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songer_usc1sect	183	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 46. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". CUSHING et al. v. MARYLAND CAS. CO. et al. No. 13887. United States Court of Appeals Fifth Circuit. July 31, 1952. Rehearing Denied Oct. 9, 1952. See 198 F.2d 1021. James J. Morrison, Arthur A. de la Hous-saye, Raymond H. Kierr, Gerard A. Rault, New Orleans, La., for appellants. Eberhard P. Deutsch, Brunswick G. Deutsch, New Orleans, La., for appellees. Before HOLMES, STRUM, and RIVES, Circuit Judges- STRUM, Circuit Judge. This appeal is from a summary judgment dismissing, as to the insurers involved, five consolidated actions at law brought to recover damages for the death of five seamen who drowned when the tug boat “Jane Smith” collided with a ¡bridge, capsized and sank in navigable waters within the admiralty jurisdiction in Louisiana. Federal jurisdiction is asserted both under Sec. 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and upon diversity of citizenship. The suits are against Texas & Pacific Railway Company, owner of the bridge, and Maryland Casualty Company and Home Insurance Company, who are the liability insurance underwriters of the owner and charterer of the tug, insuring against loss of life by, or personal injury to, the crew of said vessel. The complaints allege that the deaths were due to the negligence of the bridge owner, and of the owner and •charterer of the tug. Plaintiffs assert the right to directly sue the insurers under Louisiana’s “direct action” statute, Title 22, Sec. 655, La.Rev.Stat. 1950, LSA-R.S. 22:655, which provides in part: “The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy, * * * and said action may be brought against the insurer alone or against both the insured and the insurer, jointly * * The policies involved were issued and delivered in Louisiana. The dominant question is whether or not the statute applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters. The district judge answered the question negatively. He was of the view that Sec. 655, supra, which relates to “liability” insurance, is confined to the ordinary type of liability insurance as defined in Title 22, Sec. 6(4), La.Rev. Stat.1950, LSA-R.S. 22:6(4), and does not extend to “Marine protection and indemnity insurance,” as defined in subd. (13) (e) of that title, which is the type of policy here sued upon. He was further of the view that to give effect to the direct action statute as to these policies would be an invasion of the field of exclusive federal jurisdiction over admiralty and maritime matters which would not only impair the characteristic features of general maritime law, but would contravene the essential purpose of limitation of liability proceedings in admiralty, under 46 U.S.C.A. § 183, which have ¡been instituted by this owner and charterer, and in which these plaintiffs have filed claims. As one of the policies also provides hull insurance, the district judge was further of the view that to the extent of plaintiffs’ recovery in the limitation proceedings, the owner would be compelled to surrender insurance money to the claimants therein, contrary to the rule established in Norwich & N.Y. Transp. Co. v. Wright, 13 Wall. 104, 80 U.S. 104, 20 L.Ed. 585, and in City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134, that an owner’s liability is confined to the value of the vessel after the damage, not before, and that insurance money belongs to- the owner, not to the claimants. It appears to us that in enacting Sec. 655, supra, the Louisiana legislature used the term “liability insurance,” in its broad generic sense, meaning that form of insurance by which an insured is indemnified against liability on account of bodily injuries sustained by others. The statute is not limited to the one type of liability insurance defined in Sec. 6(4), Title 22, supra, but extends as well to marine liability insurance of the type here involved. The statute is remedial. It should be liberally construed to accomplish its obvious purpose, which is to- afford an injured person a direct action against a compensated insurer who has assumed ultimate liability. There is no- indication in Sec. 655 that the Louisiana legislature intended to deny the right of direct action to persons covered by marine policies, while extending it to all others. On the contrary, it appears to us that it was intended, so far as the state legislative powers are effective, to extend the right to all persons covered by what is broadly known as “liability insurance,” including policies of the type here in question. While the policies sued on cover marine activities, fundamentally they are ordinary contracts of indemnity insurance. Title 28 U.S.C.A. § 1333, a part of the original Judiciary Act of 1789, provides that United States district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” Applying this clause in upholding the validity of the New York Arbitration statute as applied to a dispute under a charter party made and to be performed in that state, the United States Supreme Court said; “The ‘right of a common-law remedy,’ so saved to suitors, does not * * * include attempted changes 'by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved. * * * A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. * * * But otherwise, the state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit. * * * In no case has this court held void a state statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.” Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 277, 68 L.Ed. 582, 586. These principles are determinative here. While Sec. 655, supra, confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully .assumed ¡by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction. These suits are at law, not in admiralty. Appellees, the insurers, further contend that the Jones Act, 46 U.S.C.A. § 688, creates a right of action against an injured seaman’s employer, but not against the employer’s liability underwriter, and that the State of Louisiana can not add to the rights created by the Jones Act. It is unnecessary, however, to determine that question. Even if there were no jurisdiction, nor any right of action, under the Jones Act, which we do not decide, diversity of citizenship exists between all plaintiffs and the defendant insurers, and more than $3,000.00 is involved in each suit. These circumstances support federal jurisdiction. The complaints contain averments which sufficiently assert liability upon general principles of negligence, and also for accidental death within tlie coverage of the policies sued upon, so that a cause of action is stated. Appellees’ contentions over-mflate a relatively simple proposition with apparent, but unreal, technical problems. Stripped of illusory technicalities, the Louisiana statute merely creates in favor of one who has been wrongfully injured, an additional and cumulative remedy at law against an insurer who has agreed to indemnify the tort-feasor against liability, by subrogating the injured person to all the rights of the insured within the terms and limits of the policy. Other existing remedies are not in the least impaired or affected. New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. Such contracts of insurance are for the benefit of the public, as well as of the insured employer. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351; West v. Monroe Bakery, Inc., 217 La. 189, .46 So.2d 122. The statute is simply a regulation by the state of insurance companies doing business within its boundaries, for which there is ample sanction in federal law. 15 U.S. C.A. §§ 1011, 1012, the McCarran Act. The limitation of liability statutes, 46 U.S. C.A. § 183 et seq., relate, not to “the business of insurance” as mentioned in the McCarran Act, but to the liability of shipowners. The object of that proceeding is to limit the liability of the owner, not to preclude injured persons from pursuing any remedy open to them against others. To permit such an action will not defeat the purpose of the federal limitation of liability statute, nor will it interfere with the harmony or uniformity of admiralty law in its international or interstate relations. That the remedy may not exist in states other than Louisiana is not a tenable objection. The same was true in Red Cross Line v. Atlantic Fruit Co., supra, involving the New York Arbitration statute. The Louisiana statute is wholly a regulation of the liability of insurers doing business in Louisiana upon obligations voluntarily assumed by them there. We see no reason why it should not be applied to liability policies such as those here sued upon, even though the injuries were suffered upon navigable waters. Federal jurisdiction exists, and the complaints state a cause of action. Reversed and remanded. . The district judge said [99 F.Supp. 683]: “If these plaintiffs should be paid any part of their claims in the limitation proceedings, then the shipowner under his contracts of insurance has a right to bo reimbursed by his underwriters. If the underwriters’ exposure on the policies is exhausted in paying the claims in this case, then the shipowner’s right against his insurers will avail him nothing. “The effect therefore of allowing these plaintiffs to proceed directly against the shipowner’s insurers -would be to force the owner to turn his insurance into the limitation proceeding as part of ‘the interest of such owner in such vessel’. This the owner is not required to do. City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134.” . Gager v. Teche Transf. Co., La.App., 143 So. 62; Hudson v. Georgia Cas. Co., D.C., 57 F.2d 757. . See also Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, and Great Lakes D. & D. Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, holding that although admiralty affords no relief for wrongful death under general maritime lawr, an action in personam, may be maintained in admiralty under a state “wrongful death” statute to recover for a death upon navigable waters as a result of a maritime tort. (Statutory remedies for personal injures or death suffered by a seaman, or for wrongful death on the high seas, are now provided by 46 U.S.C.A. §§ 688, 761). Also, see Jarka Corp. v. Hellenic Lines, 2 Cir., 182 F.2d 916, 919, holding general New York law applicable to a stevedoring contract, which is a maritime contract. What was said as to “uniformity” in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, has. been sharply limited by Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1087, 87 L.Ed. 1416. . Fisher v. Home Indemnity Co., 5 Cir., 198 F.2d 218; New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R. 2d 128; Belanger v. Great American Indemn. Co., D.C.La., 89 F.Supp. 736; West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122. . “Congress declares that the continued regulation * * * by the several States of the business of insurance is in tb© public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation * * * of such business by the several states.” 15 U.S.C.A. § 1011. “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance * * * unless such Act specifically relates to the business of insurance”. 15 U. S.C.A. § 1012(b). 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 46? Answer with a number. Answer:
songer_casetyp1_2-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights". Lee MEYERSON, Plaintiff-Appellant, v. The STATE OF ARIZONA; Arizona Board of Regents; Ralph M. Bilby; Rudy E. Campbell; Esther N. Capin; Earl H. Carroll; Thomas Chandler; William G. Payne; William P. Reilly; Tio A. Tachias; Renee Marler; John Schwada; Paige E. Mulhollan; Karl H. Dannenfeldt; Joyce Foster; Guido Weigand; Austin Jones; Leonard D. Goodstein; Peter Killeen; John Does I thru V; and Jane Does I thru V, Defendants-Appellees. No. 81-5996. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 14, 1982. Decided May 9, 1983. Thomas E. Littler, Charles D. Roush, Treon, Warnicke & Roush, Phoenix, Ariz., for plaintiff-appellant. Stephen K. Smith, Phoenix, Ariz., for defendants-appellees. Before WALLACE and FERGUSON, Circuit Judges, and GRANT, District Judge. Honorable Robert A. Grant, United States District Judge, Northern District of Indiana, sitting by designation. WALLACE, Circuit Judge: Meyerson, a handicapped psychology professor at Arizona State University (the University), charged the University with discrimination under four different statutory provisions: (1) section 504 of the Rehabilitation Act of 1973, as amended (the Act), 29 U.S.C. § 794, (2) section 503 of the Act, 29 U.S.C. § 793, (3) 42 U.S.C. § 1983, and (4) the Revenue Sharing Act, 31 U.S.C. §§ 1242, 1244(a). The district judge granted the University’s motion for summary judgment on each statutory claim. Meyerson v. Arizona, 507 F.Supp. 859 (D.Ariz. 1981); Meyerson v. Arizona, 526 F.Supp. 129 (D.Ariz.1981). Meyerson appeals the entry of summary judgment only on his claims under section 503, section 504, and section 1983. We affirm. I Meyerson is a professor of psychology whose hearing is impaired to the extent that he must depend upon lip reading skills. He also suffers from a hip ailment, the result of a childhood disease. The University does not contest Meyerson’s handicapped status and admits that it was aware of his condition when he was hired in 1967. Mey-erson charges that the University has discriminated against him in four ways: by preventing him from advancing and fostering his fields of study, by failing to provide him with sufficient resources for research and study, by impairing his opportunities for professional development, and by paying him a salary which is not commensurate with his experience or service. After pursuing administrative remedies through the University, Meyerson filed a section 503 complaint with the United States Department of Labor (the Department). The Department found that the University had discriminated against Mey-erson, and has apparently sought to alleviate some of the conditions at the University. Although the parties dispute the effect of the Department’s activities, Meyerson admits that “the situation at ASU with regard to discrimination has improved” since he pursued his legal remedies. Meyerson filed a complaint in district court asserting claims under sections 503 and 504 of the Act, section 1983, and section 1242 of the Revenue Sharing Act. The University moved for summary judgment on all four claims. The district court granted the University’s motion on the section 503 claim and dismissed without prejudice Meyerson’s claim under the Revenue Sharing Act for failure to exhaust administrative remedies. 507 F.Supp. at 860-62, 864. The district judge also denied without prejudice the University’s motion on the section 504 claim because of an inadequate record. Id. at 862-63. He also denied the University’s motion on the section 1983 claim, pending the resolution of the section 504 issue. The district judge additionally held that Meyerson could not assert a section 1983 claim based on section 503. Id. at 864. After discovery, the parties filed cross-motions for summary judgment. The district judge granted the University’s motion on the section 504 and section 1983 claims. 526 F.Supp. at 129. On appeal, Meyerson has abandoned his claim under the Revenue Sharing Act and his section 1983 claim based on section 504. He appeals from the summary judgment entered on his sections 503 and 504 claims, and on his section 1983 claim based on section 503. II Section 504 of the Act prohibits discrimination against the handicapped. It states in part that: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... 29 U.S.C. § 794. In a case decided after Meyerson filed this appeal, we stated that a private action under section 504 “cannot be maintained unless a primary objective of the federal financial assistance is to provide employment.” Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir.1982) (Scanlon). Accord United States v. Cabrini Medical Center, 639 F.2d 908 (2d Cir.1981); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672, 674-75 (8th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980); Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th Cir.1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979); contra Jones v. Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1378-80 (11th Cir.1982). The district court held that Mey-erson failed to clear this initial hurdle. Meyerson first requests that we reconsider our holding in Scanlon, contending that our analysis there conflicts with the Supreme Court’s recent decision in North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (North Haven) (holding that employment discrimination comes within Title IX’s prohibition). See Le Strange v. Consolidated Rail Corp., 687 F.2d 767, 777-78 (3d Cir.1982) (Adams, J. & Weis, J., concurring) (rejecting the “primary objective” requirement as inconsistent with the Court’s analysis in North Haven), cert. granted, - U.S. -, 103 S.Ct. 1181, 75 L.Ed.2d 429 (1983). North Haven, however, was issued one week prior to our filing of Scan-lon and over four months before the panel’s decision to deny the petition for rehearing. Thus, we must ascribe knowledge of North Haven to the panel in Scan-lon. North Haven is not directly contrary to Scanlon. Since we are not permitted to reverse the decision of a panel of this court, absent a contrary intervening Supreme Court decision or a convening of our court en banc, we must adhere to our holding in Scanlon. Meyerson next claims that even conceding the validity of Scanlon, the district court erred in holding that employment was not a primary objective of the federal assistance received by the University. The federal assistance to the University consisted of instructional and research grants. Their primary purpose was to further scientific research and assist in the training of clinical psychologists. Undoubtedly, these programs provided employment for various professors and graduate students. Nevertheless, such a minimal and incidental effect on employment could not have been one of the primary purposes of the grants. Indeed, almost all federal assistance results in an increase of at least some employment. Therefore, to adopt Meyerson’s argument would essentially eliminate the “primary objective” requirement, in derogation of the congressional intent. We conclude that providing employment was not one of the primary objectives of the instructional and research grants made by the government to the University. ill Section 503 of the Act requires affirmative action programs for employing the handicapped. It states that: Any contract in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract^] the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 706(7) of this title.... 29 U.S.C. § 793(a). Subsequent to the district court’s decision in this case, we decided Fisher v. City of Tucson, 663 F.2d 861 (9th Cir.1981), cert. denied, -U.S. -, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982) (Fisher). Employing the four-part test of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), we concluded that section 503 does not give rise to a private right of action. 663 F.2d at 863-67. Meyerson makes no attempt to distinguish Fisher, requesting only that we reconsider our earlier holding. Again, this argument is one that may be made properly in a suggestion for rehearing en banc, but not to us. IV Meyerson contends that although Fisher forecloses a private cause of action based directly on section 503, he may still assert a claim under 42 U.S.C. § 1983 based on a violation of section 503. Although we were not confronted with this question in Fisher, our reading of that case and our own independent analysis of the statutory scheme of enforcement under section 503 compel the conclusion that Meyerson cannot circumvent the holding in Fisher by asserting his section 503 claim via section 1983. Section 1983 provides a private cause of action for a violation of a federal statute under color of state law. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). A plaintiff’s failure to prove that a private cause of action may be inferred from a statute does not necessarily preclude a remedy under section 1983 based on that statute. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 18-19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981) (Mid-dlesex). However, the Supreme Court has identified two exceptions to the application of section 1983 to statutory violations: (1) where Congress has foreclosed private enforcement of that statute in the enactment itself, and (2) where the statute does not create “enforceable rights.” Id. at 19, 101 S.Ct. at 2626; Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981) (Pennhurst). Our task is to determine if either of these exceptions applies to section 503. The district court rejected Meyerson’s section 1983 claim because it concluded that section 503 conferred no substantive rights upon handicapped persons. 507 F.Supp. at 864. Thus, the district court’s dismissal fits within the second Middlesex exception, the “rights” exception. Meyerson argues that the district court’s conclusion cannot be upheld due to our holding in Fisher, supra. Employing the first prong of the Cort v. Ash test, we inquired in Fisher whether Congress intended to confer federal rights on the beneficiaries of section 503. Fisher, supra, 663 F.2d at 863-64. Answering affirmatively, we concluded: While we agree with the Fifth Circuit’s ultimate conclusion that section 503 does not create a private right of action, we do find that the statute creates a federal right on behalf of the protected class. Clearly the statute was intended to benefit handicapped persons. The statute also provides that any handicapped individual who believes that a contractor is not in compliance with his contract may file a complaint with the DOL, which has investigatory and enforcement powers. It seems apparent that Congress did intend to confer some federal rights on handicapped individuals. Id. (citation and footnote omitted) (emphasis added). Meyerson contends that this language precludes the University from asserting the second Middlesex exception as a bar to his section 1983 claim. The implication of Mey-erson’s argument is that a finding for plaintiff under the first prong of the Cort v. Ash analysis precludes a defendant’s assertion of the second Middlesex exception. The University interprets this passage as stating only that a private party has a “right” to seek enforcement through the Department, not that section 503 creates a federal substantive “right” as that term is used by the Supreme Court in Pennhurst and Middle-sex. We need not resolve this question because we conclude that Meyerson’s suit is barred under the first Middlesex exception, the exclusivity exception. In applying this first exception, the Supreme Court has stated that, “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex, supra, 453 U.S. at 20, 101 S.Ct. at 2626. The Act establishes the Department as the agency responsible for enforcing its provisions: If any handicapped individual believes any contractor has failed or refuses to comply with the provisions of his contract with the United States, relating to employment of handicapped individuals, such individual may file a complaint with the Department of Labor. The Department shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant, consistent with the terms of such contract and the laws and regulations applicable thereto. 29 U.S.C. § 793(b). The administrative mechanism for enforcing the Act is set out at 41 C.F.R. §§ 60-741.1 through 60-741.54. Under these provisions, any government contract or subcontract for more than $2,500 must contain an affirmative action clause. Id. §§ 60-741.4 and 60-741.20. If the Department discovers a violation of the affirmative action clause or of the regulations, it is instructed to proceed “by informal means, including conciliation, and persuasion, whenever possible.” Id. § 60-741.28(a). If these efforts are unsuccessful, the Department’s authorized representative may bring suit to enforce the contractual provisions, withhold progress payments on the contract, terminate a contract in whole or in part, or debar a contractor from receiving future government contracts. Id. § 60-741.28(b)-(e). The question before us is whether Congress intended these administrative remedies to be the exclusive remedies under section 503 of the Act. In Fisher, supra, under our analysis of the third prong of Cort v. Ash, we concluded that a private action under section 503 would be inconsistent with the administrative scheme provided by Congress. We held that “Congress intended to leave the supervision of the affirmative action programs to the [Department].” 663 F.2d at 867. As indicated earlier, we realize there are differences between the analysis under Cort v. Ash of whether a private cause of action can be inferred from a statute and the analysis of whether Congress intended certain remedies to be exclusive. In this case, however, we conclude that the explicit finding in Fisher that Congress intended to leave the supervision of the affirmative action programs to the Department disposes of the exclusivity question. We could not now find that Congress did not intend the administrative remedies to be exclusive without directly contradicting Fisher. Moreover, the same reasons which led to our conclusion in Fisher are applicable here. We stated there that judicial inquiry would only duplicate the Department’s investigation of factual allegations. Id. at 867. This observation supports a conclusion that Congress intended the administrative remedies to be exclusive. We indicated in Fisher our doubt that Congress intended us to review the affirmative action plans of governmental entities. Id. Indeed, statutes mandating affirmative action, as opposed to statutes prohibiting discrimination, lend themselves more easily to administrative enforcement than judicial review. This conclusion is reinforced by Congress’s mandate that the Department employ means of persuasion and quiet coercion to direct the behavior of statutory offenders. Thus, our independent reading of the statutes and regulations leads us to conclude that Congress intended to foreclose private actions under section 503, whether they are brought directly under section 503 or indirectly under section 1983. Meyerson contends that Congress could not have intended to foreclose a private action because the available administrative remedies are insufficient. He argues that drastic remedies such as the termination of funds are seldom employed and, hence, are ineffective. He argues further that this insufficiency is illustrated by his own case, in which the Department has found that he was discriminated against by the University, but, he asserts, no significant changes have resulted. It is not our function, however, to “consider whether the current enforcement mechanism is the best method to effectuate the purposes of the Act; our function is to determine the intent of Congress.” Fisher, supra, 663 F.2d at 867. We have concluded that Congress intended these remedies to be exclusive; it is largely irrelevant whether we think that these remedies are efficacious. In addition, we have difficulty accepting Meyerson’s conclusion that the enforcement scheme is ineffective. A variety of techniques to seek compliance with the Act may be employed, including informal persuasion. These techniques have been somewhat effective in Meyerson’s own case, as evidenced by the changes that he admits have taken place since he pursued his remedies. Because much of the Department’s effort took place subsequent to the district court action and thus is not part of the record before us, we are unable to determine the extent to which the enforcement mechanism has been effective. Furthermore, in an era of intense competition for federal funds, we cannot say that the available remedies are ineffective. The ability of government entities, such as the University, to compete for scarce federal funds might well be hindered by a record of discriminatory practices toward the handicapped. Thus, although Meyerson may feel unsatisfied by the remedies pursued on his behalf in this case, we cannot say that the administrative enforcement scheme is insufficient to effectuate the policies of the Act. Therefore, we affirm the district court’s dismissal of Meyerson’s section 1983 claim although for a different reason than that offered by the district court. We hold that Congress has foreclosed private enforcement of section 503 by providing a comprehensive remedial scheme under the authority of the Department. AFFIRMED. . The district court apparently rejected Meyer-son’s claim both because he failed to establish a sufficient nexus between himself and the federal assistance received by the University, and because he failed to show that a primary objective of the federal assistance was to provide employment. Meyerson v. Arizona, 526 F.Supp. 129, 130-31 (D.Ariz.1981). Since we conclude that Meyerson fails to establish that the research grants had a primary purpose to provide employment, we need not consider the nature of the nexus requirement or whether it was established by Meyerson. . Section 1983 states that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The Supreme Court has held that section 1983 applies to violations of all federal statutes, not just civil rights statutes. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). . The most salient difference involves the allocation of the burden of proof. The burden is on the plaintiff to show that Congress intended to create a private cause of action when it enacted a particular statute. See Osborn v. American Association of Retired Persons, 660 F.2d 740, 745 (9th Cir.1981) (silent legislative history and lack of express statutory language are enough to defeat inference of a private cause of action). On the other hand, the burden is not on the plaintiff to demonstrate congressional intent to preserve section 1983 remedies. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 21 n. 31, 27-28 n. 11, 101 S.Ct. 2615, 2626 n. 31, 2630 n. 11, 69 L.Ed.2d 435 (majority opinion and opinion of Stevens, J., dissenting). Nevertheless, in this case both the express language and the reasoning of Fisher preclude us from permitting Meyerson to assert a claim under section 1983, regardless of who shoulders the burden of proof. Question: What is the specific issue in the case within the general category of "civil rights"? A. civil rights claims by prisoners and those accused of crimes B. voting rights, race discrimination, sex discrimination C. other civil rights Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. No. 18566. United States Court of Appeals Fifth Circuit. Feb. 15, 1961. Herf M. Weinert, Beaumont, Tex., Robert E. May, Washington, D. C., for appellant. John C. Mason, Gen. Counsel, F. P. C., Howard E. Wahrenbrock, Sol., Washington, D. C., for appellee. Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges. PER CURIAM. The Federal Power Commission has filed its motion to dismiss the Petition for Review filed by Sun Oil Company. Its Petition for Review seeks to have this Court set aside two orders of the Federal Power Commission, one issued June 2, 1960 and the other issued July 15, 1960. The proceedings that were before the Commission and which were dealt with by the said orders were in docket Nos. G-13617, G-13619, G-16685, and G — 16686. The motion to dismiss is based on the ground that the orders appealed from are not final orders of the Commission and thus are not subject to review. Briefly stated, the orders denied motions made by the petitioner that the Commission terminate the proceedings then pending in the docket numbers referred to. The state of the proceedings at the time was that several increases in rates had been filed by Sun and had been suspended under Section 4(e) of the Natural Gas Act, 15 U.S.C.A. § 717c(e), and Sun was collecting the higher rates under the undertaking to make refunds if the rates were not ultimately approved. Proof had already been taken under the Section 4(e) proceeding, but the investigation had not been completed. The basis of Sun’s motion to terminate was its contention that the Commission had terminated other proceedings in like situations, and Sun contended that “It was manifestly unfair and discriminatory for the Commission to terminate suspension proceedings involving other independent producers, even though general rate proceedings had been instituted and some were being heard, * * * ” and to refuse at the same time to terminate Sun’s proceedings under identical circumstances. This effort to cause the Commission to terminate proceedings during the investigation period and the Commission’s refusal to do so, of course, deals with an interlocutory or non-final issue. Sun may still obtain all the benefits it seeks if the Commission’s proceedings are permitted to go to a normal conclusion. The Commission’s refusal to abort the proceedings is not a reviewable order under the clear authority of Magnolia. Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, and associated cases. In order to conserve the time, expense and energies of both parties we deem it appropriate to dispose of this motion summarily, rather than to delay its consideration until the case would otherwise be reached in its normal place on the calendar. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. NIXON v. ADMINISTRATOR OF GENERAL SERVICES et al. No. 75-1605. Argued April 20, 1977 Decided June 28, 1977 BrenNAN, J., delivered the opinion of the Court, in which Stewaet, MaRshall, and Stevens, JJ., joined; in all but Part VII of which White, J., joined; in all but Parts IV and V of which Powell, J., joined; and in Part VII of which Blackmun, J., joined. Stevens, J., filed a concurring opinion, post, p. 484. White, J., post, p. 487, Blackmun, J., post, p. 491, and Powell, J., post, p. 492, filed opinions concurring in part and concurring in the judgment. Burger, C. J., post, p. 504, and Rehnquist, J., post, p. 545, filed dissenting opinions. Herbert J. Miller, Jr., and Nathan Lewin argued the cause for appellant. With them on the briefs were R. Stan Morten-son, Raymond G. Larroca, Martin D. Minsker, and William H. Jefjress, Jr. Solicitor General McCree argued the cause for the federal appellees. On the brief were former Acting Solicitor General Friedman, Acting Assistant Attorney General Babcock, Deputy Assistant Attorney General Goldbloom, Robert E. Kopp, and Anthony J. Steinmeyer. Robert E. Herzstein argued the cause for appellees Reporters Committee for Freedom of the Press et al. With him on the brief were Andrew S. Krulwich, Mark J. Spooner, Peter T. Grossi, Jr., and Leonard B. Simon. Leon Friedman, John H. F. Shattuck, and Joel M. Gora filed a brief for appellees Heilman et al. William A. Dobrovir and Andra N. Oakes filed a brief for appellee Anderson. Mr. Justice Brennan delivered the opinion of the Court. Title I of Pub. L. 93-526, 88 Stat. 1695, note following 44 U. S. C. § 2107 (1970 ed., Supp. V), the Presidential Recordings and Materials Preservation Act (hereafter Act), directs the Administrator of General Services, an official of the Executive Branch, to take custody of the Presidential papers and tape recordings of appellant, former President Richard M. Nixon, and promulgate regulations that (1) provide for the orderly processing and screening by Executive Branch archivists of such materials for the purpose of returning to appellant those that are personal and private in nature, and (2) determine the terms and conditions upon which public access may eventually be had to those materials that are retained. The question for decision is whether Title I is unconstitutional on its face as a violation of (1) the separation of powers; (2) Presidential privilege doctrines; (3) appellant’s privacy interests; (4) appellant’s First Amendment associational rights; or (5) the Bill of Attainder Clause. On December 19, 1974, four months after appellant resigned as President of the United States, his successor, President Gerald R. Ford, signed Pub. L. 93-526 into law. The next day, December 20, 1974, appellant filed this action in the District Court for the District of Columbia, which under § 105 (a) of the Act has exclusive jurisdiction to entertain complaints challenging the Act’s legal or constitutional validity, or that of any regulation promulgated by the Administrator. Appellant’s complaint challenged the Act’s constitutionality on a number of grounds and sought declaratory and injunctive relief against its enforcement. A three-judge District Court was convened pursuant to 28 U. S. C. §§ 2282, 2284. Because regulations required by § 104 of the Act governing public access to the materials were not yet effective, the District Court held that questions going to the possibility of future public release under regulations yet to be published were not ripe for review. It found that there was “no need and no justification for this court now to reach constitutional claims directed at the regulations... the promulgation of [which] might eliminate, limit, or cast [the constitutional claims] in a different light.” 408 F. Supp. 321, 336 (1976). Accordingly, the District Court limited review “to consideration of the propriety of injunctive relief against the alleged facial unconstitutionality of the statute,” id., at 335, and held that the challenges to the facial constitutionality of the Act were without merit. It therefore dismissed the complaint. Id., at 374-375. We noted probable jurisdiction, 429 U. S. 976 (1976). We affirm. I The Background The materials at issue consist of some 42 million pages of documents and some 880 tape recordings of conversations. Upon his resignation, appellant directed Government archivists to pack and ship the materials to him in California. This shipment was delayed when the Watergate Special Prosecutor advised President Ford of his continuing need for the materials. At the same time, President Ford requested that the Attorney General give his opinion respecting ownership of the materials. The Attorney General advised that the historical practice of former Presidents and the absence of any governing statute to the contrary supported ownership in the appellant, with a possible limited exception. 43 Op. Atty. Gen. No, 1 (1974), App. 220-230. The Attorney General’s opinion emphasized, however: “Historically, there has been consistent acknowledgement that Presidential materials are peculiarly affected by a public interest which may justify subjecting the absolute ownership rights of the ex-President to certain limitations directly related to the character of the documents as records of government activity.” Id., at 226. On September 8, 1974, after issuance of the Attorney General’s opinion, the Administrator of General Services, Arthur F. Sampson, announced that he had signed a depository agreement with appellant under the authority of 44 U. S. C. § 2107. 10 Weekly Comp, of Pres. Doc. 1104 (1974). We shall also refer to the agreement as the Nixon-Sampson agreement. See Nixon v. Sampson, 389 F. Supp. 107, 160-162 (DC 1975) (App. A). The agreement recited that appellant retained “all legal and equitable title to the Materials, including all literary property rights,” and that the materials accordingly were to be “deposited temporarily” near appellant’s California home in an “existing facility belonging to the United States.” Id., at 160. The agreement stated further that appellant’s purpose was “to donate” the materials to the United States “with appropriate restrictions.” Ibid. It was provided that all of the materials “shall be placed within secure storage areas to which access can be gained only by use of two keys,” one in appellant’s possession and the other in the possession of the Archivist of the United States or members of his staff. With exceptions not material here, appellant agreed “not to withdraw from deposit any originals of the materials” for a period of three years, but reserved the right to “make reproductions” and to authorize other persons to have access on conditions prescribed by him. After three years, appellant might exercise the “right to withdraw from deposit without formality any or all of the Materials... and to retain... [them] for any purpose...” determined by him. Id., at 161. The Nixon-Sampson agreement treated the tape recordings separately. They were donated to the United States “effective September 1, 1979,” and meanwhile “shall remain on deposit.” It was provided however that “[subsequent to September 1, 1979 the Administrator shall destroy such tapes as [Mr. Nixon] may direct” and in any event the tapes “shall be destroyed at the time of [his] death or on September 1, 1984, whichever event shall first occur.” Ibid. Otherwise the tapes were not to be withdrawn, and reproductions would be made only by “mutual agreement.” Id., at 162. Access until September 1, 1979, was expressly reserved to appellant, except as he might authorize access by others on terms prescribed by him. Public announcement of the agreement was followed 10 days later, September 18, by the introduction of S. 4016 by 13 Senators in the United States Senate. The bill, which became Pub. L. 93-526 and was designed, inter alia, to abrogate the Nixon-Sampson agreement, passed the Senate on October 4, 1974. It was awaiting action in the House of Representatives when on October 17, 1974, appellant filed suit in the District Court seeking specific enforcement of the Nixon-Sampson agreement. That action was consolidated with other suits seeking access to Presidential materials pursuant to the Freedom of Information Act, 5 U. S. C. § 552 (1970 ed. and Supp. V), and also seeking injunctive relief against enforcement of the agreement. Nixon v. Sampson, supra. The House passed its version of the Senate bill on December 3, 1974. The final version of S. 4016 was passed on December 9, 1974, and President Ford signed it into law on December 19. II The Act Public Law 93-526 has two Titles. Title I, the challenged Presidential Recordings and Materials-Preservation Act, consists of §§ 101 through 106. Title II, the Public Documents Act, amends Chapter 33 of Title 44, United States Code, to add §§ 3315 through 3324 thereto, and establish the National Study Commission on Records and Documents of Federal Officials. Section 101 (a) of Title I directs that the Administrator of General Services, notwithstanding any other law or agreement or understanding (e. g., the Nixon-Sampson agreement), “shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which— “(1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government; “(2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and “(3) were recorded during the period beginning January 20,1969, and ending August 9,1974.” Section 101 (b) provides that notwithstanding any such agreement or understanding, the Administrator also “shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials [as defined by 44 U. S. C. § 2101] of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.” Section 102 (a) prohibits destruction of the tapes or materials except as may be provided by law, and § 102 (b) makes them available (giving priority of access to the Office of the Watergate Special Prosecutor) in response to court subpoena or other legal process, or for use in judicial proceedings. This was made subject, however, “to any rights, defenses, or privileges which the Federal Government or any person may invoke....” Section 102 (c) affords appellant, or any person designated by him in writing, access to the recordings and materials for any purpose consistent with the Act “subsequent and subject to the regulations” issued by the Administrator under § 103. See n. 46, infra. Section 102 (d) provides for access according to § 103 regulations by any agency or department in the Executive Branch for lawful Government use. Section 103 requires custody of the tape recordings and materials to be maintained in Washington except as may otherwise be necessary to carry out the Act, and directs that the Administrator promulgate regulations necessary to assure their protection from loss or destruction and to prevent access to them by unauthorized persons. Section 104, in pertinent part, directs the Administrator to promulgate regulations governing public access to the tape recordings and materials. Section 104 (a) requires submission of proposed regulations to each House of Congress, the regulations to take effect under § 104 (b)(1) at the end of 90 legislative days unless either the House or the Senate adopts a resolution disapproving them. The regulations must take into account seven factors specified in § 104 (a), namely: “(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term 'Watergate’; “(2) the need to make such recordings and materials available for use' in judicial proceedings; “(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings to information relating to the Nation’s security; “(4) the need to protect every individual’s right to a fair and impartial trial; "(5) the need to protect any party’s opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials; “(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and "(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.” Section 105 (a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by § 105 (c) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. Section 105 (b) is a severability provision providing that any decision' invalidating a provision of the Act or a regulation shall not affect the validity or enforcement of any other provision or regulation. Section 106 authorizes appropriation of such sums as may be necessary to carry out the provisions of the Title. Ill The Scope of the Inquiry The District Court correctly focused on the Act’s requirement that the Administrator of General Services administer the tape recordings and materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to appellant such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government’s possession. The District Court also noted that in designing the regulations, the Administrator must consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. 408 F. Supp., at 334-340. This construction is plainly required by the wording of §§ 103 and 104. Regulations implementing §§102 and 103, which did not require submission to Congress, and which regulate access and screening by Government archivists, have been promulgated, 41 CFR § 105-63 (1976). Public-access regulations that must be submitted to Congress under § 104 (a) have not, however, become effective. The initial set proposed by the Administrator was disapproved pursuant to § 104 (b) (1) by Senate Resolution. S. Res. 244, 94th Cong., 1st Sess. (1975); 121 Cong. Rec. 28609-28614 (1975)., The Senate also disapproved seven provisions of a proposed second set, although that set had been withdrawn. S. Res. 428, 94th Cong., 2d Sess. (1976); 122 Cong. Rec. 10159-10160 (1976). The House disapproved six provisions of a third set. H. R. Res. 1505, 94th Cong., 2d Sess. (1976). The Administrator is of the view that regulations cannot become effective except as a package and consequently is preparing a fourth set for submission to Congress. Brief for Federal Appellees 8-9, n. 4. The District Court therefore concluded that as no regulations under § 104 had yet taken effect, and as such regulations once effective were explicitly made subject to judicial review under § 105, the court could consider only the injury to appellant’s constitutionally protected interests allegedly worked by the taking of his Presidential materials into custody for screening by Government archivists. 408 F. Supp., at 339-340. Judge McGowan, writing for the District Court, quoted the following from Watson v. Buck, 313 U. S. 387, 402 (1941): “No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.” 408 F. Supp., at 336. Only this Term we applied this principle in an analogous situation in declining to adjudicate the constitutionality of regulations of the Administrator of the Environmental Protection Agency that were in process of revision, stating: “For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel.” EPA v. Brown, 431 U. S. 99, 104 (1977). See also Thorpe v. Housing Authority, 393 U. S. 268, 283-284 (1969); Rosenberg v. Fleuti, 374 U. S. 449, 451 (1963); United States v. Raines, 362 U. S. 17, 20-22 (1960); Harmon v. Brucker, 355 U. S. 579 (1958). We too, therefore, limit our consideration of the merits of appellant’s several constitutional claims to those addressing the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government’s custody subject to screening by Government archivists. The constitutional questions to be decided are, of course, of considerable importance. They touch the relationship between two of the three coordinate branches of the Federal Government, the Executive and the Legislative, and the relationship of appellant to his Government. They arise in a context unique in the history of the Presidency and present issues that this Court has had no occasion heretofore to address. Judge McGowan, speaking for the District Court, comprehensively canvassed all the claims, and in a thorough opinion, concluded that none had merit. Our independent examination of the issues brings us to the same conclusion, although our analysis differs somewhat on some questions. IV Claims Concerning the Autonomy of the Executive Branch The Act was the product of joint action by the Congress and President Ford, who signed the bill into law. It is therefore urged by intervenor-appellees that, in this circumstance, the case does not truly present a controversy concerning the separation of powers, or a controversy concerning the Presidential privilege of confidentiality, because, it is argued, such claims may be asserted only by incumbents who are presently responsible to the American people for their action. We reject the argument that only an incumbent President may assert such claims and hold that appellant, as a former President, may also be heard to assert them. We further hold, however, that neither his separation-of-powers claim nor his claim of breach of constitutional privilege has merit. Appellant argues broadly that the Act encroaches upon the Presidential prerogative to control internal operations of the Presidential office and therefore offends the autonomy of the Executive Branch. The argument is divided into separate but interrelated parts. First, appellant contends that Congress is without power to delegate to a subordinate officer of the Executive Branch the decision whether to disclose Presidential materials and to prescribe the terms that govern any disclosure. To do so, appellant contends, constitutes, without more, an impermissible interference by the Legislative Branch into matters inherently the business solely of the Executive Branch. Second, appellant contends, somewhat more narrowly, that by authorizing the Administrator to take custody of all Presidential materials in a “broad, undifferentiated’' manner, and authorizing future publication except where a privilege is affirmatively established, the Act offends the presumptive confidentiality of Presidential communications recognized in United States v. Nixon, 418 U. S. 683 (1974). He argues that the District Court erred in two respects in rejecting this contention. Initially, he contends that the District Court erred in distinguishing incumbent from former Presidents in evaluating appellant’s claim of confidentiality. Appellant asserts that, unlike the very specific privilege protecting against disclosure of state secrets and sensitive information concerning military or diplomatic matters, which appellant concedes may be asserted only by an incumbent President, a more generalized Presidential privilege survives the termination of the President-adviser relationship much as the attorney-client privilege survives the relationship that creates it. Appellant further argues that the District Court erred in applying a balancing test to his claim of Presidential privilege and in concluding that, notwithstanding the fact that some of the materials might legitimately be included within a claim of Presidential confidentiality, substantial public interests outweighed and justified the limited inroads on Presidential confidentiality necessitated by the Act’s provision for Government custody and screening of the materials. Finally, appellant contends that the Act’s authorization of the process of screening the materials itself violates the privilege and will chill the future exercise of constitutionally protected executive functions, thereby impairing the ability of future Presidents to obtain the candid advice necessary to the conduct of their constitutionally imposed duties. A Separation of Powers We reject at the outset appellant’s argument that the Act’s regulation of the disposition of Presidential materials within the Executive Branch constitutes, without more, a violation of the principle of separation of powers. Neither President Ford nor President Carter supports this claim. The Executive Branch became a party to the Act’s regulation when President Ford signed the Act into law, and the administration of President Carter, acting through the Solicitor General, vigorously supports affirmance of the District Court’s judgment sustaining its constitutionality. Moreover, the control over the materials remains in the Executive Branch. The Administrator of General Services, who must promulgate and administer the regulations that are the keystone of the statutory scheme, is himself an official of the Executive Branch, appointed by the President. The career archivists appointed to do the initial screening for the purpose of selecting out and returning to appellant his private and personal papers similarly are Executive Branch employees. Appellant’s argument is in any event based on an interpretation of the separation-of-powers doctrine inconsistent with the origins of that doctrine, recent decisions of the Court, and the contemporary realities of our political system. True, it has been said that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others... Humphrey’s Executor v. United States, 295 U. S. 602, 629 (1935), and that “[t]he sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there.” Id., at 630. See also O’Donoghue v. United States, 289 U. S. 516 (1933); Springer v. Philippine Islands, 277 U. S. 189, 201 (1928). But the more pragmatic, flexible approach of Madison in the Federalist Papers and later of Mr. Justice Story was expressly affirmed by this Court only three years ago in United States v. Nixon, supra. There the same broad argument concerning the separation of powers was made by appellant in the context of opposition to a subpoena duces tecum of the Watergate Special Prosecutor for certain Presidential tapes and documents of value to a pending criminal investigation. Although acknowledging that each branch of the Government has the duty initially to interpret the Constitution for itself, and that its interpretation of its powers is due great respect from the other branches, 418 U. S., at 703,'the Court squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches. Rather, the unanimous Court essentially embraced Mr. Justice Jackson’s view, expressed in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952). “In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.” 418 U. S., at 707 (emphasis supplied). Like the District Court, we therefore find that appellant’s argument rests upon an “archaic view of the separation of powers as requiring three airtight departments of government,” 408 F. Supp., at 342. Rather, in determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U. S., at 711-712. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Ibid. It is therefore highly relevant that the Act provides for custody of the materials in officials of the Executive Branch and that employees of that branch have access to the materials only “for lawful Government use, subject to the [Administrator’s] regulations.” § 102 (d); 41 CFR §§ 105-63.205, 105-63.206, and 105-63.302 (1976). For it is clearly less intrusive to place custody and screening of the materials within the Executive Branch itself than to have Congress or some outside agency perform the screening function. While the materials may also be made available for use in judicial proceedings, this provision is expressly qualified by any rights, defense, or privileges that any person may invoke including, of course, a valid claim of executive privilege. United States v. Nixon, supra. Similarly, although some of the materials may eventually be made available for public access, the Act expressly recognizes the need both “to protect any party’s opportunity to assert any legally or constitutionally based right or privilege,” § 104 (a) (5), and to return purely private materials to appellant, § 104 (a)(7). These provisions plainly guard against-disclosures barred by any defenses or privileges available to appellant or the Executive Branch. And appellant himself concedes that the Act “does not make the presidential materials available to the Congress — except insofar as Congressmen are members of the public and entitled to access when the public has it.” Brief for Appellant 119. The Executive Branch remains in full control of the Presidential materials, and the Act facially is designed to ensure that the materials can be released only when release is not barred by some applicable privilege inherent in that branch. Thus, whatever are the future possibilities for constitutional conflict in the promulgation of regulations respecting public access to particular documents, nothing contained in the Act renders it unduly disruptive of the Executive Branch and, therefore, unconstitutional on its face. And, of course, there is abundant statutory precedent for the regulation and mandatory disclosure of documents in the possession of the Executive Branch. See, e. g., the Freedom of Information Act, 5 U. S. C. § 552 (1970 ed. and Supp. V); the Privacy Act of 1974, 5 U. S. C. § 552 (a) (1970 ed., Supp. V); the Government in the Sunshine Act, 5 U. S. C. § 552b (1976 ed.); the Federal Records Act, 44 U. S. C. §2101 et seq.; and a variety of other statutes, e. g., 13 U. S. C. §§ 8-9 (census data); 26 U. S. C. § 6103 (tax returns). Such regulation of material generated in the Executive Branch has never been considered invalid as an invasion of its autonomy. Cf. EPA v. Mink, 410 U. S. 73, 83 (1973); FAA Administrator v. Robertson, 422 U. S. 255 (1975). Similar congressional power to regulate Executive Branch documents exists in this instance, a power that is augmented by the important interests that the Act seeks to attain. See infra, at 452-454. B Presidential Privilege Having concluded that the separation-of-powers principle is not necessarily violated by the Administrator’s taking custody of and screening appellant’s papers, we next consider appellant’s more narrowly defined claim that the Presidential privilege shields these records from archival scrutiny. We start with what was established in United States v. Nixon, supra — that the privilege is a qualified one. Appellant had argued in that case that in camera inspection by the District Court of Presidential documents and materials subpoenaed by the Special Prosecutor would itself violate the privilege without regard to whether the documents were protected from public disclosure. The Court disagreed, stating that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege....” 418 U. S., at 706. The Court recognized that the privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities, but distinguished a President’s “broad, undifferentiated claim of public interest in the confidentiality of such [communications]” from the more particularized and less qualified privilege relating to the need “to protect military, diplomatic, or sensitive national security secrets... Ibid. The Court held that in the case of the general privilege of confidentiality of Presidential communications, its importance must be balanced against the inroads of the privilege upon the effective functioning of the Judicial Branch. This balance was struck against the claim of privilege in that case because the Court determined that the intrusion into the confidentiality of Presidential communications resulting from in camera inspection by the District Court, “with all the protection that a district court will be obliged to provide,” would be minimal and therefore that the claim was outweighed by “[t]he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch....” Id., at 706-707. Unlike United States v. Nixon, in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant’s assertion of a privilege against the very Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U. S. 1, 7-8 (1953), where it was said that the privilege “belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party.” The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F. Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that “carries much less weight than a claim asserted by the incumbent himself.” Id., at 345. It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. 'Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. Nixon, 418 U. S., at 714; cf. Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 501-503 (1975); Dombrowski v. Eastland, 387 U. S. 82, 8A-85 (1967) (per curiam), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege. Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it: “This Court held in United States v. Nixon... that the privilege is necessary to provide the confidentiality required for the President’s conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this' exchange cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure.” Brief for Federal Appellees 33. At the same time, however, the fact that neither President Ford nor President Carter supports appellant’s claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly. The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra. In that case the Court held that the privilege is limited to communications “in performance of [a President’s] responsibilities,” 418 U. S., at 711, “of his office,” id., at 713, and made “in the process of shaping policies and making decisions,” id., at 708. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant’s claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar. The appellant bases his claim of Presidential privilege in this case on the assertion that the potential disclosure of communications given to the appellant in confidence would adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking. We are called upon to adjudicate that claim, however, only with respect to the process by which the materials will be screened and catalogued by professional archivists. For any eventual public access will be governed by the guidelines of § 104, which direct the Administrator to take into account “the need to protect any party’s opportunity to assert any... constitutionally based right or privilege,” § 104 (a) (5), and the need to return purely private materials to the appellant, §104 (a)(7). In view of these specific directions, there is no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality. An absolute barrier to all outside disclosure is not practically or constitutionally necessary. As the careful research by the District Court clearly demonstrates, there has never been an expectation that the confidences of the Executive Office are absolute and unyielding. All former Presidents from President Hoover to President Johnson have deposited their papers in Presidential libraries (an example appellant has said he intended to follow) for governmental preservation and eventual disclosure. The screening processes for sorting materials for lodgment in these libraries also involved comprehensive review by archivists, often involving materials upon which access restrictions ultimately have been imposed. 408 F. Supp., at 347. The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office. We are thus left with the bare claim that the mere screening of the materials by the archivists will impermissibly interfere with candid communication of views by Presidential advisers. We agree with the District Court that, thus framed, the question is readily resolved. The screening constitutes a very limited intrusion by personnél in the Executive Branch sensitive to executive concerns. These very personnel have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality. Indeed, in light of this consistent historical practice, past and present executive officials must be well aware of the possibility that, at some time in the future, their communications may be reviewed on a confidential basis by professional archivists. Appellant has suggested no reason why review under the instant Act, rather than the Presidential Libraries Act, is significantly more likely to impair confidentiality, nor has he called into question the District Court’s finding that the archivists’ “record for discretion in handling confidential material is unblemished.” 408 F. Supp., at 347. Moreover, adequate justifications are shown for this limited intrusion into executive confidentiality comparable to those held to justify the in camera inspection of the District Court sustained in United States v. Nixon, supra. Congress’ purposes in 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_stateclaim	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. Carl WHITSON d/b/a Allen Mfg. Company, Plaintiff-Appellee, v. AURORA IRON & METAL CO., an Illinois corporation, Defendant-Appellant. No. 13422. United States Court of Appeals Seventh Circuit. Dec. 14, 1961. Maurice Rosenfield, Harold Stickler, Chicago, 111., for appellant. Bert Barefoot, Jr., Oklahoma City, Okl., Barefoot, Moler & Bohanon, formerly Bohanon & Barefoot, Oklahoma City, Okl., of counsel, for appellee. Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges. CASTLE, Circuit Judge. Carl Whitson, doing business as Allen Mfg. Co., plaintiff-appellee, brought this diversity action in the District Court against Aurora Iron & Metal Co., Inc., defendant-appellant, to recover, with interest, a balance allegedly due under a contract for the manufacture of a baling press and its installation on defendant’s premises. Defendant’s answer, among other things, counterclaimed for damages based on alleged breach of warranties and alleged fraudulent misrepresentations of the plaintiff in procuring the contract. The case was tried without a jury. The District Court, after making and entering detailed findings of fact and its conclusions of law, and overruling defendant’s post-trial motions for a new trial and to amend the findings, conclusions, and judgment, entered a judgment order in favor of plaintiff for $48,000.00 (the amount of the two $24,000.00 contract installment payments allegedly remaining due) with interest at 5 per cent per annum from December 15, 1958 to the date of judgment, and with interest thereafter at the same rate until paid, together with costs. Defendant appealed. The defendant’s appeal is premised on contentions that the court’s findings of fact are against the manifest weight of the evidence, its conclusions of law erroneous, and that the court erred in rulings admitting and excluding evidence. From our examination of the record we conceive the main contested issues presented by plaintiff’s appeal to be: (1) Whether the findings of fact are inadequate or clearly erroneous. (2) Whether rulings on the admission or exclusion of testimony resulted in reversible error. Plaintiff in early 1958 was the owner of a manufacturing and assembly plant in Seminole, Oklahoma, engaged in the construction of baling machines or presses designed to compress automobile bodies, tin and sheet iron into compact bales. Defendant operates a scrap iron and metal business at Aurora, Illinois, and in March 1958 was desirous of purchasing a press or baler capable of compressing automobile bodies. Defendant saw an advertisement of plaintiff’s describing his balers, made inquiry to plaintiff, and after being called on by plaintiff’s representative, visited the Seminole plant where a contract was entered into for the manufacture of a baler and its installation at defendant’s Aurora scrap yard. The written contract specified that the baling press was to be equipped with a complete hydraulic system consisting of three 100 horsepower electric motors, plus one 7% horsepower electric motor, and six Denison TMG8 pumps connected to the motors, plus one pilot and circulating pump. The hydraulic system was to be of 2000 pounds per square inch oil pressure. Manufacture of the baler was to be completed within 190 days from March 19, 1958, ready for loading, and completely installed within 60 working days from arrival on the railroad siding at defendant’s yard. Defendant w^s to provide and connect the outside electrical wiring and meter box. The agreement recited that: “The baler to be put in good operating condition on owners [defendant’s] property or yard; and fully guaranteed to bale full automobiles less motors, and tin and sheet iron of any kind. * * * ” The price stipulated was $125,000.00 payable in accordance with a schedule which provided for payment of the last two installments as follows: “The sixth payment is due in the sum of $24,000.00 when the press is fully installed, tested and working in good condition within thirty days. “The seventh and final payment is due in the sum of $24,000.00 sixty days after sixth payment. * * * ” The manufacture of the machine was nearing completion in August 1958 and Shelby Pielet, the officer of defendant who had executed the contract on its behalf, saw the baler demonstrated at the Seminole plant. Although defendant was in arrears on its scheduled payments the plaintiff, at defendant’s request, shipped the baler and it arrived at the Aurora yard on or about October 5, 1958. By late October or early November plaintiff’s crew had completed work on the installation of the baler at defendant’s yard but the defendant had not installed the outside electrical wiring necessary to its operation. Plaintiff’s mechanic, Love, who was to fill the oil tank and make the hookups and final adjustments, returned to Oklahoma with the crew, but with the expectation of coming back when defendant completed the outside wiring. The outside wiring was completed about ten days later but Love, because of the hospitalization of his wife did not return at once, and it was indicated that it might be several days before he would return. Defendant was anxious to commence baling operations with the machine and unwilling to wait until Love’s return to put it in operation. It procured the services of Redman, a sales engineer for a Chicago firm which was sales representative of the manufacturer-supplier of the valves used in the baler’s hydraulic system, to make the final adjustments on the valves to put the baler in operation. But Redman first recommended and defendant, over plaintiff’s protests, made various and substantial changes in the hydraulic system. Plaintiff immediately sought and obtained confirmation of the system, as furnished and installed, from the Hydraulic Press Company, the manufacturer-supplier of the valves, who had furnished the schematic for the hydraulic system, but the changes had been made in the interim. Redman did not get the machine to operate until Love returned and made certain adjustments, and then it did not operate satisfactorily. It was not until Love made further adjustments and reinstalled steel tubing Redman had replaced with copper that the press operated to satisfactorily bale a number of car bodies into good, tight bales. A pump shaft which broke in early December was replaced by plaintiff prior to December 15, 1958. In late January or early February 1959 plaintiff replaced a valve with one of different type on defendant’s complaint. In the latter part of February 1959 defendant employed Redman and Zilske, another sales engineer, to make recommendations as to alterations or changes. Subsequently the press was repaired and remodeled by defendant and thereafter was operative and productive on a sustained basis at the rate of 12 tons per hour. Defendant did not complete the fifth payment until December 3, 1958 although, under the contract payment schedule, it was due in early October when the machine arrived at Aurora for installation. The sixth and seventh payments were not made. During the period prior to February 12, 1959 defendant incurred expenditures totalling $998.55 for labor and materials in connection with work done on the baler which plaintiff authorized to be done at his expense. There was testimony that costs incurred by defendant for repairs and remodeling of the baler, including charges for supervision of the work by Shelby Pielet, together with the estimated cost of work yet to be done on the rejector and to rebuild the lid, which was bowed, totalled $24,038.33. The District Court concluded that any failure of the baler to operate in the manner contemplated by the contract, and the expense incurred for repairs or changes, were occasioned by defendant’s own conduct and its abuse of the baler. There is conflict in the testimony as to the causative factors. But there is testimony that the malfunctioning of the baler when it was first placed in operation was the result of changes the defendant had made in the hydraulic system on Redman’s advice and over plaintiff’s opposition, and that the later repairs and replacements, including those recommended by Redman and Zilske in the latter part of February 1959, were the result of misuse of the baler, such as its operation at pressures in excess of the 2000 pounds per square inch for which it was designed, the baling of two automobile bodies at a time, and the baling of steel clips, a metal product for which it was not designed. And this testimony is not without supporting inferences arising from other evidence. The conclusions of the District Court on this phase of the case are supported by adequate findings which, on the record before us, we cannot say are clearly erroneous. It is not our function, as a. court of review, to weigh the evidence, as defendant seems to urge. The trial court’s findings have substantial support in the record and, in this connection, we are required to give due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a), Federal Rules of Civil Procedure (28 U.S.C.A.). And these same considerations apply to the remaining aspects of the case in so far as factual issues are concerned. On the basis of the facts found by the District Court, and supported by the record, the baler was built and installed in conformity with the specifications of the written agreement and would have been turned over in good operating condition within the period fixed by the contract except for defendant’s interference through Redman. And after the initial difficulty caused by Redman’s changes was corrected by plaintiff the press did “bale full automobiles less motors” as guaranteed. Defendant’s claim of breach of warranties includes assertion as warranties certain statements of plaintiff, also claimed to constitute false and fraudulent misrepresentations, made prior to execution of the written agreement and not incorporated therein. These statements can be aptly characterized as “puffing” sales talk and we do not regard them as factors meriting other or further consideration. Except for the statements above mentioned the warranties claimed breached are an implied warranty of fitness of the baler for the purpose intended, an alleged warranty that the baler would have a productive capacity of from 30 to 50 tons per hour, and the express warranty of the agreement that the baler would be put “in good operating condition” in defendant’s yard and would “bale full automobiles less motors, and tin and sheet iron of any kind”. From what we have already said it is apparent that the findings of the District Court, supported by the record, dispose of the contention that the express warranties of the agreement, above quoted, were breached. These same findings negate a conclusion that there was any breach of an implied warranty of fitness of the baler for the purpose it was intended. An examination of the written agreement reveals no express warranty that the baler would have a stated ton per hour capacity. The record does disclose that plaintiff did advertise a baler equipped with four 100 horsepower electric motors and eight vane type pumps with 550 gallons per minute capacity. It was designed to operate at a pressure of 8000 pounds per square inch. And it was represented as capable of baling 30 to 50 tons per hour. An offer plaintiff made to defendant to supply such a baler, conditioned on immediate acceptance, was withdrawn by letter under date of March 6, 1958 for lack of acceptance. Subsequent negotiations culminated in the written agreement of March 19, 1958 which expressly specifies a baler having but three such motors, only 6 pumps, and to operate at WOO pounds per square inch pressure. And the contract price of $125,000.00 was substantially less than that of the 3000 pound per square inch baler. Moreover, the record shows that at the time the contract was executed defendant had knowledge that the price of a comparable baler with a 15 to 20 ton per hour productive capacity, manufactured by another press company, was between $215,000.00 and $240,000.00, and knew that the price of a 30 to 50 ton per hour baler was $425,000.00. Shelby Pielet testified that defendant “didn’t need that big a capacity”. On the basis of the record before us we are of the opinion that the specific findings made by the trial court negate the claim of false and fraudulent misrepresentations. And here, the absence of clear and convincing evidence to support an affirmative finding of such misconduct precludes variance of or addition to the terms of the written agreement by parol evidence. Cf. Goldstein v. Welded Products Co., 196 Okl. 219, 164 P.2d 229. We conclude that the trial court did not err in not finding a breach of a warranty that the baler contracted for would have a productive capacity of from 30 to 50 tons per hour. Defendant’s additional claim of fraud in the procurement of the written agreement lacks the clear and convincing evidentiary support such a charge requires. In addition to the factors already discussed and disposed of in connection with the question of warranties, defendant’s charge of false and fraudulent inducements in procuring the contract is bottomed on the fact that plaintiff prepared the contract document and assured defendant that it protected defendant’s rights and “covers everything”. But the record shows that Shelby Pielet was not satisfied with the agreement as initially prepared by plaintiff; that changes were made at his suggestion. And the final draft, which became the executed agreement, was prepared in Pielet's presence. Pielet was no stranger to hydraulic pressure balers, their use, and their capacity differentials. The record reflects no facts or circumstances which would make defendant’s reliance on plaintiff’s legal training in the drafting of the contract a basis for a finding of fraud or overreaching. Intertwined with defendant’s arguments in support of its claim of breach of warranties is a contention that there is ambiguity in the payment schedule provision concerning the sixth payment which opens the door to parol or extrinsic evidence on the subject. We are not impressed with this contention of defendant. The provision concerning the sixth payment reads: “The sixth payment is due in the sum of $24,000.00 when the press is fully installed, tested and working in good condition within thirty days.” Provisions relating to other payments which permitted their delay from a specified event all provided that payment be made a stated number of days from the specified event. In this context we conclude that the “within thirty days” expression as used in the provision quoted has the meaning of “within thirty days thereafter”, i. e. that the sixth payment becomes due on the thirtieth day after the baler is fully installed, tested and working in good condition. And, if it be assumed for the purpose of argument, that, as defendant 'claims, the provision could be subject to the construction that defendant was to have a thirty day period of sustained productive operation of the machine in good working condition before the sixth payment was to be due such interpretation would not afford a basis for any claim that the production was to be at 30 to 50 tons per hour or for excusing defendant’s interference with the hydraulic system. We find no merit in defendant’s assertion of error in the admission and exclusion of testimony. It is addressed to the trial court’s rulings permitting plaintiff to testify concerning the necessity for the remodeling and repair work defendant undertook to have performed on the baler and the reasonableness of the expenditures claimed therefor, and rejecting Pielet’s proffered testimony as to conversations with plaintiff relied upon as evidencing that the defendant’s refusal to pay was not an unreasonable and vexatious delay of payment. Plaintiff’s familiarity with hydraulic' systems and experience as a builder of balers, shown by the record, qualifies him as competent to testify on the subject of the necessity for the remodeling and repairs and the reasonableness of the claimed costs. And Pielet’s proffered testimony was properly rejected as relating to his subjective feelings and conclusions and his interpretation of the contract provisions. Moreover, it was not material or relevant on the question of interest. No finding of unreasonable and vexatious delay is required here. The contract fixes the due date and amount of each payment to be made. The District Court found in substance that the repairs authorized prior to February 12, 1959 by plaintiff to be made at his expense were primarily occasioned because of his desire to do anything he could to bring about payment of the balance of the contract price and not because of any admission on his part that the repairs were either necessary or caused by some factor which legally obligated him to make them. But whatever his motive the plaintiff expressly authorized defendant to make expenditures on the press totalling $998.55 at plaintiff’s expense. And defendant did so. On oral argument counsel for plaintiff was unable to point to anything in the record to indicate that defendant had taken and received credit for any of this amount in connection with remittances on the fifth payment although counsel inferred that some $400.00 or $500.00 of the amount may have been the subject of such prior credits. However, we are under no obligation to search the voluminous record in an attempt to ascertain what, if anything, it might reveal in this connection nor are we disposed to undertake such task. It is our opinion that on the undisputed facts concerning these particular expenditures the plaintiff is liable therefor, and that in the posture in which the matter rests defendant is entitled to credit in that amount on the sixth payment. The District Court in awarding statutory interest on the overdue balance of the contract price apparently concluded, in keeping with its findings that because of defendant’s own delay in installation of the outside wiring and defendant’s subsequent interference with the hydraulic system and its consequences, the plaintiff’s duty to fully install the baler in good working condition was discharged by at least mid-November of 1958 and the thirty day period for payment of the sixth installment terminated December 15, 1958. We cannot say that such conclusion embraces error either in fact or law. The dates in the record testimony are often stated as approximations. Although our calculation would justify a somewhat earlier termination of the thirty day period the December 15th date is within the range of the periods mentioned in the testimony. The District Court, however, apparently overlooked that it was only the sixth payment in the amount of $24,000.00 that was due at the expiration of the thirty day period and that the seventh payment, in an equal amount, was not due until sixty days after the sixth payment, i. e. sixty days from the December 15, 1958 date. Consequently, the court erred in allowing interest on the full $48,000.00 from December 15, 1958 to the date of judgment. In view of the position we have adopted with respect to the issues discussed we do not find it necessary to comment in detail on other arguments advanced by the defendant nor to make specific analysis of the cases cited in connection with such contentions. We have, however, in arriving at the disposition we make of the case considered each of the arguments advanced and the authorities relied upon in support thereof. It is our conclusion that the judgment order of the District Court should be affirmed in all respects except insofar as it fails to allow the $998.55 credit against the sixth payment and to defer pre-judgment interest on the $24,000.00 amount of the seventh payment until February 15, 1959. The cause is therefor remanded to the District Court with instructions that its judgment order be modified by reducing the principal amount thereof to $47,001.45, together with interest at the rate of 5% per annum on $23,001.45 from December 15, 1958 to date of judgment; interest at the rate of 5% per annum on $24,000.00 from February 15, 1959 to date of judgment; and with interest thereafter at 5% per annum until paid. No allowance of costs in this Court is made to either party. Remanded with instructions to modify judgment order. . Under the contract plaintiff had 60 “working” days after the baler’s arrival to complete the installation at the site. Thus plaintiff was not under obligation to turn over the machine in working order before December 15, 1958. . The delay caused by defendant entitled plaintiff to an extension to at least December 25, 1958. . In defendant’s brief it is stated that “defendant has incurred costs and expenses of $998.55 upon authority of plaintiff, plus a total of $23,039.78 to make the press productive and operative.” It therefore appears that the $998.55 is included in the $24,038.33 total shown in Defendant’s Exhibit 31 and represents the items listed therein under dates from November 6, 1958 to February 12, 1959 inclusive, paid for by defendant. . The contract called for a baler guaranteed to bale “automobiles less motors, and tin and sheet iron of any kind”. . There is no dispute that the controlling principles of Illinois and Oklahoma law are in agreement with respect to those issues of the appeal governed by state law. Each party cites and relies upon decisions from both states. The contract involved was made in Oklahoma and was to be partly performed there and completed in Illinois. . The Illinois statute (Ill.Rev.Stat.1957, ch. 74, § 2) provides in pertinent part: “Creditors shall be aUowed to receive at the rate of five (5) per centum per annurn for all moneys after they become due on any * * * instrument of writing; * * Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Sandra RICHARDSON, Plaintiff-Appellant, v. The CITY OF ALBUQUERQUE, a municipal corporation; Harry Kinney, Mayor of the City of Albuquerque; Frank A. Kleinhenz, Chief Administrative Officer of the City of Albuquerque; Shirley Harris, Director of Personnel Services of the City of Albuquerque; Albuquerque Police Department; E.L. Hansen, Chief of the Albuquerque Police Department; Larry Michalsheck, Director of Training of the Albuquerque Police Academy; William Blankenship, individually and as Lieutenant in the Albuquerque Police Department; Paul T. Williams, individually and as former Director of Training for the Albuquerque Police Academy; Rudy Vigil, individually and as former Administrative Officer of the Albuquerque Police Academy; William Riley, individually and as former Training Sergeant of the Albuquerque Police Academy; Grady Taute, individually and as former Staff Instructor of the Albuquerque Police Academy; and Tom Valdez, individually and as former Class Officer of the Albuquerque Police Academy, Defendants-Appellees. No. 86-1501. United States Court of Appeals, Tenth Circuit. Sept. 22, 1988. Alice G. Hector of Hector & Associates, P.A., Albuquerque, for plaintiff-appellant. Judy K. Kelley, Asst. City Atty. (James H. Foley, City Atty., and John W. Pope, Asst. City Atty., with her on the briefs), Albuquerque, N.M., for defendants-appel-lees. Before HOLLOWAY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and BRORBY, Circuit Judge. BRORBY, Circuit Judge. Sandra Richardson brought claims of sex, age, and handicap discrimination under 42 U.S.C. § 1983 against the City of Albuquerque and defendant police officers arising out of her termination as a police cadet. Richardson further claimed her termination, without notice and hearing, denied her due process in violation of the Fourteenth Amendment. Richardson also asserted pendent state claims of breach of contract, wrongful discharge, intentional interference with contract, outrageous conduct, and defamation. At the conclusion of Richardson’s case, the trial court directed a verdict for the defendants on her due process claim. The jury returned a verdict for the defendants on all other claims. Richardson asserts on appeal that the trial court erred in denying her motion for a new trial because the jury’s verdict for the defendants is against the weight of the evidence. She also asserts the trial court erred in directing a verdict on her due process claim because its ruling ignored her assertion that she had a property interest in her position as a probationary employee. We AFFIRM. Plaintiffs Evidence At trial, Richardson presented the following evidence. Richardson was a thirty-nine year old female at the time she applied for admission to the Albuquerque police cadet academy. During the application process, she learned that her uncorrected eyesight did not meet minimum requirements for admission. .The City and Richardson entered into an agreement conditioning her admission to the police academy upon her ability to perform all duties with special contact lenses and “[i]f said contacts do not remain attached during all duties or training or Richardson is unable to wear these special lenses for extended periods including all duty or training times, she agrees that she may be immediately terminated.” Richardson also learned that in order to be admitted to the police academy she must pass a state-mandated agility test which included a timed 440-yard run, an obstacle course, a 150-pound body drag, and a car push. For over six months Richardson did personal physical training designed to enable her to pass the agility test. In June 1982, Richardson passed the initial physical agility test and was admitted to the academy class beginning in November. At the beginning of the academy, all cadets were given a physical fitness test. Cadets who did not perform well were placed in the “fat squad,” a remedial training program that met at the end of other regular activities. Richardson was rated “excellent” for aerobic condition, and “fair” for dynamic strength. She was placed on the “fat squad.” Nearly all the cadets in Richardson’s class were placed on the “fat squad” at some time during the academy. The defendant police instructors yelled at Richardson during physical training and during every run. Instructors told Richardson she was “blind as a bat” and would get people killed. They accused her of having sexual problems with her husband and having a sexual preference for other women. Instructors called her an “old hag,” and laughed at remarks that she was older than other cadets’ mothers. During physical training, the instructors yelled at Richardson for not doing exercises, although she testified that she was doing the exercise required. The instructors refused to give her credit for exercises which they felt she did incorrectly. During a practice agility test in December, Richardson failed three of the four timed events. During a boxing match at which Richardson’s nose was broken, she lost one of her contact lenses. When she reported this to the instructor, he told her not to worry about it. The instructor then attempted to terminate Richardson based upon breach of her agreement. The chief of police decided she would not be terminated. Two weeks later, Richardson was removed from class and terminated. She received a disciplinary charge sheet which stated: Between 11-16-82 and 12-15-82, you failed to adequately complete the entire physical tasks required in your physical training at the Albuquerque Police Academy. Your inability to pass these physical requirements as outlined in the attached documentation is now resulting in your termination, effective immediately. The attached documentation indicated Richardson had failed to physically improve, constantly fell behind on runs, and failed a physical agility test. Also attached were cadet counseling forms documenting Richardson’s inability to perform various physical tasks. During the processing of her termination, Richardson contested the charge sheet’s supporting documentation. She stated her inability to progress in running was due to instructors’ continual harassment, and the low count on push-ups and sit-ups was due to the instructors refusing to count her exercises. At trial, Richardson presented testimony of her athletic trainers that she was physically fit at the time she entered the academy. Exercise physiologists testified that the academy training program was not designed to improve cadets’ physical performance nor were the levels of expected performance gauged to the individual’s sex or age. They also testified on the adverse effect of stress on physical performance. Defendants’ Evidence At trial, the defendants presented the following evidence. The police academy instructors testified that verbal harassment was part of the high-stress training to prepare cadets for real life work on the streets. The purpose of this military-type training was to mold the individuals into one unit. Cadets from Richardson’s class testified that they all received harassment like Richardson and that this high level of stress prepared them well for their current duties as police officers. Lieutenant Williams stated that Richardson told him the stress of having to perform physically in the academy was having a negative psychological impact on her performance. The defendants testified Richardson was terminated solely because she was unable to perform the physical requirements set by the academy. Richardson was unable to perform the same number of sit-ups and push-ups as the rest of the class. She always fell behind during runs, sometimes finishing ten minutes late. Women were not treated differently from men because both had to perform the same job. Defendants testified they were actively recruiting women for the academy. They had no reason to terminate women, because they can perform well in the field. All cadets were required to reach the same level of performance regardless of age. Cadets who were age thirty and forty have graduated from the academy. Just before Richardson was admitted to the academy, the police department removed the age limit, because it had determined older applicants brought more maturity to the job. The defendants also testified they were not happy with Richardson’s waiver of the vision requirements, but they did not treat her differently as a result of it. The jury returned a verdict for the defendants on all counts. I. SUFFICIENCY OF THE EVIDENCE Richardson asserts the jury’s verdict for the defendants on her claims of sex, age, or handicap discrimination is not supported by substantial evidence. Following trial, Richardson filed a motion for new trial, alleging the verdict for the defendants was against the weight of the evidence. The trial court denied the motion finding the defendants vigorously defended against the plaintiff’s claims and the jury could have reasonably concluded the plaintiff failed to prove by a preponderance of the evidence her claims of discrimination. A motion for a new trial made on the ground that the verdict of the jury is against the weight of the evidence normally presents a question of fact and not of law and is addressed to the discretion of the trial court. Black v. Hieb’s Enterprises, Inc., 805 F.2d 360, 363 (10th Cir.1986); Brown v. McGraw-Edison Co., 736 F.2d 609, 617 (10th Cir.1984); Harris v. Qui-nones, 507 F.2d 533, 535 (10th Cir.1974); Community Nat’l Life Ins. Co. v. Parker Square Sav. & Loan Ass’n, 406 F.2d 603, 605 (10th Cir.1969); Champion Home Builders v. Shumate, 388 F.2d 806, 808 (10th Cir.1967). On review, the trial court’s decision to deny a motion for new trial will stand absent a showing of a manifest abuse of discretion. Brown, 736 F.2d at 617; Howard D. Jury, Inc. v. R. & G. Sloane Mfg. Co., 666 F.2d 1348, 1352 (10th Cir.1981); Walter v. Warner, 298 F.2d 481, 484 (10th Cir.1962). Our inquiry focuses on whether the verdict is “clearly, decidedly, or overwhelmingly” against the weight of the evidence. Black, 805 F.2d at 360; Champion Home Builders, 388 F.2d at 808; Locke v. Atchison, Topeka & Santa Fe Ry. Co., 309 F.2d 811, 817 (10th Cir.1962); Prebble v. Brodrick, 535 F.2d 605, 617 (10th Cir.1976). We have carefully reviewed the entire trial record in assessing Richardson’s challenge to the sufficiency of the evidence on her claims of discrimination. We are not convinced the jury’s verdict for the defendants was clearly, decidedly, or overwhelmingly against the weight of the evidence. We are satisfied there was sufficient evidence for the jury to find the defendants did not discriminate against Richardson based on her sex, age, or visual handicap. Richardson presented testimony which established that defendant police officers harassed her about her sex life, being an “old hag,” and that her inability to see without corrective lenses was a safety hazard. The defendants presented considerable evidence that all police cadets received harassment as part of the high-stress training program regardless of their age or sex. The defendants also testified they did not treat Richardson differently because of her visual handicap. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179-80, 94 L.Ed. 150 (1949). The evidence in Richardson’s favor does not clearly, decidedly, or overwhelmingly establish discrimination. The trial court did not abuse its discretion when it accepted the jury’s verdict for the defendants and denied a new trial. II. DUE PROCESS The second issue Richardson raises is that the trial court erred in directing a verdict against her claim of denial of due process in violation of the Fourteenth Amendment. At trial, Richardson claimed denial of due process on both liberty and property grounds. The trial court directed a verdict against her on both claims of denial of due process. It found Richardson had no property interest in her position as a probationary employee and no liberty interest was implicated because the reasons for her termination were not stigmatizing and were not published. On appeal, she addresses denial based only on her alleged property interest. Upon review of a directed verdict, we must view the evidence and reasonable inferences therefrom in the light most favorable to the party opposing the motion. Martin v. Unit Rig & Equipment Co., 715 F.2d 1434, 1438 (10th Cir.1983); Miller v. City of Mission, 705 F.2d 368, 373 (10th Cir.1983). A directed verdict may not be granted unless the evidence points but one way and is. susceptible to no reasonable inferences which may sustain the position of the party against whom the motion is made. Ewers v. Board of County Comm’rs, 802 F.2d 1242, 1247 (10th Cir. 1986), cert. denied, — U.S. -, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988); Casias v. City of Raton, 738 F.2d 392, 394-95 (10th Cir.1984). Richardson has the burden of specifically demonstrating the clear errors in the findings of the trial court. Butler v. Hamilton, 542 F.2d 835, 838 (10th Cir.1976). A trial court’s findings are presumed correct. Koch v. City of Hutchinson, 814 F.2d 1489, 1495 (10th Cir.1987). Procedural due process requires a pretermination hearing where liberty or property interests protected by the Fourteenth Amendment are implicated. Board of Regents v. Roth, 408 U.S. 564, 567, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). A plaintiff must first establish, however, that there is a protected interest at stake. A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, “he must settle for whatever procedures are provided by statute or regulation.” Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984). The trial court concluded Richardson had no property interest because she was a probationary employee terminable at will under New Mexico law. To establish a property interest in a particular benefit, one must have a “legitimate claim of entitlement” to it. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see, Graff v. Glennen, 106 N.M. 668, 748 P.2d 511 (1988). However, a claim of entitlement need not be grounded on a specific statutory or contractual provision. “A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support [her] claim of entitlement to the benefit and that [she] may invoke at a hearing.” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The sufficiency of such á claim of entitlement is determined by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Lovato v. City of Albuquerque, 106 N.M. 287, 742 P.2d 499 (1987). Richardson asserts her property interest arises out of an implied contract created by the State merit statute, N.M. Stat.Ann. § 3-13-4 (1978); the City Merit System Ordinance; and personnel regulations, which she asserts provide that a probationary employee may only be terminated for justifiable cause. New Mexico has recognized that a contract of employment may be implied from a personnel policy guide, Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980), or merit system ordinance, Casias, 738 F.2d at 395. We must now determine whether these statutes, ordinances and rules grant probationary employees a legitimate claim of entitlement. Viewed in the light most favorable to Richardson, the record reveals the following facts. Richardson was admitted to the police cadet academy for the normal probationary period of twelve months. N.M. Stat.Ann. § 3-13-4 (1978) allows municipalities to establish a merit system. The City of Albuquerque adopted a merit system to regulate hiring, promotion, and discharge. The merit system places police officers in the classified service which entitles them to all the rights and benefits provided by the Merit System Ordinance after completion of the probationary period. The Merit System Ordinance section on probationary employees states in pertinent part: All original appointments to the classified service shall be tentative and subject to a probationary period. Such probationary period shall be twelve (12) months after the original appointment date for all ... policemen_ Original appointment as a policeman ... shall be tentative and subject to a probationary period of twelve (12) months from the date of entrance into the Police Academy. At any time during the probationary period, an employee whose performance does not meet the required work standards or who is found not to be suitable employee shall be terminated. The change from probationary to non-probationary status shall require positive action by the department head and failure to take positive action at the end of the probationary period shall constitute dismissal of the employee. An employee on probationary status is not entitled to the rights and benefits provided for in Section 25 [the grievance procedure]. The employee handbook states “[i]f the supervisor reports unsatisfactory progress at any time during probation, the employee may be separated from the City service.” The Merit System Ordinance also makes the following provisions for disciplinary actions: [A] department head may ... dismiss any employee without pay for any justifiable cause including, but not limited to inadequate performance of an employee’s duties. A written statement of the reasons for any ... dismissal shall be submitted to the employee affected within a reasonable time after the effective date of the ... dismissal. The rules and regulations promulgated upon the Merit System Ordinance contain similar provisions. Richardson asserts these provisions create a property right because she can only be removed for “justifiable cause.” In determining whether Richardson can be terminated from her probationary position only for justifiable cause, we must consider the Merit System Ordinance and other rules and regulations promulgated thereunder as a whole. We construe the “justifiable cause” provision for disciplinary actions as applying only to nonproba-tionary employees. A different standard for termination of probationary employees is stated in the Merit System Ordinance as “performance [which] does not meet the required work standards or [if the employee] is found not to be suitable.” Reading the Merit System Ordinance and the rules and regulations in their entirety leads us to conclude the section governing probationary employees was clearly designed to offer a lesser expectation of continued employment than that offered to permanent employees. Blanton v. Griel Memorial Psychiatric Hosp., 758 F.2d 1540, 1543 (11th Cir.1985); Walker v. United States, 744 F.2d 67, 68 (10th Cir.1984); cf. Forrester, 606 P.2d at 192. Richardson has failed to establish a legitimate claim of entitlement to her probationary position in light of the Merit System Ordinance provisions that a probationary police officer’s appointment is tentative; may be terminated at any time during the probationary period if the employee is not suitable; and the change from probationary to nonprobationary status requires positive action at the end of the period or the employee is dismissed. We conclude that the Merit System Ordinance and other rules and regulations promulgated thereunder do not create a property interest in probationary employees, and therefore do not trigger the due process protections asserted by Richardson. The trial court’s directed verdict on Richardson’s due process claims was correct. AFFIRMED. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_applfrom	C	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). Leonard P. MATLOVICH, Appellant, v. SECRETARY OF The AIR FORCE and Colonel Alton J. Thogersen, Appellees. No. 76-2110. United States Court of Appeals, District of Columbia Circuit. Argued May 15, 1978. Decided Dec. 6, 1978. E. Carrington Boggan, New York City, for appellant. Vincent B. Terlep, Jr., Atty., Civ. Div., Dept, of Justice, Washington, D. C.; with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Ronald Glancz, Atty., Civ. Div., Dept, of Justice, Washington, D. C., were on the brief, for appellees. Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and DAVIS, Judge, United States Court of Claims. Opinion for the court filed by Judge DAVIS. Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976). DAVIS, Judge: In March 1975, appellant Leonard P. Matlovich, after some twelve years of excellent service in the military, wrote to the Secretary of the Air Force, through his commanding officers, that he had concluded that his “sexual preferences are homosexual as opposed to heterosexual.” He added that in his view his sexual preferences would in no way interfere with his Air Force duties and that he considered himself fully qualified for further military service. He asked that the provision in AFM 39-12 (Change 4) Oct. 21,1970, para. 2-103, relating to the discharge of homosexuals be waived in his case. At that time Matlovieh was a Technical Sergeant assigned to the 4510th Support Squadron, Tactical Air Command, Langley Air Force Base, Virginia. His letter triggered an investigation by the Air Force Office of Special Investigation during which appellant provided information concerning his homosexual experiences since 1973; he stated that these were all consensual and occurred in private, while he was off-duty and off-base, with males over twenty-one. He also said that he had had such relations with two other members of the Air Force (one of whom had been discharged by that time), neither of whom had worked for him (he added that “as any responsible NCO [non-commissioned officer] I would always refrain from such a relationship”). As a result of the investigation, involuntary administrative discharge proceedings were begun against Matlovich on the ground of his homosexual activity. An Administrative Discharge Board met in September 1975 and held a four-day hearing at which appellant was represented by counsel. In addition to general testimony on homosexuality, appellant presented evidence on his own service in the Air Force and his ability to continue to give effective service. It was stipulated that he had committed homosexual acts during his current enlistment period. The Board so found and recommended that he be given a general discharge for unfitness, based on his homosexual acts. Matlovich’s commanding officer at Langley Air Force Base accepted the Board’s recommendation of discharge but determined that the discharge should be honorable. The Secretary of the Air Force then declined to waive the provisions of AFM 39-12, supra, and directed that the honorable discharge be executed. This was done on October 22, 1975. Appellant immediately applied to the Air Force Board for the Correction of Military Records (AFBCMR) to oyerturn his discharge and also amended his complaint below (see note 3) to seek reinstatement, as well as a declaratory judgment that the discharge was invalid. The AFBCMR refused to correct appellant’s records and the Secretary of the Air Force adopted that tribunal’s findings and recommendations. Thereafter both sides filed motions for summary judgment in the court below. It was stipulated, among other things, that the Air Force had in the past retained Air Force members on active duty who had engaged in homosexual activity. After argument, Judge Gesell granted appellees’ motion for summary judgment in an oral opinion. He held, first, that there is no constitutional right to engage in homosexual activity; second, that under the standards he deemed to govern judicial review of military determinations there is a rational basis for the Air Force policy of separating airmen found to have engaged in homosexual conduct; and, third, that appellant had not proved that an exception had to be made in his case. At the same time the judge recognized the superior quality of Matlovich’s service and expressed his personal view that “it would appear that the Armed Forces might well be advised to move toward a more discriminatory and informed approach” to the problem of homosexuality — “to approach it in perhaps a more sensitive and precise way.” I On this appeal from the District Court’s award of judgment to the appellees, the parties first present to us the basic issue of whether private consensual homosexual activities between adults is protected by the Constitution. The Government urges that that question has been settled negatively by Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirming 403 F.Supp. 1199 (E.D.Va.1975); that ruling, though summary, is said to be binding on us under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Appellant’s response is that, after Doe, the Supreme Court indicated that the issue was still open. See Carey v. Population Services Intl, 431 U.S. 678, 688 n.5, 594 n.17, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Appellees’ riposte is that the reference in Carey to private consensual sexual behavior was confined by its context though not in terms to heterosexual conduct. Appellant insists, in turn, that the Court meant everything it said. II We do not reach these questions because a narrower problem looming before us requires remand of this case to the Air Force, and after further action by that Service renewed consideration by the District Court. The Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals (see note 1, supra), and the record shows that the Air Force has in the past retained members on active duty who had engaged in homosexual activity. With respect to Matlovich the Air Force said that it had considered whether to make an exception in his case but had decided against it. But what disturbs us is that it is impossible to tell on what grounds the Service refused to make an exception or how it distinguished this case from the ones in which homosexuals have been retained. The regulation (AFM 39-12, para. 2-103) gives only the most general of guidance when it limits exceptions to those “where the most unusual circumstances exist and provided that the airman’s ability to perform military service has not been compromised.” Also, “an exception is not warranted simply because the airman has extensive service” (emphasis added) or because of intoxication. No other pertinent standards are laid down. In this instance the Administrative Discharge Board was given by its Legal Advis- or only the most general of instructions on this point. After paraphrasing the exception provision of the regulation, the Legal Advisor said: “What constitutes most unusual circumstances cannot be defined with any great degree of precision. It must be based upon your experience with human nature, your understanding of the orderly conduct of the affairs of man, the very nature of the military environment as a separate and distinct segment of society with the full knowledge that military members are governed by a more strict set of rules of conduct and standards than is required and expected of the general public. The same rules apply to your understanding of what constitutes compromise of a military member’s ability to perform military service. You must consider all these factors that have been legally presented to you during this hearing.” No more light is shed by the Administrative Discharge Board’s conclusory finding, without any real explanation, that no exception should be made. The Correction Board is similarly unrevealing. It recognized that Matlovich had had an “outstanding” record but it then concluded summarily — without saying what was lacking — that that was not enough. The board went so far as to say that even if unusual circumstances existed that would not require retention; the existence of unusual circumstances “merely permits the retention if the service considers such action appropriate.” Obviously, the board did not consider such action “appropriate” here but it gives no hint why it would not be appropriate to retain appellant. The board merely concludes “that an outstanding military record without other unusual circumstances is not sufficient basis to compel a member’s retention” — and that the discharge board and the Secretary acted fairly. In confirming the Correction Board’s determination, the Secretary of the Air Force likewise said that an outstanding record was not enough and found no other “unusual circumstances” — but, again, he gave no hint (aside from a reference to instances involving intoxication, young airmen, and undue influence of a superior) what “unusual circumstances” there could be or what was missing in Matlovich’s case. What we have, then, is a serviceman with an admittedly outstanding record of considerable duration, with minimal sexual involvement with Air Force personnel and none with those with whom he worked and with substantial testimony that the Air Force community would be able to accept his homosexuality. Neither the Correction Board nor the Secretary (in confirming that board) suggested that his ability to perform military service had been compromised, and we do not understand the Administrative Discharge Board to have made such a finding either. What is missing, the Air Force says, are the “unusual circumstances” which have to exist to warrant retention even if the other conditions are satisfied. But what are “unusual circumstances,” or what they have been in past cases, is left uncertain and unknown. We are at sea as to the circumstances— aside from the exception for youths — in which the Air Force makes exceptions to its policy of eliminating homosexuals and when it refuses to make an exception. The absence of articulated standards, policies, or considerations — plus the absence of any reasoned explanation in this particular case-— makes it impossible to decide whether or not there has been an abuse of discretion in this instance or whether improper factors have played a material role. We suppose that everyone would admit that the Air Force could not decide, under its all-inclusive but unarticulated rubric, to retain only black homosexuals or only white ones, or homosexuals of one religion but not of others, or homosexuals of one ethnic background but not of others, or only homosexuals who were proteges of senior officers. We do not suppose that such blatantly improper distinctions entered into the decision in this case, but the almost-total lack of specificity in the Air Force’s determinations leads one to consider the possibility, for instance, whether Matlovich’s failure of retention may have been affected by his “going public” with his homosexuality and the publicity surrounding his case, and that if his homosexuality had been discovered and handled by the Air Force, without public notice, the result might have been different. If that factor entered into the refusal to retain, both appellant and the reviewing court are entitled to know it — so that appellant can challenge the propriety of reliance on that consideration and, if he does, the court can pass upon that contention. We do not say at this stage, because we do not know, that the Air Force cannot justify appellant’s discharge. What we say is that the Air Force should explicate more fully its reasons for refusing to retain appellant — as its regulation provides that it may do and its practice shows that it has done in other eases — so that the court can decide if it was arbitrary, capricious, or unlawful in exercising its discretion whether or not to retain Matlovich. Ill The normal rule where a discretionary administrative decision is to be reviewed by a court (other than on a de novo basis) is that the agency must give sufficient indication of the grounds for its exercise of discretion that the reviewing tribunal can appraise that determination under the appropriate standards of review (and the applicant for relief can challenge it). This basic concept has been reiterated time and again — in differing formulations and contexts but always centering on the need for the court, and the complaining party, to be given some helpful insight into the agency’s reasoning. See, e. g., United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510-11, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935) (“We must know what a decision means before the duty becomes ours to say whether it is right or wrong”); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency’s action * * * ); Baltimore & Ohio R.R. v. Aberdeen & Rockfish R.R., 393 U.S. 87, 92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Dunlop v. Backowski, 421 U.S. 560, 571-72, 573-74, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Kleppe v. Delta Mining, Inc., 423 U.S. 403, 409, 96 S.Ct. 816, 46 L.Ed.2d 591 (1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Standard Rate & Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315 at 324, 584 F.2d 473 at 482; Public Media Center v. F.C.C., 190 U.S.App.D.C. 425 at 434-435, 587 F.2d 1322 at 1331-1332 (1978). The fundamental principle of reasoned explanation embodied in these (and comparable) decisions serves at least three interrelated purposes: enabling the court to give' proper review to the administrative determination; helping to keep the administrative agency within proper authority and discretion, as well as helping to avoid and prevent arbitrary, discriminatory, and irrational action by the agency; and informing the aggrieved person of the grounds of the administrative action so that he can plan his course of action (including the seeking of judicial review). We know of no reason why this umbrella principle should be inapplicable to the Air Force’s decision not to retain appellant — as its regulation expressly contemplated that it could do. The explicit provision for exceptions to the overall policy of separating homosexuals is binding on the Air Force, Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Roberts v. Vance, 119 U.S.App.D.C. 367, 370, 343 F.2d 236, 239 (1964), just as much as the general directive calling for discharge of homosexuals. And the procedure established for processing these contested cases shows that the Service was expected to support its determinations of separation by some reasoned explanation. The general Defense Department Regulations on enlisted administrative separations of all types — applicable to each of the armed services — describes an administrative discharge board (such as acted in this case) as “appointed to render findings based on facts obtaining, or believed to obtain, in a case and to recommend retention in the Service or discharge, with reason for and the type of separation or discharge certificate to be furnished.” 32 C.F.R. § 41.3(h) (1976). The enlisted man entitled to or granted such a board can have counsel and present available witnesses (through oral testimony or by deposition). 32 C.F.R. § 41.5(c). The board record shall be as prescribed by the Secretary of the particular Military Department but, “as a minimum, shall contain a verbatim record of the findings and recommendations”; if the board recommends discharge, it shall be “for a specified reason.” 32 C.F.R. § 41.-5(b). At the next level — that of the discharge authority (here, the commanding officer at Langley Air Force Base) — the regulations seem to preclude that officer from acting less favorably to the serviceman than the board recommended without indicating his reasons for the more severe treatment (see 32 C.F.R. § 41.5(d)); for instance, where the board recommends retention, the discharge authority may recommend separation to the Secretary “if he believes that separation is warranted by the circumstances of the particular case.” 32 C.F.R. § 41.5(d)(6). The same assumption that a reasoned explanation should exist and be given permeates the provisions on discharges for unsuitability and misconduct. The former prefaces its listing of specific grounds of unsuitability (including “homosexual or other aberrant sexual tendencies”) with the general requirements that the type of discharge shall be “as warranted by the member’s military record” and separation should be directed “when it has been determined that an individual is unsuitable for further military service.” 32 C.F.R. § 41.7(g). Similarly, determination of the type of misconduct separation calls for appraisal of “the particular circumstances in a given case” and separation for specific types of misconduct (including “sexual perversion * * * homosexual acts”) follow “when it has been determined that an individual is unqualified for further military service.” 32 C.F.R. § 41.7(i). These Defense Department directives are implemented and pointed up by Air Force regulations — including those contained in the portion of the Air Force Manual governing separation of enlisted personnel for unsuitability, unfitness or misconduct— which consistently stress the need for reasoned explanations and determinations in these circumstances. The letter of notification to the airman should give “specific reasons for the proposed discharge” which shall include an “itemization of the factual details which constitute recommendation for the allegations of unsuitability, unfitness or misconduct upon which recommendation for elimination is based.” AFM 39-12, paras. 2-18(a)(3), 2-60(a)(3), l-25(c)(2), 2-9(a)(3), l-25(a)(2). The administrative discharge board is primarily a “fact-finding and recommending board.” Its obligation is to “develop and review all information concerning the matter under consideration to arrive at clear logical findings of fact as to each allegation in the letter of notification and to recommend, on the basis of the findings, what action should be taken in the case.” AFM 39-12, para. 3-1; see also para. 2-18. These boards are also instructed (AFM 39-12, para. 3-6a) to follow the procedures in Air Force Regulations (AFR) 11-1 (“Administrative Practices: Boards of Officers for Conducting Investigations”). With respect to findings, AFR 11-1, para. 13. declares that the findings “will be the substance of the facts material to the issue as established by the evidence,” and such finding must be supported by evidence of record and “[a] finding should be made on each point in question before the board.” Recommendations are to be “appropriate to and consistent with the findings as well as consonant with applicable laws, regulations, policies and customs of the service, with due consideration for the best interests of the Government and the person concerned.” AFR 11-1, para. 14. To' us, this is the clear equivalent of an explicit requirement for a statement of reasons. Following the board proceedings, the convening authority gives his recommendation and forwards the complete file to the discharge authority. If the former disagrees with the board he must give his “reasons therefor.” AFM 39-12, para. l-31a. As for the discharge authority, the Air Force directives make it plain that he can agree with the board without making his own independent findings but that he cannot himself depart from the board to the detriment of the airman; if he thinks more severe action is warranted, or if he thinks higher authority should consider the matter in any case, he can forward the case “with his recommendation and reasons therefor” for Secretarial decision. AFM 39-12 (Change 6) May 12,1972, at 29, Table 2-B-1, n.1. In the light of these Defense Department and Air Force directives, we cannot escape the conclusion that the military has itself provided that in cases of this type a reasoned explanation should be made for any detrimental action ordered. The whole system of regulations is infused with this concept. And since the Air Force regulation on homosexuality (AFM 39-12, para. 2-103) expressly contemplates that retention in the service is an alternative in proper cases, the procedural regulations we have just summarized demand some reasoned explanation why that alternative is rejected in the case at hand. The history of this matter within the Air Force shows that it considered itself bound to give such reasons because it purported to do so, all along the line. The problem, as we have pointed out, is that no such reasoned explanation was given in a form which is intelligible to this court or permits any meaningful judicial review. It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 307, 388 F.2d 557, 563 (1967); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974). In connection with such review the court can and should enforce a regulatory requirement for a meaningful explanation of the administrative determination. Van Bourg v. Nitze, supra, was such a case. 128 U.S.App.D.C. at 309, 388 F.2d at 565. So were Olenick v. Brucker, 107 U.S.App.D.C. 5, 273 F.2d 819 (1959), and Davis v. Brucker, 107 U.S.App.D.C. 152, 275 F.2d 181 (1960). A parallel line-of-decisions involves an application for discharge from service as a conscientious objector; the regulations controlling those requests required a statement of reasons for an adverse decision. This directive has been judicially recognized and enforced. Perhaps the leading decision is Judge Leventhal’s opinion for the Second Circuit in United States ex rel. Checkman v. Laird, 469 F.2d 773, 779-83, 787 (2d Cir. 1972). As that discussion pointed out, (i) “where the range of executive responsibility embraces the latitude to find in favor of the claimant on an issue, the matter must be considered, and if the conclusion is adverse, reasons must be stated, with support in a record basis in fact” (469 F.2d at 781); (ii) “the proper focus of a reviewing court is on the reasons given by the [board] and not on reasons that may come to light if and when a court rummages throughout the record in an effort to reconstruct on what basis the board might have decided the matter” (469 F.2d at 783); and (iii) the regulatory requirement for reasons “is a meaningful requirement, and one that cannot meaningfully be satisfied by a bare recitation * * of the ultimate statutory [regulatory] criteria * * * ” (469 F.2d at 787). Appellees seem to suggest that, in the nature of things, these principles cannot be used for the retention exception at issue here — that it is impossible for the service to specify “where the most unusual circumstances exist” and what constitutes a compromise of the airman’s “ability to perform military service.” We cannot accept such a contention. This problem is no more difficult than that presented in the conscientious objector cases, and there is no valid reason why a statement cannot be given which will show the reviewing court that improper considerations were not taken into account, that the particular airman was not treated differently from others in the same position, and that there is a rational basis for the refusal to retain this serviceman. The mere conclusion, tracking the terms of the regulation, that sufficient “unusual circumstances” do not exist in the particular case is inadequate compliance with the reasons requirement. See United States ex rel. Checkman v. Laird, supra. Undoubtedly the Air Force was much more specific and precise in its thinking when it passed upon Sgt. Matlovich’s case — and there is no good ground why he and the court should be screened off from that reasoning. That is true whatever the scope of judicial review of the service’s exercise of its discretion, a separate issue which we do not now touch. There are two means by which an administrative entity can develop standards for rational action in an area of formal or informal adjudication. The first is by advance promulgation of written rules, directives or formulated criteria; the other is through case-by-case decision making. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Standard Rate and Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315, 584 F.2d 473 (1978) (concurring opinion of Judge Leventhal). There are advantages to the former method — in Judge Leventhal’s words, supra, “rulemaking assures that any modification in position will represent a generalized approach to a general problem, avoiding the uneasiness that results from the greater possibility of discrimination in a case-by-case approach” — but, as in Environmental Defense Fund, Inc. and Standard Rate & Data Service, Inc., supra, we leave to the Air Force the choice of the path it will pursue to clarify its policy on retention of homosexuals and the application of those standards to this case. In either event, the Secretary of the Air Force may do so through such permissible means as he considers appropriate. Accordingly, the decision granting summary judgment to the Government is vacated and remanded with instructions to remand to the Air Force for further proceedings consistent with this opinion. Appellant can of course seek judicial relief from any adverse determination made on this remand. Vacated and remanded. . This regulation provided for a general policy of discharging Air Force members determined to have performed homosexual acts. Exceptions to the policy were contemplated if “the most unusual circumstances exist and provided the airman’s ability to perform military service has not been compromised.” . This was Colonel Alton J. Thogersen, the second of the two appellees. . On the day before, October 21st, appellant filed the present action seeking to enjoin the discharge as invalid and for a declaratory judgment to that effect. A temporary restraining order was denied by the District Court and the discharge was then effected. . In his oral opinion, Judge Gesell said of Matlovich: “He has had a most commendable, highly useful service in the military over a long period of time, starting with the Air Force in 1963. The record fully discloses his qualifications and need only be briefly mentioned by the Court for purposes of this decision. “Here is a man who volunteered for assignment to Viet Nam, who served in Viet Nam with distinction, who was awarded the Bronze Star while only an Airman First Class, engaged in hazardous duty on a volunteer basis on more than one occasion, wounded in a mine explosion, revolunteered, has excelled in the" Service as a training officer, as a counselling officer and in the various social action programs and race-relation programs of the military, and has at all times been rated at the highest possible ratings by his superiors in all aspects of his performance, receiving in addition to the Bronze ' Star, the Purple Heart, two Air Force Commendation Medals and a Meritorious Service Medal.” . The Court said there that it had “not definitely answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults” — and that it did not purport to answer that question in Carey. . In addition there are somewhat more specific criteria for cases involving participation in homosexual acts prior to entry into the Air Force, AFM 39-12, para. 2-103(d), but those are not applicable to Sgt. Matlovich whose homosexual activity occurred after entry. . The record before us contains nothing to the contrary. Judge Gesell’s evaluation of appellant’s service is quoted supra, at note 4. . We do not understand the Secretary’s reference (in confirming the Correction Board) to “youthful curiosity, intoxication, or undue influence of a person senior in years or grade” as exhausting the list of “unusual circumstances” even for past cases; the Secretary goes on to say summarily that he found no “other unusual circumstances” warranting an exception in Matlovich’s case (emphasis added). . The Air Force has agreed that it does not have an active program to identify and discharge homosexuals; the discharges only occur when homosexuals come to the official attention of the Air Force. Moreover, the Air Force stipulated that it does not seek to suppress heterosexual activity which is technically in violation of the Uniform Code of Military Justice or state laws. . Of course, this assumes, without deciding, that it is generally constitutional to separate servicemen who engage in private consensual homosexual conduct with adults, off-duty and off-base. . In the same general class are those rulings invalidating administrative action because the agency had no articulated standards governing its discretionary determinations, or requiring the adoption of such standards. See Hornsby v. Allen, 326 F.2d 605, 610, 612 (5th Cir.), rehearing denied, 330 F.2d 55 (1964); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); White v. Roughton, 530 F.2d 750, 753-54 (7th Cir. 1976). . Under 32 C.F.R. § 41.11(d)(2) and (e)(1), appellant, as a member with 8 or more years of total active military service, was entitled to an administrative discharge board (if he wished one) before being discharged for unsuitability. . Also, the discharge authority may change the basis of a board-recommended discharge “when the record indicates such action would be appropriate, except that he shall not designate misconduct as the basis [of discharge] when the board has recommended discharge for unsuitability,” 32 C.F.R. § 41.5(d)(3). . AFR 11-1, para. 3, also declares: “The primary function of a board is to ascertain and report facts so that the appointing authority may have adequate information on which to base his decision. The primary duty of a board is to develop and consider the evidence concerning the matter under investigation, to arrive at clear, consistent findings and, where required, to make recommendations. ” . It is significant, too, that, where the airman has waived a board hearing and the discharge authority directs a discharge inferior to the type recommended by the initiating commander “he [the discharge authority] will prepare and file in the case a detailed statement of the reasons for his decision.” AFM 39-12 (Change 6) May 12, 1972, at 29, Table 2-B-l, n.3. . Since Matlovich also had a hearing by the Air Force Board for the Correction of Military Records, it is pertinent to add that that tribunal was likewise expected to give its reasons — and that it purported to do so. See AFR 31-3, para. 17. Cf. the stipulation of dismissal entered in Urban Law Institute of Antioch College v. Secretary of Defense, Civil Action No. 76-530 (D.D.C. Jan. 31, 1977). . The Davis court said (107 U.S.App.D.C. at 153, 275 F.2d at 182): “We cannot say that the basis of the [Army’s] action clearly appears. It is certainly not clear to us that [the Army] acted solely on the basis of [the soldier’s] military record, and not on his pre-induction conduct” [j. e., a course forbidden by Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958)]. Mutatis mutandis, precisely those words can be used in the present case. We are not and cannot be clear that improper or unequal considerations did not enter into the decision against retaining this appellant. . See also Sanger v. Seamans, 507 F.2d 814, 817 (9th Cir. 1974): “This requirement [of reasons] is dictated by basic considerations of fairness: The in-service applicant [for release because of conscientious objections] should know the reasons for the denial of his application so that he may be able effectively to seek judicial relief, [citation omitted] Moreover, the reviewing court must know the reasons for the adverse decision in order adequately to review the Secretary’s decision within the narrow scope permitted.” . The Civil Service Commission has, relatively recently, issued new regulations setting forth (at least in part) more specific criteria for retention or discharge of homosexuals in the Civil Service. See Memorandum for the Respondents, at 6, Singer v. United States Civil Service Comm'n, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 744 (1977). . Appellees’ brief states (at 28) that the exception policy was designed to benefit the military, not the servicemen, and then goes on to say that the discretionary determination involves a weighing of the need of the service for the specific attributes and talents of the particular airman “and the affect [sic] on the military of the loss of the services of that individual, against the actual or probably [sic] detriment that retention of the individual would have upon the military in general, and the effectiveness of the serviceman in particular.” We find neither of these statements in any of the Air Force’s determinations in this case— and it is understood by now that counsel’s post hoc rationalizations cannot substitute for the agency’s own failure. Van Bourg v. Nitze, supra, 128 U.S.App.D.C. at 309, 388 F.2d at 565; Standard Rate & Data Service, Inc. v. United States Postal Service, supra, 189 U.S.App.D.C. at 323, 584 F.2d at 481. Moreover, even if the general standard outlined by counsel were adopted by the service, we would expect some more specific spelling out of the reasons why the balance went against Sgt. Matlovich. Question: 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_respond2_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. George BARTHOLOMEW et al., Plaintiffs, Appellants, v. APPALACHIAN INSURANCE COMPANY et al., Defendants, Appellees. No. 81-1028. United States Court of Appeals, First Circuit. Argued June 5, 1981. Decided July 28, 1981. Edward W. Moses, Providence, R. I., with whom Harry W. Asquith, and Asquith, Wiley & Ryan, Providence, R. I., were on brief, for plaintiffs, appellants. Peter S. Haydon, Providence, R. I., with whom Kenneth P. Borden, and Higgins, Cavanagh & Cooney, Providence, R. L, were on brief, for defendants, appellees. Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges. ALDRICH, Senior Circuit Judge. Robo Wash, Inc., and New England Robo Wash, Inc., the manufacturer and distributor, respectively, collectively hereinafter Robo, supplied certain professional car wash equipment, known as a Spyder unit, to plaintiffs, Bartholomew and another, in 1972. On plaintiffs’ facility opening for business it immediately began to suffer difficulties. Parts broke down regularly and proved difficult or impossible to replace, leaving the equipment inoperable for substantial periods of time. Even worse, under the guise of cleaning customers’ cars, the Spyder sometimes sprayed them with oil, broke their mirrors and antennas, and folded their license plates. In April, 1973, Bartholomew told Robo that “this Spyder has got to be the most worthless piece of junk that I’ve ever seen.” Robo sought to remedy the defects, but was unsuccessful; its last attempt occurred prior to plaintiffs’ instituting suit against it in February, 1974. By that time, indeed before, plaintiffs had realized the situation was hopeless. Q. “Would it be a fair statement to say that you and your partner . . . came to this realization there was nothing anyone could do prior to the time you filed your original suit in Federal Court?” A. “That is correct.” In spite of plaintiffs’ realization that there was nothing anyone could do “so that the car wash could operate properly,” they persisted in using the equipment, following suit, until September, 1974. Thereafter they amended their complaint, seeking damages from Robo until that date, and the parties entered into a consent judgment, Robo admitting damages in plaintiffs’ favor in the amount of $300,000. Robo then assigned to plaintiffs its rights against four companies that insured it, the present defendants, appellees, and two others who settled out. Defendant Appalachian Insurance Company’s policy insured Robo against loss “which the insured may sustain by reason of liability imposed upon the insured by law. . . . (1) For damages because of injury to or destruction of tangible property including loss of use resulting therefrom caused by an occurrence. “ ‘Occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in personal injury or property damage neither expected nor intended from the standpoint of the insured.” This insurance^ however, did not take effect until June 1, 1974. Not unnaturally, on learning plaintiffs were claiming that they had assumed the loss, defendants protested that the “occurrence” resulting in Robo’s liability had occurred prior to that date. The facts herein stated having been stipulated, both sides moved for summary judgment. In an extensive opinion, 502 F.Supp. 246, the district court granted defendants’ motion. Plaintiffs appeal. Briefly, their contention is that since they continued to suffer damages into the policy period, it was at least a question of fact whether the “occurrence” occurred after the insurance commenced. The district court held that as matter of law it did not. We agree. Strictly, the act for which a manufacturer is liable is the initial supplying of defective equipment. However, the cause of action is held to arise when the defect takes effect or is discovered. The parties agree to this general principle. Thus, when a plaintiff, some time after having purchased a ladder fell therefrom and was injured, thereby discovering an alleged defect, it was the manufacturer’s insurer at that date, if any, that was responsible, and not the insurer at the date of the sale. Landerman v. United States F. & G. Co., (Super. Ct.1964) 25 Conn.Supp. 297, 203 A.2d 150; Annot. 57 A.L.R.2d 1385 (1958). This is not to say, however, that if the plaintiff had continued to use the ladder, and was injured again at a later date, when there was a third insurer, that that company would be liable. The “occurrence” is the establishing event. United States F. & G. Co. v. American Ins. Co., (Ct.App.1976) 169 Ind.App. 1, 345 N.E.2d 267. We agree with the dissenting opinion of Clark, J., in Export S. S. Corp. v. American Ins. Co., 2 Cir., 1939, 106 F.2d 9, 12, cert. denied, 309 U.S. 686, 60 S.Ct. 809, 84 L.Ed. 1029, rather than the majority view. At the risk of appearing pedantic, the insurance is against an occurrence, not a reoccurrence, particularly a deliberate one. The concept of insurance is that the parties, in effect, wager against the occurrence or non-occurrence of a specified event; the carrier insures against a risk, not a certainty. Thus a homeowner could not insure his house against flood damage when the rising waters were already in his front yard. Summers v. Harris, 5 Cir., 1978, 573 F.2d 869. In the case at bar Robo’s defects were fully known, indeed sued for, before the policies took effect. We can only construe the present action as an attempt to “job” the defendants. Affirmed. . The other defendant’s policy is in essence the same. . Cf. Hooper v. Robinson, 1878, 98 U.S. 528, 537, 25 L.Ed. 219, where parties insured an absent ship “lost or not lost,” the validity of the coverage being based upon good faith ignorance of the true facts in those days of poor communication. Conceivably the facts in Export S. S. Corp. could be said to fall within that principle. . Plaintiffs' extended argument that the insurers’ responsibility could be established by the consent judgment to which it was not a party is equally fallacious. See Evans v. Employers Mut. Ins. Co., D.Alaska, 1975, 391 F.Supp. 1230, 1232. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_appbus	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. CENTER FOR AUTO SAFETY, et al., Appellants, v. Elizabeth H. DOLE, Secretary, Department of Transportation, et al. No. 86-5436. United States Court of Appeals, District of Columbia Circuit. Argued April 7, 1987. Decided May 24, 1988. Howard A. Heffron, with whom Clarence M. Ditlow III, Mary H. Dunlap and Evan W. Johnson, Washington, D.C., were on the brief for appellants. Messrs. Heffron, Dit-low and Johnson were on the supplemental brief on rehearing. David W. Allen, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., Richard K. Willard, Asst. Atty. Gen. at the time of filing, Douglas Letter, Appellate Litigation Counsel, Dept, of Justice, Erika Z. Jones, Chief Counsel, Enid Rubenstein and Eileen T. Leahy, Attys., Nat. Highway Traffic Safety Admin., Washington, D.C., were on the brief for appellees. James M. Spears, Acting Asst. Atty. Gen., Allen, Letter and Jeffrey Clair, Atty., U.S. Dept, of Justice, and Jones, Leahy “and Ruben-stein”, Washington, D.C., were on the petition for rehearing and the supplemental brief on rehearing. Before WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges. Circuit Judge Edwards was randomly selected as a member of this panel following Judge Bork’s resignation from the Court. Opinion PER CURIAM. Dissenting opinion filed by Chief Judge WALD. PER CURIAM: This case concerns the reviewability of the Secretary of Transportation’s decision (through the Administrator of the National Highway Traffic Safety Administration) (“NHTSA”) not to reopen an investigation into alleged safety defects in Ford automobiles built between 1966 and 1979. The relevant statute provides that “[a]ny interested person may file with the Secretary a petition requesting [her]” to commence an investigation. 15 U.S.C. § 1410a(a) (1982). The NHTSA regulations direct the agency to grant the petition if, after a “technical review,” it finds that “there is a reasonable possibility that the requested order will be issued at the conclusion of the appropriate proceeding.” 49 C.F.R. §§ 552.6 and 552.8 (1987). The case was originally decided by a sharply divided panel. The court reversed the decision of the district court denying and limiting review of the NHTSA’s order, and held that appellants were entitled to plenary review of the administrative decision. The majority concluded that the court should scrutinize “not merely the statement of reasons given by the Administrator, but the evidence compiled in the ‘technical review’ on which the agency relies in making its decision.” Center for Auto Safety v. Dole, 828 F.2d 799, 801 (D.C. Cir.1987). Judge Bork, who subsequently resigned from this court, dissented. While explaining his view that Congress intended to entirely preclude review of denials of citizen petitions, he rested on his conclusion that the scope of review should be limited to an examination of the agency’s statement of reasons. NHTSA petitioned for rehearing by the panel. The panel, with another member replacing Judge Bork, agreed to reconsider the decision. The parties submitted requested briefing on a discrete issue that was not a matter of dispute among the original panel members-whether the NHTSA regulation at issue permitted agency consideration of non-safety factors in deciding whether to grant a petition to investigate. We now hold that the agency’s applicable regulation-49 C.F.R. § 552.8-fails to provide the court with a judicially manageable standard that would enable us to review the agency’s decision. I. We have previously held that regulations promulgated by an administrative agency in carrying out its statutory mandate can provide standards for judicial review of agency action. Such self-imposed constraints may supply the “law to apply” under Heckler v. Chaney, 470 U.S. 821,105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), to overcome the presumption against reviewing administrative agency inaction, including nonenforcement decisions. See Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987); Robbins v. Reagan, 780 F.2d 37 D.C.Cir.1985). NHTSA has not persuaded us that these previous holdings should be reexamined. Just as Congress can provide the basis for judicial review of nonenforcement decisions by spelling out statutory factors to be measured by the courts, so an agency can provide such factors by regulation. When an agency chooses to so fetter its discretion, the presumption against reviewability recognized in Chaney must give way. The Supreme Court has never deviated from the position it set forth in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957): “While it is of course true that under [the relevant statute] the Secretary was not obliged to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so, ... and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.” Id. at 388, ’ll S.Ct. at 1165. In Service the Court scrutinized a decision that violated a self-imposed regulatory limitation superimposed on a broad statutory grant of discretion. The Service decision makes plain that an intent to proscribe judicial review of agency adherence to its own legally binding standards should not be inferred from a statute conferring broad discretion. Rather, there must be a much more definitive expression of Congress’ intent to immunize an administrative decision otherwise amenable to review. II. We thus adhere to our previous views that the Motor Vehicle Safety Act* (“the Act”) does not operate to preclude judicial review in this case. See Center for Auto Safety v. Dole, 828 F.2d at 804-05. At the outset, we stress that there is nothing in the Act remotely resembling an express preclusion of review of decisions not to grant citizen petitions. Compelling legislative history or a law’s own structure may manifest a Congressional intent to deny review when the statute itself is silent < on the matter. See Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). But appellees have pointed to no “clear and convincing’’^ evidence, see Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986), that Congress meant to take this unusual step with this Act. The foregoing analysis, however, does not carry the day for appellants’ request for this court’s review. Other considerations bear on whether, notwithstanding the presumption of reviewability of agency compliance with legally binding regulations, this court may review the NHTSA’s decision to deny the citizen petition in this case. The rebriefing has persuaded us that the regulation to which appellants refer us for “law to apply” does not limit the agency’s discretion in a way that enables us to conduct a meaningful review of the agency’s compliance. While safety is an indispensable element of the decision not to investigate, NHTSA can and does consider such “nonsafety” factors as its available resources, enforcement priorities, the likelihood of uncovering sufficient evidence to establish the existence of a defect, and the prospect of ultimately succeeding in any necessary enforcement litigation. The regulation sub judice provides the court no way to second-guess the weight or priority to be assigned these elements. In particular, it would be unwise, and inconsistent with the broad mandate of the agency under the governing statute, to infer a mandatory allocation of the agency’s limited resources from the regulation at issue. We must thus conclude that NHTSA’s decision governed by this regulation is not reviewable. III. We find no need to further address the difficulties this Court previously encountered in delimiting the depth and scope of our review of the agency’s refusal to investigate. The earlier opinions in this case labored long and hard to determine whether the court’s review was confined solely to the reasons expressed by the agency or whether the whole administrative record was to be considered. The perplexities of whether and how to apply the teachings of Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), which divided the original panel in this case, are not relevant to our decision not to review. The petition for rehearing is granted. The earlier decision of this court is vacated. For the reasons stated above the order of the district court denying review is 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. William CURRIE, Plaintiff, Appellant, v. MOORE-McCORMACK LINES, INC., Defendant, Appellee. No. 5546. United States Court of Appeals First Circuit. Heard Jan. 8, 1960. Decided Jan. 18, 1960. See also 23 F.R.D. 660. Blair L. Perry, Boston, Mass., with whom Leo Y. Concannon, Boston, Mass., was on brief, for appellant. Seymour P. Edgerton, Boston, Mass., with whom Robert J. Hallisey, W. C. Moffett and Bingham, Dana & Gould, Boston, Mass., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. . At the Coast Guard hearing he said he came on duty at 8 P.M. Hence it was no earlier. The complaint alleged 8:30. ALDRICH, Circuit Judge. This is an action brought by plaintiff-appellant against Moore-MeCormack Lines, Inc. Plaintiff, a seaman aboard the Destroyer William T. Powell, was injured when a collision occurred between the Powell and defendant’s freighter Mormacspruce. Plaintiff was below decks, and the only evidence as to-how the collision took place came from his brother, Richard Currie, another seaman aboard the Powell, hereinafter called Currie. At the conclusion of plaintiff’s, case the court ruled that Currie’s testimony would not support a finding of negligence by the Mormacspruce, and directed a verdict for the defendant. This ruling presents the sole question on appeal. The collision occurred March 31, 1955. Currie had then been two years aboard the Powell. He was 23 years old, and had not completed high school. Although he testified he “knew how to take a bearing,” when asked how, he could not recall. His only duties with relation to navigation had been to steer the course he was given, and to convey messages to the engine room through the telegraph. On this particular occasion he was in the pilot house, assigned to the telegraph. The Powell was bound up Delaware Bay; the Mormacspruce down. Currie testified that the collision occurred about 8 P.M. Asked whether it was “daylight,” he replied that he “couldn’t state whether it was light or dark at the time.” He testified that he had made two dozen round trips in the bay, and was familiar with it. He did not, however, know what buoys, if any, were in the vicinity of the collision, and when asked the name of the nearest lighthouse, gave the name of a lightship 20 miles distant. On direct examination he stated that the Powell was on the starboard side of the channel. On cross-examination he said he did not “have any idea how you determined the limits of a channel.” When asked how he had determined it in this instance his only answer was, “Whenever you return it is always right * * . It stands a red light reading.” This was no more than an affirmation of the Powell’s general practice. We cannot suppose that Currie, who admitted he was not qualified to define the limits of a channel, was qualified to state any custom of the vessel with respect to them. We therefore do not reach the very doubtful question of whether a general practice of a vessel to observe rules, without even showing that the regular officers were in charge on that occasion, is evidence that she was observing the rules at a particular moment when an accident happened. With this background we turn to Cur-rie’s account of the collision. On direct examination he testified that when he first saw the Mormacspruce she was 3 or 4 miles away. “Could you see the vessel itself?” “I seen her red port running light * . She bore dead ahead.” He stated when he next saw her she was about 100 yards off. Asked her position “with reference to the right or left-hand side of the channel at the time of the collision,” he replied, “Dead ahead * * in our side. She was dead ahead all the way.” Q. “With reference to the right or left-hand side — ” A. “The center of the channel.” Q. “At the time of the collision?” A. “At the time she swung to the right, to our side of the channel * * The witness then gave certain testimony with respect to whistles, which we will come to later, and concluded his direct with the statement that the Powell swung 80 or 90 degrees to port and was struck on the starboard side, aft. On cross-examination Currie was reminded that he had said the Mormac-spruce when first seen was “dead ahead.” Q. “What does dead ahead mean to you ?” A. “She was right abeam. Dead ahead.” He changed this to “right straight ahead.” Q. “You don’t have her straight ahead in this diagram.” A. “No, sir * * *. I believe she was port dead ahead, sir.” The diagram, made by the witness on direct examination, in fact bore little relationship to his oral testimony. The witness then testified that shortly before the collision orders came from the upper bridge for hard left, and to stop the starboard engine, with full ahead on the port. This singular statement was later amplified to indicate that there were a number of orders transmitted with regard to the Powell’s engines. What they were is not of present consequence. We agree with the district court that this evidence, taken as a whole, could not reasonably warrant a finding of negligence on the part of the Mormacspruce. While negligence may be established by inference, it must be possible to take some rational view of the evidence as a whole from which there could be drawn an inference which would be more probable than any other. Smith v. Reinauer Oil Transport, Inc., 1 Cir., 1958, 256 F.2d 646, 649, certiorari denied 358 U.S. 889, 79 S.Ct. 133, 3 L.Ed.2d 117; Commercial Standard Ins. Co. v. Feaster, 10 Cir., 1958, 259 F.2d 210, 212. We can obtain no picture from Currie’s testimony beyond the fact that there was a collision between the Mormaespruce bound down the bay, and the Powell, bound up, and that at the moment of impact the vessels were starboard to starboard, the Powell having just turned 80 or 90 degrees. There is no basis for finding that the Mormaespruce was on the wrong side of the channel and there is no ground, thus far, for charging her with fault. The other aspect of plaintiff’s case relates to signals. Currie testified on direct examination that prior to the collision the Powell gave “one blast on the whistle,” and then “sounded another two blasts,” and that he did not hear a response to either. We assume that it would have been a fault by the Mormae-spruce if she had- not signalled before such blasts, or afterwards. 33 U.S.C. § 203; 33 C.F.R. § 80.3(a). However, on cross-examination, Currie admitted that on his deposition before trial he had testified that the only signal prior to the collision had been a sounding of a siren. Asked whether this was “a true answer,” he replied, “I don’t know, sir. I can’t answer.” No attempt was made thereafter to rehabilitate him. The burden was on the plaintiff. Cur-rie was inside the pilot house, busy receiving and sending signals by the telegraph, and, as plaintiff says in his brief in another connection, “confronted with a disconcerting emergency situation.” This distraction came from the orders he was receiving and executing, and not from any outside signals. We doubt very much if he was in a position to hear such as to give his negative testimony on direct examination any substantial significance. The Michigan, 4 Cir., 1894, 63 F. 280, 285, certiorari denied 159 U.S. 262, 15 S.Ct. 1041, 40 L.Ed. 142; Union Pacific R. Co. v. Burnham, 10 Cir., 1941, 124 F.2d 500, 502; Gibb v. Hardwick, 1922, 241 Mass. 546, 549, 135 N.E. 868; Hough v. Boston Elevated Ry. Co., 1928, 262 Mass. 91, 94, 159 N.E. 526. But clearly it had none after his testimony on cross. We are not willing to say that a collision between two vessels can be chargeable to one of them simply because a seaman inside the pilot house of the other occupied with receiving signals from the bridge and transmitting them to the engine room, who cannot finally recall whether his own vessel gave whistle signals or not, does not recall hearing any reply. Judgment will enter affirming the judgment of the District Court. . The witness did not explain what this last meant. Plaintiff’s counsel suggests it referred to the fact that, on entering, the starboard lighted buoys are red. 33 C. F.R. § 62.25-5 (b) ; § 62.25-20. This may be what the witness had in mind. But it is not to be taken as saying that he was judging by any lighted buoy at the moment. It cannot be forgotten that Ourrie denied knowledge of whether there were any buoys in the vicinity; or even whether it was light or dark. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_district	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Charles COLLE, Appellant, v. UNITED STATES of America, Appellee. No. 18260. United States Court of Appeals Fifth Circuit. July 19, 1961. O. B. Cline, Jr., Miami, Fla., for appellant. E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee. Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges. PER CURIAM. Appellant contends that in our disposition of this appeal we failed to indicate what he contends was his principal ground of appeal; that is that the court in some manner required the defendant to take the witness stand before the court would consider the exclusion of certain evidence offered by the Government. We have carefully considered this ground of appeal and find that the trial court, who tried the case without a jury by consent of the parties, permitted the defendant to take the stand to testify on the issue of the legality of a seizure of' the property tendered in evidence by the Government. The examination of the defendant in this connection was relevant to the issue on which the defendant sought to give testimony. In our opinion we referred to “the jury’s verdict.” The opinion is modified to strike the words “the jury’s verdict,” and to substitute in lieu thereof the word “judgment.” As thus modified the motion for rehearings is Denied. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_appel1_7_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". J. C. OWENS v. UNITED STATES. (Circuit Court of Appeals. Ninth Circuit. November 2, 1925.) No. 4499. In Error to 'the District Court of the United States for the District of Arizona; F. C. Jacobs, Judge. Thomas J. Croaff and Joseph.E. Morrison, both of Phoenix, Ariz., for plaintiff in error. John B. Wright, U. S. Atty., of Tucson, Ariz., and Geo. T. Wilson and George R. Hill, Asst. U. S. Attys., both of Phoenix, Ariz. Before HUNT, RUDKIN, and McCAMANT, Circuit Judges. Certiorari denied 4G S. Ct. 203, TO h. Ed. —. HUNT, Circuit Judge. Conviction under an indictment for sale of intoxicating liquor to Indians under charge of an Indian agent, and wards of the Government of the United States. The questions presented axe the same as are decided in Brown v. United States (C. C. A.) 8 F.(2d) 433, and upon the authority of that ease the judgment is affirmed. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_judgdisc	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America v. James D. HOCKENBERRY, Appellant. No. 72-1425. United States Court of Appeals, Third Circuit. Argued Oct. 3, 1972. Decided Feb. 21, 1973. Louis Lipschitz, Philadelphia, Pa., and Stanton D. Levenson, Watzman, Leven-son & Snyder, Pittsburgh, Pa., for appellant. Richard L. Thornburgh, U. S. Atty., James A. Villanova and Kathleen K. Cur-tin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee. Before SEITZ, Chief Judge, and HASTIE and HUNTER, Circuit Judges. OPINION OF THE COURT HASTIE, Circuit Judge. James Hockenberry, a former county detective, has taken this appeal from his conviction of making a false material declaration under oath before a grand jury in violation of the recently enacted section 1623 of Title 18, United States Code. 84 Stat. 932. Hockenberry had testified before the grand jury only under judicial compulsion after he had been granted immunity under section 2514 of Title 18, United States Code. We must decide whether the trial judge committed reversible error in admitting into evidence against the accused at his perjury trial a truthful statement he had made to the grand jury on the same occasion as the alleged false statement but unrelated to it. The indictment charged Hockenberry with falsely swearing to the grand jury that he had no knowledge of or connection with bribes or payoffs to county detectives by persons engaged in unlawful gambling and prostitution. At his trial he took the stand in his own defense and denied any such knowledge or connection. In an effort to discredit him as a wit- ness, the prosecution cross-examined him, over objection, about other unrelated parts of his testimony before the grand jury. Part of the cross-examination was as follows: “Q. Well, do you recall appearing before the Grand Jury on the 16th of March, 1971, and my questioning you about certain returns on search warrants that you have executed under oath? “A. I recall that, yes. “Q. You do recall? “A. Yes. “Q. Do you recall testifying that there were at least two instances that you had executed a sworn return on those search warrants, and the information in it was false?” Then, after an objection had been overruled, the prosecution read two excerpts from Hockenberry’s grand jury testimony in which he admitted that on occasion, in the course of his work as a detective, he had signed affidavits wherein he falsely asserted personal knowledge of facts upon which search warrants were being sought. It was the contention of the prosecution that appellant’s admission before the grand jury — stating that on occasion he signed false affidavits to obtain search warrants — could be introduced to impeach him as a witness. The prosecution reasoned that this evidence was relevant and competent to show a “pattern of deceit” and thus discredit Hock-enberry’s denial at trial that he had lied to the grand jury about the unrelated matter of accepting bribes from criminals. Assuming that the law of evidence would permit such impeachment, there is a separate question whether this use of admissions made before the grand jury violated the immunity under which the admissions had been compelled. Hock-enberry originally had refused to testify before the grand jury, claiming Fifth Amendment privilege. He then was granted immunity under 18 U.S.C. § 2514 and ordered to testify. The admissions here in question were part of that testimony. After prescribing a procedure for compelling testimony, section 2514 continues as follows: “ . ' . . No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.” In this case appellant’s statements before the grand jury, truthful admissions of prior wrongdoing compelled under grant of immunity, certainly were used against him, since they were used to impeach his credibility as an accused person testifying in his own defense. Attempting to justify this disallowance of immunity, the government has found it necessary to argue that the use made of Hockenberry’s otherwise immunized testimony comes within the exception stated in the above quoted concluding provision of section 2514. The government reads that exception as meaning that, in a prosecution for perjury allegedly committed in the course of testimony required pursuant to section 2514, the statutory immunity does not cover either the allegedly false statement itself or anything else the accused may have said on the protected occasion. However, we think the exception is not that broad. Under the narrowest arguable reading of the Fifth Amendment, Hockenberry was compelled to incriminate himself when he was required to admit before the grand jury that he had executed false affidavits to obtain search warrants. However, Congress had authorized and the courts have sanctioned judicial compulsion of otherwise self-incriminating testimony so long as full protection is given the witness against injury through future incriminating use of the compelled statement. Kastigar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212. “Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.”. Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082. But quite apart from any question of self incrimination, a witness who testifies before a grand jury is required and sworn to tell the truth. The grant of immunity is superimposed upon that requirement. Protection is granted against future injurious use of the incriminating truth that the witness is required to speak, not against prosecution for or the use of any exculpatory falsehood that he may utter to avoid the required admission of wrongdoing. Hence, the immunity statute properly permits prosecution for perjury committed in an otherwise immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus delicti. To go beyond that and to argue, as the government does, that the immunity statute allows the use of any truthful admission of wrongdoing made in an immunized statement to discredit the individual as a witness in a subsequent prosecution, so narrows the statutory grant of immunity as to jeopardize its adequacy as a constitutional means of requiring self incrimination. But for the grant of immunity Hockenberry would have been privileged to refuse to admit to the grand jury his wrongdoing in the execution of affidavits to obtain search warrants. And if immunity that deprived him of that privilege is to be, as constitutionally it must, co-extensive with the privilege itself, his compelled admission of wrongdoing cannot later be used to discredit his effort to defend himself against a charge of some other wrongdoing. “Immunity from the use of compelled testimony . . . prohibits the prosecutorial authorities from using the compelled testimony in any respect . . . ” Powell, J., in Kasti-gar v. United States, supra, 406 U.S. at 453, 92 S.Ct. at 1661. Finally, we have not overlooked the government’s reliance upon Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, as supportive of what was done in this case. The Harris case holds that an arrested person’s voluntary incriminating statements, though inadmissible later as part of the prosecution’s ease in chief because the prisoner had not been advised of his right to counsel, may be used to impeach his credibility when he testifies as a witness in his own defense. In that case the Court was deciding how broad a sanction is necessary to vindicate the Miranda procedural requirement that an arrested suspect must be advised of his right to counsel before he shall be interrogated. In contrast, the question here is the scope of the use immunity thát government must afford and the Congress has undertaken to grant a witness in order to justify compelling him to make an incriminating statement. In this situation, as we already have pointed out, the mandated quid pro quo is immunity coextensive with the privilege; to-wit, immunity from any damaging use of the compelled truthful statement in a future prosecution. The Harris rule does not compel a person to incriminate himself. The abridgement of immunity in this case does, and that is its invalidating vice. Hockenberry’s conviction must be set aside and the cause remanded for a new trial. . In its brief the government argues that “[t]he better rule . . . is to permit the use of testimony obtained under an immunity grant, where otherwise relevant and admissible, for the purpose of impeaching the immunized witness or an immunized defendant when (as here) he chooses to testify on his own behalf”. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed 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". Ronald ADCOCK, et al., Plaintiffs-Appellants, Cross Appellees, v. The FIRESTONE TIRE AND RUBBER COMPANY, et al., Defendants-Appellees, Cross Appellants. Nos. 85-6031, 85-6067. United States Court of Appeals, Sixth Circuit. Argued Feb. 3, 1987. Decided June 26, 1987. John L. Van Cleave, argued, Robert E. Hoehn, Watkins, McGugin, McNeilly, Rowan, Nashville, Tenn., Lowe Watkins, for plaintiffs-appellants, cross-appellees. William N. Ozier, argued, Bass, Berry and Sims, Nashville, Tenn., for defendantsappellees, cross-appellants. Before LIVELY, Chief Judge; RYAN, Circuit Judge; and JOINER, District Judge. The Honorable Charles W. Joiner, Senior Judge, United States District Court for the Eastern District of Michigan, sitting by designation. JOINER, Senior District Judge. Plaintiffs are non-union salaried employees who worked in defendants’ LaVergne, Tennessee tire plant (“the plant”) at the time of the plant’s sale to Bridgestone Tire and Rubber Company (“Bridgestone”). Plaintiffs brought this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., to recover, on account of the sale, reduction in force (“RIF”) termination pay under defendants’ termination pay plan. The district court granted defendants’ motion for summary judgment based on the ground that defendants’ determination that no RIF occurred upon the sale which would entitle plaintiffs to benefits was not arbitrary or capricious, 616 F.Supp. 409 (D.C.Tenn. 1985). Plaintiff appeals from this determination. The district court also held that defendants may become responsible for future benefits should Bridgestone terminate any plaintiff under circumstances that would constitute a RIF under the plan. Defendants cross-appeal from this decision. I. Firestone’s company-wide termination pay policy was set forth in its Salaried Personnel Manual (“SPM”) and Handbook for Salaried Employees (“the Handbook”). The SPM is a comprehensive and confidential document that was distributed only to personnel managers and senior executives, though relevant portions were made available to employees upon request. The Handbook was distributed to all salaried employees. The Handbook stated the employees were entitled to termination pay if they were released from the company because of a RIF. The SPM described a RIF as a termination when “necessary to eliminate a position because of reduced workload or due to economic necessity.” According to the SPM, the goal of this termination pay was to minimize “the economic and mental stress of terminated employees ... between release from Firestone and securing other employment.” Defendants interpreted this plan to mean that if a plant was sold as an ongoing concern, no benefits would be paid. On the other hand, if a plant was not sold as such, and even if the purchaser eventually did decide to hire employees back, benefits would still be paid. Defendants explained that this “presumption of unemployment” was less expensive than the alternative of investigating each employee to see if they had been re-employed, and did not cause as much ill will with employees. Consistent with this policy, Firestone sold two plants (in Conover, North Carolina, and Arlington, Texas) not as ongoing concerns, and in each case RIF benefits were paid. Similarly, in a sale of a plant in Romeo, Michigan, only one-half of the employees could be guaranteed jobs with the purchaser, and the other one-half received RIF benefits. The only aberration dealt with the sale of the Newport, Tennessee, Firestone plant as an ongoing concern, where a one-time Service Recognition Award was paid to all employees. According to defendants, this was done to compensate the employees for the fact that the purchaser provided few benefits, and had no pension plan. The terms of the LaVergne sale were spelled out in a seventy-five page agreement that dealt with the transfer of the plant and the continuing employment of the plant employees. The agreement explicitly stated that Firestone would not terminate any employees before the sale, and Bridge-stone would employ every plant employee. In order to meet its commitment of maintaining the plant work force, Firestone adopted a policy of not permitting transfers of plant employees to other Firestone locations. In addition, due to its interpretation of its termination pay plan as described above, employees who accepted employment with Bridgestone did not receive severance pay due to a lack of unemployment, while those who chose not to accept such employment were treated as having resigned, and would therefore be ineligible for severance pay. Pursuant to this agreement, the plant was sold as an ongoing concern on January 10, 1983, for $55,-000,000. Plaintiffs filed the present case on January 12, 1983, alleging that defendants’ interpretation of the termination pay plan was arbitrary and capricious, and was therefore in violation of ERISA. After the filing of cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56(b), the district court granted defendants’ motion on August 6, 1985. The district court began by noting that the SPM would not be heavily relied on, as its contents had not been communicated to the employees in accordance with the dictates of ERISA. In a similar vein, the district court noted that, by defendants’ own admission, Firestone had not complied with the disclosure requirements of ERISA with regard to the termination pay plan in general, but that this noncompliance was not so severe or intentional as to constitute arbitrary and capricious conduct on defendant’s part. The district court then turned to the language of ERISA, and observed that ERISA did not provide for the vesting of employee welfare benefit plans, and that this “silence” constituted a “gap” which had to be filled by federal common law. The district court determined that plaintiffs had a binding contractual right to termination pay, with the offer being the description of the plan in the Handbook, and the acceptance being plaintiffs continuing to work for Firestone. As such, the district court concluded that plaintiffs’ entitlement to these benefits was vested, and that if Bridge-stone terminated any plaintiff in the future under circumstances that constituted a RIF under the plan, defendants would be responsible for benefits. However, the court also concluded that given defendants’ past practices, it was not improper for them to deny benefit payments at the time of the plant sale, as plaintiffs were not yet unemployed, therefore no RIF had occurred. II. On appeal, plaintiffs contend that defendants’ interpretation of the termination pay plan is arbitrary and capricious for two major reasons. First, plaintiffs argue that defendants’ construction of the plan has not been uniform, and the distinction defendants make between ongoing and non-ongoing concern sales is merely a “smoke screen” for inconsistency, as is demonstrated by the Newport sale. Second, plaintiffs contend that defendants have read in unemployment as a prerequisite for benefits, yet no such requirement can be found in the wording of the plan. As a result, plaintiffs argue that defendants’ approach is not consistent with a fair reading of the termination pay plan. Defendants respond that unemployment as a prerequisite is a reasonable interpretation, as the stated policy behind the plan is to decrease the trauma of unemployment. Defendants also argue that this interpretation is consistent with past readings of the plan, specifically pointing to the Conover and Arlington plant sales. The district court granted summary judgment pursuant to Fed.R.Civ.P. 56(b) and will be affirmed only if it is determined that the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party. Matsushita Electric Industries Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In this context, all inferences from the facts must be viewed in a light most favorable to the non-moving party. Id. However, the movant need not present evidence to negate every aspect of the non-movant’s claim, they need only support their own claim that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In reviewing the decisions of plan administrators under ERISA; the appropriate standard of review is whether the decision was arbitrary, capricious, or in bad faith. Rhoton v. Central States Pension Fund, 717 F.2d 988, 989 (6th Cir.1983); Blakeman v. Mead Containers, 779 F.2d 1146, 1149 (6th Cir.1985); Cook v. Pension Plan For Salaried Employees, 801 F.2d 865, 870 (6th Cir.1986). While plaintiffs argue for more of a de novo standard, this approach has been rejected in favor of the arbitrary or capricious standard, which adequately protects the interests of employees with respect to employment benefits covered by ERISA. See Crews v. Central States Pension Fund, 788 F.2d 332, 336 (6th Cir.1986). A reading of past cases dealing with similarly-worded termination pay plans reveals that courts have come out both ways on the issue of whether unemployment is a prerequisite for termination pay, with an important factor often being how the employer had interpreted the plan at issue in the past. In the instant case, an examination of Firestone’s past interpretation and application of the plan indicates that their present interpretation is consistent. An analysis of the Conover, Arlington, and Romeo plant sales demonstrates that regardless of whether a particular employee is employed by the plant purchaser or not, no termination benefits are paid when a plant is not sold as an ongoing concern. The only exception to this approach seems to be the Newport sale, but this court agrees with the district court that the Newport sale was a special case, and that the circumstances which lead to an exception being made are not present here. Consequently, based on consistency of interpretation, it cannot be said that defendants’ interpretation of the plan in this instance was arbitrary or capricious. Defendants’ interpretation of the termination pay plan is also consistent with a fair reading of the plan, which as recognized by plaintiffs, is always an important consideration when judging the actions of an administrator of an ERISA plan. Blau v. Del Monte Corp., supra, 1354; Blakeman v. Mead Containers, supra, 1150. In analyzing plans such as the one at issue, courts have often held that unemployment should be a prerequisite for benefits, as severance pay is generally intended to tide an employee over while seeking a new job, and should be considered more of an unemployment benefit. Sly v. PR Mallory & Co. Inc., supra, 1211; Jung v. FMC, supra, 713; Holland v. Burlington Ind., Inc., supra, 1149. This is certainly appropriate in the instant case, as the SPM states that the goal of the plan is to reduce the stress of terminated employees between the time of their release and securing other employment. This court believes that it is a fair reading of the plan to require unemployment as a prerequisite to finding that a RIF occurred which justifies the payment of termination pay. Accordingly, because there is no question that a RIF did not occur in this case, the district court was correct in holding that defendants’ interpretation and application of the plan to plaintiffs was not arbitrary or capricious. III. In their cross-appeal, defendants argue that the district court erred in holding that plaintiffs’ entitlement to termination pay was vested under ERISA. Initially, defendants claim that the fact that ERISA specifically provides for the vesting of pension benefits, but not for employee welfare benefit plans, is an intentional omission which indicates that Congress did not intend for such plans to be vested. It is not a gap, they argue, that requires federal common law interpretation. Defendants then go on to argue that the analysis of the district court that the gap should be filled by a contract analysis has been recently rejected by this court in In re White Farm Equipment Co., 788 F.2d 1186 (6th Cir. 1986). Plaintiffs take the same position the district court did, arguing that the contract approach is appropriate, and that the termination pay plan is the result of a bargained-for exchange. This court will not address this issue, as it is not properly before us, nor was it properly before the district court. The jurisdiction of federal courts is limited by Article III of the United States Constitution to consideration of actual cases and controversies, therefore federal courts are not permitted to render advisory opinions. Princeton University v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 868, 70 L.Ed.2d 855 (1982); Big Rivers Electric Corp. v. Environmental Protection Agency, 523 F.2d 16, 19 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). The vesting question was not mentioned in the complaint, nor by any party in a motion for summary judgment, and was therefore never before the district court. As such, there was no actual vesting case or controversy for the district court to rule on, so the district court rendered an advisory opinion. This action was clearly improper, and must be vacated. IY. The decision of the district court granting defendants’ motion for summary judgment is AFFIRMED except for that part which holds that plaintiffs’ entitlement to termination pay is vested. As to that part of the district court’s decision, it is VACATED. RYAN, Circuit Judge, concurs in the result and the court’s judgment. . The plan is funded entirely by Firestone, and applies to non-union employees. Union employees subject to collective bargaining agreements have separate termination pay rights under those agreements. . A sale as an ongoing concern is where there is a contractual agreement that all employees of the seller will be employed by the purchaser. . The denial of severance benefits at the plant saved Firestone approximately $2,500,000. . The plant employees left work on Friday working for Firestone, and when they returned to work on the following Monday, they were working for Bridgestone. In the two years following the sale, only two former Firestone employees had been terminated, and both were terminated for cause. . The district court concluded that the termination pay plan constituted an employee welfare benefit plan for the purposes of ERISA, and this conclusion is not disputed on appeal. . According to the district court, defendants would be responsible for benefits accrued up to the date of the plant sale to Bridgestone. . The district court distinguished the Newport sale, stating that while Bridgestone did not offer termination pay, the benefits it did offer were comparable to those offered by Firestone, and were much better than those offered by the purchaser in the Newport case. . For cases holding that unemployment is a prerequisite to entitlement to termination pay, see, Sly v. PR Mallory & Co., Inc., 712 F.2d 1209, 1213 (7th Cir.1983); Jung v. FMC, 755 F.2d 708, 713 (9th Cir.1985); Holland v. Burlington Ind., Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff’d, - U.S. -, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Blakeman v. Mead Containers, supra, 1151. For cases reaching an opposite conclusion, see Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985); Anderson v. CIBA-Geigy Corp., 759 F.2d 1518, 1521 (11th Cir.1985), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987). . This is not to say that an employer may not, if it so desires, provide severance pay without the presence of unemployment, as Firestone does with employees at plants not sold as ongoing concerns. If such an approach is taken, the main concern will then be that the approach is consistently followed in similar cases, and as the above discussion indicates, that consistency is present here. . Plaintiffs argue that this court should not rely on the SPM for any analysis, because it was not properly disseminated to Firestone employees. While it is true that the SPM was not appropriately distributed to all employees, it would be elevating form over substance not to consider the clear intent of the termination pay plan as expressed in the SPM. . Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987), submitted by plaintiffs after the instant case was argued, is distinguishable. First, unlike the instant plan language, the severance pay plan language in Harris more strongly suggested that unemployment was not a prerequisite to termination pay. 809 F.2d at 1498, 1499. Second, in Harris the plan administrator’s interpretation of the severance pay plan was not consistent with its past practices, 809 F.2d at 1499, while here, defendants have consistently interpreted the plan. . See 29 U.S.C. § 1051(1); McBarron v. S & T Industries, 771 F.2d 94, 97 (6th Cir.1985). . If this court reviewed the district court’s decision, it is likely that it would be reversed in light of In re White Farm Equipment Co., 788 F.2d 1186, 1192-1192 (6th Cir.1986), which rejects the district court’s contract analysis. 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:
sc_respondent	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. TEXAS v. NEW JERSEY et al. No. 13, Original. Decided February 1, 1965. Decree entered April 26, 1965. It Is Ordered, Adjudged and Decreed as Follows : 1. Each item of property in question in this case as to which a last-known, address of the person entitled thereto is shown on the books and records of defendant Sun Oil Company is subject to escheat or custodial taking only by the State of that last-known address, as shown on the books and records of defendant Sun Oil Company, to the extent of that State’s power under its own laws to escheat or to take custodially. 2. Each item of property in question in this case as to which there is no address of the person entitled thereto shown on the books and records of defendant Sun Oil Company is subject to escheat or custodial taking only by New Jersey, the State in which Sun Oil Company was incorporated, to the extent of New Jersey’s power under its own laws to escheat or to take custodially, subject to the right of any other State to recover such property from New Jersey upon proof that the last-known address of the creditor was within that other State’s borders. 3. Each item of property in question in this case as to which the last-known address of the person entitled thereto as shown on the books and records of defendant Sun Oil Company is in a State, the laws of which do not provide for the escheat of such property, is subject to escheat or custodial taking only by New Jersey, the State in which Sun Oil Company was incorporated, to the extent of New Jersey’s power under its own laws to escheat or to take custodially, subject to the right of the State of the last-known address to recover the property from New Jersey if and when the law of the State of the last-known address makes provision for escheat or custodial taking of such property. 4. Any relief prayed for by any party to this action which is not hereby granted is denied. 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_adminrev	O	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". In re ALTON R. CO. GIBBONS v. GARDNER. Nos. 9251, 9252. Circuit Court of Appeals, Seventh Circuit. Jan. 24, 1947. Thomas Dodd Healy, of Chicago, Ill. (Louis Boehm, of New York City, of counsel), for appellants. Anan Raymond, Tappan Gregory, Robert L. Hunter, and Carl A. Waldron, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and Delano Andrews, all of New York City, and Kenneth F. Burgess, Douglas F. Smith, George Ragland, Jr., and Luther M. Walter, all of Chicago, Ill. (Oliver & Donnally, of New York City, and Sidley, Austin, Burgess & Harper, of Chicago, Ill., of counsel), for appellees. Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge. MAJOR, Circuit Judge. This appeal involves five orders of the District Court entered in the Alton Railroad Company reorganization proceedings under. Sec. 77 of the Bankruptcy Act, Title 11 U.S.C.A. § 205 et seq. The orders were entered October 21, November 13,. November 15 (only a portion of this order is appealed from), November 22 and November 27, 1946. Appellants are a committee asserted to represent a substantial majority of all security holders participating in the Plan of Reorganization, who’ by permission, of the court intervened in the proceedings April 1, 1943. The Plan of Reorganization, after certification by the Interstate Commerce Commission and approval by the court, was submitted to and accepted by the requisite security holders and confirmed by the court on October 21, 1946. The essential purpose to be accomplished by the Plan is a sale of the debtor’s property to the Gulf, Mobile and Ohio Railroad Company (sometimes referred to as G. M. & O.), with that company issuing securities in exchange for distribution to the debtor’s bondholders. Other railroads were included in the reorganization setup, namely, the Kansas City, St. Louis and Chicago Railroad Company, the Joliet and Chicago Railroad Company, and the Louisiana and Missouri River Railroad Company. All the orders appealed from were entered subsequent to the confirmation of the Plan by the court and have to do with its consummation. It appears unnecessary, therefore, to describe the provisions of the Plan other than those directly relevant to and concerned with such orders. While the contested issues are stated by the respective parties in numerous ways, we think the overall issue, succinctly stated, is whether the court exceeded its authority in entering the orders complained of. The provisions of the Plan so far as material to the instant controversy may appropriately be noted at this point. Under the heading of “Reorganization Managers,” it provides: . “There shall be - three reorganization managers, one of whom shall be designated by the Stephen B. Gibbons protective committee for holders of refunding-mortgage 3-percent bonds due October 1, 1949, of The Chicago and Alton Railroad Company, one by the Mutual Savings Bank Group and The Equitable Life Assurance Society of the United States, jointly, and one by the Thorvald F. Hammer independent committee for holders of 6-percent guaranteed preferred stock of the Kansas City, St. Louis and Chicago Railroad Company, all subject to the approval of the court; provided, however, that if the court shall find that at the time of designation either of the committees named has ceased to hold or to represent a substantial interest in' the property, the court may in its discretion designate in lieu of such committee. Should any of the parties named fail to make such designation within such time after confirmation of the plan and notice as the court shall consider reasonable, the court shall appoint the reorganization manager whom such party was entitled to designate. If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court. In case of failure of any party to designate any such successor within such time as the court shall consider reasonable, such successor shall be designated by the court.” At this point, we note that there is no finding by the court or any contention that those authorized by this provision to designate managers had “ceased to hold or to represent a substantial interest in the property,” or that they failed to make such designation within such time “as the court shall consider reasonable,” or that they failed in case of vacancy to designate any such successor “within such time as the court shall consider reasonable.” The Plan provides: “Subject to limitations of law, including the limitations of subsection 77(c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power (a) to take all such action and to enter into such arrangements, financial and otherwise, as they may deem necessary or advisable in order to consummate and carry into execution the plan; (b) to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company; * * * (d) to provide the method by which creditors and other interested parties may participate in the plan, including the distribution of new securities of the reorganized Kansas City, St. Louis and Chicago Railroad Company and of the Gulf, Mobile and Ohio Railroad Company; * * * (f) to make subject to the approval of this court minor adjustments in details of the plan as they may deem advisable; and (g) to construe the plan.” The Plan further provides: “Any construction of the plan by the reorganization managers on advice of counsel shall, subject to the approval of the court, be conclusive. The reorganization managers shall, however, exercise only such powers as shall be necessary to carry out the plan in accordance with its provisions subject to the direction of the court * * . The reorganization managers * * may employ such agents, attorneys, and others as they may deem desirable to carry out the plan, and may delegate to others any powers or discretion conferred upon them, and no reorganization manager shall be liable for any action taken by him in good faith * * .” The Plan also provides “the carrying out of the plan shall be under the direction and supervision of the court,” and under a heading, “Construction of the plan,” provides : “The construction of the plan by the court, whether before or after submission of the plan to creditors and stockholders shall be final and conclusive. The court, whether before or after submission, may cure any defect, supply any omission, or reconcile any inconsistency, in such manner or to such extent as may be necessary or expedient in order to carry out the plan effectively.” Appellants in their brief enumerate at great length the “important functions, powers and discretions lodged in or to be exercised by the reorganization managers in carrying out and implementing the plan,” with which it is asserted appellants, on behalf of the security holders represented by them, are vitally concerned. On the other hand, appellees seek to minimize the importance of the duties and obligations with which the managers were vested. We are of the view that we need be little concerned with whether the duties and responsibilities which the Plan imposed upon the managers are as important as claimed by appellants or as insignificant as asserted by appellees. Whatever be the merits of the controversy in this respect, there is no escape from the fact that the manner of designating the reorganization managers, as well as their duties, rights and responsibilities, is definitely fixed by the Plan, certified by the Commission, assented to by the creditors, and confirmed by the court. This brings us to a consideration of the orders complained of. On October 21 (the same date the Plan was confirmed by the court), the court entered the first order complained of, as follows: “On the Court’s own motion, It Is Ordered That: “(1) Henry A. Gardner, Trustee of the properties of the Debtor, be, and he hereby is, authorized and directed, to put into effect and carry out the Plan of Reorganization heretofore approved and confirmed by this Court, under the direction and supervision of this Court; and “(2) The trustee be, and he hereby is, authorized and directed to employ Messrs. Sidley, Austin, Burgess & Harper as counsel to so put into éffect and carry out the Plan * On or prior to October 18, 1946, the names of the designees of the three groups authorized by the Plan to designate reorganization managers were submitted to the court. Immediately after, the entry of the order of October 21, the court announced from the bench its refusal to approve such designees for the reason that they were residents of New York, although they were “unquestionably men of high standing and men of ability.” The court at the same time announced: “Now, I have directed the Trustee to take the steps necessary to put the plan into execution. It is my desire that that be done forthwith. * * * Accordingly I take it it will be unnecessary for the reorganization managers to employ counsel unless some extraordinary situation may arise which makes that employment necessary * * * » Thus at the very inception the court authorized and directed the debtor’s trustee to carry out the Plan, in direct contravention of the provisions of the Plan which expressly and specifically vested such authority and power in reorganization managers. Also at the same time the court directed the trustee to employ certain designated counsel, in violation of Sec. 205, sub. c (2), which authorizes the trustee to select his own counsel subject to confirmation by the court. The parties authorized, by the-Plan to designate reorganization managers evidently for the purpose of avoiding delay acquiesced in the court’s refusal to approve nonresident managers. It is not necessary, therefore, to consider the action of the court in this respect. On October 24, October 29 and November 4, 1946, the Thorvald F. Hammer committee, the Mutual Savings Bank group and the Equitable Life Assurance Society jointly, and appellants, in conformity with their authority contained in the Plan, designated respectively John E. Gavin, Roy D. Keehn and A. Bradley Eben, all of Chicago, to act as reorganization managers. With these newly designated managers awaiting its approval, the court on November 13, 1946 entered the second order complained of. This order was entered upon the petition of Gardner as trustee and provided: “(1) That the Trustee be, and he hereby is authorized and directed to exercise all powers of the reorganization managers under the Plan, pending their designation and approval. “(2) That the Clerk of this Court be, and he hereby is authorized and directed to forward a copy of the said petition to the Interstate Commerce Commission, Washington, D. C., together with a copy of this order, for the fixing of the maximum limits of, allowance for said expenses and services in connection with carrying out and putting into effect the Plan of Reorganization herein.” On November 15, 1946, twenty-two days after the designation of Gavin, seventeen days after the designation of Keehn and eleven days after the designation of Eben. the court entered an order reciting their designation as reorganization managers and approved their appointment, “provided that their exercise of authority under the Plan shall at all times be subject to the direction of this Court.” This order further recited the court’s action of October 21, 1946, authorizing and directing that the trustee employ “Messrs. Sidley, Austin, Burgess & Harper as counsel to put into effect and carry out the Plan of Reorganization,” and without a scintilla of proof, so far as the record discloses, that “substantial progress has been made in effectuating said Plan.” The reorganization managers were speqifically directed not to “employ other counsel or in any manner limit or impair the direction heretofore given to the Trustee and his counsel above named.” The portion of this order which limits the authority of the managers as contained in the Plan is involved in this appeal. At this point it is pertinent to note that no question is raised on this record as to the honesty, integrity or ability of Eben, Keehn or Gavin to serve as reorganization managers. In fact, they are all well and favorably known members of the Chicago Bar. Why the court so long delayed the approval of their appointment is not disclosed. More than that, the court by its orders of November 13 and November 15 renewed the authority of the trustee and the court-appointed counsel to carry the Plan into effect. Moreover, the authority thus conferred upon the trustee and counsel was not withdrawn or diminished in any respect. In fact, the order of Noyember 15 approving the appointment of Eben, Keehn and Gavin was little more than a meaningless gesture for the reason that by the same order the court stripped them of all substance of power and authority which was theirs according to the provisions of the Plan. Furthermore, the reorganization managers were specifically forbidden to employ counsel, notwithstanding the fact that they were specifically authorized so to do by the Plan. On November 22, 1946, the court entered the fourth order involved in this appeal. This order also recites that it is on the court’s own motion and provides that the court’s order of November 15, 1946 “approving the designations of certain persons as reorganization managers be, and it hereby is, vacated and suspended pending the further order of this court.” Like the other orders, it was also entered without hearing and without any reason assigned as to why the approval of the reorganization managers theretofore made was “vacated and suspended.” They had been designated strictly in accordance with the provisions of the Plan, and we think the court was without authority to summarily remove them, especially without cause and without an opportunity to be heard. Notwithstanding the fact that the approval of these reorganization managers had been “vacated and suspended,” the court in the same order directed that they and the trustee file reports on or before November 26, 1946, “showing what each of them had done, is doing, and contemplates doing, to carry out and put into effect the plan of reorganization.” In conformity with this direction, such reports were filed and a hearing was had on November 26, 1946. These reports were considered and the testimony of one witness connected with the legal firm designated by the court to represent the trustee was heard. Much is said concerning these reports and the testimony of this witness, most of which we think is beside the point and immaterial