall. 353, 22 L.Ed. 241 (1873). . Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, p. 152, 71 S.Ct. 127, p. 129, 95 L.Ed. 162: “The conjunction or concert of known elements must contribute something ; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Hailes v. Van Wormer, 87 U.S. 353, p. 368, 22 L.Ed. 241: “It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. * * * Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention.” Pickering v. McCullough, 104 U.S. 310, p. 318, 26 L.Ed. 749: “In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of the domain of the invention, seised each of e'ery part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union.” . Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, pp. 89-90, 62 S.Ct. 37, p. 39, 86 L.Ed. 58: “More must be done than to utilize the skill of the art in bringing old tools into new combinations. * * We may concede that the functions performed by Mead’s combination were new and useful. But that does not necessarily make the device patentable. Under the statute (35 U.S.C. § 31; r. s. § 4886) the device must not only be ‘new and useful,’ it must also be an ‘invention’ or ‘discovery.’ Thompson v. Boisselier, 114 U.S. 1, 11 [5 S.Ct. 1042, 1047, 29 L.Ed. 76], Since Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, decided in 1851, it has been recognized that if an improvement is to obtain the privileged position of a patent more ingenuity must be involved than the work of a mechanic skilled in the art.” Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, p. 486, 55 S.Ct. 455, p. 458, 79 L.Ed. 1005: “An improvement to an apparatus or method, to be patentable, must be the result of invention, and not the mere exercise of the skill of the calling or an advance plainly indicated by the prior art. Electrie Cable Joint Co. v. Brooklyn Edison Co., 292 U.S. 69, 79, 80 [54 S.Ct. 586, 78 L.Ed. 1131]. The inclusion of a flywheel in any form of mechanism to secure uniformity of its motion has so long been standard procedure in the field of mechanics and machine design that the use of it in the manner claimed by the present patent involved no more than the skill of the calling.” Concrete Appliances Corp. v. Gomery, 269 U.S. 177, p. 185, 46 S.Ct. 42, p. 45, 70 L.Ed. 222: “This progressive adaptation, much of which preceded and some of which was contemporaneous with the Callahan adaptation, of well known devices to new but similar uses ‘is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice.’ Hollister v. Benedict Manufacturing Co., supra, 113 U.S. 59, at page 73, 5 S.Ct. 717 at page 724, 28 L.Ed. 901. No novel elements were used by Callahan in his device. We are unable to find that their use in combination in it was more than the application to them of mechanical skill in the course of a natural development and expansion of the art.” . Defendant readily acknowledges that the claim of patent infringement was “substantial” but suggests it was not “re: lated” to the competition claim, as is also required by § 1338(b); the suggestion is made that such deficiency afforded the basis for the trial court’s dismissal. The term “related” refers to probative facts; it means that part of the proof in support of one claim be common to the other. The amount of the proof required varies among the several circuits, this circuit being among those that has adopted a liberal construction in order to facilitate joinder. Pursche v. Atlas Scraper Engineering Co., 300 F.2d 467 (9th Cir. 1962) cert. den. 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170, rehearing denied, 371 U.S. 959, 83 S.Ct. 499, 9 L.Ed.2d 507. In this case, the summary judgment motion was not directed against the competition claim, and the materials before the district court were not concerned with it; consequently the nature of that claim and the proof' was not asserted. There, the claim was-not enlightening, since the claims against it were very general. On this record it would require speculation to conclude-that the claim was not “related.” . We accept this statement as setting out the test of substantiality: “Presumably § 1338(b) means nothing more than the claim under the patent law must satisfy the test of substantiality generally exacted when a jurisdictional challenge is asserted in a federal court. In such instances the question is whether the claim jurisdietionally assailed is ‘obviously without merit’ or its unsoundness ‘ “clearly results from previous decisions” ’ of the Supreme Court. Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. Jurisdiction to adjudicate is wanting only where the federal claims stated in the complaint are so unsubstantial as ‘to be frivolous or * * * plainly without color of merit.’ Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 306, 44 S.Ct. 96, 98, 68 L.Ed. 308. If it appears that a plaintiff is ‘not really relying upon the patent law for his alleged rights’ then the claim does ‘not really and substantially involve a controversy within the jurisdiction of the court’; otherwise jurisdiction exists regardless of whether the claim ultimately be held good or bad. The Pair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, [24], 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, at 11 (1961) quoting with approval American Securit Co. v. Shatterproof Glass Corp., D.C.D.Del.1958, 166 F.Supp. 813, affirmed 3 Cir. 1959, 268 F.2d 769. . This view was subsequently approved as the rule of the first circuit in Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950). 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 28? Answer with a number. Answer:
songer_suffic	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Clarence William JONES, Appellant, v. UNITED STATES of America, Appellee. No. 19362. United States Court of Appeals District of Columbia Circuit. Argued Oct. 12, 1965. Decided Nov. 29, 1965. Mr. Odell Kominers, Washington, D. C., (appointed by this court) for appellant. Mr. Allan Palmer, Asst. U. S. Atty., for appellee. Messrs. John C. Conliff, Jr., U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Harold H. Titus, Jr., Asst. U. S. Attys., and Edwin C. Brown, Jr., Asst. U. S. Atty., at the time the record was filed, were on the brief for appellee. Mr. David C. Acheson, U. S. Atty., at the time the record was filed, also entered an appearance for appellee. Before Bazelon, Chief Judge, and Danaher and Wright, Circuit Judges. PER CURIAM: Appellant was convicted on charges of possession and sale of narcotics. On this appeal he challenges the trial court’s denial of his motion to suppress narcotics which he alleges were seized pursuant to an invalid search warrant. He asserts that the affidavit of two narcotics agents submitted to the Commissioner did not disclose probable cause for issuance of the warrant. The affidavit recited that a confidential informant, “whose reliability has been proven in the past,” told the agents that appellant was selling heroin at his apartment at the second floor, front, 11 Randolph Place, N. W.; that the agents met with the informant and, after searching him and finding him free of narcotics, furnished him with Official Government Advance Funds to purchase narcotics from appellant at his apartment; that the informant was observed by the agents to enter 11 Randolph Place, N. W., without meeting anyone en route, and was then observed by them to emerge, surrendering to the agents what tests showed was a narcotic substance; that the informant told the agents that he had purchased the narcotics from appellant in the second floor front apartment at 11 Randolph Place; and that the informant identified appellant from a police photograph as the person from whom he had made the purchase. On the basis of this affidavit, a search warrant was issued for narcotics and narcotics paraphernalia in “second floor, front, 11 Randolph Place.” When an affidavit is “based on hearsay information * * * the magistrate must be informed of [1] some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and [2] some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable.’ ” Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). The first sort of circumstances were clearly presented in the affidavit. And the agents’ observation of the informant entering 11 Randolph Place, N. W., without narcotics and emerging with narcotics in his possession and his identification of appellant’s photograph provided bases for the agents to “credit” the information that appellant was selling narcotics in the second floor, front, thus satisfying the second Aguilar requirement. While it would have been preferable if the affidavit had also detailed the basis for the agents’ conclusion that the informant had proved reliable in the past, its failure to do so does not preclude probable cause in light of the substantial “crediting” circumstances. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function'and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the court should not invalidate the warrant by interpreting the affidavit in a hyperteehnical, rather than a commonsense, manner. * * [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. [United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).] For the foregoing reasons, appellant’s conviction must be affirmed. So ordered. Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_respond1_3_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. In re GRAND JURY INVESTIGATION. Appeal of NEW JERSEY STATE COMMISSION OF INVESTIGATION. No. 80-1065. United States Court of Appeals, Third Circuit. Argued July 7, 1980. Decided Sept. 19, 1980. Michael R. Siavage, Executive Director, State of N. J., Commission of Investigation, Trenton, N. J., Joel Harvey Slomsky (argued), Philadelphia, Pa., for appellees, Rittenhouse Consulting Enterprises, Ltd. and Severance Administrators, Inc. Peter M. Schirmer, Trenton, N. J. (argued), for appellant. Before SEITZ, Chief Judge and ADAMS, Circuit Judge and KUNZIG, Judge. Honorable Robert L. Kunzig, United States Court of Claims, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. This is an appeal from the denial of a motion brought by the New Jersey State Commission of Investigation (Commission) seeking access to records of Rittenhouse Consulting Enterprises, Ltd. (Rittenhouse) and Severance Administrators, Inc. (Severance) that are in the possession of a federal grand jury. The first issue we must address is whether the district court’s order is a “final decision” reviewable under 28 U.S.C. § 1291. The second question raised by this appeal is whether the grand jury secrecy rule, F.R.Crim.P. 6(e), is applicable to the Commission’s request for disclosure of documents that are in the custody of the grand jury. I. STATEMENT OF THE CASE The New Jersey State Commission of Investigation, a legislative investigatory body created under N.J.S.A. 52:9M-1 et seq., is empowered to conduct inquiries in connection with the faithful execution and effective enforcement of the state’s laws. In order to carry out its duties, the Commission is endowed with the authority to subpoena witnesses and documents. N.J.S.A. 52:9M-12(c). In the course of investigating New Jersey dental care plans, the Commission on July 27, 1979 subpoenaed the books and records of Rittenhouse and Severance for January 1, 1976 through June 30, 1979. The two companies partially complied with the subpoena by providing the Commission with records for the period January 1, 1978 to June 30, 1979. As for the remainder of the subpoenaed items, however, Rittenhouse and Severance informed the Commission that they could not comply because the records for January 1,1976 through December 31, 1977 had previously been subpoenaed by and were in the custody of a federal grand jury empanelled in the Eastern District of Pennsylvania. Because documents in the possession of a grand jury are considered records of the court, it was necessary for the Commission to move before the United States District Court for the Eastern District of Pennsylvania to obtain access to the records. Although the motion for disclosure, filed September 11,1979, was framed under F.R.Crim.P. 6(e), it averred that the documents should be made available because they were not subject to the secrecy policy of the Rules. The United States Attorney supervising the grand jury did not oppose the motion. Rittenhouse and Severance, however, objected to the request for access, and contended that the grand jury materials must be shrouded in secrecy because the request fits none of the exceptions to -the general policy of nondisclosure set forth in Rule 6(e)(2). On December 5, 1979, the district court denied the disclosure motion on the ground that the Commission had failed to make the showing of “particular need” or “compelling necessity” required to overcome the policy of secrecy encompassed by Rule 6(e). Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959); United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). The Commission contends that the district judge erred in basing the denial of the motion on Rule 6(e) because the documents are not “matters occurring before the grand jury” within the meaning of the Rule. In defending the decision by the district court, Rittenhouse and Severance first challenge our jurisdiction over the appeal. They urge that the order is neither final under 28 U.S.C. § 1291 nor an appealable collateral order under the exception to § 1291 recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Appellees find support for their position in In Re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978), where the court found an order denying disclosure of grand jury material to a state investigator to be analogous to a discovery ruling, and thus interlocutory and nonappealable. On the merits, appellees argue that Rule 6(e) is indeed applicable, and that the policy of grand jury secrecy thus precludes disclosure of their records to the Commission. II. DISCUSSION A. Appealability We first hold that we have jurisdiction to entertain this appeal because the district court’s order was entered in an independent, plenary proceeding that conclusively resolved the only controversy between the parties. Accordingly, it is a final order appealable under 28 U.S.C. § 1291. In Matter of Grand Jury Empanelled Feb. 14, 1978, 597 F.2d 851, 857-58 (3d Cir. 1979); Gibson v. United States, 403 F.2d 166 (D.C. Cir. 1968). The motion for disclosure was the sole matter affecting the Commission’s rights before the district court; it was not in any way part of or connected with the grand jury proceeding. The grand jury simply happened to have possession of records also subpoenaed by the Commission, a separate authority pursuing a distinct inquiry. The Commission’s reasons for seeking access are unrelated to the substance of the grand jury’s investigation, and it has no interest in the grand jury proceedings except for the somewhat fortuitous occurrence that that body had, for a different purpose, previously acquired custody over the records that it now seeks. For these reasons, the Commission’s motion was independent of the grand jury proceedings, and it is therefore irrelevant to the finality of the order of the district court that the grand jury’s deliberations are ongoing. Illustrative of the discrete, and thus final, nature of the district court’s order is the fact that an immediate appeal poses no danger of delaying or disrupting the grand jury proceedings. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The grand jury need not suspend its investigation while a recalcitrant witness seeks to appeal an order compelling the production of documents, for the Commission merely requests an opportunity to examine and copy the records. The Commission assures us, and there is no contradiction, that the grand jury would be without the documents for a few days only. The finality of the order below is also evident from the lack of other avenues of review available to the Commission. The Commission does not have the option of putting itself in contempt to gain immediate review, see Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940). Moreover, and if it waits to press an appeal until the conclusion of the grand jury proceedings, its legislative mission will have long since expired, rendering the requested materials useless. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), where the Supreme Court held that an order denying a motion to prevent the production of documents before a grand jury was a final, appealable decision because Perlman had no other means “to avert the mischief of the order.” Espousing a flexible concept of finality, the Court indicated that the doctrine should not be used as a means of denying meaningful appellate review. We are not persuaded by appellee’s arguments that In Re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978), controls this situation. There, a state investigator who had probed the same charges sought access to the entire proceedings of the grand jury, in order that he could assist that body. Central to the court’s finding of nonappealability was its conclusion that the disclosure motion was integral to the grand jury investigation, so that the order appealed from was undeniably issued in connection with an ongoing matter. 580 F.2d at 16-17. As we have previously discussed, the Commission’s motion here is not connected with the grand jury investigation, but rather constitutes an independent matter. B. Applicability of F.R.Crim.P. 6(e) In order to accept the argument of Rittenhouse and Severance that Rule 6(e) applies to forbid disclosure of the requested documents, it would be necessary to conclude that the Rule prevents disclosure, for any purpose, of documents once they are subpoenaed by a grand jury. We cannot so conclude, however, because the policy of secrecy is not absolute. United States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), cert. denied 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1974). Rule 6(e) shields solely “matters occurring before the grand jury.” It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process. See, e. g., United States v. Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954). The Rule is not intended “to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). The mere fact that a particular document is reviewed by a grand jury does not convert it into a “matter occurring before the grand jury” within the meaning of 6(e). Documents such as the business records sought by the Commission here are created for purposes independent of grand jury investigations, and such records have many legitimate uses unrelated to the substance of the grand jury proceedings. See United States v. Stanford, supra, at 291. As the Second Circuit stated in United States v. Interstate Dress Carriers, supra, while granting the request of the Interstate Commerce Commission for disclosure of a trucking company’s records in the custody of a grand jury: [W]hen testimony or data is sought for its own sake-for its intrinsic value in the furtherance of a lawful investigation-rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury. 280 F.2d at 54. Thus, once the New Jersey Commission demonstrated a legitimate purpose flowing from its investigatory authority for subpoenaeing the records of Rittenhouse and Severance, disclosure should not have been denied simply because a grand jury had reviewed the documents in an unrelated matter. Access to the records should be refused only if it would compromise the secrecy of the grand jury. The district court erred in assuming that Rule 6(e) automatically controlled when it required the Commission to show a compelling necessity for production from the outset. “If the reasons for maintaining secrecy do not apply at all in a given situation, or apply to only an insignificant degree, the party seeking disclosure should not be required to demonstrate a large compelling need.” U.S. Industries, Inc. v. United States District Court, 345 F.2d 18 (9th Cir. 1965). In this instance, where the documents are sought for use in an investigation into a different subject than the matter before the grand jury, the party objecting to production must first prove that the policy of grand jury secrecy would be jeopardized. Otherwise, the request for access is not governed by Rule 6(e). Because the record before us does not include the documents sought by the Commission, we must leave to the district court the task of evaluating whether disclosure would reveal “matters occurring before,” or the content of, the grand jury proceedings. If the district court specifically finds that the secrecy policy of Rule 6(e) is implicated, only then should the Commission be required to show a “particular need” or “compelling necessity” for disclosure. III. CONCLUSION The order of the district court will be vacated and the matter remanded for further proceedings consistent with this opinion. . Rule 6(e), F.R.Crim.P., provides in part: (e) Secrecy of Proceedings and Disclosure. (1) General Rule. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court. (2) Exceptions. (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to- (i) an attorney for the government for use in the performance of such attorney’s duty; and (ii) such government personnel as are deemed necessary by an attorney for the government ... in the performance of such attorney’s duty to enforce Federal criminal law. (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made- (i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or (ii) when permitted by a court at the request of the defendant, upon showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. (emphasis added). . Although there is some question whether Rittenhouse and Severance have standing to argue against disclosure, since the government, which is the custodian of the records and protector of grand jury secrecy, had no objection to access, the parties neither raised this issue in the district court nor argued it on appeal. It is the policy of this Court to refrain from considering points not pressed by the parties unless the issue either goes to our jurisdiction or is of constitutional dimension. United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). Our jurisdiction is affected only when the standing problem in a particular case implicates the constitutional aspects of the standing doctrine, namely, whether the dispute is presented in an adversary context and in a form capable of judicial resolution. There are also prudential policy considerations that bear on the question of standing, however, which are not necessarily derived from the Constitution. See Americans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252 (3d Cir. 1980). In this case, a concrete controversy clearly is presented, and thus the standing problem involves only the prudential consideration whether appellees are the proper parties to defend the decision reached by the district court. Accordingly, following the policy set forth in Dansker, there is no occasion in the present situation to address the question of standing. . Rittenhouse and Severance contend that the order is not conclusive because the district court indicated that it might entertain another motion by the Commission offering compelling reasons for overcoming Rule 6(e). A mere suggestion, however, that a court might reconsider an order upon a new and adequate showing does not destroy the final character of the order. FTC v. Texaco, 517 F.2d 137, 143 n.6 (D.C.Cir.1975); reh. en banc, 555 F.2d 862, 873 n.21 (D.C.Cir.1977), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), counsels us to construe orders practically, rather than technically, in determining their finality. Thus, we should not invoke the finality doctrine to encourage wasted resources by requiring parties to redo what they have already done before affording them appellate review. . See United States v. Calandra, 455 F.2d 750 (6th Cir. 1972), where Calandra, subpoenaed to testify before a grand jury, moved (a) to suppress certain evidence, and (b) for an order insulating him from answering questions based on the evidence. The district court granted the motion, and the court of appeals proceeded to consider the government’s appeal holding that the motion was a plenary proceeding unrelated to the pending grand jury investigation. . Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), in which the Court held the denial of a grand jury witness’ motion to quash a subpoena duces tecum to be nonappealable, is thus inapplicable. In Cobbledick the Court was motivated by the need to avoid interruption and delay of the grand jury’s work from interlocutory appeals by various witnesses. Since the Commission’s motion presents no such danger, the appeal here does not implicate the policy or holding of Cobbledick. . Letter-brief for appellant, June 6, 1980, at 4. 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE TRANSPORTATION COMPANY, Respondent. No. 91-1061. United States Court of Appeals, Seventh Circuit. Argued Oct. 17, 1991. Decided May 22, 1992. Judith A. Dowd, N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Nancy B. Hunt (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner. Leonard R. Kofkin, Fagel & Haber, Chicago, Ill. (argued), for respondent. Before BAUER, Chief Judge, CUDAHY and EASTERBROOK, Circuit Judges. BAUER, Chief Judge. Advance Transportation Company (“Advance” or “the company”) is an interstate and local trucking company headquartered in Milwaukee, Wisconsin, and which maintains forty terminals. Local Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (“the union”), is the recognized collective bargaining representative for approximately 200 of the company’s Bedford Park terminal employees. Advance employs two types of drivers at its Bedford Park terminal: about eighty seniority or regular drivers, and up to fifteen replacement drivers who fill in for absent regular drivers. The regular drivers are paid more than replacement drivers, and enjoy all the benefits of union representation, such as accrual of bargaining unit seniority and availability of a grievance procedure. Replacement drivers can become regular drivers but, under an agreement with the union, only on a seniority basis. As part of the company’s compulsory profit-sharing program, it withholds twelve percent from the wages of both regular and replacement drivers. The profit-sharing program is the centerpiece around which the facts of this case revolve. In April 1985, Advance offered a voluntary profit-sharing plan to all of its union-represented employees. The plan allowed the company to deduct twelve percent from employees’ wages, ten percent of which it retained and the remaining two percent it used to purchase stock in the company for the participating employees. Daniel Tuffs, a regular driver for Advance since February 1979, was one of the employees who opted not to participate in this voluntary plan. Ten months after the plan was initiated, in February 1986, Advance’s regional manager Thomas Horvath called Tuffs into his office to tell him that Advance wanted one hundred percent participation in the plan. Tuffs continued to decline, explaining that he could not afford to participate. Horvath responded that if Tuffs did not participate in the plan, there would be a layoff of employees and Tuffs would be at fault. In late 1987, during negotiations between the company and the union for a three-year contract, the company proposed that its profit-sharing plan become compulsory for a five-year period. The union responded it would agree to this proposal only if a majority of the employees approved it in a special referendum. The company agreed, and a referendum was called. A few days before the vote, the company held an informational meeting for the Bedford Park employees. After Glen Carroll, the terminal’s operations manager, spoke in favor of the plan, Tuffs spoke up and called for a show of hands of those in favor of the plan. Only two employees indicated approval. On the morning of December 18, 1987, the day of the referendum, Tuffs drafted, signed, and circulated a petition addressed to the union that indicated the objection of its signers to imposition of a compulsory profit-sharing plan by a simple majority vote. Including Tuffs, eighty-two employees signed the petition. Both Mike Zu-dycki, the terminal’s office manager, and Horvath, the regional manager, saw Tuffs collecting signatures on the petition. In fact, Tuffs offered it to Zudycki, who responded that Tuffs should “get that thing away from me.” The petition proved to be unnecessary, however, because the compulsory profit-sharing plan was defeated by a vote of 123 to 67. The union and the company continued their contract negotiations with the company insisting that it needed a compulsory profit-sharing plan for its economic survival. It requested the union to join it in another referendum. The union declined, but countered that the employees might accept a compulsory plan if it were for only three years instead of five, and if it were accompanied by a pay increase greater than that required by the National Master Freight Agreement. The company agreed, and began campaigning among Advance employees for approval of the revised compulsory profit-sharing plan. The second referendum was held on February 25, 1988, and resulted in a majority of Advance employees approving the compulsory profit-sharing plan. Although the union refused to participate in this second referendum, it accepted the results and entered into the compulsory profit-sharing agreement for Advance employees as riders to the April 1, 1988, through March 31, 1991, collective bargaining agreements. After the company and the union entered into the new contract, sixty Advance employees, Tuffs among them, filed grievances objecting to imposition of the compulsory profit-sharing plan. On April 27, 1988, the grievances were heard before a grievance board that included Advance’s operations manager, Glen Carroll. Tuffs spoke out at the hearing, stating, “This is an example of what happens when you withhold monies from a person’s check against their will and without their approval, and this thing will continue until people are given a voluntary choice on profit-sharing.” Both the plan and employee dissatisfaction with it, however, continued. On April 14, 1988, two weeks after the plan was instituted, Advance hired Donovan Bauldry as a replacement driver. Bauldry added his voice to those unhappy with the compulsory plan, and would openly joke about it over the company radio. The company distributed the first profit-sharing checks to employees on August 25. Tuffs’s check was in the amount of $8.71. After receiving their checks, Tuffs and three others took them to Zudycki’s office. Tuffs informed Zudycki of his pending, unresolved grievance. He insisted he was an unwilling participant in the program, and felt that if he accepted the check he would be indicating his approval of the plan. He therefore refused the check and placed it on Zudycki’s desk. Zudycki responded that the check belonged to Tuffs, that the company wanted him to have it. Tuffs continued to refuse it and left Zu-dycki’s office. The next day, Tuffs found the check in his box at the terminal where he received his messages and paychecks. Tuffs removed the check from his box and this time took it to Advance’s regional manager, Thomas Horvath, reiterating what he said to Zudycki the day before. When Hor-vath told him the same thing Zudycki had, Tuffs left the check on Horvath’s desk and walked out. Again, the next day, Tuffs found the check back in his box. This time he just left it there. About two weeks after the profit-sharing checks were distributed, and Tuffs refused to accept his, dispatch manager Richard Blake called Bauldry into his office. Baul-dry had accepted his profit-sharing check, but had not yet cashed it, awaiting a resolution of the grievance procedures. Blake informed Bauldry that he heard that Baul-dry had made disparaging remarks about the company. Even though Bauldry denied having done so, Blake cautioned him to stop making jokes and comments to other drivers about the profit-sharing plan. The company, Blake explained, needed the money from the plan to survive. He continued that the company was aware that other drivers were opposed to the plan, it knew who they were, and it would “get” them all eventually, that is, they would lose their jobs driving for Advance. Blake warned Bauldry not to get involved with those drivers, not to associate with them. He reassured Bauldry that he was aware he was a hard worker, that he even refrained from taking coffee breaks, and that Bauldry would be in the next group of replacement drivers who would receive regular driver status. He then finished by reminding Bauldry not even to say hello to the dissident drivers. On Thursday, September 29, Tuffs received a note from Blake informing him that he was suspended from work on Friday for failure to follow instructions, and that a letter would follow. The company and the union’s agreement permits the company to discharge any employee who violates the same rule three times within a six month period. One of those rules is that an employee must follow instructions. Blake explained to Tuffs on Friday morning that, after making a C.O.D. delivery, Tuffs failed to obtain a certified check as instructed, accepting a company check instead. This was Tuffs’s second warning for failure to follow instructions since August 12, Blake reminded Tuffs. Blake told Tuffs he was suspended for that day, but should report back for work on Monday. Tuffs left. On Saturday, however, Tuffs received a telegram from Zudycki informing him that his employment with Advance was terminated, effective immediately, noting a letter would follow. The telegram was dated September 30, the day before. On Monday, October 3, Tuffs called Zudycki for an explanation before a letter arrived. Zudycki told him that he was fired because he took his coffee break before his first delivery, another violation of the rule that employees must follow instructions. The next day Tuffs received two letters from Blake. The first, dated September 30, was entitled “Second Warning Letter with One Day Suspension.” This letter reminded Tuffs that he was issued a warning letter on August 12 for failure to follow instructions, and that on September 28 he again failed to follow instructions by stopping for a coffee break before making his first delivery of the day. The letter concluded that Tuffs was suspended from work for one day, Friday, September 30. The second letter Tuffs received from Blake was entitled “Letter of Termination,” and was dated October 3. This letter detailed the three rules violations that lead to Tuffs’s termination. These rules violations, the letter explained, were (1) the August 12 warning and a one day suspension for failure to follow instructions; (2) the September 30 warning and suspension for taking a coffee break on the 28th before his first stop, which is a failure to follow instructions; and (3) the third violation of that rule, also on September 28, by failing to obtain a certified check after making a C.O.D. delivery. The letter concluded that, in view of his failure to follow company rules, Tuffs’s employment with Advance was terminated. Throughout that fall Bauldry continued to receive assignments from Advance dispatchers. He received no assignments, however, after December 14, 1988, and on December 28 Blake sent him a letter informing him that Advance was discontinuing his service as a replacement driver as of that date. Both Tuffs and Bauldry filed complaints against Advance with the National Labor Relations Board (the “Board” or “NLRB”). The complaints charge that Advance fired Tuffs and Bauldry for engaging in protected activity, in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). The complaints were consolidated for hearing before an Administrative Law Judge (“AU”). In his Decision, the AU concluded that Tuffs’s termination violated the Act, although Bauldry’s did not. Both the company and the NLRB’s General Counsel filed exceptions to the AU’s Decision. On September 27, 1990, the Board issued its Decision and Order, which affirmed the AU’s conclusion that Advance’s termination of Tuffs violated the Act, but reversed his decision that its termination of Bauldry did not. Among other things, the Board ordered Advance to offer both Tuffs and Bauldry reinstatement. The Board now seeks enforcement of its Order. For the reasons that follow, the Order of the NLRB is enforced. I. Under § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), an employer engages in an unfair labor practice if it interferes with, restrains or coerces employees who exercise their rights under § 7 of the Act. Section 7 protects employee involvement in concerted activities, most notably labor organizations. 29 U.S.C. § 157. Before the AU, the General Counsel claimed that Advance’s motivation to terminate Tuffs and Bauldry was that they engaged in protected activities. Advance countered that its action in both cases was for good cause. These conflicting claims brought this case within the parameters of NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Under Wright Line, the General Counsel carries the burden of showing by a preponderance of the evidence that the employer’s action was motivated in any way by a desire to impede protected concerted activity. NLRB v. Transportation Management Corp., 462 U.S. 393, 399, 103 S.Ct. 2469, 2473, 76 L.Ed.2d 667 (1983). If he succeeds, the company then has the burden of showing, also by a preponderance, that it based its discharge decision on unprotected conduct as well, and that it would have fired the employee anyway. Id. at 400, 103 S.Ct. at 2473-74. Our task on review is simply to determine if the Board’s findings and conclusions are supported on the record as a whole by substantial evidence, even if we could have concluded differently after a plenary review. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-65, 95 L.Ed. 456 (1951). As we recently noted, “substantial evidence may be less than a preponderance of the evidence, however, and ‘a reviewing body may not set aside an inference merely because it finds the opposite conclusion more reasonable or because it questions the factual basis.’ ” Freeman United Coal Mining Co. v. Stone, 957 F.2d 360, 362 (7th Cir.1992) (quoting Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir.1988)). The substantial evidence standard is the same even if the Board and the AU disagree, as they did concerning the termination of Bauldry. Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468-69. Advance asserts that the AU misapplied Wright Line to impose upon it “an unattainable and impermissible burden to prove that Tuffs [sic] termination was absolutely sterile and without ‘any’ unlawful motivation_” Respondent’s Brief at 11. The company claims further that this circuit “requires a greater burden of proof on the General Counsel than merely to show that some unlawful motivation ‘in part’ contributed to the result,” citing generally Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th Cir.1989). These two contentions misstate both the record and the law. The ALJ correctly stated the requirements of Wright Line, see AU’s Decision (“JD”) at 19, lines 7-13, and correctly applied them to the facts in this case: The questions that remain are whether Respondent knew or suspected that Tuffs and Bauldry engaged in the protected, concerted activity of opposing the compulsory profit-sharing program, whether Respondent bore any animus toward such protected, concerted activity, whether any such animus was a motivating factor in the discharge of Tuffs and Bauldry, and whether Respondent has shown that, even in the absence of any such motivation, Tuffs and Bauldry would have been discharged. Id. We see nothing in this language that required Advance to prove its termination of these two employees was completely aseptic, as Advance claims. We also see nothing in Northern Wire Corp.’s language to suggest that there is a greater burden on the General Counsel than to prove that Advance’s action was motivated in some part by the employees’ protected activities. Nor is the company’s burden any greater than to prove that, evidence of union animus notwithstanding, it would have fired these employees anyway. The Supreme Court recently has referred to these as balanced burdens, Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989), each equally weighted by a preponderance of the evidence. Id. at 258, 109 S.Ct. at 1794-95. II. We start, then, by determining if there is substantial evidence to support the Board’s conclusion that the General Counsel met his burden of showing by a preponderance of the evidence that Advance’s decision to terminate Tuffs and Bauldry was motivated in any way by animus toward their protected activity. As the AU noted, this requires (1) evidence of the company’s knowledge of that protected activity; (2) evidence of animus toward that activity; and (3) evidence that the company was motivated by that animus. The record discloses that at the time the profit-sharing plan was voluntary the company was aware Tuffs refused to participate in it. Indeed, regional manager Hor-vath informed Tuffs that the company wanted one hundred percent participation in the plan, and if he refused and a layoff resulted Tuffs would be responsible. The company also was aware of Tuffs’s activities in opposition to a compulsory plan. At a meeting in which operations manager Carroll was present Tuffs spoke against the plan and asked for a show of hands of employees who favored it. On the day of the vote, Tuffs prepared, signed, and circulated a petition expressing the opposition of its signators. Among those to whom Tuffs presented the petition for signature was company manager Zudycki, who responded hostilely. Although the first referendum failed, after the plan was approved in a second referendum, Tuffs and several other employees filed grievances. During the grievance hearing attended by Carroll, Tuffs informed Carroll that employee opposition would continue. When the plan became effective, Tuffs refused to accept the profit-sharing distribution check, repeatedly tried to return it, and ultimately left it in his message box at the terminal. Approximately two weeks after these events, dispatch manager Blake instructed Bauldry to stop making jokes about the plan and to disassociate himself from employees who opposed it. Further, Blake informed Baul-dry that the company knew the identities of the dissidents and would fire them. Clearly, then, the body of evidence to establish the company’s knowledge of the employees protected activity is substantial. Much of the evidence recited above establishes animus as well as knowledge, including Horvath’s statement to Tuffs suggesting he would be responsible for a layoff if he failed to participate in the voluntary plan. The AU concluded that the clearest evidence of animus was Blake’s statements to Bauldry that the company knew who opposed the compulsory plan and would terminate their employment, and that although Blake was a hard worker, continued association with those employees would jeopardize to his advancement to regular driver status. These facts establish animus. The AU found, and we have no reason to dispute, that the company believed the compulsory plan was necessary for its economic survival. That is strong circumstantial evidence of the company’s motive to discharge employees who opposed the plan. As we have said, “The Board is ‘free to rely on circumstantial as well as direct evidence’ in assessing motive.” NLRB v. Jakel Motors, Inc., 875 F.2d 644, 646 (7th Cir.1989) (quoting NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1266, 1267, 1267-68 (7th Cir.1987)). Moreover, Blake’s statement to Bauldry that the company knew who the employees were who opposed the plan and that they would be fired is direct evidence of motive. We conclude, therefore, as did the AU and the Board, that the General Counsel met his Wright Line burden of proving that Advance’s action to terminate Tuffs and Baul-dry was motivated in part by their protected activity. III. We now must determine whether the company met its burden of proving by a preponderance of the evidence that it would have discharged Tuffs and Bauldry notwithstanding their protected activities. To that end, we review in turn the evidence regarding each employee’s discharge. A. Daniel Tuffs Advance claims that it discharged Tuffs solely for violating its union-approved, three-strike disciplinary policy. There is no dispute concerning Tuffs’s first strike, a warning and one-day suspension for failure to follow orders on August 12, 1988. Nor is there any dispute about the other two, that Tuffs failed to collect a cashier’s check for a C.O.D. delivery on September 28 and that he took a coffee break before his first morning delivery on September 29. The dispute centers on the significance of which of these two latter violations constituted the third, and whether the rule prohibiting coffee breaks before first deliveries was enforced consistently as to all employees, or, as the AU concluded, used as a pretext to fire Tuffs. Recall that on Thursday, September 29, Tuffs received a note informing him he was suspended from work on the following day. On Friday Tuffs went to the office to find out why. Blake told him it was for the cashier’s check violation. On Saturday, October 1, Tuffs received a telegram dated September 30 informing him he was terminated, and that a letter would follow. On Monday, October 3, Tuffs called the office manager, Zudycki, to find out why. Zu-dycki told him it was because of his violation of the coffee break rule. Then, on Tuesday, the 4th, Tuffs received two letters from Blake. The first, dated September 30, served as notice of his second violation for breaking the coffee break rule. The second letter, dated October 3, served as notice of termination for his third violation for not collecting a cashier’s check. The AU concluded that the manner in which these events unfolded indicated that after Tuffs left on the 30th Blake went in search of a third, colorable violation to support Tuffs’s discharge. His search was successful — he discovered Tuffs’s coffee break violation. Suspecting that a violation uncovered after an unlawfully motivated search would not support a discharge, however, Blake revised history to reflect that Tuffs’s coffee break violation was his second and his cashier’s check violation was his third. Advance argues that the AU’s summary of the facts surrounding Tuffs’s discharge and the conclusion he drew from those facts indicates the AU was consumed by an issue of no consequence. On the contrary. The AU’s interpretation of events is entirely consonant with a company that, as Blake told Baul-dry, knew which of its employees was opposed to its profit-sharing plan and intended to get rid of them. Regardless of the conditions under which Tuffs’s coffee break violation was discovered, or its numerical position in a sequence of three violations, the AU concluded that Advance’s use of that violation to terminate Tuffs was “the epitome of discriminatory action_” JD at 23. He based this conclusion on evidence that showed Tuffs was singled out for a warning, leading to discharge, for a coffee break violation while other drivers customarily were treated with verbal reminders of the company’s policy and, even then, only after repeated violations. Critical to the AU’s conclusion were Tuffs’s trip sheets for the sixty days preceding his discharge. Those sheets disclose that on fifty-four out of sixty days Tuffs stopped for coffee before his first morning delivery. Blake testified that he reviewed each driver’s trip sheets on a daily basis. Consequently, the company was aware of Tuffs’s repeated violation of the rule, but took no disciplinary action until it could use that violation to discharge Tuffs. The company’s rule allows drivers to stop for coffee before their first morning delivery if they obtain permission from the dispatcher first, but Advance offered no evidence that Tuffs in fact received permission on those fifty-four other occasions. The company argues to us that it is entitled to the assumption that Blake believed Tuffs called for permission all those other times and on the one occasion he did not, he received a warning notice. The company misses a fundamental precept in the adversarial process. The party who advances a position bears the burden of producing evidence to support that position. 