to the issues raised on this appeal. At the conclusion of the hearing, on November 27, 1946, the fifth order involved in this appeal was entered, which in a large measure supersedes the prior orders. In this order it is recited that on October 21, 1946, when the Plan of Reorganization was confirmed, “it appeared that there would be delay in the designation and approval of Reorganization Managers, and properly to progress the consummation of the plan, notwithstanding that delay, the Court directed the Trustee to employ counsel experienced in railroad reorganization matters, named by the Court, and proceed at once to initiate the steps necessary to the consmmation of the plan.” The order further recites in effect that when the reorganization managers were approved by the court, the trustee and his counsel had made such progress in the effectuation of the Plan that the reorganization managers were “directed by the Court not to employ other counsel, and to proceed with the exercise of their authority under the plan.” The order recites as the reason for the order suspending the order approving the reorganization managers that “delay was being encountered in taking certain steps essential to an expeditious reorganization, and that further delay was threatened.” The order also states: “The plan of reorganization does not in terms deal with the particular circumstances and the emergency situation which has developed herein except by the provision that the Court may cure any defect and supply any omission necessary to carry out the plan effectively.” Thus it appears that the court by this order attempted to justify its previous orders upon two grounds, (1) a fear that there would be delay in the consummation of the Plan, and (2) that at the time the managers were approved (November 15, 1946), the trustee and his counsel had made such progress in the effectuation of the Plan that it was unnecessary for the reorganization managers to employ counsel, as they were authorized to do under the Plan. We think the first ground is wholly without merit and that the second ground is beside the point. Obviously, there was no reason on October 21, 1946 (the same day the Plan was confirmed) for thinking that reorganization managers designated as provided by the Plan would delay its execution, yet on that very day the court provided a means of its own for the execution of the Plan, contrary to its plain provisions. It would also appear that there was no basis for charging the reorganization managers designated under the Plan with delay during the time required by the court to make up its mind as to whether it would approve their appointment. It would appear equally certain that they cannot properly be charged with delay even after their approval, in view of the fact that the court stripped them of their prerogatives as set forth in the Plan. Thus with their authority impaired to the point where it was doubtful if they had a right to perform any function, it is difficult to discern how they could have been reasonably expected to make any progress in the execution and carrying out of the Plan. That the court was anxious to see the Plan expeditiously put into effect is to be commended, but speed cannot be indulged in at the expense of the rights of parties as fixed by a Plan. Therefore, we think that i't is 'immaterial' to the issues raised on this appeal that the trustee and his counsel had made progress,'if such be the fact, in the carrying out of the Plan. It is no answer to the charge that their appointment was unauthorized and illegal. Neither do we think there was an emergency situation which justified the course pursued by the court. If, .however, there was any emergency existing on November 27, it was of the court’s own making. . Neither do we agree that there' was any defect or omission in the Plan which justified the court’s action. In fact, the provisions of the Plan, so far as they relate to the issues before us are written in such plain, clear and unambiguous language as to leave no room for doubt as to their meaning. The court in its order of November 27 directed “that John E. Gavin, William T. Faricy and Claude A. Roth be, and they hereby are appointed by the Court as Reorganization Managers under the plan of reorganization herein.” (Gavin was one of the original designees.) These Court’s designated managers were not appointed under the Plan; in fact, they were appointed in contravention of its specific terms. Assuming that the removal of Gavin, Keehn and Eben was proper (which assumption we think is not tenable), and that a vacancy thereby existed, the court again ignored the Plan, which clearly provided the manner in which successor-managers were to be designated. It provides: “If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court.” The court at the hearing on November 27 further demonstrated its displeasure for the provision in the Plan pertaining to the appointment of reorganization managers by stating: “* * * the reorganization ‘ managers are- sort of vermiform appendices, without any useful function. But we have them, and we will get along with them if we can.” Again we think that if the court entertained that view as to the reorganization managers, it should have been given effect at the time it considered the merits of the Plan, as a prerequisite to its approval. It is true, of course, that the court had the authority and -the duty, both under the Act and by the provisions of the Plan, to supervise its execution. Such authority, how-, ever, did not confer upon the court the right to substitute a means of execution of its own contrary to 'and- in derogation of the provisions of the Plan. The duties and responsibilities of the reorganization managers in the execution and carrying into effect its provisions were as definite and certain as those of the court in its supervisory capacity. And the fact that the court might have thought that its means was better or more advantageous to the interested parties than that provided by the Plan can furnish no excuse for depriving the reorganization managers of their duties and responsibilities. To think otherwise is to work an injustice upon the creditors whose required assent to the Plan was procured on its stated terms and conditions, including those for its execution. In this connection, it is pertinent to observe that the means for the execution of a Plan of Reorganization is a positive requirement of the Act. Sec. 77, sub. b (5). We desire to make it plain that nothing said in this opinion is intended to reflect upon the court’s appointed counsel for the trustee, Messrs. Sidley, Austin, Burgess and Harper. The court evidently had great confidence in their ability to promptly and expeditiously carry the Plan into effect. So have we. Again, however, this is no answer to the contention that the orders complained of were unauthorized. It may be well at this point to call attention to a few of the cases for the purpose of showing the limited authority which is given the court under Sec. 77, and particularly after a plan has been approved. In Palmer et al. v. Commonwealth of Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the court stated: “But the whole scheme of § 77 leaves no doubt that Congress did not mean to grant to the district courts the same scope as to bankrupt roads that they may have in dealing with other bankrupt estates.” In Ecker et al. v. Western Pacific Railroad Corporation, 318 U.S. 448, 468, 63 S.Ct. 692, 705, 87 L.Ed. 892, the court stated: “When examined to learn the purpose •of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation bv the court.” In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 672, 55 S.Ct. 595, 604, 79 L.Ed. 1110, the court in referring to Sec. 77 stated: “As outlined by that section, a plan of reorganization, when confirmed, cannot be distinguished in principle from the composition with creditors authorized by the act of 1867, as amended by the act of 1874.” While we find no case exactly in point, numerous courts have construed the court’s authority in connection with the execution of a plan under Sec. 77 (B). This court, for instance, in In re Corona Radio & Television Corporation, 7 Cir., 102 F.2d 959, 963, held that the court was without authority to direct the execution of a plan in a manner inconsistent with its terms. To the same effect is In re Pilsener Brewing Co., 9 Cir., 79 F.2d 63, 68, and In re Diversey Building Corporation, 7 Cir., 141 F.2d 65, 68. It has also been held that a plan of reorganization is, when certified, approved, accepted and confirmed, in effect a binding contract between a debtor, the security holders and all other parties concerned. Downtown Inv. Ass’n v. Boston Metropolitan Buildings, Inc., 1 Cir., 81 F.2d 314; American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574. Counsel for appellees in their brief and argument in this court go even further than the court in attempting to justify the orders complained of. For instance, it is argued: “Particularly fresh in the Judge’s mind was the recent hearing on fees in connection with the approval of the Plan.” In this connection, it is pointed out that appellants filed with the Interstate Commerce Commission excessive claims for compensation and reimbursement of expenses. Assuming that such is the case, we think it is irrelevant to the orders under attack. If the purpose of such contention is to impugn appellants’ motive or integrity, it is sufficient answer to state that the application for fees referred to and the action of the Commission thereon took place long before October 21, 1946, when the Plan was approved by the court. Such activities certainly were as “fresh in the Judge’s mind” at that time as when he later entered the orders complained of. If there was anything in appellants’ previous conduct which indicated that it was undesirable that they be given the right under the Plan to designate the reorganization managers, it was a. matter for the court’s concern before the Plan was approved rather than subsequently. Furthermore, appellants appear to have played an important part in the formulation of the Reorganization Plan. The Commission in its report of April 25, 1946 stated : “Counsel and the committee and its advisers, on and after April 17, 1945, concluded the negotiations which led to agreement with the Gulf, Mobile & Ohio on the terms of the plan, and took the lead; in proceedings which thereafter culminated in approval of the plan by the. Commission and the. court * * Appellees further argue that the court properly exercised its discretion because appellants attempted to block the reorganization and circumvent Sec. 77, sub. c (12). At this point it is pertinent to recall that the court in its order of November 13, 1946 directed its clerk to forward to the Interstate Commerce Commission the petition of the trustee to prescribe maximum limits of 'expenses pursuant to Sec. 77, sub. c(12). The clerk complied with the direction of the court in this respect. Thereupon, New York counsel for the appellant Committee, under date of November 15, 1946, directed a letter to the Commission opposing the petition “on the ground that the Trustee has no power to put into effect and carry out the Plan.of Reorganization.” The letter also called attention to the provision of the Plan by which such power was lodged in the reorganization managers. On November 21, 1946, appellants by the same New York counsel filed with the Commission an answer to the trustee’s petition in which was set forth the provisions of the Plan as well as the orders complained of designed to show that the latter were entered without authority. It was asserted in such answer that the execution of the Plan by the trustee would be in violation of the Plan and would cast a serious doubt and cloud upon the title of the G. M. & O. and on other interested parties. 'It was also asserted that Sec. 77, sub. c(12), was without application because the Plan of Reorganization provided that the compensation and expenses of those employed in carrying out the Plan should be paid by the G. M. & O. Appellees assert that by this action the appellant Committee “immediately undertook to block the required proceeding before the Interstate Commerce Commission,” and that “It will be seen that while pretending to name a Reorganization Manager to participate in the consummation of the Plan, appellant was actually moving to defeat the consummation of the Plan under and pursuant to the vital limitations imposed by subsection c(12) * * Thus it will be observed that the attack which appellants sought to make before the Commission was substantially the same as that made here, that is, that the court was acting without authority and in contravention of the terms of the Plan. We are of the view that appellants were not only within their rights in attacking the orders of the court before the Commission but that they would have been derelict in their duty if they had failed to do so. We have heretofore quoted the provision of the Plan conferring broad and exclusive powers upon the reorganization managers in the execution of the Plan. We repeat this provision, so far as material to the instant discussion. It provides: “Subject to limitations of law, including the limitations of subsection 77 (c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power * * * to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company * * Sec. 77, sub. c (12), provides, so far as here material: “Within such maximum limits as are fixed by the Commission, the judge * * * may make an allowance, to be paid out of the debtor’s estate, for the actual_ and reasonable expenses * * * incurred in connection with the proceedings ana plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.” It is true, as appellees assert, that the provision of the Plan imposing upon the railroad the obligation of paying the expenses incurred in the execution of the Plan is “subject to limitations of law, including the limitations of Sec. 77 (c) (12).” Obviously, this limitation in the Plan is of no consequence unless the statutory provision is controlling. We think it is not. The latter expressly limits the allowances to those payable “out of the debtor’s estate.” This fact is emphasized in Reconstruction Finance Corporation v. Bankers Trust Co., 316 U.S. 163, 166, 63 S.Ct. 515, 87 L.Ed. 680. In the instant case, the fees and expenses incurred are not to be paid out of the debtor’s estate. The Plan specifically provides that the compensation and expenses of those authorized to execute the Plan “shall be paid by the Gulf, Mobile & Ohio Railroad Company.” We must assume that there is nothing wrong with a plan containing such a provision; otherwise the Commission would not have certified and the court would not have approved it. We think the creditors and interested parties whose assents were necessary to the validity of the Plan are entitled to have this provision as well as others respected and put into effect. We might go further and state that even though it be assumed that appellants' action before the Commission, taken in response to the trustee’s petition, was ill-advised, still there would be no basis for properly charging them with blocking the execution of the Plan. It cannot be said that their action was frivolous or not taken in good faith. Certainly the very least that can he said is that they presented a meritorious legal question, which they were entitled to do before the Commission as they have before this court. Furthermore, as already pointed out, the court entered upon a course contrary to the provisions of the Plan prior to appellants’ action now asserted to have blocked consummation of the Plan. In conclusion, we regret to relate that the court below during the hearing on November 27, 1946, in discussing the provision of the Plan imposing upon the G. M. & O. the obligation of paying the compensation and expenses incurred in its execution, made inquiry as to whether the railroad was represented in court. Upon being informed that its general counsel was present, the court threatened it with contempt “if any engagement is made or if any payment is made by way of attorneys fees or expenses of attorneys or otherwise in and about this reorganization other than within maximum limits fixed by the Interstate Commerce Commission and approved within those limits by this Court.” In our opinion, this threat of contempt directed at the railroad was not only improper but without justification. After all, the G. M. & O. was merely taking over the assets of the debtor corporation; in effect it was the purchaser of those assets. It was solvent and we assume possessed of officials capable of attending to its business. It is doubtful if the court had any jurisdiction over its funds and certainly no authority over the railroad other than to supervise its part in the execution of the Plan. As already shown, the railroad was obligated to pay the expenses of carrying the Plan into effect. Even though there had been a serious legal question as to its obligation in this respect, which we think there was not, such a question could have been more appropriately decided in the traditional judicial manner than by threatened contempt. The orders appealed from are reversed, with the direction that they be vacated and set aside and that the Plan of Reorganization approved by the court be consummated according to its terms and provisions. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". LUCAS v. SWAN. No. 3498. Circuit Court of Appeals, Fourth Circuit. Oct. 3, 1933. John S. Stump, Jr., of Clarksburg, W. Va. (Howard L. Robinson, of Clarksburg, W. Va., on the brief), for appellant. S. T. Spears, of Elkins, W. Va., and Hardin R. Harmer, of Shinnston, W. Va., for appellee. Before PARKER and SOPER, Circuit Judges, and WATKINS, District Judge. PARKER, Circuit Judge. This is an appeal in an action instituted by the receiver of the failed First National Bank of Shinnston, W. Va., to recover from one of the indorsers on a negotiable promissory note held by the bank. The note was a demand note for the sum of $11,000, payable at the bank, and was dated December 30, 1927. It was executed by the Derbrah Silk Company, a corporation of Pennsylvania, was made payable to maker, and was indorsed by the maker and five other persons, among whom was the defendant. It was the fifth renewal of a note executed September 10,1924, and originally given for the sum of $14,000, but subsequently, upon one of the renewals, reduced to $11,000. The notice of motion, which was the pleading of plaintiff, in addition to alleging presentment for payment at the bank, dishonor, and notice to defendant, alleged that the maker was a fictitious or nonexistent person, that the note was accepted hy the bank for the accommodation of the defendant, and that defendant as a result of being a director both of the bank and the silk company must be held to have waived demand, presentment, and notice of dishonor, and to be estopped from setting up lack of these as a defense. The defendant filed “Particulars of Defense” alleging that he was an accommodation indorser of the note sued on, that there had been no presentment or demand for payment, that necessity therefor had not been excused or waived, and that notice of dishonor had not been given defendant, nor had same been waived or excused. The evidence showed that the proceeds of the original note had gone to the silk company and had been used in large part for the payment of the obligations of that company then outstanding; that the note had been renewed from time to time upon the indorsement of the same persons who had indorsed the original instrument; and that the defendant, who was a director of the silk company as well as of the bank, had been present at the meetings of the bank’s directors when the renewal of the note was approved. It appeared also that the silk company was wholly insolvent and for some time before the institution of the action on the note had had no assets whatever. Its president had filed with the department of revenue of Pennsylvania in the year 1926, an affidavit showing that it had ceased to do business in 1923, that its assets had been distributed in payment of debts, and that since that time it had owned no property, and the purpose foi which it had been chartered had been permanently abandoned. The records of the department of revenue show that, on the strength of this affidavit, the silk company was marked “out of existence” on April 27, 1928. The evidence, however, is that this entry is used merely to indicate that the corporation has been dropped from the list of those from which the revenue department collects taxes. It does not result in the dissolution of the corporation under the law; and it may later register anew, upon filing returns and paying a nominal tax for the years during which it has been inactive., Defendant denied that he knew that the silk company was without assets until late in the year 1928, some time after the execution of the note sued on. The receiver testified that, 'in August after he took charge of the bank, he declared the note due and payable, exhibited it to the defendant at the bank, and advised defendant that he was looking to him for payment; that defendant requested time for the handling of the note; and that time was granted him. He further testified that the maker of the note and the other indorsers were insolvent and that he was looking for payment to the defendant alone. Defendant denied any presentation or demand; and testified that he had no notice that he was to be held for the note until he received a letter from the attorney for the receiver, notifying him that the note must be paid. The trial judge instructed the jury that if they believed from the evidence that the plaintiff looked to the defendant for the payment of the note and demanded payment of him, and that defendant knew that plaintiff looked to him and demanded payment, then formal presentment, demand, and notice were dispensed with, and they should find for plaintiff. There was verdict for plaintiff; and from judgment thereon defendant has appealed assigning a number of errors, the one principally relied upon being the instruction to which we have referred. Plaintiff contends that the charge as given was correct, and that the judgment should not be disturbed on the additional grounds: (1) That, the maker being “out of existence,” the indorsers were liable as makers, and that presentment for payment, demand, and notice of dishonor were not necessary to charge them; (2) that these were unnecessary for the further reason that defendant was an accommodated indorser; (3) that demand for payment was made upon defendant and no additional notice or demand was necessary; and (4) that presentment and notice were waived by the conduct of the defendant. We think it clear that the instruction complained of was erroneous. Even though the maker of a note be insolvent, it is necessary that it be presented for payment in accordance with its terms, and that notice of dishonor be given the indorsers in order to1 hold them. Grandison v. Robertson (C. C. A. 2d) 231 F. 785, 797; Nolan v. H. E. Wilcox Motor Co., 137 Tenn. 667, 195 S. W. 581; Haynes Automobile Co. v. Shepherd, 220 Mich. 231, 189 N. W. 841, 25 A. L. R. 930 and note at page 963. The vice of the instruction is that it makes the liability of the indorser depend, not upon the presentment for payment and notice of dishonor, which under the contract of the indorser are conditions of liability (Grandison v. Robertson, supra [C. C. A.] 231 F. 785, at page 797; Case v. McKinnis, 107 Or. 223, 213 P.422, 32 A. L. R. 167, 179), but upon the mental attitude of the plaintiff and knowledge of same on the part of the defendant. It is true that the instruction couples with this the matter of demand; but it is elementary that mere demand upon the indorser is not sufficient to charge him, in the absence of presentment and notice of dishonor, unless the case is one where presentment or notice fire not necessary, or unless these have been waived. Case v. McKinnis, supra; 8 C. J. 525 and cases cited. In most cases where the maker is insolvent, the holder looks to the indorsers for payment and the indorsers know that they are being looked to, but this is no reason why the holder should not comply with the conditions upon which the liability of the indorsers depends. And we see nothing in the position that presentment and notice were dispensed with because the silk company had disposed of its assets and been marked “out of existence” on the records of the revenue department of the state of Pennsylvania. So far as the evidence shows, the corporation had not been dissolved or its charter surrendered. It had the power, therefore, whether it had assets or not, to enter into contracts. It was a real person within contemplation of law, ánd not a fictitious person, or person not having capacity to contract, as was necessary to come within the provisions of section 115, subd. 1, of the Negotiable Instruments Law (Code W. Va. 1981, 46-7-27, subd. (a). It is well settled that a corporation does not cease to exist because it has become insolvent or has lost its property and ceased to carry on the business for which it was chartered. Brock v. Poor, 216 N. Y. 387, 111 N. E. 229; Essex Co. v. Commonwealth, 246 Mass. 242, 141 N. E. 38; Jones Mining Co. v. Cardiff Min. & Mill. Co., 56 Utah, 449, 191 P. 426. Equally without foundation is the position that the defendant was an accommodated indorser, and hence not entitled to notice under section 115, subd. 3, of the Negotiable Instruments Law (Code W. Va. 1931, 46-7-27, subd. (e). An indorser is accommodated when the maker, drawer, or acceptor of a negotiable instrument makes, draws, or accepts same for his benefit, and without consideration. See N. I. L. § 29 (Code W. Va. 1931, 46-2-6). The maker here was the person accommodated and primarily liable; and the indorsers were accommodation indorsers for the maker. Case v. McKinnis, supra, 107 Or. 223, 213 P. 422, 32 A. L. R. at page 181; Murray v. Third Nat. Bank of St. Louis (C. C. A. 6th) 234 F. 481; McDonald v. Luckenbach (C. C. A. 3d) 170 F. 434. The fact that the original note was renewed from time to time and that the liability of the indorsers might have been enforced if renewals had not been granted does not change! their relationship. Brannan Neg. Inst. Law (4th Ed.) p. 717; Nolan v. Brown, 152 La. 333, 93 So. 113; Maynard Trust Co. v. Furbush, 243 Mass. 190, 137 N. E. 270. It was still the debt of the silk company for which the renewal notes were given, and the indorsers were still signing without consideration to themselves in order to lend credit to the principal debtor. The position that the note was “accepted” by the bank for the accommodation of defendant within the meaning of section 115, subd. 3 (Code W. Va. 1931, 46-7-27, subd. (c) Of the Negotiable Instruments Law is clearly unsound. The word “accepted” is used in that section in its technical sense and means, with relation to a bill of exchange, the “signification by the drawee of his assent to the order of the drawer” (N. I. L. § 132 [Code W. Va. 1931, 46-10-1]). It has no reference to loans upon, or discount of, promissory notes. We have carefully considered the eases of Fosdiek v. Government Mineral Springs Hotel Co., 115 Wash. 127,196 P. 652, and Greenwade v. First Nat. Bank of Louisa, 240 Ky. 60, 41 S.W.(2d) 369, upon which the receiver relies. In the Fosdiek Case, we think that the court has misinterpreted the meaning of “accepted” as used in the statute; and we cannot follow its reasoning to the effect that a bank which discounts a note for an insolvent maker is to be held to have “accepted” it for the accommodation of the indorsers. For an illuminating comment on this decision, see Brannan, Negotiable Instruments Law' (4th Ed.) p. 716. The same may be said of the reasoning in the Greenwade Case, with the added observation that in that case the court rested its decision primarily on the ground that the evidence supported the finding as to waiver made by the chancellor in the court below. The case of Dankmer v. Wheeling Printing Co., 103 W. Va. 40, 136 S. E. 690, also relied upon by the receiver, is not remotely in point. The decision there was merely that it was error to exclude evidence offered for the purpose of showing that the note sued on had been executed for the accommodation of the persons appearing thereon as indorsers. It is, of course, well settled that such indorsers are the primary debtors, and that presentment and notice of dishonor are not necessary to charge them. Some confusion in thinking arises because the indorsers here were irregular indorsers. 8 C. J. 74. There was much conflict of authority, prior to the Negotiable Instruments Law, as to the nature of the contract into which such indorsers had entered and what was necessary in order to charge them. See 8 C. J. 74, and cases there cited. The Negotiable Instruments Law has settled this matter in the states where it is applicable, however, by providing that such irregular indorsers are liable as ordinary indorsers in accordance with the rules prescribed in section 64, subdivision 2 of which (Code W. Va. 1931, 46-5-5, subd. (b)), is applicable here. With regard to the demand made upon defendant, we do not think that a mere demand, with nothing else, was sufficient to fix his liability. Since the note was a demand note, demand within a reasonable time was necessary to fix the liability of the indorsers, as well as of the maker, unless, of course, this requirement was in some manner waived; and ordinarily it is for the jury to say whether demand was made within a reasonable time. Murray v. Third Nat. Bank of St: Louis, supra (C. C. A. 6th) 234 F. 481; Davis Nat. Bank v. Kight, 86-W. Ya. 319-, 193 S. E. 482, As the note was payable at the bank, it was sufficient that the demand for payment be* made there. N. I. L. § 73 (Code W. Ya. 1931, 46-6-4); Davis Nat. Bank v. Kight, supra. But the mere presence of the paper in the bank was not sufficient presentment and demand to fix the liability of indorsers, as would be true in the ease of paper payable on a specific date. See notes 11 A. L. R. at page 976, 59 A. L. R. 1291 and Bank of United States v. Smith, 11 Wheat. 173, 175, 6 L. Ed. 443; Bank of United States v. Carnea!, 2 Pet. 543, 549, 7 L. Ed. 513. We think that the rule with respect to demand paper held by the bank at which it is made payable, is that, to fix liability, the bank must take some unequivocal action showing that it elects to exercise the right to declare the paper due and collect it. National Hudson River Bank v. Kinder-hook & H. Ry. Co., 17 App. Div. 232, 45 N. Y. S. 588, affirmed' National Hudson River Bank v. Moffett, 162 N. Y. 623, 57 N. E. 1118. Such action was taken by the receiver, according to his testimony, when, in the bank and in the presence of the defendant, he declared the note due and called on defendant to pay it. This was an unequivocal act, performed at the place where the note was payable, showing that plaintiff demanded payment ; and it at the same time gave notice to defendant that the note had been dishonored and that plaintiff looked to him for payment. As stated, however, the testimony of plaintiff on this point was contradicted; and the instruction of which complaint is made did not present to the jury the question raised by the contradiction, nor the question as to reasonable time. On the question of waiver, there is evidence on the part of plaintiff, contradicted however by the defendant, that upon plaintiff’s demanding payment of him, defendant asked and was given time to arrange payment. If this is true, it was a waiver of presentment and demand upon the maker and of any further notice of dishonor. Dillon v. Bron, 96 Kan. 189, 159 P. 553; Moll v. Roth Co., 77 Or. 593,152 P. 235; K'uhl v. Sehliehtemeier (C. C. A. 8th) 14F.