9 Wigmore, Evidence § 2486 (Chadbourn rev. 1981). Advance did not. So the record, as it stands before us, contains sixty trip sheets showing Tuffs took a coffee break fifty-four times before making his first morning delivery. There is nothing in the record to show Tuffs received permission on those fifty-four occasions, and we will not “dabble in factfinding.” NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992). As to how the company treated other coffee break rule violators, Blake testified that when he reviewed all the drivers’ trip sheets, if he saw repeated violations among several drivers he would call a meeting and remind all the drivers of the rule, or slip them a note in their message box. JD at 22 n. 17. In an attempt to show evenhanded discipline regarding the coffee break rule, the company points to warning, suspension, and termination letters it issued to drivers for a five-year period preceding Tuffs’s termination. For the most part, however, those letters deal with violations other than taking an unauthorized coffee break, such as taking extended coffee breaks. Only one other driver was fired for conduct that included an unauthorized coffee break, and that was in March 1983. The parties stipulated that between 1987 and 1989, other than Tuffs, no other driver received a warning for taking an unauthorized coffee break. Blake himself admitted he never issued a written warning for any other driver for coffee break violations. All of the facts recited above provide substantial evidence to support the AU’s conclusion that Advance failed to meet its burden to show it would have fired Tuffs regardless of his protected activity. It is clear that Advance was looking for a reason to fire him because of his conduct in opposition to the profit-sharing plan. The company seized upon the discovery of two valid violations of company rules in an attempt to camouflage its selective enforcement of the coffee break rule and use all three violations to support Tuffs’s discharge. In so doing, however, as the AU correctly concluded and the Board agreed, the company violated § 8(a)(1) of the National Labor Relations Act. B. Donovan Bauldry Advance hired Bauldry as a replacement driver several weeks after the compulsory profit-sharing plan became effective. As a replacement driver, Bauldry understood that he would work only as needed by the company to fill in for absent regular drivers, and that he could become a regular driver only after the company filled whatever vacancies arose for regular drivers with replacement drivers more senior than he. For this reason, the company argues, “Bauldry’s employment relationship was tenuous from the beginning.” Respondent’s Brief at 33. Yet, the AU found that when Zudycki hired Bauldry, he gave Bauldry the impression that he could work for Advance indefinitely, although not through the slow Christmas season. Indeed, Bauldry drove for Advance steadily until December 14. On December 31, however, he received a letter informing him that Advance was terminating him as a replacement driver. The company’s dispatch manager, Blake, testified that Bauldry was terminated solely because his job performance had declined. The AU based his conclusion that Advance’s termination of Bauldry was not unlawful on the General Counsel’s failure to rebut that testimony. The Board, however, found “Blake’s conclusional testimony to be too slender a reed to support a Wright Line defense, given other testimony that the judge has credited.” D & 0 at 3. Advance argues to us that by reversing the AU the Board effectively required it to show by clear and convincing evidence, rather than by a preponderance of the evidence, that it would have discharged Baul-dry in any event. The company suggests that the Court’s most recent statement regarding the quantum of evidence an employer must offer in order effectively to meet its Wright Line burden appears in Justice White’s concurrence in Price Wa-terhouse. Justice White wrote “where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof.” Price Waterhouse, 490 U.S. at 261, 109 S.Ct. at 1796 (White, J., concurring). Assuming Justice White’s statement to be correct, its linchpin is that the employer’s testimony must be credible. The flaw in Advance’s argument is that both the AU and the Board discredited the employer’s testimony. Bauldry testified that in September 1988 Blake called him into the office to warn him about “saying bad things about the company.” JD at 15. In that meeting, Bauldry continued, Blake acknowledged that Bauldry was a good worker who “worked [his] ass off” for the company, even foregoing coffee breaks, and he was in the group of replacement drivers who would next attain regular driver status. Id. In contrast, Blake testified that in that meeting he did not discuss the profit-sharing plan with Bauldry, but instead told him that if he improved his performance, stopped being lazy, he had a good chance to become a permanent driver. Id. at 17. When asked why Bauldry was discharged, Blake responded that Bauldry’s productivity, as reflected in his work records from July through December, was unacceptably low. Id. at 18. As the Board noted, Blake’s “assertion that Bauldry’s work performance had deteriorated is belied by two aspects of the record.” D & 0 at 3. First, in his findings, the AU stated, “I discredit Blake in some, but not all, of his denials of Baul-dry’s testimony.” JD at 18. The only denial the AU specifically discussed in his findings was Blake’s denial that he threatened that employees opposed to the profit-sharing plan would be discharged. In his analysis and conclusions, however, the AU specifically credited Bauldry’s testimony that Blake told him he was a good worker. By implication, as the Board concluded, the AU discredited Blake’s testimony that he spoke to Bauldry in September about a decline in his work performance. Indeed, the credited testimony was that Blake praised Bauldry’s work performance. Second, Blake testified that he based his decision to terminate Bauldry on Bauldry’s “work cards,” which he claimed showed a decrease in performance over the period from July to December. The company, however, failed to offer these records in support of its position. As the Board correctly noted, the company’s failure to produce the cards “leads to an inference that the cards would not have buttressed [Ad-vancers position or indeed would have undercut it.” D & 0 at 3. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 174, 94 S.Ct. 414, 420, 38 L.Ed.2d 388 (1973). See also P.R. Mallory Co. v. NLRB, 400 F.2d 956, 959 (7th Cir.1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1191, 22 L.Ed.2d 452 (1969) (“[FJailure to produce evidence, which under the circumstances would be expected, gives rise to a presumption against the party failing to produce it.”). We conclude, as did the Board, that the AU based his decision regarding Bauldry on an incorrect legal conclusion. Advance failed to show by a preponderance of the evidence that it would have discharged Bauldry regardless of his participation in protected activity. For that reason, the burden never shifted back to the General Counsel. Thus, contrary to the AU’s conclusion, he was not required to rebut the evidence offered by the company. The General Counsel met his Wright Line burden, while the company did not. For these reasons, the order of the National Labor Relations Board is Enforced. . A third employee, Richard Kubat, also filed a complaint alleging the same violations of the Act. After the hearing the Administrative Law Judge concluded that Kubat's termination did not violate the Act. The National Labor Relations Board affirmed the AU’s conclusion. . The company urges that the evidence supporting the Board’s conclusion that Bauldry’s discharge was unlawful should be viewed as "less than substantial," citing NLRB v. Stor-Rite Metal Products, Inc., 856 F.2d 957, 964 (7th Cir.1988) and Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324, 1328-29 n. 8 (1983) because it is contrary to the ALJ’s conclusion. The language to which the company refers indeed states that when the Board and the ALJ make inconsistent findings of fact and credibility determinations we are to view the Board’s conclusion as less than substantial. Here, however, contrary to Advance's reading of the Board’s Order, the Board implicitly accepted all of the ALJ's credibility determinations, and found "no basis for reversing the [ALJ’s] findings.” NLRB Decision and Order ("D & O”) at 1. Because the ALJ and the Board parted company only on their conclusions of law, Stor-Rite and Stokely-Van Camp do not apply. Therefore, we review the Board’s conclusions of law for substantial evidence. NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992). . Advance misstated Wright Line’s requirements, as well as Northern Wire’s. It argues that the "General Counsel must make a showing that protected conduct was a substantial motivating factor” in its termination decision. Respondent’s Brief at 18 (emphasis ours). Wright Line, as approved in Transportation Management, requires the General Counsel to show that protected activity was a substantial or a motivating factor. Transportation Management, 462 U.S. at 400 & 401, 103 S.Ct. at 2473-74 & 2474. Omission of the disjunctive "or", we will assume, was a scrivener’s error and not a deliberate attempt to mislead us. Likewise, we assume Advance’s Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genapel1	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. Santos Valentin RUIZ, Appellant, v. UNITED STATES of America. No. 15825. United States Court of Appeals Third Circuit. Submitted Aug. 8, 1966. Decided Aug. 31, 1966. William C. Loud, Charlotte Amalie, St. Thomas, V. I., for appellant. Almeric L. Christian, U. S. Atty., John E. Stout, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee. Before MARIS, SMITH and SEITZ, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is an appeal by Santos Valentin Ruiz, a prisoner in the Federal Penitentiary at Atlanta, Georgia, from an order of the District Court of the Virgin Islands, denying the prisoner’s petition under 28 U.S.C. § 2255 for the correction of his sentence of life imprisonment by the substitution of a sentence for a term of years. The prisoner had been charged in the Virgin Islands with murder in the first degree to which he had pleaded not guilty. Subsequently he withdrew that plea and entered a plea of guilty of murder in the second degree upon which the district court imposed the sentence of life imprisonment in question. In support of his petition for correction of the sentence the prisoner asserts that under the Virgin Islands Code the punishment of life imprisonment may be imposed only for first degree murder and that the punishment imposed for second degree murder is limited to imprisonment for a fixed term of years, not less than five, in the discretion of the court. The United States Attorney concedes the validity of this contention and we agree. 14 V.I.C. § 923 provides: “(a) Whoever commits murder in the first degree shall be imprisoned for life. “(b) Whoever commits murder in the second degree shall be imprisoned for not less than 5 years.” We think that the dichotomy of § 923 compels the conclusion that the penalty, imprisonment for a period of not less than five years, imposed for the lesser offense, is intended to be less severe than the greater penalty, imprisonment for life, imposed for the greater offense, and must, therefore, be something which is ordinarily less than life imprisonment, namely, imprisonment for a definite term of years. This is not to say that a sentence to a term of years may not in fact turn out to be longer than the prisoner’s actual remaining span of life or that under some circumstances a term of years greater than the prisoner’s life expectancy may not be imposed. It is merely to say that the statutory mandate is to impose life imprisonment for first degree murder and imprisonment for a fixed definite term of years, and that only, for murder in the second degree. We have considered Bailey v. United States, 10 Cir. 1934, 74 F.2d 451, and Bates v. Johnston, 9 Cir. 1940, 111 F.2d 966, which construed the penalty imposed by the Lindbergh Law upon interstate kidnappers as including life imprisonment. We do not find those cases persuasive here,.however, since they did not involve a statute having the dichotomy of § 923. On the other hand, we are in accord with the Court of Criminal Appeals of Texas which held in Daugherty v. State, 1943, 146 Tex.Cr.R. 303, 174 S.W.2d 493; Cuellar v. State, 1947, 151 Tex.Cr.R. 176, 206 S.W.2d 250, and Ex parte Goss, 1953, 159 Tex.Cr.R. 235, 237, 262 S.W.2d 412, that imprisonment for life is not for a term of years and is authorized only when the statute so provides. We are fortified in this view by the fact that the Legislature of the Virgin Islands knew how to authorize in the same statute the imposition of imprisonment for a term of years with a permissible maximum of life imprisonment when it wanted to do so. For this is exactly what it did in 14 V.I.C. § 61 which provides that an habitual criminal may be imprisoned “for a term of not less than 10 years, and the maximum thereof shall be the remainder of his natural life”. Fixing the limits of the punishment to be imposed for crime is a legislative function. It is the duty of the district court to impose the sentence which it regards as appropriate within the limits thus fixed and if it does so its action will not be disturbed on appeal. United States v. Wallace, 3 Cir. 1959, 269 F.2d 394. But where the sentence imposed is at variance with the statutory requirements, it may be corrected to conform to the provisions of the statute even though the prisoner did not appeal from the judgment embodying the invalid sentence and has already served part of his term of imprisonment. The correction is to be made not by discharge of the prisoner but by an appropriate amendment of the invalid sentence by the court which imposed it. Rule 35, Fed.Rules of Criminal Procedure; United States v. Bozza, 3 Cir. 1946, 155 F.2d 592, aff. Bozza v. United States, 1947, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818. Since the sentence to life imprisonment imposed upon the prisoner in this case was not authorized by § 923 it must be corrected so as to impose imprisonment for an appropriate term of years, not less than five, under that section. This should be done as of the date of his original sentence, June 4, 1964. See Hayes v. United States, 1957, 102 U.S.App.D.C. 1, 249 F.2d 516, cert. den. 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586. The prisoner here also argues that it was error for the district court not to require his presence at the hearing of his motion under § 2255. There is no merit in this contention. It is well settled that the district court may entertain such a motion without requiring the presence of the prisoner at the hearing if his testimony is not material to an issue raised by the motion. United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Here no testimony was required on the issue raised by the prisoner’s motion as to the validity of the sentence. » The prisoner subsequently filed a motion to substitute an application for a writ of habeas corpus ad subjiciendum which the district court denied. The prisoner asserts that this action also was erroneous. This contention is wholly without merit. Since the prisoner is not held in custody in the Virgin Islands the district court would not have jurisdiction to issue a writ of habeas corpus, regardless of the merits of the application, upon which we do not pass. His proper remedy is the one which he initially invoked and under which he is entitled to relief, a motion under 28 U.S.C. § 2255. United States ex rel. Leguillou v. Davis, 3 Cir. 1954, 212 F.2d 681, 3 V.I. 511. The order of the district court will be reversed and the cause will be remanded to the district court for further proceedings not inconsistent with this opinion. . Since the United States Attorney did not choose to proceed under § 61 in this prisoner’s case the sentence of life imprisonment is not supported by that section. 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_respondent	126	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. CTS CORP. v. DYNAMICS CORPORATION OF AMERICA No. 86-71. Argued March 2, 1987 Decided April 21, 1987 Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, and O’Connor, JJ., joined, and in Parts I, III-A, and III-B of which Scalia, J., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 94. White, J., filed a dissenting opinion, in Part II of which Blackmun and Stevens, JJ., joined, post, p. 97. James A. Strain argued the cause for appellant in No. 86-71. With him on the brief were Richard E. Deer and Stanley C. Fickle. John F. Pritchard argued the cause and filed a brief for appellant in No. 86-97. Lowell E. Sachnoff argued the cause for appellee in both cases. With him on the brief were Dean A. Dickie and Sarah R. Wolff. Together with No. 86-97, Indiana v. Dynamics Corporation of America, also on appeal from the same court. Briefs of amici curiae urging reversal were filed for the State of New York by Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, Mary Ellen Bums, Deputy Chief Assistant Attorney General, and Colvin W. Grannum, Assistant Attorney General; for the State of Minnesota by Hubert H. Humphrey III, Attorney General, and Alan I. Gilbert and Barry R. Greller, Special Assistant Attorneys General; and for the Indiana Chamber of Commerce et al. by Donald F. Elliott, Jr., and Barton R. Peterson. Briefs of amici curiae urging affirmance were filed for the Securities and Exchange Commission et al. by Solicitor General Fried, Deputy Solicitor General Cohen, Roy T. Englert, Jr., Daniel L. Goelzer, and Paul Gonson; for the Securities Industry Association, Inc., by Marc P. Chemo, Irwin Blum, and William J. Fitzpatrick; and for the United Shareholders Association by James Edward Maloney and David E. Warden. Justice Powell delivered the opinion of the Court. These cases present the questions whether the Control Share Acquisitions Chapter of the Indiana Business Corporation Law, Ind. Code § 23-1-42-1 et seq. (Supp. 1986), is preempted by the Williams Act, 82 Stat. 454, as amended, 15 U. S. C. §§78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), or violates the Commerce Clause of the Federal Constitution, Art. I, §8, cl. 3. I A On March 4,1986, the Governor of Indiana signed a revised Indiana Business Corporation Law, Ind. Code §23-1-17-1 et seq. (Supp. 1986). That law included the Control Share Acquisitions Chapter (Indiana Act or Act). Beginning on August 1, 1987, the Act will apply to any corporation incorporated in Indiana, § 23-l-17-3(a), unless the corporation amends its articles of incorporation or bylaws to opt out of the Act, §23-1-42-5. Before that date, any Indiana corporation can opt into the Act by resolution of its board of directors. § 23-l-17-3(b). The Act applies only to “issuing public corporations.” The term “corporation” includes only-businesses incorporated in Indiana. See §23-1-20-5. An “issuing public corporation” is defined as: “a corporation that has: “(1) one hundred (100) or more shareholders; “(2) its principal place of business, its principal office, or substantial assets within Indiana; and “(3) either: “(A) more than ten percent (10%) of its shareholders resident in Indiana; “(B) more than ten percent (10%) of its shares owned by Indiana residents; or “(C) ten thousand (10,000) shareholders resident in Indiana.” §23-l-42-4(a). The Act focuses on the acquisition of “control shares” in an issuing public corporation. Under the Act, an entity acquires “control shares” whenever it acquires shares that, but for the operation of the Act, would bring its voting power in the corporation to or above any of three thresholds: 20%, 3373%, or 50%. §23-1-42-1. An entity that acquires control shares does not necessarily acquire voting rights. Rather, it gains those rights only “to the extent granted by resolution approved by the shareholders of the issuing public corporation.” §23-l-42-9(a). Section 23-l-42-9(b) requires a majority vote of all disinterested shareholders holding each class of stock for passage of such a resolution. The practical effect of this requirement is to condition acquisition of control of a corporation on approval of a majority of the pre-existing disinterested shareholders. The shareholders decide whether to confer rights on the control shares at the next regularly scheduled meeting of the shareholders, or at a specially scheduled meeting. The acquiror can require management of the corporation to hold such a special meeting within 50 days if it files an “acquiring person statement,” requests the meeting, and agrees to pay the expenses of the meeting. See §23-1-42-7. If the shareholders do not vote to restore voting rights to the shares, the corporation may redeem the control shares from the acquiror at fair market value, but it is not required to do so. § 23-l-42-10(b). Similarly, if the acquiror does not file an acquiring person statement with the corporation, the corporation may, if its bylaws or articles of incorporation so provide, redeem the shares at any time after 60 days after the acquiror’s last acquisition. § 23-l-42-10(a). B On March 10, 1986, appellee Dynamics Corporation of America (Dynamics) owned 9.6% of the common stock of appellant CTS Corporation, an Indiana corporation. On that day, six days after the Act went into effect, Dynamics announced a tender offer for another million shares in CTS; purchase of those shares would have brought Dynamics’ ownership interest in CTS to 27.5%. Also on March 10, Dynamics filed suit in the United States District Court for the Northern District of Illinois, alleging that CTS had violated the federal securities laws in a number of respects no longer relevant to these proceedings. On March 27, the board of directors of CTS, an Indiana corporation, elected to be governed by the provisions of the Act, see § 23-1-17-3. Four days later, on March 31, Dynamics moved for leave to amend its complaint to allege that the Act is pre-empted by the Williams Act, 15 U. S. C. §§78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. Ill), and violates the Commerce Clause, Art. I, § 8, cl. 3. Dynamics sought a temporary restraining order, a preliminary injunction, and declaratory relief against CTS’ use of the Act. On April 9, the District Court ruled that the Williams Act pre-empts the Indiana Act and granted Dynamics’ motion for declaratory relief. 687 F. Supp. 389 (ND Ill. 1986). Relying on Justice White’s plurality opinion in Edgar v. MITE Corp., 457 U. S. 624 (1982), the court concluded that the Act “wholly frustrates the purpose and objective of Congress in striking a balance between the investor, management, and the takeover bidder in takeover contests.” 637 F. Supp., at 399. A week later, on April 17, the District Court issued an opinion accepting Dynamics’ claim that the Act violates the Commerce Clause. This holding rested on the court’s conclusion that “the substantial interference with interstate commerce created by the [Act] outweighs the articulated local benefits so as to create an impermissible indirect burden on interstate commerce.” Id., at 406. The District Court certified its decisions on the Williams Act and Commerce Clause claims as final under Federal Rule of Civil Procedure 54(b). Ibid. CTS appealed the District Court’s holdings on these claims to the Court of Appeals for the Seventh Circuit. Because of the imminence of CTS’ annual meeting, the Court of Appeals consolidated and expedited the two appeals. On April 23— 23 days after Dynamics first contested application of the Act in the District Court — the Court of Appeals issued an order affirming the judgment of the District Court. The opinion followed on May 28. 794 F. 2d 250 (1986). After disposing of a variety of questions not relevant to this appeal, the Court of Appeals examined Dynamics’ claim that the Williams Act pre-empts the Indiana Act. The court looked first to the plurality opinion in Edgar v. MITE Corp., supra, in which three Justices found that the Williams Act pre-empts state statutes that upset the balance between target management and a tender offeror. The court noted that some commentators had disputed this view of the Williams Act, concluding instead that the Williams Act was “an anti-takeover statute, expressing a view, however benighted, that hostile takeovers are bad.” 794 F. 2d, at 262. It also noted: “[I]t is a big leap from saying that the Williams Act does not itself exhibit much hostility to tender offers to saying that it implicitly forbids states to adopt more hostile regulations.... But whatever doubts of the Williams’ Act preemptive intent we might entertain as an original matter are stilled by the weight of precedent.” Ibid. Once the court had decided to apply the analysis of the MITE plurality, it found the case straightforward: “Very few tender offers could run the gauntlet that Indiana has set up. In any event, if the Williams Act is to be taken as a congressional determination that a month (roughly) is enough time to force a tender offer to be kept open, 50 days is too much; and 50 days is the minimum under the Indiana act if the target corporation so chooses.” Id., at 268. The court next addressed Dynamic’s Commerce Clause challenge to the Act. Applying the balancing test articulated in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the court found the Act unconstitutional: “Unlike a state’s blue sky law the Indiana statute is calculated to impede transactions between residents of other states. For the sake of trivial or even negative benefits to its residents Indiana is depriving nonresidents of the valued opportunity to accept tender offers from other nonresidents. “... Even if a corporation’s tangible assets are immovable, the efficiency with which they are employed and the proportions in which the earnings they generate are divided between management and shareholders depends on the market for corporate control — an interstate, indeed international, market that the State of Indiana is not authorized to opt out of, as in effect it has done in this statute.” 794 F. 2d, at 264. Finally, the court addressed the “internal affairs” doctrine, a “principle of conflict of laws... designed to make sure that the law of only one state shall govern the internal affairs of a corporation or other association.” Ibid. It stated: “We may assume without having to decide that Indiana has a broad latitude in regulating those affairs, even when the consequence may be to make it harder to take over an Indiana corporation.... But in this case the effect on the interstate market in securities and corporate control is direct, intended, and substantial.... [T]hat the mode of regulation involves jiggering with voting rights cannot take it outside the scope of judicial review under the commerce clause.” Ibid. Accordingly, the court affirmed the judgment of the District Court. Both Indiana and CTS filed jurisdictional statements. We noted probable jurisdiction under 28 U. S. C. § 1254(2), 479 U. S. 810 (1986), and now reverse. rH The first question in these cases is whether the Williams Act pre-empts the Indiana Act. As we have stated frequently, absent an explicit indication by Congress of an intent to pre-empt state law, a state statute is pre-empted only “‘where compliance with both federal and state regulations is a physical impossibility...,’ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Hines v. Davidowitz, 312 U. S. 52, 67 (1941)... Ray v. Atlantic Richfield Co., 435 U. S. 151, 158 (1978). Because it is entirely possible for entities to comply with both the Williams Act and the Indiana Act, the state statute can be pre-empted only if it frustrates the purposes of the federal law. A Our discussion begins with a brief summary of the structure and purposes of the Williams Act. Congress passed the Williams Act in 1968 in response to the increasing number of hostile tender offers. Before its passage, these transactions were not covered by the disclosure requirements of the federal securities laws. See Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 22 (1977). The Williams Act, backed by regulations of the SEC, imposes requirements in two basic areas. First, it requires the offeror to file a statement disclosing information about the offer, including: the offeror’s background and identity; the source and amount of the funds to be used in making the purchase; the purpose of the purchase, including any plans to liquidate the company or make major changes in its corporate structure; and the extent of the offeror’s holdings in the target company. See 15 U. S. C. § 78n(d)(1) (incorporating § 78m(d)(1) by reference); 17 CFR §§240.13d-1, 240.14d-3 (1986). Second, the Williams Act, and the regulations that accompany it, establish procedural rules to govern tender offers. For example, stockholders who tender their shares may withdraw them while the offer remains open, and, if the offeror has not purchased their shares, any time after 60 days from commencement of the offer. 15 U. S. C. § 78n(d)(5); 17 CFR § 240.14d-7(a)(1) (1986), as amended, 51 Fed. Reg. 25873 (1986). The offer must remain open for at least 20 business days. 17 CFR § 240.14e-l(a) (1986). If more shares are tendered than the offeror sought to purchase, purchases must be made on a pro rata basis from each tendering shareholder. 15 U. S. C. §78n(d)(6); 17 CFR §240.14(8) (1986). Finally, the offeror must pay the same price for all purchases; if the offering price is increased before the end of the offer, those who already have tendered must receive the benefit of the increased price. § 78n(d)(7). B The Indiana Act differs in major respects from the Illinois statute that the Court considered in Edgar v. MITE Corp., 457 U. S. 624 (1982). After reviewing the legislative history of the Williams Act, Justice White, joined by Chief Justice Burger and Justice Blackmun (the plurality), concluded that the Williams Act struck a careful balance between the interests of offerors and target companies, and that any state statute that “upset” this balance was pre-empted. Id., at 632-634. The plurality then identified three offending features of the Illinois statute. Justice White’s opinion first noted that the Illinois statute provided.for a 20-day precommencement period. During this time, management could disseminate its views on the upcoming offer to shareholders, but offerors could not publish their offers. The plurality found that this provision gave management “a powerful tool to combat tender offers.” Id., at 635. This contrasted dramatically with the Williams Act; Congress had deleted express pre-commencement notice provisions from the Williams Act. According to the plurality, Congress had determined that the potentially adverse consequences of such a provision on shareholders should be avoided. Thus, the plurality concluded that the Illinois provision “frustrate[d] the objectives of the Williams Act.” Ibid. The second criticized feature of the Illinois statute was a provision for a hearing on a tender offer that, because it set no deadline, allowed management “‘to stymie indefinitely a takeover/” id., at 637 (quoting MITE Corp. v. Dixon, 633 F. 2d 486, 494 (CA7 1980)). The plurality noted that “‘delay can seriously impede a tender offer/” 457 U. S., at 637 (quoting Great Western United Corp. v. Kidwell, 577 F. 2d 1256, 1277 (CA5 1978) (Wisdom, J.)), and that “Congress anticipated that investors and the takeover offeror would be free to go forward without unreasonable delay,” 457 U. S., at 639. Accordingly, the plurality concluded that this provision conflicted with the Williams Act. The third troublesome feature of the Illinois statute was its requirement that the fairness of tender offers would be reviewed by the Illinois Secretary of State. Noting that “Congress intended for investors to be free to make their own decisions,” the plurality concluded that ‘“[t]he state thus offers investor protection at the expense of investor autonomy — an approach quite in conflict with that adopted by Congress.’” Id., at 639-640 (quoting MITE Corp. v. Dixon, supra, at 494). C As the plurality opinion in MITE did not represent the views of a majority of the Court, we are not bound by its reasoning. We need not question that reasoning, however, because we believe the Indiana Act passes muster even under the broad interpretation of the Williams Act articulated by Justice White in MITE. As is apparent from our summary of its reasoning, the overriding concern of the MITE plurality was that the Illinois statute considered in that case operated to favor management against offerors, to the detriment of shareholders. By contrast, the statute now before the Court protects the independent shareholder against the contending parties. Thus, the Act furthers a basic purpose of the Williams Act, “(plac[ing] investors on an equal footing with the takeover bidder/” Piper v. Chris-Craft Industries, Inc., 430 U. S., at 30 (quoting the Senate Report accompanying the Williams Act, S. Rep. No. 550, 90th Cong., 1st Sess., 4 (1967)). The Indiana Act operates on the assumption, implicit in the Williams Act, that independent shareholders faced with tender offers often are at a disadvantage. By allowing such shareholders to vote as a group, the Act protects them from the coercive aspects of some tender offers. If, for example, shareholders believe that a successful tender offer will be followed by a purchase of nontendering shares at a depressed price, individual shareholders may tender their shares — even if they doubt the tender offer is in the corporation’s best interest — to protect themselves from being forced to sell their shares at a depressed price. As the SEC explains: “The alternative of not accepting the tender offer is virtual assurance that, if the offer is successful, the shares will have to be sold in the lower priced, second step.” Two-Tier Tender Offer Pricing and Non-Tender Offer Purchase Programs, SEC Exchange Act Rel. No. 21079 (June 21, 1984), [1984 Transfer Binder] CCH Fed. Sec. L. Rep. ¶83,637, p. 86,916 (footnote omitted) (hereinafter SEC Release No. 21079). See Lowenstein, Pruning Deadwood in Hostile Takeovers: A Proposal for Legislation, 83 Colum. L. Rev. 249, 307-309 (1983). In such a situation under the Indiana Act, the shareholders as a group, acting in the corporation’s best interest, could reject the offer, although individual shareholders might be inclined to accept it. The desire of the Indiana Legislature to protect shareholders of Indiana corporations from this type of coercive offer does not conflict with the Williams Act. Rather, it furthers the federal policy of investor protection. In implementing its goal, the Indiana Act avoids the problems the plurality discussed in MITE. Unlike the MITE statute, the Indiana Act does not give either management or the offeror an advantage in communicating with the shareholders about the impending offer. The Act also does not impose an indefinite delay on tender offers. Nothing in the Act prohibits an offeror from consummating an offer on the 20th business day, the earliest day permitted under applicable federal regulations, see 17 CFR §240.14e-l(a) (1986). Nor does the Act allow the state government to interpose its views of fairness between willing buyers and sellers of shares of the target company. Rather, the Act allows shareholders to evaluate the fairness of the offer collectively. D The Court of Appeals based its finding of pre-emption on its view that the practical effect of the Indiana Act is to delay consummation of tender offers until 50 days after the commencement of the offer. 794 F. 2d, at 263. As did the Court of Appeals, Dynamics reasons that no rational offeror will purchase shares until it gains assurance that those shares will carry voting rights. Because it is possible that voting rights will not be conferred until a shareholder meeting 50 days after commencement of the offer, Dynamics concludes that the Act imposes a 50-day delay. This, it argues, conflicts with the shorter 20-business-day period established by the SEC as the minimum period for which a tender offer may be held open. 17 CFR §240.14e-1 (1986). We find the alleged conflict illusory. The Act does not impose an absolute 50-day delay on tender offers, nor does it preclude an offeror from purchasing shares as soon as federal law permits. If the offeror fears an adverse shareholder vote under the Act, it can make a conditional tender offer, offering to accept shares on the condition that the shares receive voting rights within a certain period of time. The Williams Act permits tender offers to be conditioned on the offeror’s subsequently obtaining regulatory approval. E. g., Interpretive Release Relating to Tender Offer Rules, SEC Exchange Act Rel. No. 34-16623 (Mar. 5, 1980), 3 CCH Fed. Sec. L. Rep. ¶24,2841, p. 17,758, quoted in MacFadden Holdings, Inc. v. JB Acquisition Corp., 802 F. 2d 62, 70 (CA2 1986). There is no reason to doubt that this type of conditional tender offer would be legitimate as well. Even assuming that the Indiana Act imposes some additional delay, nothing in MITE suggested that 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_appel1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". TRAVELERS FIRE INSURANCE CO. v. FRADY. No. 6000. United States Court of Appeals Fourth Circuit. Argued Jan. 5, 1950. Decided Feb. 25, 1950. Thos. B. Butler, Spartanburg, S.C. (Osborne, Butler & Moore, Spartanburg, S.C. on the brief), for appellant. J. Manning Poliakoff, Spartanburg, S.C. (Poliakoff & Poliakoff, Spartanburg, S. C., on the brief), for appellee. Before PARKER, Chief Judge, SOPER, Circuit Judge, and WARLICK, District Judge. WARLICK, District Judge. This is an action originally instituted in the Court of Common Pleas for Spartan-burg County, South Carolina, against the appellant, the Travelers Fire Insurance Company, in which action the plaintiff sought to recover the full coverage of $4,000 on a policy of fire insurance issued to him trading as above by the appellant — and on the ground of diversity of citizenship was removed to the United States District Court for the Westérn District of South Carolina at Spartanburg. On the trial of the matter which was upon the facts without a jury; as prescribed in Rule 52 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., certain findings of fact were made by the Presiding' Judge and on the findings of fact, his conclusions of law were set down and the judgment entered. From that comes this appeal to us. From the evidence offered it appears that Fred J. Frady is a citizen and resident of Spartanburg, South Carolina and a disabled veteran of World War II and a man of very limited business experience. That for sometime prior to the 18th of December, 1947, he was engaged in doing business as the Lyman Wholesale and Salvage Company in the Town of Wellford in Spartanburg County. That his business was chiefly that of dealing in war surplus materials and under his priority as a war veteran was engaged in the purchase of war surplus material from the War Assets Administration and the sale thereof to prospective purchasers for a profit. On the said 18th day of December, 1947, in consideration of the payment of a premium of $80.00 by him to the defendant, a Connecticut corporation engaged in the general fire insurance business, and domesticated in South Carolina, there was issued to him by the defendant a policy of insurance insuring him against loss by fire of the merchandise stored in his warehouse at Wellford, South Carolina, in the amount of $4,000. That on February 5, 1948, while the insurance policy was in full force and effect the warehouse and all of its contents were totally destroyed by fire. There is no suggestion found anywhere in the record that the fire was other than a normal insurance casualty. Plaintiff gave written notice of and furnished proof of loss as required by the provisions of the policy and undertook and made available to the defendant all of his records which he was able to obtain relating to the goods and merchandise and the inventory thereof which was stored in the warehouse at the time of the fire. All records and books and papers were likewise wholly destroyed and the salvage after the fire consisted of nothing except burned and damaged scrap iron and other non-flammable material. The whole of his stock in trade prior to the fire consisting of a large number of different surplus commodities, including cotter pins of all sizes and estimated to weigh as much as thirty tons, electronic equipment, tubing, steel oil valves, sheet metal and other properties of a heavy character and which from one exhibit numbered in excess of forty five different items. That the policy of insurance among other things contained the following: “Furnish a complete-inventory of the destroyed, damaged and undamaged property, render within sixty days a sworn proof of loss, and produce for examination all accounts, bills, invoices, and other vouchers as often as may be reasonably required.” That following the fire and during the time when an effort was being made by the appellee and certain representatives and adjusters of the Travelers Fire Insurance Company in an effort to ascertain certain information and work out an agreement, a paperwriting was executed by the parties hereto, known as the “non-waiver agreement” so that more time might be given to a study of the damage suffered and sustained and involving no waiver of the rights of the parties. Following this additional time given and on May 5, 1948, Fred-J. Frady, the insured, submitted to the appellant a sworn statement in proof of loss on a form issued by it, indicating that the actual cash value of the destroyed property at the time of the fire was in excess of $5,750. On the defendant demanding that plaintiff file with it a complete inventory itemizing each item in the warehouse at the time of the fire, and cost thereof, and being unable to do so on account of the complete and utter destruction of all records and the failure of plaintiff and the defendant to adjust and effect a reconciliation of the items, etc., this action was then instituted. The District Court made the following among its findings of fact: “Plaintiff and his attorneys have made bona fide efforts to establish the inventory demanded by the defendant, and produced all available documeats, memoranda, copy of such invocies as were obtainable, affidavits, and testimony to prove his loss,” and, “The plaintiff has substantially complied with the requirements of the policy of insurance in establishing proof of his loss and by invoices, testimony, memoranda, plaintiff has established that the market value of the goods and merchandise in the warehouse at the time of the fire exceeded the sum of Four Thousand Dollars ($4,000.00).” The appellant sets out in its brief that the following questions are involved: “1. Should not the judgment in favor of appellee have been limited to the total of the War Assets Administration invoices produced ($3,476.49) less his admitted sales ($700.00), Or the sum of $2,776.49, as being the only substantial compliance with the terms of the policy? “2. Should it not be held that parol evidence is not competent to establish the loss, under the requirements of the policy as to the character of the proof required to be submitted ? “3. Should not interest be limited to the time from the entry of judgment? “4. Is not the measure of damages the invoice price paid by appellee for the different articles?” The findings of fact carefully and elaborately made by the learned District Judge answer each of the questions asked and when they may fall short the answer Is found in the policy of insurance in suit. Rule 52 (a) of the Federal Rules of Civil Procedure provides that the findings of fact of the court sitting without a jury shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Certainly, from a study of the record as a whole, one could by no means come to the conclusion that any of the findings of fact were clearly erroneous, and our conclusion is that the findings of the District Judge were not in error but were supported by the evidence. While a complete inventory of the property destroyed by fire was not furnished plaintiff did obtain and furnish duplicate invoices covering property which he had purchased and which he claimed to have been destroyed by the fire; and there is ample evidence that the value of the property covered by these invoices exceeded $4,000, the face of the policy. Appellant proceeds on the erroneous assumption that what is required by the “requirements in case of loss” clause is the equivalent of what is required by the “iron safe” clause. As this court has pointed out, however, the two clauses are vastly different, one having as its primary requirements conditions subsequent. See North British & Mercantile Insurance Co. v. Crowley, 4 Cir., 164 F.2d 550, wherein the comparison between the two requirements is fully set out. All that the South Carolina courts require to be shown in the “requirements in case of loss” clause is a substantial compliance therewith, — Evans v. Century Insurance Company, 201 S.C. 273, 22 S.E.2d 877. We agree with appellant that compliance with the clause here relied on is essential to recovery; but substantial compliance is all that is necessary and we think it clear that, to the extent that the loss was shown by the invoices furnished, there was substantial compliance and that the value of the property embraced in the invoices was shown to be in excess of the face of the policy. The measure of damages as well as the period when interest on the judgment would be effective are both answered by the terms of the policy, for therein it is found that the defendant in its policy agrees to pay upon loss to the insured “to the extent of the actual cash value of the property at the time of loss but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, etc.” This statement in the policy has been passed upon and its terms decided in North British & Mercantile Insurance Company v. Crowley, 4 Cir., 164 F.2d 550. As to the question of interest, it appears that the loss was not payable under the policy until sixty days after the filing of the proofs of loss, which occurred on May 5, 1948. Interest should run, therefore, not from the date of the fire as provided in the judgment, but from July 5, 1948. Columbia Real Estate & Trust Co. v. Royal Exchange Assurance, 132 S.C. 427, 128 S.E. 865; Berry v. Virginia State Ins. Co., 83 S.C. 13, 64 S.E. 859 ; 46 C.J.S., Insurance, § 1393, page 698. The judgment will be modified accordingly. As so modified it will be affirmed. 'Modified and affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
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. SNAPP v. NEAL, STATE AUDITOR, et al. No. 16. Argued November 15-16, 1965. Decided January 18, 1966. Leon D. Hubert, Jr., argued the cause for petitioner. With him on the briefs was Carl J. Felth. Martin R. McLendon, Assistant Attorney General of Mississippi, argued the cause for respondents. With him on the brief was Joe T. Patterson, Attorney General. Acting Solicitor General Spritzer, Acting Assistant Attorney General Jones and I. Henry Kutz filed a brief for the United States, as amicus curiae, urging reversal. Mr. Justice Brennan delivered the opinion of the Court. This is a companion case to California v. Buzará, ante, p. 386, decided today. The State of Mississippi levied an ad valorem tax against a house trailer of the petitioner, Sergeant Jesse E. Snapp. Sergeant Snapp was stationed under military orders at Crystal Springs Air Force Base, Mississippi. He bought the trailer in Mississippi and moved it on Mississippi highways to a private trailer park near the Air Force Base where he placed it on movable concrete blocks and used it as a home. He did not register or license the trailer, or pay any taxes on it in his home State of South Carolina. He challenged the Mississippi tax as a tax on his personal property prohibited by the Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1178, as amended in 1944, § 514, 50 U. S. C. App. § 574. The Mississippi Supreme Court sustained the levy on the ground that, as applied to motor vehicles, § 514 (2) (b) conditions the nonresident serviceman’s immunity from its ad valorem tax on the serviceman’s prior payment of the fees imposed by his home State. The court reasoned that since § 514 (2) (b) “stipulates] expressly that the taxation should not be limited to privilege and excise taxes, it necessarily follows that the prohibited tax must include the only other general branch of taxation, that is, ad valorem. It is emphasized that the federal statute is meant to include ad valorem taxes as being one of the taxes for which the serviceman is immune, -provided he complies with the laws of his home state concerning registration of the motor vehicle. If he fails to so comply, as was done in this case at bar, he is no longer entitled to protection of the Act of Congress.” 250 Miss. 597, at 614-615, 164 So. 2d 752, at 760. We granted certiorari, 380 U. S. 931. We reverse on the authority of our holding today in Buzará that the failure to pay the motor vehicle “license, fee, or excise” of the home State entitles the host State only to exact motor vehicle taxes qualifying as “licenses, fees, or excises”; the ad valorem tax, as the Mississippi Supreme Court acknowledged, is not such an exaction. We thus have no occasion to decide whether the Mississippi Supreme Court was correct in holding that the house trailer was a “motor vehicle” within the meaning of §514(2)(b). Reversed. The relevant text of the statute is in California v. Buzard, ante, p. 388, n. 1. 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_casesource	159	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. MEADWESTVACO CORP., successor in interest to MEAD CORP. v. ILLINOIS DEPARTMENT OF REVENUE et al. CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT No. 06-1413. Argued January 16, 2008 Decided April 15, 2008 Beth S. Brinkmann argued the cause for petitioner. With her on the briefs were Brian R. Matsui, Paul H. Frankel, Craig B. Fields, and Roberta Moseley Nero. Brian F. Barov, Assistant Attorney General of Illinois, argued the cause for respondents. With him on the brief were Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General. Briefs of amici curiae urging reversal were filed for the Council on State Taxation et al. by Todd A. Lard, Douglas L. Lindholm, Jan S. Amundson, and Quentin Riegel; for Gannett Co. by Scott D. Smith; for the Tax Executives Institute, Inc., by Eli J. Dicker, Shirley S. Grimmett, and Timothy J. McCormally; and for the Walt Disney Co. by Paul R. Q. Wolfson, Michael H. Salama, and Brandee A. Tilman. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Edmund G. Brown, Jr., Attorney General of California, Manuel M. Medeiros, State Solicitor General, David Chaney, Chief Assistant Attorney General, Paul Gifford, Senior Assistant Attorney General, Gordon Burns, Deputy Solicitor General, and Anne Michelle Burr and George Spanos, Deputy Attorneys General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Dustin McDaniel of Arkansas, Richard Blumenthal of Connecticut, Bill McCollum of Florida, Lawrence G. Was-den of Idaho, Steve Carter of Indiana, Thomas J. Miller of Iowa, Paul J. Morrison of Kansas, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Darrell V. McGraw, Jr., of West Virginia; and for the Multistate Tax Commission by Sheldon H. Laskin. Justice Alito delivered the opinion of the Court. The Due Process and Commerce Clauses forbid the States to tax “‘extraterritorial values.’” Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159,164 (1983); see also Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 777 (1992); Mobil Oil Corp. v. Commissioner of Taxes of Vt, 445 U. S. 425, 441-442 (1980). A State may, however, tax an apportioned share of the value generated by the intrastate and extrastate activities of a multistate enterprise if those activities form part of a “‘unitary business.’” Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 528 U. S. 458, 460 (2000); Mobil Oil Corp., supra, at 438. We have been asked in this case to decide whether the State of Illinois constitutionally taxed an apportioned share of the capital gain realized by an out-of-state corporation on the sale of one of its business divisions. The Appellate Court of Illinois upheld the tax and affirmed a judgment in the State’s favor. Because we conclude that the state courts misapprehended the principles that we have developed for determining whether a multistate business is unitary, we vacate the decision of the Appellate Court of Illinois. I A Mead Corporation (Mead), an Ohio corporation, is the predecessor in interest and a wholly owned subsidiary of petitioner MeadWestvaco Corporation. From its founding in 1846, Mead has been in the business of producing and selling paper, packaging, and school and office supplies. In 1968, Mead paid $6 million to acquire a company called Data Corporation, which owned an inkjet printing technology and a full-text information retrieval system, the latter of which had originally been developed for the U. S. Air Force. Mead was interested in the inkjet printing technology because it would have complemented Mead’s paper business, but the information retrieval system proved to be the more valuable asset. Over the course of many years, Mead developed that asset into the electronic research service now known as Lexis/Nexis (Lexis). In 1994, it sold Lexis to a third party for approximately $1.5 billion, realizing just over $1 billion in capital gain, which Mead used to repurchase stock, retire debt, and pay taxes. Mead did not report any of this gain as business income on its Illinois tax returns for 1994. It took the position that the gain qualified as nonbusiness income that should be allocated to Mead’s domiciliary State, Ohio, under Illinois’ Income Tax Act (ITA). See Ill. Comp. Stat., ch. 35, § 5/303(a) (West 1994). The State audited Mead’s returns and issued a notice of deficiency. According to the State, the ITA required Mead to treat the capital gain as business income subject to apportionment by Illinois. The State assessed Mead with approximately $4 million in additional tax and penalties. Mead paid that amount under protest and then filed this lawsuit in state court. The case was tried to the bench. Although the court admitted expert testimony, reports, and other exhibits into evidence, see App. D to Pet. for Cert. 29a-34a, the parties’ stipulations supplied most of the evidence of record regarding Mead’s relationship with Lexis, see App. 9-20. We summarize those stipulations here. B Lexis was launched in 1973. For the first few years it was in business, it lost money, and Mead had to keep it afloat with additional capital contributions. By the late 1970’s, as more attorneys began to use Lexis, the service finally turned a profit. That profit quickly became substantial. Between 1988 and 1993, Lexis made more than $800 million of the $3.8 billion in Illinois income that Mead reported. Lexis also accounted for $680 million of the $4.5 billion in business expense deductions that Mead claimed from Illinois during that period. Lexis was subject to Mead’s oversight, but Mead did not manage its day-to-day affairs. Mead was headquartered in Ohio, while a separate management team ran Lexis out of its headquarters in Illinois. The two businesses maintained separate manufacturing, sales, and distribution facilities, as well as separate accounting, legal, human resources, credit and collections, purchasing, and marketing departments. Mead’s involvement was generally limited to approving Lexis’ annual business plan and any significant corporate transactions (such as capital expenditures, financings, mergers and acquisitions, or joint ventures) that Lexis wished to undertake. In at least one case, Mead procured new equipment for Lexis by purchasing the equipment for its own account and then leasing it to Lexis. Mead also managed Lexis’ free cash, which was swept nightly from Lexis’ bank accounts into an account maintained by Mead. The cash was reinvested in Lexis’ business, but Mead decided how to invest it. Neither business was required to purchase goods or services from the other. Lexis, for example, was not required to purchase its paper supply from Mead, and indeed Lexis purchased most of its paper from other suppliers. Neither received any discount on goods or services purchased from the other, and neither was a significant customer of the other. Lexis was incorporated as one of Mead’s wholly owned subsidiaries until 1980, when it was merged into Mead and became one of Mead’s divisions. Mead engineered the merger so that it could offset its income with Lexis’ net operating loss carryforwards. Lexis was separately reincorporated in 1985 before being merged back into Mead in 1993. Once again, tax considerations motivated each transaction. Mead also treated Lexis as a unitary business in its consolidated Illinois returns for the years 1988 through 1994, though it did so at the State’s insistence and then only to avoid litigation. Lexis was listed as one of Mead’s “business segment[s]” in at least some of its annual reports and regulatory filings. Mead described itself in those reports and filings as “engaged in the electronic publishing business” and touted itself as the “developer of the world’s leading electronic information retrieval services for law, patents, accounting, finance, news and business information.” Id., at 93, 59; App. D to Pet. for Cert. 38a. c Based on the stipulated facts and the other exhibits and expert testimony received into evidence, the Circuit Court of Cook County concluded that Lexis and Mead did not constitute a unitary business. The trial court reasoned that Lexis and Mead could not be unitary because they were not functionally integrated or centrally managed and enjoyed no economies of scale. Id., at 35a-36a, 39a. The court nevertheless concluded that the State could tax an apportioned share of Mead’s capital gain because Lexis served an “operational purpose” in Mead’s business: “Lexis/Nexis was considered in the strategic planning of Mead, particularly in the allocation of resources. The operational purpose allowed Mead to limit the growth of Lexis/Nexis if only to limit its ability to expand or to contract through its control of its capital investment.” Id., at 38a-39a. The Appellate Court of Illinois affirmed. Mead Corp. v. Department of Revenue, 371 Ill. App. 3d 108, 861 N. E. 2d 1131 (2007). The court cited several factors as evidence that Lexis served an operational function in Mead’s business: (1) Lexis was wholly owned by Mead; (2) Mead had exercised its control over Lexis in various ways, such as manipulating its corporate form, approving significant capital expenditures, and retaining tax benefits and control over Lexis’ free cash; and (3) Mead had described itself in its annual reports and regulatory filings as engaged in electronic publishing and as the developer of the world’s leading information retrieval service. See id., at 111-112, 861 N. E. 2d, at 1135-1136. Because the court found that Lexis served an operational function in Mead’s business, it did not address the question whether Mead and Lexis formed a unitary business. See id., at 117-118, 861 N. E. 2d, at 1140. The Supreme Court of Illinois denied review in January 2007. Mead Corp. v. Illinois Dept. of Revenue, 222 Ill. 2d 609, 862 N. E. 2d 235 (Table). We granted certiorari. 551 U. S. 1189 (2007). II Petitioner contends that the trial court properly found that Lexis and Mead were not unitary and that the Appellate Court of Illinois erred in concluding that Lexis served an operational function in Mead’s business. According to petitioner, the exception for apportionment of income from non-unitary businesses serving an operational function is a narrow one that does not reach a purely passive investment such as Lexis. We perceive a more fundamental error in the state courts’ reasoning. In our view, the state courts erred in considering whether Lexis served an “operational purpose” in Mead’s business after determining that Lexis and Mead were not unitary. A The Commerce Clause and the Due Process Clause impose distinct but parallel limitations on a State’s power to tax out-of-state activities. See Quill Corp. v. North Dakota, 504 U. S. 298, 305-306 (1992); Mobil Oil Corp., 445 U. S., at 451, n. 4 (Stevens, J., dissenting); Norfolk & Western R. Co. v. Missouri Tax Comm’n, 390 U. S. 317, 325, n. 5 (1968). The Due Process Clause demands that there exist “ ‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax,’” as well as a rational relationship between the tax and the “ ‘ “values connected with the taxing State.” ’ ” Quill Corp., supra, at 306 (quoting Miller Brothers Co. v. Maryland, 347 U. S. 340,344-345 (1954), and Moorman Mfg. Co. v. Bair, 437 U. S. 267, 273 (1978)). The Commerce Clause forbids the States to levy taxes that discriminate against interstate commerce or that burden it by subjecting activities to multiple or unfairly apportioned taxation. See Container Corp., 463 U. S., at 170-171; Armco Inc. v. Hardesty, 467 U. S. 638, 644 (1984). The “broad inquiry” subsumed in both constitutional requirements is “ ‘whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state’ ” — that is, “ ‘whether the state has given anything for which it can ask return.’” ASARCO Inc. v. Idaho Tax Comm’n, 458 U. S. 307, 315 (1982) (quoting Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940)). Where, as here, there is no dispute that the taxpayer has done some business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax. Cf. Allied-Signal, 504 U. S., at 778 (distinguishing Quill Corp., supra). To answer that question, we have developed the unitary business principle. Under that principle, a State need not “isolate the intrastate income-producing activities from the rest of the business” but “may tax an apportioned sum of the corporation’s multistate business if the business is unitary.” Allied-Signal, supra, at 772; accord, HuntWesson, 528 U. S., at 460; Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 224 (1980); Mobil Oil Corp., supra, at 442; cf. 1 J. Hellerstein & W. Hellerstein, State Taxation ¶ 8.07[1], p. 8-61 (3d ed. 2001-2005) (hereinafter Hellerstein & Hellerstein). The court must determine whether “intrastate and extrastate activities formed part of a single unitary business,” Mobil Oil Corp., supra, at 438-439, or whether the out-of-state values that the State seeks to tax “‘derive[d] from “unrelated business activity” which constitutes a “discrete business enterprise,”’” Allied-Signal, supra, at 773 (quoting Exxon Corp., supra, at 224, in turn quoting Mobil Oil Corp., supra, at 439, 442; alteration in original). We traced the history of this venerable principle in Allied-Signal, supra, at 778-783, and, because it figures prominently in this case, we retrace it briefly here. B With the coming of the Industrial Revolution in the 19th century, the United States witnessed the emergence of its first truly multistate business enterprises. These railroad, telegraph, and express companies presented state taxing authorities with a novel problem: A State often cannot tax its fair share of the value of a multistate business by simply taxing the capital within its borders. The whole of the enterprise is generally more valuable than the sum of its parts; were it not, its owners would simply liquidate it and sell it off in pieces. As we observed in 1876, “[t]he track of the road is but one track from one end of it to the other, and, except in its use as one track, is of little value.” State Railroad Tax Cases, 92 U. S. 575, 608. The unitary business principle addressed this problem by shifting the constitutional inquiry from the niceties of geographic accounting to the determination of the taxpayer’s business unit. If the value the State wished to tax derived from a “unitary business” operated within and without the State, the State could tax an apportioned share of the value of that business instead of isolating the value attributable to the operation of the business within the State. E. g., Exxon Corp., supra, at 223 (citing Moorman Mfg. Co., supra, at 273). Conversely, if the value the State wished to tax derived from a “discrete business enterprise,” Mobil Oil Corp., supra, at 439, then the State could not tax even an apportioned share of that value. E. g., Container Corp., supra, at 165-166. We recognized as early as 1876 that the Due Process Clause did not require the States to assess trackage “in each county where it lies according to its value there.” State Railroad Tax Cases, 92 U. S., at 608. We went so far as to opine that “[i]t may well be doubted whether any better mode of determining the value of that portion of the track within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole.” Ibid. We generalized the rule of the State Railroad Tax Cases in Adams Express Co. v. Ohio State Auditor, 165 U. S. 194 (1897). There we held that apportionment could permissibly be applied to a multistate business lacking the “physical unity” of wires or rails but exhibiting the “same unity in the use of the entire property for the specific purpose,” with “the same elements of value arising from such use.” Id., at 221. We extended the reach of the unitary business principle further still in later cases, when we relied on it to justify the taxation by apportionment of net income, dividends, capital gain, and other intangibles. See Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 117, 120-121 (1920) (net income tax); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271, 277, 280, 282-283 (1924) (franchise tax); J. C. Penney Co., supra, at 443-445 (tax on the “privilege of declaring dividends”); cf. Allied-Signal, supra, at 780 (“[F]or constitutional purposes capital gains should be treated as no different from dividends”); see also 1 Hellerstein & Hellerstein ¶ 8.07[1] (summarizing this history). As the unitary business principle has evolved in step with American enterprise, courts have sometimes found it difficult to identify exactly when a business is unitary. We confronted this problem most recently in Allied-Signal. The taxpayer there, a multistate enterprise, had realized capital gain on the disposition of its minority investment in another business. The parties’ stipulation left little doubt that the taxpayer and its investee were not unitary. See 504 U. S., at 774 (observing that “the question whether the business can be called ‘unitary’... is all but controlled by the terms of a stipulation”). The record revealed, however, that the taxpayer had used the proceeds from the liquidated investment in an ultimately unsuccessful bid to purchase a new asset that would have been used in its unitary business. See id., at 776-777. From that wrinkle in the record, the New Jersey Supreme Court concluded that the taxpayer’s minority interest had represented nothing more than a temporary investment of working capital awaiting deployment in the taxpayer’s unitary business. See Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 37, 592 A. 2d 536, 545 (1991). The State went even further. It argued that, because there could be “no logical distinction between short-term investment of working capital, which all concede is apportionable,... and all other investments,” the unitary business principle was outdated and should be jettisoned. 504 U. S., at 784. We rejected both contentions. We concluded that “the unitary business principle is not so inflexible that as new methods of finance and new forms of business evolve it cannot be modified or supplemented where appropriate.” Id., at 786; see also id., at 785 (“If lower courts have reached divergent results in applying the unitary business principle to different factual circumstances, that is because, as we have said, any number of variations on the unitary business theme 'are logically consistent with the underlying principles motivating the approach’” (quoting Container Corp., 463 U. S., at 167)). We explained that situations could occur in which apportionment might be constitutional even though “the payee and the payor [were] not... engaged in the same unitary business.” 504 U. S., at 787. It was in that context that we observed that an asset could form part of a taxpayer’s unitary business if it served an “operational rather than an investment function” in that business. Ibid. “Hence, for example, a State may include within the apportionable income of a nondomiciliary corporation the interest earned on short-term deposits in a bank located in another State if that income forms part of the working capital of the corporation’s unitary business, notwithstanding the absence of a unitary relationship between the corporation and the bank.” Id., at 787-788. We observed that we had made the same point in Container Corp., where we noted that “capital transactions can serve either an investment function or an operational function.” 46.3 U. S., at 180, n. 19; cf. Corn Products Refining Co. v. Commissioner, 350 U. S. 46, 50 (1955) (concluding that corn futures contracts in the hands of a corn refiner seeking to hedge itself against increases in corn prices are operational rather than capital assets), cited in Container Corp., supra, at 180, n. 19. C As the foregoing history confirms, our references to “operational function” in Container Corp. and Allied-Signal were not intended to modify the unitary business principle by adding a new ground for apportionment. The concept of operational function simply recognizes that an asset can be a part of a taxpayer’s unitary business even if what we may term a “unitary relationship” does not exist between the “payor and payee.” See Allied-Signal, supra, at 791-792 (O’Con-nor, J., dissenting); Hellerstein, State Taxation of Corporate Income From Intangibles: Allied-Signal and Beyond, 48 Tax L. Rev. 739, 790 (1993) (hereinafter Hellerstein). In the example given in Allied-Signal, the taxpayer was not unitary with its banker, but the taxpayer’s deposits (which represented working capital and thus operational assets) were clearly unitary with the taxpayer’s business. In Corn Products, the taxpayer was not unitary with the counterparty to its hedge, but the taxpayer’s futures contracts (which served to hedge against the risk of an increase in the price of a key cost input) were likewise clearly unitary with the taxpayer’s business. In each case, the “payor” was not a unitary part of the taxpayer’s business, but the relevant asset was. The conclusion that the asset served an operational function was merely instrumental to the constitutionally relevant conclusion that the asset was a unitary part of the business being conducted in the taxing State rather than a discrete asset to which the State had no claim. Our decisions in Container Corp. and AUied-Signal did not announce a new ground for the constitutional apportionment of extrastate values in the absence of a unitary business. Because the Appellate Court of Illinois interpreted those decisions to the contrary, it erred. Where, as here, the asset in question is another business, we have described the “hallmarks” of a unitary relationship as functional integration, centralized management, and economies of scale. See Mobil Oil Corp., 445 U. S., at 438 (citing Butler Brothers v. McColgan, 315 U. S. 501, 506-508 (1942)); see also Allied-Signal, supra, at 783 (same); Container Corp., supra, at 179 (same); F. W. Woolworth Co. v. Taxation and Revenue Dept. of N. M., 458 U. S. 354, 364 (1982) (same). The trial court found each of these hallmarks lacking and concluded that Lexis was not a unitary part of Mead’s business. The appellate court, however, made no such determination. Relying on its operational function test, it reserved judgment on whether Mead and Lexis formed a unitary business. The appellate court may take up that question on remand, and we express no opinion on it now. Ill The State and its amici argue that vacatur is not required because the judgment of the Appellate Court of Illinois may be affirmed on an alternative ground. They contend that the record amply demonstrates that Lexis did substantial business in Illinois and that Lexis’ own contacts with the State 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. 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Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 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. CADY et al. v. MURPHY. No. 3570. Circuit Court of Appeals, First Circuit. Aug. 15, 1940. McLELLAN, District Judge, dissenting. Richard Wait, of Boston, Mass., and Robert Hale, of Portland, Me., for appellants. Richard S. Chapman, of Portland, Me. (Nathan W. Thompson, of Portland, Me., on the brief), for appellee. Withington, Cross, Proctor & Park, Lothrop Withington, and Edward C. Park, all of Boston, Mass., amici curi® for Boston Association of Stock Exchange Firms. Before MAGRUDER and MAHONEY, Circuit Judges, and McLELLAN, District Judge. MAGRUDER, Circuit Judge. This appeal requires for its disposition an interpretation of § 12(2) of the Securities Act of 1933, 48 Stat. 74. The challenged judgment for plaintiff-appellee cannot stand if, as the defendants maintain, the liability imposed by § 12(2) applies only to owners of securities, selling their own property as principals. The plaintiff is a small securities broker and dealer doing business in Portland, Maine, under the name of Clifford J. Murphy Co. For many years he had extensive dealings with the defendants, a firm of stock brokers carrying on a general brokerage business under the name of Rhoades & Company with offices in New York and Boston. Negotiation of the transaction out of which the present lawsuit arose was conducted by Murphy and Frank Lynch, the head trader of Rhoades & Company, by means of numerous telephone conversations between Boston and Portland. Early in March, 1937, Lynch persuaded Murphy to purchase voting trust certificates representing 1,700 common shares of South American Utilities Corporation (incorporated in Delaware), part of a block of 1,970 shares which had been held by E. E. Smith & Company, a small unlisted dealer in New York. The court below found that Lynch had effected the sale by misrepresentation of material facts, and further found that the defendants had not sustained the burden of proof that Lynch did not know, nor in the exercise of reasonable care could have known, of the untruth of the misrepresentations. These findings are amply sustained by the testimony and indeed are not assailed by appellants. The stock was actually without substantial value at any time. When Murphy learned the facts, he tendered back the securities to Rhoades & Company. Upon the refusal of the latter to take them back, Murphy sold the securities at a loss, and brought the present action. He has recovered a judgment for the amount he paid for the stock, with interest, less the amount realized upon the subsequent sale, with interest. At the trial the plaintiff sought to prove that Rhoades & Company had acted as principal in’ the transaction; that Rhoades & Company on its own account had bought from E. E. Smith & Company the' block of 1,970 shares of South American Utilities common a day or two before Lynch sold 1,700 of these shares to the plaintiff. Murphy testified that he had never heard of E. E. Smith & Company prior to his purchase of the securities. On the other hand Lynch, who was the main witness for the defendants, offered quite a different version. He testified on direct examination, as follows: “Q. Now will you relate what your conversation was with Mr. Murphy on the first of March? A. It was after four o’clock, March 1st, that E. E. Smith & Company called me and said he had a block of 1970 shares of South American Utilities common. He wanted to know if— “Q. Who is he ? A. E. E. Smith. “Q. E. E. Smith.was E. E. Smith and Company? A. Yes. He wanted to know if I could find a buyer for the stock. I told him I had one possibility and to hold on the line until I talked with him. I called Mr. Murphy through our Portland wire and told Mr. Murphy about this block nf South American Utilities common— “Q. Just a minute. What block did Mr. Smith speak of to you? A. A block of 1970 shares of stock. “Q. And did you mention the number of shares to Murphy? A. I did, sir. “Q. All right. What else did you say? A. I told Mr. Murphy that Mr. Smith had this block of stock and wanted to know if he was interested' in the stock. I quoted the market to Mr. Murphy, 4-1/4 to 4-3/4. Mr. Murphy wanted to know if it possibly could be bought cheaper. I said I would be glad to try. He gave me a bid ’for 1700 shares of stock at 4-1/2. Before I had actually purchased that stock from Mr. Smith on the wire I told Mr. Murphy I had a long position in the stock which I wasn’t going to sell and if I was going to buy this block of stock for Mr. Murphy I would act as agent in the transaction. He asked me what commission I would charge and I said I would charge a fair commission. We agreed on four cents a share — ” The District Court did not find it necessary to resolve the conflicting versions. It found, upon sufficient evidence, that the stock was “sold to the plaintiff by the defendants, acting either as brokers or owners”. Though the evidence did not satisfy the court that Rhoades & Company acted as principals, it concluded that this was immaterial since “Section 12 of the Securities Act of 1933 applies to brokers when selling securities owned by other persons”. The court found, as clearly warranted by the evidence, that Rhoades & Company, whether acting as brokers or owners, “solicited from the plaintiff an offer to buy the stock mentioned, and as a result of Lynch’s solicitations and 'representations, the plaintiff bought the stock, paying the price named and a brokerage commission of four cents a share”. This, the court thought, brought Rhoades & Company-within the meaning of § 12(2) as a “person who sells a security”, in view of the broad definition of “sell” in § 2(3) of the Act, which includes within the meaning of the word the “solicitation of an offer to buy”. If Rhoades & Company, though not selling its own property, is a “person who sells a security” then it follows that Murphy is “the person purchasing such security from him” within the meaning of the corresponding phrase in § 12(2). We agree with the court below that § 12(2) imposes a liability for misrepresentations not only upon principals, but- also upon brokers when selling securities owned by other persons. This is not a strained interpretation of the statute, for a selling agent in common parlance would describe himself as a “person who sells”, though title passes from his principal, not from him. This broader interpretation of § 12 (2) is warranted by the definition of “sell” in § 2(3) and is also supported by comparison with other sections of the statute. If the security in question had been a security required by law to be registered, but as to which no registration statement was in effect, Rhoades & Company under the facts of the present case would certainly have been guilty of selling a security in violation of § 5(a) (1), and would not have come within the exemption provided in § 4(2). As a person who “sells a security in violation of section 5”, Rhoades & Company would haver been under a civil liability to Murphy under § 12(1). But the phrase “any person who sells a security” occurs both in § 12(1) and in § 12(2), and would seem to mean the same thing in both subsections, one of which deals with selling an unregistered security and the other of which deals with selling a security by means of misrepresentation of material facts. It is argued that the remedy provided in § 12(2) is basically rescission, which contemplates a restoration of the status quo as between the principals to the transaction; and that Congress could hardly have intended to give this remedy to the buyer as against an agent of the seller. But the section does not use the word “rescission” nor indicate that the remedy provided is limited to rescission in the narrower sense as between the principals to the transaction. The remedy provided can be applied without difficulty to an agent of a vendor; the agent, by misrepresentations having effected a sale, is required to take over the securities from the defrauded buyer and to restore to the latter the price he paid. Even apart from statute this remedy of “rescission” in its wider sense, against the agent of a vendor, is not unknown. See Peterson v. McManus, 187 Iowa 522, 545, 172 N.W. 460 ff.; 3 Neb.L.Bull. 436, note. At one point in its opinion the court below makes a statement of law which is broader than necessary to support the judgment rendered. It says [30 F.Supp. 466, 469]: “Whether the seller, being a broker, himself owns the security, or whether he is acting as the agent for the owner, or for the purchaser, or for both, is immaterial. If, in the course of an attempt to dispose of, or solicitation of an offer to buy a security, he makes false statements under circumstances referred to in section 12, the purchaser is given a right of action to recover any damages he has suffered on account of the false representations.” We need not decide whether § 12(2) applies to the case of a broker acting solely for a purchaser, where the broker makes misrepresentations in the course of soliciting from the purchaser an order to buy. Even if the version of the defendants’ witness Lynch is accepted, Rhoades & Company was acting either as agent for the seller or in a dual capacity as agent for both parties, in either of which cases § 12(2) is applicable. See Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 206, 207. The plaintiff’s declaration contained a count for deceit at common law. The court below held that recovery could not be allowed on this count because the plaintiff had failed to exercise reasonable care to ascertain the falsity of the representations. In view of our conclusion that the judgment for the plaintiff may be sustained under the statute, we do not consider the correctness of the trial court’s ruling on the common law count. The judgment of the District Court is affirmed, with costs to the appellee. “Sec. 2 [§ 77b], When used in this title [subehapter], unless the context otherwise requires * * * “(3) The term ‘sale’, ‘sell’, ‘offer to sell’, or ‘offer for sale’ shall include every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value; * * * “(12) The term ‘dealer’ means any person who engages either for all or part of his time, directly or indirectly, as agent, broker, or principal, in the business of offering, buying, selling, or otherwise dealing or trading in securities issued by another person. * * * “Sec. 4 [§ 77d]. The provisions of section 5 [77e] shall not apply to any of the following transactions: “(1) Transactions by any person other than an issuer, underwriter, or dealer; * * * “(2) Brokers’ transactions, executed upon customers’ orders on any exchange or in the open or counter market, but not the solicitation of such orders. * * * “Sec. 5 [§ 77e]. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly— “(1) to make nse of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy sueh security through the use or medium of any prospectus or otherwise; * * * “Sec. 12 [§ 77!j. Any person who— “(3) sells a security in violation of section 5 [77e], or “(2) sells a security (whether or not exempted by the provisions of section 3 L77c], other than paragraph (2) of subsection (a) thereof), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain tho burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if ho no longer owns the security.” 15 TJ.S.C.A. §§ 77b(3,12), 77d, 77e(a)(l), 771 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_issue_2	25	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. LOVING v. UNITED STATES No. 94-1966. Argued January 9, 1996 Decided June 3, 1996 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which O’Connor and Scalia, JJ., joined as to Parts I, II, III, IV-B, and IV-C. Stevens, J., filed a concurring opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 774. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which O’Connor, J., joined, post, p. 775. Thomas, J., filed an opinion concurring in the judgment, post, p. 777. John H. Blume argued the cause for petitioner. With him on the briefs were Teresa L. Norris, Roy H. Hewitt, Fran W. Walterhouse, and Walter S. Weedman. Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, and John F. De Pue. Ronald W. Meister, Steven R. Shapiro, and Diann Y. Rust-Tierney filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. Briefs of amici curiae were filed for Public Citizen, Inc., by Alan B. Morrison, David C. Vladeck, and Eugene R. Fidell; for the United States Navy-Marine Corps Appellate Defense Division by John Francis Hav-ranek, Howard Barry Goodman, and Phillip Del Grissom; and for Marci A. Hamilton et. al. by David Schoenbrod, pro se. Justice Kennedy delivered the opinion of the Court. The case before us concerns the authority of the President, in our system of separated powers, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the Armed Forces convicted of murder. I On December 12,1988, petitioner Dwight Loving, an Army private stationed at Fort Hood, Texas, murdered two taxicab drivers from the nearby town of Killeen. He attempted to murder a third, but the driver disarmed him and escaped. Civilian and Army authorities arrested Loving the next afternoon. He confessed. After a trial, an eight-member general court-martial found Loving guilty of, among other offenses, premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§918(1), (4). In the sentencing phase of the trial, the court-martial found three aggravating factors: (1) that the premeditated murder of the second driver was committed during the course of a robbery, Rule for Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman in the felony murder of the first driver, RCM 1004(c)(8); and (3) that Loving, having been found guilty of the premeditated murder, had committed a second murder, also proved at the single trial, RCM 1004(c)(7)(J). The court-martial sentenced Loving to death. The commander who convened the court-martial approved the findings and sentence. Cf. 10 U. S. C. § 860. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals (CMA)) affirmed, 41 M. J. 213 (1994), relying on United States v. Curtis, 32 M. J. 252 (CMA), cert. denied, 502 U. S. 952 (1991), to reject Loving’s claims that the President lacked authority to promulgate the aggravating factors that enabled the court-martial to sentence him to death. We granted certiorari. 515 U. S. 1191 (1995). II Although American courts-martial from their inception have had the power to decree capital punishment, they have not long had the authority to try and to sentence members of the Armed Forces for capital murder committed in the United States in peacetime. In the early days of the Republic the powers of courts-martial were fixed in the Articles of War. Congress enacted the first Articles in 1789 by adopting in full the Articles promulgated in 1775 (and revised in 1776) by the Continental Congress. Act of Sept. 29, 1789, ch. 25, §4, 1 Stat. 96. (Congress reenacted the Articles in 1790 “as far as the same may be applicable to the constitution of the United States,” Act of Apr. 30, 1790, ch. 10, § 13, 1 Stat. 121.) The Articles adopted by the First Congress placed significant restrictions on court-martial jurisdiction over capital offenses. Although the death penalty was authorized for 14 military offenses, American Articles of War of 1776, reprinted in W. Winthrop, Military Law and Precedents 961 (reprint 2d ed. 1920) (hereinafter Winthrop); Comment, Rocks and Shoals in a Sea of Otherwise Deep Commitment: General Court-Martial Size and Voting Requirements, 35 Nav. L. Rev. 153, 156-158 (1986), the Articles followed the British example of ensuring the supremacy of civil court jurisdiction over ordinary capital crimes that were punishable by the law of the land and were not special military offenses. 1776 Articles, § 10, Art. 1, reprinted in Winthrop 964 (requiring commanders, upon application, to exert utmost effort to turn offender over to civil authorities). Cf. British Articles of War of 1765, § 11, Art. 1, reprinted in Winthrop 937 (same). That provision was deemed protection enough for soldiers, and in 1806 Congress debated and rejected a proposal to remove the death penalty from court-martial jurisdiction. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20-21 (1958). Over the next two centuries, Congress expanded court-martial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. Act of Mar. 3, 1863, § 30, 12 Stat. 736, Rev. Stat. § 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 509, 514 (1879). In 1916, Congress granted to the military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. Articles of War of 1916, ch. 418, § 3, Arts. 92-93, 39 Stat. 664. Persons accused of the latter two crimes were to be turned over to the civilian authorities. Art. 74, 39 Stat. 662. In 1950, with the passage of the UCMJ, Congress lifted even this restriction. Article 118 of the UCMJ describes four types of murder subject to court-martial jurisdiction, two of which are punishable by death: “Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he— “(1) has a premeditated design to kill; “(2) intends to kill or inflict great bodily harm; “(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or “(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; “is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.” 10 U.S.C. §918. So matters stood until 1983, when the CMA confronted a challenge to the constitutionality of the military capital punishment scheme in light of Furman v. Georgia, 408 U. S. 238 (1972), and our ensuing death penalty jurisprudence. Although it held valid most of the death penalty procedures followed in courts-martial, the court found one fundamental defect: the failure of either the UCMJ or the RCM to require that court-martial members “specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty.” United States v. Matthews, 16 M. J. 364, 379. The court reversed Matthews’ death sentence, but ruled that either Congress or the President could remedy the defect and that the new procedures could be applied retroactively. Id., at 380-382. The President responded to Matthews in 1984 with an Executive Order promulgating RCM 1004. In conformity with 10 U. S. C. § 852(a)(1), the Rule, as amended, requires a unanimous finding that the accused was guilty of a capital offense before a death sentence may be imposed, RCM 1004(a)(2). The Rule also requires unanimous findings (1) that at least one aggravating factor is present and (2) that any extenuating or mitigating circumstances are substantially outweighed by any admissible aggravating circumstances, 1004(b). RCM 1004(c) enumerates 11 categories of aggravating factors sufficient for imposition of the death penalty. The Rule also provides that the accused is to have “broad latitude to present evidence in extenuation and mitigation,” 1004(b)(3), and is entitled to have the members of the court-martial instructed to consider all such evidence before deciding upon a death sentence, 1004(b)(6). This is the scheme Loving attacks as unconstitutional. He contends that the Eighth Amendment and the doctrine of separation of powers require that Congress, and not the President, make the fundamental policy determination respecting the factors that warrant the death penalty. III A preliminary question in this case is whether the Constitution requires the aggravating factors that Loving challenges. The Government does not contest the application of our death penalty jurisprudence to courts-martial, at least in the context of a conviction under Article 118 for murder committed in peacetime within the United States, and we shall assume that Furman and the case law resulting from it are applicable to the crime and sentence in question. Cf. Trop v. Dulles, 356 U. S. 86 (1958) (analyzing court-martial punishments under the Eighth Amendment). The Eighth Amendment requires, among other things, that “a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v, Stephens, 462 U. S. 862, 877 (1983)). Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. 484 U. S., at 244. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer “find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process.” Id., at 246. Although the Government suggests the contrary, Brief for United States 11, n. 6, we agree with Loving, on the assumption that Furman applies to this case, that aggravating factors are necessary to the constitutional validity of the military capital punishment scheme as now enacted. Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, 10 U. S. C. §§918(1), (4), whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not, §§918(2), (3). The statute’s selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U. S. 782, 801 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118. We turn to the question whether it violated the principle of separation of powers for the President to prescribe the aggravating factors required by the Eighth Amendment. IV Even before the birth of this country, separation of powers was known to be a defense against tyranny. Montesquieu, The Spirit of the Laws 151-152 (T. Nugent transí. 1949); 1 W. Blackstone, Commentaries 146- 147, 269-270. Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands, The Federalist No. 47, pp. 325-326 (J. Madison) (J. Cooke ed. 1961), the Framers understood that a “hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively,” Buckley v. Valeo, 424 U. S. 1, 120-121 (1976) (per curiam). “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). Although separation of powers “ ‘d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,’” Mistretta v. United States, 488 U. S. 361, 380-381 (1989) (quoting The Federalist No. 47, supra, at 325-326 (emphasis deleted)), it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 225-226 (1995) (Congress may not revise judicial determinations by retroactive legislation reopening judgments); Bowsher v. Synar, 478 U. S. 714, 726 (1986) (Congress may not remove executive officers except by impeachment); INS v. Chadha, 462 U. S. 919, 954-955 (1983) (Congress may not enact laws without bicameral passage and presentment of the bill to the President); United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of jurisdiction based on the outcome of a case or undo a Presidential pardon). Even when a branch does not arrogate power to itself, moreover, the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties. Mistretta v. United States, supra, at 397-408 (examining whether statute requiring participation of Article III judges in the United States Sentencing Commission threatened the integrity of the Judicial Branch); Nixon v. Administrator of General Services, 433 U. S. 425, 445 (1977) (examining whether law requiring agency control of Presidential papers disrupted the functioning of the Executive). Deterrence of arbitrary or tyrannical rule is not the sole reason for dispersing the federal power among three branches, however. By allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable. Article I’s precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and deliberative lawmaking. See Chadha, supra, at 951. Ill suited to that task are the Presidency, designed for the prompt and faithful execution of the laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control. The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance. Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. Loving invokes this doctrine to question the authority of the President to promulgate RCM 1004. The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U. S. Const., Art. I, §1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U. S. 649, 692 (1892). This principle does not mean, however, that only Congress can make a rule of prospective force. To burden Congress with all federal rulemaking would divert that branch from more pressing issues, and defeat the Framers’ design of a workable National Government. Thomas Jefferson observed: “Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution.” 5 Works of Thomas Jefferson 319 (P. Ford ed. 1904) (letter to E. Carrington, Aug. 4, 1787). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529-530 (1935) (recognizing “the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly”). This Court established long ago that Congress must be permitted to delegate to others at least some authority that it could exercise itself. Wayman v. Southard, 10 Wheat. 1, 42 (1825). “‘The true distinction... is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’” Field, supra, at 693-694, quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852). Loving contends that the military death penalty scheme of Article 118 and RCM 1004 does not observe the limits of the delegation doctrine. He presses his constitutional challenge on three fronts. First, he argues that Congress cannot delegate to the President the authority to prescribe aggravating factors in capital murder cases. Second, he contends that, even if it can, Congress did not delegate the authority by implicit or explicit action. Third, Loving believes that even if certain statutory provisions can be construed as delegations, they lack an intelligible principle to guide the President’s discretion. Were Loving’s premises to be accepted, the President would lack authority to prescribe aggravating factors in RCM 1004, and the death sentence imposed upon him would be unconstitutional. A Loving’s first argument is that Congress lacks power to allow the President to prescribe aggravating factors in military capital cases because any delegation would be inconsistent with the Framers’ decision to vest in Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, §8, cl. 14. At least in the context of capital punishment for peacetime crimes, which implicates the Eighth Amendment, this power must be deemed exclusive, Loving contends. In his view, not only is the determination of aggravating factors a quintessential policy judgment for the Legislature, but the history of military capital punishment in England and America refutes a contrary interpretation. He asserts that his offense was not tried in a military court throughout most of English and American history. It is this historical exclusion of common-law capital crimes from military jurisdiction, he urges, that must inform our understanding of whether Clause 14 reserves to Congress the power to prescribe what conduct warrants a death sentence, even if it permits Congress to authorize courts-martial to try such crimes. See Brief for Petitioner 42-43; Brief for United States Navy-Marine Corps Appellate Defense Division as Amicus Curiae 7-12, 19-26. Mindful of the historical dangers of autocratic military justice and of the limits Parliament set on the peacetime jurisdiction of courts-martial over capital crimes in the first Mutiny Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the military excesses of the Crown in colonial America, the Framers harbored a deep distrust of executive military power and military tribunals. See Reid v. Covert, 354 U. S. 1, 23-24 (1957) (plurality); Lee v. Madigan, 358 U. S. 228, 232 (1959). It follows, Loving says, that the Framers intended that Congress alone should possess the power to decide what aggravating factors justify sentencing a member of the Armed Forces to death. We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon English constitutional history. See, e. g., Reid, supra, at 23-30; O’Callahan v. Parker, 395 U. S. 258, 268-272 (1969) (determining that courts-martial only had jurisdiction of service-connected crimes); Solorio v. United States, 483 U. S. 435, 442-446 (1987) (overruling O’Callahan and taking issue with its historical analysis). Doing so here, we find that, although there is a grain of truth in Loving’s historical arguments, the struggle of Parliament to control military tribunals and the lessons the Framers drew from it are more complex than he suggests. The history does not require us to read Clause 14 as granting to Congress an exclusive, non-delegable power to determine military punishments. If anything, it appears that England found security in divided authority, with Parliament at times ceding to the Crown the task of fixing military punishments. From the English experience the Framers understood the necessity of balancing efficient military discipline, popular control of a standing army, and the rights of soldiers; they perceived the risks inherent in assigning the task to one part of the Government to the exclusion of another; and they knew the resulting parliamentary practice of delegation. The Framers’ choice in Clause 14 was to give Congress the same flexibility to exercise or share power as times might demand. In England after the Norman Conquest, military justice was a matter of royal prerogative. The rudiments of law in English military justice can first be seen in the written orders issued by the King for various expeditions. Winthrop 17-18. For example, in 1190 Richard I issued an ordinance outlining six offenses to which the crusaders would be subject, including two punishable by death: “Whoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth.” Ordinance of Richard I — A. D. 1190, reprinted in id., at 903. The first comprehensive articles of war were those declared by Richard II at Durham in 1385 and Henry V at Mantes in 1419, which decreed capital offenses that not only served military discipline but also protected foreign noncombatants from the ravages of war. T. Meron, Henry’s Wars and Shakespeare’s Laws: Perspectives on the Law of War in the Later Middle Ages 91-93 (1993). Articles of War, sometimes issued by military commanders acting under royal commission in the ensuing centuries, Winthrop 19, were not fixed codes, at least through the 17th century; rather, “each war, each expedition, had its own edict,” which lost force after the cessation of hostilities and the disbanding of the army that had been formed. J. Pipón & J. Collier, Manual of Military Law 14 (3d rev. ed. 1863). Thus, royal ordinances governed the conduct of war, but the common law did not countenance the enforcement of military law in times of peace “when the king’s courts [were] open for all persons to receive justice according to the laws of the land.” 1 W. Blackstone, Commentaries 413. See also M. Hale, History of the Common Law of England 25-27 (C. Gray ed. 1971) (describing efforts of Parliament and the common-law courts to limit the jurisdiction of the military Courts of the Constable and the Marshal). “The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so ‘if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or action of battery.’” Reid, supra, at 24, n. 44 (quoting 2 J. Campbell, Lives of the Chief Justices of England 91 (1849)). See also 1 T. Macaulay, History of England 272 (n. d.) (hereinafter Macaulay). The triumph of civil jurisdiction was not absolute, however. The political disorders of the 17th century ushered in periods of harsh military justice, with soldiers and at times civilian rebels punished, even put to death, under the summary decrees of courts-martial. See C. Clode, Administration of Justice Under Military and Martial Law 20-42 (1872) (hereinafter Clode). Cf. Petition of Right of 1627, 3 Car. I, ch. 1 (protesting court-martial abuses). Military justice was brought under the rule of parliamentary law in 1689, when William and Mary accepted the Bill of Rights requiring Parliament’s consent to the raising and keeping of armies. In the Mutiny Act of 1689, Parliament declared the general principle that “noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme,” but decreed that “Soldiers who shall Mutiny or stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow,” and “shall suffer Death or such other Punishment as by a Court-Martiall shall be Inflicted.” 1 Wm. & Mary, ch. 5. In one sense, as Loving wants to suggest, the Mutiny Act was a sparing exercise of parliamentary authority, since only the most serious domestic offenses of soldiers were made capital, and the militia was exempted. See Solorio, supra, at 442. He misunderstands the Mutiny Act of 1689, however, in arguing that it bespeaks a special solicitude for the rights of soldiers and a desire of Parliament to exclude Executive power over military capital punishment. The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. 3 Macaulay 45-49. The mutiny occurred at a watershed time. Menaced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad. Macaulay describes the sentiment of the time: “There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficiency, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army... [is] formidable only to the country which it is paid to defend. A strong line of demarcation must therefore be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals.” Id., at 50. The Mutiny Act, then, was no measure of leniency for soldiers. With its passage, “the Army of William III. was governed under a severer Code than that made by his predecessors under the Prerogative authority of the Crown. The Mutiny Act, without displacing the Articles of War and those Military Tribunals under which the Army had hitherto been governed, gave statutory sanction to the infliction of Capital Punishments for offences rather Political than Military, and which had rarely been so punished under Prerogative authority.” Clode 9-10. See also Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 443, and n. 40 (1960) (noting that the Articles of War of 1662 and 1686 prohibited the infliction in peacetime of punishment costing life or limb). Indeed, it was the Crown that later tempered the excesses of courts-martial wielding the power of capital punishment. It did so by stipulating in the Articles of War (which remained a matter of royal prerogative) that all capital sentences be sent to it for revision or approval. Clode 9-10. Popular suspicion of the standing army persisted, 5 Macaulay 253-273, 393, and Parliament authorized the Mutiny Acts only for periods of six months and then a year, 3 id., at 51-53. But renewed they were time and again, and Parliament would alter the power of courts-martial to impose the death penalty for peacetime offenses throughout the next century. It withdrew the power altogether in 1713, 12 Anne, ch. 13, § 1, only to regret the absence of the penalty during the rebellion of 1715, Clode 49. The third of the Mutiny Acts of 1715 subjected the soldier to capital punishment for a wide array of peacetime offenses related to political disorder and troop discipline. Id., at 50. And, for a short time in the 18th century, Parliament allowed the Crown to invest courts-martial with a general criminal jurisdiction over soldiers even at home, placing no substantive limit on the penalties that could be imposed; until 1718, that jurisdiction was superior to civil courts. Id., at 52-53. The propriety of that general jurisdiction within the kingdom was questioned, and the jurisdiction was withdrawn in 1749. Id., at 53. Nevertheless, even as it continued to adjust the scope of military jurisdiction at home, Parliament entrusted broad powers to the Crown to define and punish military crimes abroad. In 1713, it gave statutory sanction to the Crown’s longstanding practice of issuing Articles of War without limiting the kind of punishments that might be imposed; and, in.the same Act, it delegated the power to “erect and constitute Courts Martial with Power to try hear and determine any Crime or Offence by such Articles of War and inflict Penalties by Sentence or Judgement of the same in any of Her Majesties Dominions beyond the Seas or elsewhere beyond the Seas (except in the Kingdom of Ireland)... as might have been done by Her Majesties Authority beyond the Seas in Time of War.” 12 Anne, ch. 13, §43; Winthrop 20. Cf. Duke & Vogel, supra, at 444 (noting that Parliament in 1803 gave statutory authority to the Crown to promulgate Articles of War applicable to troops stationed in England as well). See Solorio, 483 U. S., at 442 (discussing a provision in the British Articles of War of 1774 providing court-martial jurisdiction of civilian offenses by soldiers). As Loving contends, and as we have explained elsewhere, the Framers well knew this history, and had encountered firsthand the abuses of military law in the colonies. See Reid, 354 U. S., at 27-28. As many were themselves veterans of the Revolutionary War, however, they also knew the imperatives of military discipline. What they distrusted were not courts-martial per se, but military justice dispensed by a commander unchecked by the civil power in proceedings so summary as to be lawless. The latter was the evil that caused Blackstone to declare that “martial law” — by which he, not observing the modern distinction between military and martial law, meant decrees of courts-martial disciplining soldiers in wartime — “is built upon no settled principles, but is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law.” 1 Blackstone's Commentaries 413. See also Hale, History of the Common Law of England, at 26-27; Clode 21 (military law in early 17th-century England amounted to “the arbitrary right to punish or destroy, without legal trial, any assumed delinquent”). The partial security Englishmen won against such abuse in 1689 was to give Parliament, preeminent guardian of the British constitution, primacy in matters of military law. This fact does not suggest, however, that a legislature’s power must be exclusive. It was for Parliament, as it did in the various Mutiny Acts, to designate as the times required what peacetime offenses by soldiers deserved the punishment of death; and it was for Parliament, as it did in 1713, to delegate the authority to define wartime offenses and devise their punishments, including death. The Crown received the delegated power and the concomitant responsibility for its prudent exercise. The lesson from the English constitutional experience was that Parliament must have the primary power to regulate the Armed Forces and to determine the punishments that could be imposed upon soldiers by courts-martial. That was not inconsistent, however, with the further power to divide authority between it and the Crown as conditions might warrant. Far from attempting to replicate the English system, of course, the Framers separated the powers of the Federal Government into three branches to avoid dangers they thought latent or inevitable in the parliamentary structure. The historical necessities and events of the English constitutional experience, though, were familiar to them and inform our understanding of the purpose and meaning of constitutional provisions. As we have observed before, with 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_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. PERRY v. LOUISIANA No. 89-5120. Argued October 2, 1990 Decided November 13, 1990 Keith B. Nordyke argued the cause for petitioner. With him on the brief were June E. Denlinger and Joe Giarrusso, Jr. Rene I. Salomon, Assistant Attorney General of Louisiana, argued the cause for respondent. With him on the brief were William J. Guste, Jr., Attorney General, and M. Patricia Jones, Assistant Attorney General. Briefs of amici curiae urging reversal were filed by the American Psychiatric Association et al. by Joel L. Klein, Joseph N. Onek, Richard G. Taranto, Carter G. Phillips, and Kirk B. Johnson; and for the Coalition for Fundamental Rights and Equality of Ex-patients by Peter Margulies. Per Curiam. The judgment is vacated and the case is remanded to the 19th Judicial District Court of Louisiana for further consideration in light of Washington v. Harper, 494 U. S. 210 (1990). It is so ordered. Justice Souter took no part in the consideration or decision of this case. 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:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. IDLEWILD BON VOYAGE LIQUOR CORP. v. EPSTEIN et al. No. 138. Argued February 28, 1962. Decided June 25, 1962. Charles H. Tuttle argued the cause for petitioner. With him on the briefs was John F. Kelly. Julius L. Sackman argued the cause for respondents. With him on the briefs were Louis J. Lefkowitz, Attorney General of New York, and Paxton Blair, Solicitor General. Together with No. 180, Misc., Idlewild Bon Voyage Liquor Corp. v. Bicks et al., U. S. District Judges, on petition for writ of mandamus. Per Curiam. The petitioner is in the business of selling bottled wines and liquors for export from the United States and delivery to international airline passengers at their overseas destinations. Upon advice of the Attorney General of New York, the State Liquor Authority informed the petitioner that its business was illegal under the provisions of the New York Alcoholic Beverage Control Law. The petitioner then instituted an action in the United States District Court for the Southern District of New York against the respondents, members of the State Liquor Authority. The complaint asked for a judgment declaring that the state statutes, as applied, were repugnant to the Commerce Clause, the Export-Import Clause, and the Supremacy Clause of the United States Constitution, and for an injunction restraining the State Liquor Authority from interfering with the petitioner’s business. A request for a three-judge court under 28 U. S. C. §§ 2281, 2284, was denied. Instead, the district judge to whom the request was presented simply retained jurisdiction of the cause, in order to give the state courts an opportunity to pass upon the constitutional issues presented, although there was no relevant litigation then pending in the state courts. 188 F. Supp. 434. The petitioner appealed to the Court of Appeals for the Second Circuit. That court dismissed the appeal, one judge dissenting. 289 F. 2d 426. Unambiguously stating its opinion that the District Court had acted erroneously, and that “a three-judge district court should have been convened,” the Court of Appeals was nevertheless of the view that it was powerless to take formal corrective action in light of this Court’s decision in Stratton v. St. Louis S. W. R. Co., 282 U. S. 10. Thereafter the petitioner once again filed a motion in the District Court requesting that a statutory three-judge court be impaneled. The request was again refused upon the ground that the previous ruling made by other judges of the District Court had established “the law of this case,” and that the Court of Appeals’ opinion that a three-judge court should be appointed was merely a “dictum.” 194 F. Supp. 3. We granted certiorari and a motion for leave to file a petition for a writ of mandamus.- 368 U. S. 812. We agree with the Court of Appeals that a three-judge court should have been convened in this case. When an application for a statutory three-judge court is addressed to a district court, the court’s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Those criteria were assuredly met here, and the applicable jurisdictional statute therefore made it impermissible for a single judge to decide the merits of the case, either by granting or by withholding relief. In the Stratton case it was held that a court of appeals was precluded from reviewing on the merits a case which should have originally been determined by a court of three judges. Stratton does not stand for the broad proposition that a court of appeals is powerless ever to give any guidance when a single judge has erroneously invaded the province of a three-judge court. The Court of Appeals clearly stated its opinion that a court of three judges ought to have been convened to consider this litigation. That view was correct and should have been followed upon the petitioner’s renewed motion that such a statutory court be impaneled. We deem it unnecessary to take formal action on the petition for a writ of mandamus. The case will be remanded to the District Court for expeditious action consistent with the views here expressed. Cf. Bailey v. Patterson, 369 U. S. 31, 34. It is so ordered. Mr. Justice Frankfurter took no part in the decision of these cases. Mr. Justice Harlan and Mr. Justice White took no part in the consideration or decision of these cases. During the pendency of the appeal another judge of the District Court for the Southern District of New York issued a temporary injunction restraining the respondents from harassing the petitioner’s business, but, relying on the original judge’s order, refused a renewed request for a three-judge court. The Court of Appeals properly rejected the argument that the order of the District Court “was not final and hence unappealable under 28 U. S. C. §§ 1291, 1292,” pointing out that “[a]ppellant was effectively out of court.” 289 F. 2d, at 428. This is not a case like Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F. 2d ,317, where a three-judge court was requested only in the event that it should first be held that the state statute was by its terms applicable to the plaintiff's business operations. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_direct1	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. CONTINENTAL GRAIN CO. v. DANT & RUSSELL, Inc. No. 9572. Circuit Court of Appeals, Ninth Circuit. March 29, 1941. Jay Bowerman and John H. Hall, both of Portland, Or., for appellant. Wood, Matthiessen & Rankin and Erskine B. Wood, all of Portland, Or., for appellee. Before WILBUR, GARRECHT, and STEPHENS, Circuit Judges. WILBUR, Circuit Judge. The appellant invoked the admiralty jurisdiction of the United States District Court for the District of Oregon hy applying to that court for an order compelling arbitration of certain obligations growing out of a charter party entered into between appellant and appellee. The agreement for arbitration is contained in the charter party and provides that should any dispute arise between the owners and the insurers the matter in dispute shall be referred to three persons in New York, one to be appointed by each of the parties, and the third by the two so chosen. It was provided that “their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the court. The arbitrators shall be commercial men.” The petition showed the nature of the claim made by it upon the appellee for $1,-949.04 growing out of the charter party, that the appellee had refused to pay the sum alleged to be due and that the appellant had demanded arbitration pursuant to the charter party and had named its arbitrator Geo. M. Bress, 80 Broad Street, New York; that the appellee had refused to arbitrate or to name an arbitrator. Appellant prayed that the arbitration proceed in accordance with §§ 4 and 5 of the United States Arbitration Act, 9 U.S.C.A. §§ 4 and 5, for costs and for further relief. The appellee, after denial of its motion to dismiss the petition, admitted the execution of the charter party, admitted the existence of a dispute arising therefrom, denied liability, alleged that it refused to arbitrate the matters involved, and that it was unwilling "to do so at New York because its place of business was Portland, Oregon, and that it believed it had a good and meritorious defense to the petitioner’s claim; alleged that the witnesses needed to substantiate its claims resided in Portland, and that the appellant had an office and place of business in Portland; alleged it was willing to arbitrate the matter at Portland, Oregon, or within the District of Oregon, but that it would be unfair and unjust to require respondent to be dragged across the country to arbitrate in New York. The court ordered arbitration “in the manner provided for in the agreement, provided the hearing and proceedings under such agreement shall be within the district in which the petition for the order directing such arbitration is filed and provided that petitioner Continental Grain Company fully cooperate therein and proceed with said arbitration.” Appellant gave notice of appeal. The appellee, without moving to dismiss the appeal for lack of jurisdiction, has suggested that in view of the decision of this court and the Supreme Court in Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; Id., 9 Cir., 70 F.2d 234, it doubts whether or not the order appealed from is a final order of the court and appealable as such. It is true, as held in the above case, that where an action has been brought upon an obligation and the defendant, as a defense, invokes an agreement to arbitrate the dispute in order to procure a stay of the trial of the action until the arbitration has been completed, the order for the stay is not a final order because further proceedings are contemplated after the arbitration is completed. 9 U.S.C.A. §§ 3, 5. The appellant is proceeding in conformity with § 4 of the Arbitration Act and the final and only order requested of the court is the order provided for in that section directing “the parties to proceed to arbitration in accordance with the terms of the agreement.” The arbitration agreement herein does not provide for the entry of the award as a judgment of the court as it might have done if the agreement had so provided. 9 U.S.C.A. § 9. In the absence of such an agreement the award cannot be summarily entered as a judgment of the court. Le-high Structural Steel Co. v. Rust Engineering Co., 61 App.D.C. 224, 59 F.2d 1038 ; 9 U.S.C.A. § 9. It follows that the order appealed from is a final order of the court and that this court has jurisdiction of the appeal. The only point raised by the appellant is that the order of arbitration which is requested should have provided for a hearing in New York. This point is not well taken. The statute expressly provides that the hearing and proceeding shall be within the district in which the petition for the order directing the arbitration is filed. In the statute (Act of Feb. 12, 1925, ch. 213, § 4, 43 Stat.L. pp. 883, 884, 9 U.S.C.A. § 4) the clause under consideration with reference to the place of the arbitration is in the form of a proviso reading as follows: “ * * * the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement: Provided, That the hearing and proceedings under such agreement shall be within the district in which the petition for an order directing such arbitration is filed.” In the compilation of the act for the United States Code the words “provided that” are omitted. We mention this distinction although there is no difference between the meaning of the section as printed in the statute and in the code. In both it is stated that the hearings and proceedings under the agreement shall be within the district in which the petition for an order directing such arbitration was filed. The appellant challenges the right of the court to order the arbitration within the district of Oregon because such an order does not conform to the agreement of the parties for an arbitration in New York. Prior to the enactment of the United States arbitration act (1925) such agreements could not be enforced in the courts of the United States. If there could be any doubt of the power of the legislature to limit the right of arbitration to one conducted within the jurisdiction of the district court ordering the arbitration, it must be dispelled by the consideration that Congress could attach any limitation it desired to the right to enforce arbitration in the federal courts, that it has made a condition that the arbitration be held in the district where the court sits, that the contract in question was executed with a knowledge that Congress had so provided, and that the appellant had invoked the jurisdiction of a court other than that having jurisdiction in New York to enforce the agreement. The appellant, having invoked the jurisdiction of the United States District Court for Oregon is hardly in a position to complain that it has exercised that jurisdiction in accordance with the statute giving it jurisdiction. The appellee, in aid of the interpretation of the statute as applied by the district court, has called attention to the discussion with reference to that matter on the floor of the United States Senate wherein the proviso above mentioned was added by way of amendment. The reference is to the statement of Senator Sterling, in charge of the bill before the Senate. The appellant contends that the court cannot consider this discussion unless the terms of the act are so ambiguous as to require recourse to such discussion. He cites in support of that proposition 59 C.J. 1017, § 604, and Pennsylvania R. R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446; Omaha & Co. B. St. Ry. Co. v. I. C. C., 230 U.S. 324, 33 S.Ct. 890, 57 L.Ed. 1501, 46 L.R.A.,N.S., 385. It is sufficient for the purposes of this ‘decision to say that the statements invoked merely confirm the clear and obvious meaning of the statute and are not relied upon to change the clearly expressed intent of Congress. Order affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ANNISTON BROADCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. OWOSSO BROADCASTING COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Nos. 80-7361, 80-7785. United States Court of Appeals, Fifth Circuit. Unit B Feb. 26, 1982. Kirkland & Ellis, James R. W. Bayes, Washington, D. C., Aloysius B. McCabe, Boston, Mass., for petitioner in No. 80-7361. John E. Ingle, F. C. C., Washington, D. C., Robert B. Nicholson, Daniel J. Conway, Dept, of Justice, Washington, D. C., for respondents in both cases. James E. Greeley, Peter Gutmann, Washington, D. C., for petitioner in No. 80-7785. Petitions for Review of Orders of the Federal Communications Commission. Before HILL and HENDERSON, Circuit Judges, and SMITH, Judge. Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980. Honorable Edward S. Smith, Judge for the U. S. Court of Claims, sitting by designation. PER CURIAM: Anniston Broadcasting Company and Owosso Broadcasting Company, Inc., petition this court for review of a Memorandum Opinion and Order of the Federal Communications Commission (Commission), denying their petitions for waiver of sections 73.35, 73.240, and 73.636 of the Commission’s Rules, which require divestiture of newspaper-broadcast combinations which constitute effective monopolies over their communities’ media. In a subsequent proceeding, the Commission stayed the January 1,1980, divestiture deadline until June 1. 1980. Anniston Broadcasting Company owns the only daily newspaper, the Anniston Star, two radio stations, WHMA-AM and WHMA-FM, and the only local television station, WHMA, in Anniston, Alabama. Owosso Broadcasting Company, Inc., owns a majority interest in the only daily newspaper, The Argus-Press, and the only local AM, WOAP, and FM, WOAP-FM, radio stations in Owosso, Michigan. Owosso has no local television station. Both plaintiffs claim that the Commission improperly refused to grant them divestiture waivers under the Commission’s provision for allowing waivers if the policy behind the Commission’s divestiture rule would be better served by letting the present ownership continue. However, we find, after hearing oral argument, that the Commission did not err in its denial of the waivers and therefore affirm the Commission’s action. I. This case is the progeny of FCC v. National Citizens Committee for Broadcasting (National Citizens). In National Citizens the Supreme Court considered the validity of a Commission order, Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order (order). The order required that in communities where there was common ownership of the only daily newspaper and the only broadcast station or, if there was more than one broadcast station, of the only daily newspaper and the only television station, divestiture of either the newspaper or the station had to take place by January 1, 1980, unless grounds for a waiver were demonstrated. The Commission based the adoption of the order on its determination that diversification of mass media ownership serves the public interest by increasing the variety of program and service viewpoints, as well as by limiting the concentration of economic power. However, the Commission also believed that some consideration should be given to those who could give the best practicable service to the public. Therefore the Commission came to the conclusion that divestiture was warranted only in “ ‘the most egregious cases,’ which it identified as those in which a newspaper-broadcast combination has an ‘effective monopoly’ in the local ‘marketplace of ideas as well as economically.’ ” An effective monopoly occurs where there is common ownership of the only daily newspaper published in the community and either (1) the only broadcast station providing a clear signal to the entire community, or (2) the only television station transmitting a clear signal over the entire community. However, the Commission also included a waiver provision in the order. This provision allowed for temporary or permanent waivers if the common owner could not sell the station for more than an artificially depressed price; if the community could not support separate ownership; or, more generally, if the purposes of the divestiture rule would be better served by the continuation of the current ownership pattern. After reviewing the criteria used by the Commission for determining which newspaper-broadcast owners had effective monopolies over their respective communities’ marketplace of ideas, etc., the Court held that “the standards settled upon by the Commission reflect[ed] a rational legislative-type judgment.” II. In the present case, the Commission’s initial order first addressed the central defect in plaintiffs’ argument for waivers. Both plaintiffs claim that outside broadcasting stations effectively cover plaintiffs’ respective communities. The Commission correctly found that plaintiffs failed to demonstrate that these outside stations gave coverage of the activities of the pertinent communities comparable with a local alternative voice. Furthermore, the Commission noted that since the outside stations serviced substantially larger cities and were under no obligation to meet plaintiffs’ communities’ needs, they could not be used as a basis for waivers. Second, the Commission considered the economic dominance of Anniston Broadcasting in its community and found that local advertisers had no satisfactory competitor with which to do business if plaintiff chose to charge an unreasonable advertising rate. Third, the Commission properly found that it was not required to give plaintiffs an evidentiary hearing. The key factor in determining whether a hearing is mandated is “whether the agency’s action pertained to a class of individuals, indicating a rule-making function, or whether it focused on a particular individual, indicating an adjudicative function requiring a hearing. [Footnote omitted.]” Here, the Commission was concerned with a class of entities. The Commission in its reconsideration memorandum gave a brief history of some of the other stations affected by the reconsideration order. Many of these stations had divested or were about to divest themselves of either their newspaper or their station. While not directly discussed in. the memorandum, other stations are no longer within the parameters of the order since qualified competitors have entered into their respective markets. Finally, Owosso claims that the Commission improperly refused to grant Owosso a waiver upon the basis of Owosso’s trust agreement. We, however, find that the Commission gave full consideration to the terms of the trust and found it wanting. The Commission found that since the trust’s termination clause allows the grantor to end the trust the next time the station’s license is up for renewal, the trust is disqualified from being an adequate device for reducing plaintiff’s control over the station. Furthermore, while we do not itemize them here, the differences between the Owosso trust and the trust in Rust Craft Broadcasting Co. are significant enough for the Commission to find that plaintiff’s trust did not qualify Owosso for a waiver. The scope of judicial review of the Commission’s actions is limited to whether its decisions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Furthermore, the Supreme Court has “repeatedly emphasized that the Commission’s judgment regarding how the public interest is best served is entitled to substantial judicial deference.” We hold that the Commission met the above standard and we affirm the action of the Commission in all substantive respects. The cases are remanded to the Federal Communications Commission for the grant of a stay of the divestiture deadline to an appropriate date subsequent to the date of this decision. In view of our decision on the merits, respondents’ motion for return of the letter from petitioner Owosso Broadcasting Company, Inc., filed June 15, 1981, is moot. . Jurisdiction is founded on 47 U.S.C. § 402(a) (1976) and 28 U.S.C. §§ 2342-2343 (1976). . Memorandum Opinion and Order, 74 F.C. C.2d 497 (1979). . Memorandum Opinion and Order, 76 F.C. C.2d 339 (1979). . FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978). . 50 F.C.C.2d 1046 (1975), as amended upon reconsideration, 53 F.C.C.2d 589 (1975), codified in 47 C.F.R. §§ 73.35, 73.240, 73.636 (1976). . FCC v. National Citizens Comm. for Broadcasting, supra note 4, 436 U.S. at 787, 98 S.Ct. at 2108, citing the order, supra note 5, 50 F.C. C.2d at 1080-81. . While an alternative radio station does not exempt a newspaper-television monopoly from divestiture, an alternative television station exempts a newspaper-radio monopoly. . FCC v. National Citizens Comm. for Broadcasting, supra note 4, 436 U.S. at 814, 98 S.Ct. at 2121. . Memorandum Opinion and Order, 74 F.C. C.2d 497 (1979). . Alaska Airlines, Inc. v. C. A. B., 545 F.2d 194, 200 (D.C.Cir.1976). . Memorandum Opinion and Order, 77 F.C. C.2d 54 (1980). . Rust Craft Broadcasting Co., 68 F.C.C.2d 1013 (1978). . 5 U.S.C. § 706(2)(A) (1976). See WAIT Radio v. F. C. C. 418 F.2d 1153 (D.C.Cir.1969), for its restatement of the scope of review as requiring the Commission to give a “hard look” at all applicants’ requests for waivers. . FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 1275, 67 L.Ed.2d 521 (1981). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. John D. McALLISTER, Appellant, v. Roy D. DRIEVER, t/a Skyway Auto Parts, Appellee. No. 8892. United States Court of Appeals Fourth Circuit. Argued March 28, 1963. Decided June 3, 1963. Marvin Ellin, Baltimore, Md., for appellant. Thomas G. Andrew, Baltimore, Md., (A. Freeborn Brown, Bel Air, Md., and Rollins, Smalkin, Weston & Andrew, Baltimore, Md., on brief) for appellee. Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges. BOREMAN, Circuit Judge. This is an appeal by plaintiff, McAllister, from the District Court’s grant of motion for judgment n. o. v. in favor of defendant, Driever, after the jury had returned a verdict awarding damages to McAllister for personal injuries and damages to his automobile resulting from collision with Driever’s unattended tow truck. At the time of the collision, approximately 4:00 A.M. on May 31, 1961, defendant’s unattended and unlighted tow truck was standing motionless in the right westbound lane of U. S. Route 40 near Havre de Grace, Maryland, about 150 feet from Driever’s service station building. The jury finding, unchallenged here, was that McAllister, traveling west in the right-hand lane of U. S. Route 40 at a speed less than posted limit and in darkness, was not guilty of contributory negligence. The evidence showed that at about 10:00 or 11:00 P.M. on May 30, 1961, an employee of defendant had parked the tow truck with the brake set and the key in the ignition switch at a point on the private driveway of defendant’s auto repair shop, junkyard and service station about 50 feet from the westbound lane of the highway; that the tow truck was so placed between the gas pumps and other parked vehicles that it could not possibly have drifted onto the highway, and that no one connected with defendant or his business moved the truck or authorized any other person to move it after it was so parked. A state trooper investigating the accident found the manifold and crankcase oil of the tow truck still warm about thirty minutes after the accident and further found skid marks of the truck on the highway indicating that the truck’s emergency brake was set at the time of impact. Although there was evidence to indicate that defendant had theretofore reported to the State police the theft of auto parts from his business premises, there was no evidence to show that any theft or unauthorized moving of a motor vehicle was known by the defendant to have occurred on his premises prior to the night of the accident. It appeared from the testimony that because the truck was used as an emergency vehicle, it was always parked, with the key in the ignition switch, on defendant’s service station premises within about 50 feet of heavily traveled U. S. Route 40, and thus readily available to any one of defendant’s several employees who might need to use it. In this action brought under the diversity jurisdiction of the federal courts, 28 U.S.C. § 1332, involving an accident which occurred in Maryland, the law of that state must govern. Pertinent here is article 66½, section 247, Annotated Code of Maryland (1957), which provides: “§ 247. Unattended motor vehicle. “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway.” At the trial the District Court held as a matter of law that Driever had violated this statute and was negligent in failing to remove the ignition key but submitted the questions of proximate cause and contributory negligence to the jury. Upon motion, the court later granted judgment n. o. v. in favor of defendant but did not disclose its reasons therefor in either an oral or written opinion. The issues presented by this appeal are whether, under Maryland law and the facts as shown, the leaving of the key in the ignition switch of defendant’s unattended tow truck can be held (1) to breach a statutory duty of care owed by defendant to plaintiff, and (2) to be the proximate cause of plaintiff’s injuries. The case most helpful in determining the principles of Maryland law governing this case is Liberto v. Holfeldt, 221 Md. 62, 155 A.2d 698 (1959). There the plaintiff sought recovery on the theory that defendant was negligent in leaving the key in the ignition switch of her parked car in violation of the unattended motorist statute, art. 66%, § 247, supra, and that this negligence was the proximate cause of plaintiff’s injuries. The facts were that the defendant left the key in the ignition switch of her automobile which she had parked on a city street for a very short time and when she returned the car was gone. The plaintiff was injured five days later at a considerable distance across Baltimore from the place where the ear was parked when an unauthorized stranger, who was apparently the thief, negligently drove the defendant’s car through a red light. The Maryland Court of Appeals stated that two interrelated questions were involved: (1) Did the act of violating the unattended motorist statute constitute a breach of a duty owed by the defendant to the plaintiff; and (2), if that be established, was the negligent act of leaving the key in the ignition switch the proximate cause of the injuries sustained? The court answered both questions in the negative and found the defendant free of liability. Emphasizing the element of foreseeability throughout its opinion in Liberto, the court held that the injury sustained by the plaintiff was too remote, both in time and space, from the negligent act of the defendant in failing to remove the ignition key for any duty created by the statute to run to the benefit of the plaintiff. The meaning of the unattended motorist statute was explained in these words, 221 Md. at 66, 155 A.2d at 701: “ * * * The duty to the public created by the statute was primarily to protect against a theft of or tampering with a motor vehicle and to prevent them from moving under their own momentum should the brakes fail. Such duty, in all reasonableness, cannot be said to extend to all the world, but must be a foreseeable duty to a class of which the plaintiff was a member. [Citation omitted.] If a duty not to injure was created by the statute, it must be one of more immediate foreseeability and not so remote as was the case here. In the recent case of Corinti v. Wittkopp, 1959, 355 Mich. 170, 93 N.W.2d 906, the Court in interpreting the effect of a statute almost identical with § 247, supra, stated [at page 909 of 93 N.W.2d]: “ ‘To our knowledge, no court has yet held such a statute * * to impose upon a driver a duty to remove his keys running to the benefit of any person whom a thief or his successor in possession might meet and injure hours, days or weeks after the theft.’ ” In finding that the negligence of the defendant was not the proximate cause of the injury, the Liberto court emphasized the burden upon the plaintiff to show that the violation of the statute was the proximate cause of the injury and said, 221 Md. at 67, 155 A.2d at 701: “ * * * Again, we agree with the majority of the courts and hold that in this case the negligence of the defendant was not the proximate cause of the injury both on the basis that it was not foreseeable that the thief would be involved in an accident five days later and that the negligence of the thief was an independent intervening cause which was in fact the proximate cause of the accident.” In (determining whether the law discussed in Liberto, supra, is applicable to the present case, it is necessary to consider several facts which distinguish this case from Liberto. Remoteness in time and space was found to be significant in the Liberto court’s holding that no duty of care extended from the plaintiff to the defendant and that it was not foreseeable the thief would be involved in an accident five days later. In the case at bar, plaintiff’s collision with the tow truck took place within six hours and only 150 feet from the position in which the last authorized driver had parked the tow truck. Another distinguishing fact is that the tow truck was parked on the private property of the defendant and not on a public street or highway as was the car of the defendant in the Liberto case. That the unattended motorist statute applies to public streets and highways is not open to question (see Liberto, supra; Hochschild, Kohn & Co. v. Canoles, 193 Md. 276, 66 A.2d 780 (1949)), but the Maryland Court of Appeals, insofar as we have been able to determine, has not definitely held that the unattended motor vehicle statute applies to a vehicle parked on private property. See Brill v. Wilbanks, 222 Md. 248, 159 A.2d 657 (1960), and Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617 (1957). It is true, as plaintiff contends, that in the Waltzinger case the court held the statute correctly stated the standard of due care to be observed when leaving a motor vehicle unattended on a roadway which visitors to a large convalescent home or home for the aged are invited to use. But no unauthorized person undertook to move the car in the Waltzinger case and the invitation to the public to use the nursing home’s roadway was clearly general and factually distinguishable since, in the instant case, there was no implied invitation to use defendant’s partially blocked driveway at his unlighted premises, not then open for business and late in the night. Therefore, we cannot say whether the Maryland court would construe and apply the statute as establishing a standard of care under the particular facts of this case. The court belmv apparently concluded that a standard of care imposed by the statute was violated when it instructed the jury to accept, as proved, the fact that there was negligence on the part of the defendant. Whether the District Court adhered to or receded from this view in granting defendant’s motion for judgment n. o. v. cannot be ascertained from the record, since the judge failed to disclose his reasons for granting the motion. In any event, it is not clear to us that the statutory standard of care would necessarily apply in this case. In view of the evidence adduced by the defendant to show a plausible reason for leaving the key in the tow truck and the sparsity of evidence to indicate that the theft of the tow truck was foreseeable, we believe the question of defendant’s negligence in leaving the key in the ignition switch of the tow truck, parked on his own private property, was one on which reasonable men could differ and which should have been submitted to the jury for determination. On the issue of proximate cause, however, the applicability of the law of Liberto, supra, to the facts of this case is apparent. There the negligence of the thief in driving the defendant’s car through a red light was held to be both unforeseeable and an independent intervening cause which was the proximate cause of the accident. That this holding was an alternative basis for denying recovery to the plaintiff in Liberto, sufficient in itself to relieve the defendant of liability, is clear from the court’s language, quoted supra, and from Anderson V. Theisen, 231 Minn. 369, 43 N.W.2d 272 (1950), which was cited to support it. In Anderson the defendant parked his unlocked car on a public street with the keys in the ignition switch and the motor running in violation of a Minneapolis city ordinance, and the person who stole the car, while in flight from the scene of the theft, negligently drove the defendant’s car into the decedent’s car, causing decedent’s death. The court held in effect that, even assuming the defendant’s violation of the ordinance to be negligence, the thief’s negligent driving was the proximate cause of the collision and any negligence of the defendant was too remote to constitute the proximate cause of the death. Also cited at this point in Liberto was the Maryland case of Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 387, 18 A.2d 592 (1941), as supporting the proposition that where the negligence of one person is merely passive and potential and the negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and determines the liability. Other cases cited in Liberto as representing the view of the majority of the courts with which the Liberto court expressed its agreement also held that the negligent conduct of a thief was an intervening cause which the respective defendants were not bound to anticipate and guard against. See Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560 (Mass. 1948); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 91 So.2d 243 (Miss. 1956); Wannebo v. Gates, 227 Minn. 194, 34 N.W.2d 695 (Minn.1948); Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778 (Mass.1927). The uncontradicted evidence in the instant case showed that the tow truck could not have been moved, without human manipulation, from its last parking place on defendant’s property to the position on U. S. Route 40 where it was struck by McAllister’s car; that it had not been parked on the highway by defendant or his employee; that its emergency brake was set at the time of the collision, and that its engine was warm thirty minutes after the accident. The only permissible inference to be drawn by the trier of fact from this evidence was that an unknown and unauthorized third person moved the tow truck from its safe position on defendant’s private property and parked it without lights in the right westbound lane of U. S. Route 40 where it hazardously obstructed the right of way. Under the circumstances, the unauthorized action of the unknown person in leaving the tow truck unlighted and on the traveled portion of the highway was clearly negligent and in violation of the Maryland statutes. See art. 66½, §§ 244, 271 and 276, Annotated Code of Maryland (1957) (Supp. 1962), and cases there noted. Such negligence by an unknown third person was no more foreseeable to the defendant here than was the negligence of the various third party thieves and intermeddlers foreseeable to the respective defendants in Liberto and the above mentioned cases therein cited. In each of those cases the court held that any prior negligence of the defendant in leaving the key in the motor vehicle in violation of a statute or ordinance was too remote to be the proximate cause of the accident. We find the situation in the instant case sufficiently similar so that it should be governed by the reasoning of Liberto and the cited cases therein approved and followed. The negligence of the unknown and unauthorized driver was an independent intervening cause which was the proximate cause of the collision and plaintiff’s injuries. In order to sustain his cause of action, it was incumbent upon plaintiff to show not only that defendant owed him a duty of care and breached it, but also that the breach of that duty had not been interrupted by a break in the chain of causation. We are of the opinion that plaintiff failed to prove that the leaving of the key in the tow truck was the proximate cause of the accident. Therefore, under the applicable law of Maryland, the action of the trial court in granting defendant’s motion for judgment n. o. v. was proper. Affirmed. . In Liberto, the Maryland Court of Appeals, in its footnote 1, 221 Md. at 66, 155 A.2d at 700, indicated that it had considered and rejected several ont-of-state cases which were decided on the theory that theft and subsequent negligence in the use of the stolen vehicle were foreseeable and were proximate results of leaving the key in an unattended vehicle in violation of a statute or municipal ordinance. In Ross v. Hartman, 78 U.S.App. D.C. 217, 158 A.L.R. 1370, 139 F.2d 14 (D.C.Cir.1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944), one of the cases rejected in Liberto, the theft and accident occurred within two hours after the ignition key was left in the unattended truck, and it was held as a matter of law that the violation of the District of Columbia safety ordinance was negligence and a proximate cause of plaintiff’s injuries because it created the hazard and thereby brought about the harm which the ordinance was intended to prevent. The further comment was made: “The fact that the intermeddler’s conduct was itself a proximate cause of the harm, and was probably criminal, is immaterial.” (139 F.2d at 16.) In Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537 (Ill.App.1948), also rejected,’the accident occurred six and one-half blocks from the place of theft, and it, was held that a jury could find the violation of the safety statute was the proximate cause of the plaintiff’s injuries, the court explaining, “ * * * a statute may by its obvious intent enlarge upon the general definition of proximate cause.” The Liberto court also noted Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74 (1954), and Garbo v. Walker, Ohio Com.Pl., 129 N.E.2d 537 (C.P., Ohio 1955), in both of which the thief was fleeing the scene in the stolen automobile when the accident occurred and where causation and foreseeability were held to be jury questions. The rejection of these cases by the Maryland Court of Appeals is a further indication of its acceptance of the view that the intervening actions of a thief break the causal chain, leaving neither foreseeability nor proximate cause for jury determination. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:

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