(2d) 593; Washington Horse Exch. Co. v. Bonner, 189 N. C. 29, 193 S. E. 997. But this, as well as any other matter showing waiver upon which plaintiff may rely, is a matter for the jury to pass on under proper instructions from the court. The mere fact that the defendant was a director of the bank would not amount to a waiver of his rights as indorser (Case v. MeKinnis, supra; Maynard Trust Co. v. Fur-bush, supra); but in this connection it should be said that, in passing upon whether demand for payment of the note was made within a -reasonable time, or whether demand in what might otherwise be considered a reasonable time was waived (but not on the question as to whether there was a waiver of any demand) , the jury might properly consider that the defendant was one of the directors of the bank who acquiesced in the renewal of the original loan over a period of more than three years, and that he allowed the bank without protest to hold the note sued on for the period of more than a year during which he remained a director after the last renewal, although he had learned some time before his resignation that the silk company had no assets with which to pay it. Linthicum v. Bag-by, 131 Md. 644, 192 A. 997. Because of the error in the instructions to the jury, we must grant a new trial. It is not necessary, therefore, to discuss the other matters embraced in the assignments of error. We feel that it is well to say, however, as the question may come up again on the retrial of the case, that we do not think that the affidavit filed with the Pennsylvania department of revenue was admissible to prove the financial condition of the company, nor that the insolvency of the company or the indorsers could be proved by the testimony of the receiver based merely upon inquiries which he had made. On the question of solvency or insolvency, general reputation is admissible in a proper ease. Wigmore on Evidence (2d Ed.) vol. 3, § 1623, p. 378. And an expert who has had opportunity to examine the facts may express an opinion on the question, if a proper basis is laid for his testimony. Wig-more on Evidence (2d Ed.) vol. 4, § 19591, and eases cited. But it is not permissible for one, even though he be an expert, to give an opinion on solvency or insolvency based, not upon an examination of facts and records, but upon mere hearsay. Freeman v. State, 108 Miss. 818, 67 So. 460; Fletcher, Cyclopedia Corporations, vol. 8, p. 8614. The position of the defendant is not one which appeals to the conscience of the court; but it must be remembered that we are not passing upon any liability of the defendant arising out of his relationship as a director of the bank, and that the sole question before us is the application to the ease of the Negotiable Instruments Law, which affects commercial transactions throughout the country. In applying such a statute it is of more than ordinary importance to remember that “hard cases are the quicksands of the law,” and not, for the purpose of doing equity in the particular ease, to give the statute an interpretation which will introduce confusion into a law which it is of the utmost importance to have free of ambiguity. For the reasons stated, the judgment will be reversed, and the ease will be remanded for a new trial. Reversed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Appellee, v. Joseph BROWN, Appellant. No. 8418. United States Court of Appeals Fourth Circuit. Argued Nov. 8, 1961. Decided Nov. 21, 1961. John H. Wrighten, Charleston, S. C. (Benjamin L. Cook, Jr., Charleston, S. C., on brief), for appellant. Terrell L. Glenn, U. S. Atty., Columbia, S. C. (Thomas P. Simpson, Asst. U. S. Atty., Columbia, S. C., on brief), for appellee. Before SOPER, BRYAN and BELL, Circuit Judges. PER CURIAM. Convicted by a jury in the District Court of receiving and having in his possession 12 eases of beer with knowledge that they had been stolen, 18 U.S.C.A. § 659, Joseph EL Brown appeals. They were found in his apartment in Charleston, South Carolina at about 2 o’clock on the morning of July 6, 1960. That the beer had been a part of an interstate shipment from Tampa, Florida to Charleston and had been stolen therefrom during the night of July 5 or early morning of July 6, 1960 is not here questioned. In essence Brown made two points before the trial court, whose adverse rulings thereon he now assigns as error. The testimony as to his possession of the beer, he first avers, should have been suppressed because its discovery in his apartment was the result of an illegal search and seizure. He next contends the evidence at trial was not sufficient to prove that while the beer was in his possession he knew it had been stolen. In denying the defendant’s motions, predicated on these assertions, to suppress and to grant a judgment of acquittal, the District Judge was plainly correct. The fatal infirmity of these assignments of error appears at once upon a review of the evidence. Early in the morning of July 6, 1960, Sergeant Whitely of the Charleston police while cruising in his patrol car observed a man walking away from a Plymouth automobile parked on the west side of St. Phillip Street, near the corner of Line Street. This location is just opposite the common entrance at 259 St. Phillip to Brown’s second floor apartment and the Belvedere Night Club, which was then operated by Brown on the first floor. The sergeant continued on his rounds, but on returning to the vicinity a few minutes later he saw Brown, an acquaintance, leaving the club. Brown came over to the police car then stopped for the traffic light, and talked briefly with the sergeant. When' some twenty minutes later the sergeant’s beat again brought him to the intersection of St. Phillip and Line Streets, he noted on the corner the same man who had earlier walked away from the Plymouth. Further on his tour he saw Brown a city block and a half away, standing in a store doorway. Quite soon afterwards the sergeant was radioed from police headquarters to go to Line and St. Phillip Streets to investigate the unloading of an automobile then in progress. Immediately he drove north along St. Phillip Street. A block distant from Line, he saw a man run from the west to the east side of St. Phillip and into an alley near the corner. Parking his car on the east side of St. Phillip, the sergeant noted two men leave the door of Brown’s apartment and walk to the corner of Line and St. Phillip. Thereupon he crossed over to the Plymouth automobile which had been seen there before, On the rear seat were several cases of beer. Upon the arrival of another police cruiser, the two men on the corner, later identified as Allen Waring and Richard Parsons, were arrested, when this cruiser left with the two men, Brown asked the sergeant what was the “trouble”, to which the officer rejoined, “Joe, you know”, adding, “I would like to take a look in your place.” Brown replied, “All right, sir, but before you go in there, I am going to tell you right now, you are going to find 10 cases of that beer in my place.” Together they went into the Belvedere Club. Finding nothing there, Whitely asked where was the beer. “Upstairs”, Brown responded, The two then entered Brown’s apartment, A dozen cases of beer were in the hallway; they were of the same brand as that in the Plymouth. “Well, Joe, you know what this is going to mean,” the officer admonished, and Brown conceded, “Yes, sir, I know.” Whitely continued, “I am going to have to take you and the beer to headquarters”. Brown answered, “Yes, sir, I know that”. This beer was then put in the Plymouth automobile with the first 20 cases. Brown and the beer were carried to the police station.^ WarParsons and Brown were detained by the cl1Y P°lice for about 72 hours but tben leased. Upon ascertaining that the beer in Brown’s apartment and that first seen in the Plymouth automobile together were a part of the interstate shipment heretofore described, a Special Agent of the Federal Bureau of Investigation questioned Brown, Parsons and Waring while they were in police custody. Brown denied any knowledge of how the beer got into his apartment. On August 1, 1960 all three were arrested on a Federal warrant, and ultimately they were indicted under 18 U.S.C. § 659. The first count of the indictment charged Parsons and Waring with the theft of 20 cases of beer; the second count accused Brown of criminally receiving and possessing 12 cases; and a third count laid to Waring a like receipt and possession of 20 cases, Brown and Parsons were tried together and found guilty. Brown’s conviction alone is before us. Obviously, Brown was not aggrieved by the search and seizure in his apartment. In effect he invited the policeman to look in his club and in his apartment. No intimidation or unfair inducement is even hinted as responsible for Brown’s ready consent to the search. The object of Whitely’s quest was, of course, known to Brown. Moreover, the officer had justification for his belief that the beer in the hallway bore the taint of current larceny. What he had observed on his earlier surveillance, especially after the radio alert, gave him fair cause to regard the beer in the Plymouth as purloined goods. Referring to this beer, Brown had told the officer he would find on his premises cases of “that beer”. Hence, he was by duty bound to seize it. He had reasonable grounds to arrest Brown, moreover, for Brown did not explain his possession of the questionable cases. In these circumstances no valid objection could be made to the proof at trial of the beer’s discovery. Only when the procurement of the evidence is effected through unlawful means is its admission barred. Brown’s consent dispelled all uncertainty on this head. Grice v. U. S., 146 F.2d 849 (4 Cir. 1945); U. S. v. Bianco, 96 F.2d 97 (2 Cir. 1938). This chronicle of the evidence confirms the rectitude of the jury’s condemnation of Brown. Despite his compromising possession of patently thieved wares, he did not venture to meet its incrimination. Pearson v. U. S., 192 F.2d 681, 689 (6 Cir. 1951); Thomas v. U. S., 11 F.2d 27 (4 Cir. 1926). The only evidence at all approaching an explanation was the F. B. I. agent’s testimony that Parsons told him he had put two of the cases in Brown’s apartment and at a time when no one else was there, No deprivation of Constitutional rights whatsoever was suffered by Brown. We find the appeal without merit and we affirm, Affirmed Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_4_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. John M. RAY, Plaintiff-Appellant, v. Earl HUDDLESTON, John Sloan and Frank Summers, Defendants-Appellees. No. 15368. United States Court of Appeals Sixth Circuit. Jan. 14, 1964. Douglas E. Robertson, Bowling Green, Cancan & Allender, Bowling Green, Ky., on brief), for appellant. Paul R- Huddleston, Bowling Green, Ky. (Huddleston & Huddleston, Bowling Green, Ky., on brief), for appellees. Before O’SULLIVAN, Circuit Judge, and McALLISTER and MAGRUDER, Senior Circuit Judges. PER CURIAM. . „ . T M t> , n Appellant, John M. Ray, sued appellee a county judge of the county of Clinton, Yr x , . n , . , , Kentucky, had invaded Ray's civil rights- , . . . t> j? , , by imprisoning Ray for contempt of Justifies his nresenee in the Federal CQurtg b asserting that the Rights Statutes (§§ 1983, 1985, U.S.C.A. Title 42; § 1343, U.S.C.A. Title 28) permit him to come here. UPon tnal of the cause> a verdict was' directed in favor of defendant Huddleston, and judgment entered thereon. Ray . „ . . , asks for a new trial. Ray had been acting as the Administrator of the Clinton County War Memorial Hospital. By action of the Clinton County Fiscal Court, Ray’s position as such was to be terminated on February 2, 1962. He disputed the validity of such action. When Ray’s successor sought to take over the office and authority of administrator of the hospital, Ray resisted. His resistance was not limited to written or verbal protest. On the day his successor was to take over, Ray arrived at his previous post of duty ready to hold it against intrusion by his successor. He proceeded to do so. Confusion in the administration of the hospital ensued and its good order and the welfare of its patients were seriously impaired. Described events could, and probably did, amount to a breach of the peace. This condition continued for some days. Through official sources, reports of this situation came to Earl Huddleston, as judge of the County Court of Clinton County. Acting under § 25.150 of Kentucky Revised Statutes and under Section 32 of the Kentucky Code of Practice in Criminal Cases, Judge Huddleston, on February 7, 1962, convened a court of inquiry and summoned Ray to appear. Ray appeared with counsel and, on this appeal, it is not disputed that, by demeanor and words, he publicly displayed his contempt for the authority and person of Judge Huddleston. Ray was summarily committed to jail for six hours. On this appeal, appellant’s attack on the action of the county judge is his contention that the judge was without jurisdiction to conduct the court of inquiry and, therefore, was without authority to punish Ray for contempt. We are of the opinion that the county judge had authority to convene and conduct the court of inquiry and, incident thereto, to impose punishment for contemptuous conduct committed in his presence. Bryant v. Crossland (Ky. 1918), 182 Ky. 556, 206 S.W. 791. Cf. Johnson v. MacCoy, 278 F.2d 37 (CA 9, 1960). A more detailed discussion of the facts and issues involved in the case before us will be found in the opinion of District Judge Mac Swinford denying Ray’s motion for new trial. The opinion is reported as Ray v. Huddleston, 212 F.Supp. 343. (W.D.Ky.1963) We agree, also, with that opinion’s holding that judicial immunity foreclosed a judgment of liability against appellee Huddleston for his conduct of the proceedings of the court of inquiry. Judgment affirmed. . KRS 25.150 provides: “The county judge is a conservator of the peace within his county, may administer oaths and may exercise all the power of a justice in penal and criminal proceedings, and singly hold a court of inquiry in such proceedings.” . Criminal Code § 32 provides: “A magistrate, if satisfied that any public offense has been committed,- shall have power to summon before him any person he may think proper for examination on oath concerning it, to enable him to ascertain the offender, and to issue a warrant for his ' arrest.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_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. SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, v. ATTORNEY GENERAL OF the UNITED STATES of America et al., Defendants-Appellants. No. 638, Docket 74-2640. United States Court of Appeals, Second Circuit. Argued Dec. 24, 1974. Decided Dec. 24, 1974. Steven J. Glassman, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., Southern District of New York, and John S. Siffert, Asst. U. S. Atty., of counsel), for defendants-appellants. Herbert Jordan, New York City (Rabinowitz, Boudin & Standard, New York City, of counsel), for plaintiffs-appellees. Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges. PER CURIAM: In this action, filed in the District Court for the Southern District of New York in July, 1973, the Socialist Workers Party (SWP), its youth-arm, Young Socialist Alliance (YSA), and several members sought wide ranging injunctive and monetary relief against a large number of Government officials with respect to alleged activities directed against the two organizations. Various pretrial steps had been taken, and trial early in 1975 appeared to be in prospect. On October 25, 1974, plaintiffs moved for what was styled a “preliminary” injunction restraining the Director of the Federal Bureau of Investigation (FBI) and his agents “from attending, surveilling, listening to, watching, or in any way monitoring the fourteenth National Convention of plaintiff Young Socialist Alliance to be held at the Jefferson Hotel in St. Louis, Missouri, from December 28, 1974, through January 1, 1975, and further restraining them from threatening any of the said acts and from causing or threatening to cause any of the said acts.” After receiving affidavits and hearing counsel on three occasions, Judge Griesa, on December 13, 1974, rendered an extensive oral opinion and entered an order granting the injunction sought. The defendants promptly appealed and moved for a stay and for a preference or an expedited appeal, claiming inter alia that non-attendance by the informants would compromise their usefulness and even entail risk to their safety. On December 19 we set a briefing schedule which would bring the motions on for argument on December 24. Since decision on the motion for a stay would in effect determine the appeal and the briefs appeared to include all considerations relevant thereto, we later advised counsel that we would hear the appeal itself. A few facts are undisputed: The convention is open for attendance by any person under the age of 29. This is true even of “delegated” sessions where only elected delegates may speak and vote but all registrants are welcome as observers. Persons attending the meeting wear identification badges. There is to be no electronic surveillance. Although at one time the FBI had developed a program to engage in disruptive activities at SWP and YSA conventions, this was formally discontinued in April 1971, and there is nothing to show it has been renewed. While the district judge and the plaintiffs make some general references to “surveillance”, the Government has represented that at the 1974 convention there will be none in the ordinary sense and that the investigating method will be the use of informants who will attend the meetings as any member of the public, including the press, has been allowed to do. Despite some contrary allegations by the plaintiffs, there is no evidence that the FBI sends the names of persons attending the conventions outside the Federal Government; it does send them to the Civil Service Commission which has made use of them as a basis for questioning those who are Government employees or seek Government employment. Although not disputing that at one time the SWP aimed at the overthrow of the government of the United States by force and violence, plaintiffs assert and the district court found that this policy had long since been formally abandoned. The Government contends, however, that, despite official disapproval, á minority in the SWP, called the Internationalist Tendency (IT), endorses and supports the current use of violence in line with the views of the International Majority Tendency of the Fourth International, a Trotskyist-communist organization headquartered in Europe with which SWP, although claiming not to be affiliated, concedes it has “a sympathetic, fraternal relationship”. The FBI has also come upon information indicating that the IT regards as its “most important priority” an “interventionist” role in the YSA which will lead that organization to adopt the revolutionary aims of the IT. At first blush there would hardly seem to be a role less appropriate for or capable of effective performance by the federal judiciary than advance supervision of the investigative methods of the FBI on a case-by-case basis, particularly in the field of national security. Recent instances where national security has been inappropriately invoked should not obscure that, as the Supreme Court has observed, “unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered,” United States v. United States District Court, 407 U.S. 297, 312, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972), where the Court also quoted from Chief Justice Hughes’ opinion in Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). The Government distinguishes the Supreme Court decisions mainly relied on by plaintiffs, notably NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Gibson v. Florida Legislative Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), and DeGregory v. New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 16 L.Ed.2d 292 (1966), on the ground that these did not involve the judiciary in exercising prior restraints on an investigative agency in the executive or legislative branch but rather represented a refusal to permit legal processes to be used against individuals or associations in a manner violative of First Amendment rights. Indeed, it claims that the injunction here issued flies in the face of the holding in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), that a complaint seeking to enjoin the Army’s data-gathering system with respect to lawful civilian political activity did not present a justiciable controversy. It relies particularly on the statement, 408 U.S. at 15, 92 S.Ct. at 2326: Carried to its logical end, this approach [of the Court of Appeals for the District of Columbia Circuit, 144 U.S.App.D.C. 72, 444 F.2d 947, 958] would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the “power of the purse”; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action. The district judge and the appellees say that this case comes within the qualification at the end of this wise observation of the Chief Justice. Although a number of reasons are asserted, two appear to be most important. The one principally relied on by the district judge was that plaintiffs in Laird v. Tatum had showed only a “subjective chill” whereas the plaintiffs here had submitted affidavits asserting that attendance at YSA conventions had in fact been discouraged by knowledge of FBI surveillance plans. The other is the lack of as much justification for the FBI’s surveillance as was thought to exist for the Army’s plan to inform itself with respect to dissident student organizations so as to be better able to cope with disorders if required to do this on short notice. We are not greatly persuaded with respect to the validity of these or other asserted distinctions, on the facts presently before us. Save possibly for the communication of names to the Civil Service Commission, the FBI’s use of the information gathered by it from attendance at the YSA conventions seems par-j allel to that of the Army as described in Mr. Justice Douglas’ dissent in Laird v. Tatum, 403 U.S. at 24-25, 92 S.Ct. 2318. Moreover, the Court of Appeals in that case had characterized the plaintiffs’ claim as being that the Army surveillance “exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights . .”, 444 F.2d at 954 (emphasis in original), and it is hard to see why the attendance of FBI informants at YSA conventions should have more of an inhibiting effect than the Army’s sur1 veillance of student organizations. With respect to the second ground, the bite of the decision in Laird v. Tatum was that, absent a stronger showing of “chill” than was made by the plaintiffs there, the courts were not to go into this. If the issue is open for inquiry, while the possibilities of the dissident wing in Í SWP being able to gain control and efj fectuate its desires to convert YSA into a violent movement may be less than the { risks of serious student disorders in the i late 1960’s, the stakes are greater. The rFBI has a right, indeed a duty, to keep itself informed with respect to the possij ble commission of crimes; it is not j obliged to wear blinders until it may be L. too late for prevention. As Judge Weinfeld observed in Handschu v. Special Services Division, 349 F.Supp. 766, 769 (S.D.N.Y.1972): The use of informers and infiltrators by itself does not give rise to any claim of violation of constitutional rights. __ Although plaintiffs apparently concede that use of informants need not await the existence of probable cause for arrest, we have not been informed either by them or by the district judge what they think the proper standard to be. Moreover, while plaintiffs’ case here may be better than Tatum’s in some respects, it is weaker in another. A major basis for the attack there, certainly the most significant factor for the dissenters, was that investigation had been conducted by the Army as distinguished from a civilian investigative agency. The underlying action here raises the issue so eloquently described by Mr. Justice Jackson nearly twenty-five years ago: The Court’s day-to-day task is to re^~' ject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend j existence of our society, and to reject j as false, claims in the name of security which would undermine our freedoms and open the way to oppression. American Communications Ass’n v. t Douds, 339 U.S. 382, 445, 70 S.Ct. 674/ 707, 94 L.Ed. 925 (1950) (concurring and dissenting). It does this in the special context of whether the conduct sought to be protected is a legitimate area for investigation. Such an issue deserves treatment on a full record and with ample time for reflection, initially by the district judge, later by this court, and perhaps ultimately by higher authority. There was no urgency requiring the district judge to decide issues of such gravity by granting an injunction against the FBI’s continuing, for one more "YSA convention, the practices it had followed for many years, apparently without serious injury to the plaintiffs, and confronting us with the need of acting within a few days, in the midst of a crowded calendar, on a problem deserving weeks of consideration and opinion writing on a proper record. The plaintiffs made no showing sufficient to justify issuance of an injunction on the basis of conflicting affidavits, see note 3, and reliance on what they term “informed representations of counsel” with respect to the involved relationships of SWA, its members, and other organizations. Plans for attending the convention on December 28 must .largely have been made, or not made, well before the injunction was issued on December 13. The only benefits to plaintiffs in relieving the “chill” allegedly created by the FBI were the possibility that the injunction, if sufficiently publicized, might lead some with souls less courageous than those of the individual plaintiffs, see 408 U.S. at 7 — 8 n. 7, 92 S.Ct. 2318, to decide to attend after all, and to encourage greater freedom by participants in advocating the revolutionary tactics which the plaintiffs claim Sto abhor. Even on this the benefit is simply the incremental difference between fear of revelation by prearranged informants and of voluntary reports by • others who are free to attend these pub- / lie meetings; no one has yet suggested I that the FBI be ■ restrained from receiving information freely reported to it. I Against this is the serious prejudice to \| the Government from compromising L_some or all the informants for all time, j even though the final determination of L the action may be for the defendants. Whatever may be the ultimate merits of plaintiffs’ case, there was no occasion for a rush to judgment with respect to the Fourteenth YSA convention when the proof was that the FBI was proposing to do only what — indeed apparently less than — it had done without serious adverse effect before. We hold therefore that issuance of the broad injunction on this inadequate record was an abuse of discretion. One respect in which the balance may tip in favor of the plaintiffs is the FBI’s practice of transmitting to the Civil Service Commission the names of persons attending the convention. Apparently defendants concede that such attendance would not justify dismissal from or denial of employment. See Gor-. don v. Blount, 336 F.Supp. 1271 (D.D.C. 1971). This is the point most stressed by the plaintiffs in seeking to show “objective chill”, and we think the values of preserving freedom of association justify enjoining such transmission pending final determination of the action or earlier order of the district court or this court. We shall hold the Government to its representation that no transmission is made outside the Federal Government. With this exception, the injunction is vacated. The various motions are thus rendered moot. The mandate will issue forthwith. No costs. . The order specifically included confidential informants. . Judge Griesa had denied a stay. . Some of these details are contained in reply affidavits submitted on the motion for a stay. Plaintiffs have moved to strike these, and particularly to strike an affidavit with respect to the nature of the informants which was submitted in camera in line with an offer of proof made by the defendants to the district judge in an unsuccessful effort to obtain a modification of the injunction which would allow the informants to attend on condition that they not report to the FBI. These affidavits flesh out material already in the record; the need for this has arisen in part from the fact that the district judge proceeded on the basis of .affidavits, rather than heeding our views that, except in cases of urgency, disputed issues of fact relevant to the issuance of temporary injunctions should not be so determined. SEC v. Frank, 388 F.2d 486, 490-493 (2 Cir. 1968). In part the need arose from extra-record references in appellee’s memorandum in opposition to the motion for a stay. For example, when appellees say in opposing a stay, “There is not a shred of evidence that this policy [of disruption] has ever been repudiated or withdrawn as a key factor in FBI decisions or operations concerning plaintiffs”, it was appropriate for the defendants to submit an affidavit that there is also not a “shred of evidence” that the policy has continued. Technically the affidavits are properly before us only on the motion for a stay; although the issues on this and the appeal are almost inextricable, we have considered them only in that context. . “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” 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	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. SCHMITT v. CONTINENTAL-DIAMOND FIBRE CO. No. 7300. Circuit Court of Appeals, Seventh Circuit Dec. 13, 1940. Rehearing Denied Jan. 13, 1941. Geo. T. Roge'rs, L. Dow Nichol, Jr., and George B. Rogers, all of Chicago, 111., for appellant. John F. Rosen, of Chicago, 111., for appellee. Before SPARKS, MAJOR, and KER-NER, Circuit Judges. SPARKS, Circuit Judge. This is an appeal from a judgment in an action to recover damages for breach of a sales agency contract. Jury was waived, and the court entered judgment for the defendant. The question presented is whether appellant is entitled to damages for loss of profits alleged to have resulted from the illegal termination of his contract. Appellant sued upon a contract entered into between the parties as of April 1, 1929, although it was not actually signed until about June 10, 1929. According to its provisions, appellant was given an exclusive agency for the sale of appellee’s products in a district including the State of Ohio, parts of Michigan, West Virginia, New York, Pennsylvania, Virginia, and Kentucky, as well as parts of Ontario, Canada. The contract provided for a commission of 8% on certain products and 5% on others, the rate depending upon the type of product sold. The products consisted of fibre and bakelite articles. The term of the contract was fixed by the following paragraphs: “It-is mutually agreed by both parties of this contract that it is to cover the period from April 1st, 1929 to December 31st, 1933 and that it is to continue thereafter from year to year, unless either gives notice in writing at least thirty days prior to the December 31st its termination is desired. “Upon giving such notice of termination, this contract shall become null and void upon the next date of expiration, which in that case will be on the December 31st following the giving of notice, and both parties agree that notice of termination implies and carries with it a complete release from all the conditions of the contract.” The contract itself made no reference to the payment of expenses of the sales district, although that matter was covered in a letter written by the president of the company shortly before appellant took over the district, as follows: “Under our regular selling terms to Sales Managers covering certain definite districts, all the expense of selling is assumed by the Sales Manager, and his compensation from the Company is in the form of a commission at the rate of 8%, figured on the.net sales.” January 18, 1930, appellant was requested to and did sign a supplemental instrument which provided that the 1929 agreement might be terminated at any time upon thirty days notice prior ‘to the termination of any contract year, said notice to be given in writing, addressed to the appellant, for any of the following causes: “(a) In the event that party of the second part shall at any time while the agreement is in force fail to devote his entire time, skill and attention to the business of the party of the first part; or that without the consent of the party of the first part he shall undertake to sell or sell materials manufactured by any person or corporation other than the party of the first part; or that without the consent of the party of the first part he shall undertake to sell any materials of the party of the first part in any territory other than specified in his Agreement; or that in the event that in the opinion of the Board of Directors of the party of the first part he shall at any time for a reasonable period fail to produce sales of the product of the party of the first part which shall be satisfactory under the conditions in the industry then existing. “(b) In the event that the existence of the said Agreement shall prove to be of such a nature as to prevent or delay negotiations which may during the term of said Agreement be instituted for a sale, merger, consolidation or other change in the corporate structure of the party of the first part, or of the identity of the interests controlling the same.” The supplement also provided that in the event of the cancellation and termination of the original agreement in accordance with any of the foregoing conditions, the party of the first part agreed to indemnify the party of the second part for any loss or damage to which he might be put by reason of liabilities upon leases of office space or warehouse accommodations, clerical bills, telephone and similar office charges or any other obligations he had assumed as an incident to the contract and which had been approved by the Board of Directors either at or prior to such termination. The contract was further modified in December, 1931, by a substantial increase in the rate of commissions payable under it. Appellant entered upon performance of the contract in April, 1929, establishing headquarters first at Cincinnati and later at Cleveland. Until 1931, he maintained offices in a factory, the operation of which he supervised until its dismantlement in that year. Offices were also maintained in several other cities in the territory. Appellant paid all rentals of the various offices, salaries of office help, salesmen, entertainment and other expenses incurred in the operation of the sales organization. During the year 1929, he made a profit of almost $30,000 on his business. The year 1930 was less profitable, ,with net earnings of only a little over $12,000. By the year 1931, expenses had mounted, and sales declined, so that the net result for the year was a loss of over $5,000. The same condition prevailed in 1932, and the expenses for the first four months of that year amounted to over $16,000, as against commissions for the first five months of approximately the same amount. In March, 1931, negotiations appear to have been entered into preliminary to a revision of the commission rates necessitated by the fact that appellant was then operating at a loss. At that time he wrote the treasurer of the company relative to the assembling of data, stating: “Under the present plan, coupled with adverse business conditions, I am regularly showing a loss to myself personally and I know that you want to correct this sort of a situation. * * * on April 1st I am adding two more men which is going to make the burden still heavier for me until I can get them on a self-supporting basis. On about March 16th, I will be moved into our new' headquarters * * * which will be a considerable improvement over our present offices but, of course, at no financial saving. * * * I am going to put on as many men as are needed to get our share of all the sales in this district but it takes money to keep them going.” In December 1931, the new schedule with a graduated scale of commission rates was put into effect, which, according to appellant’s testimony, “worked out as an increase. * * * That was a protection for, low business. At times when the volume was high the rate was about the same as it was under the flat 8% arrangement.” Meantime, appellee had been advancing funds over and above appellant’s commissions for the payment of expenses during the latter half of 1931 and the first four months of 1932. These advances amounted to over $20,000 by May, 1932, the last, of $2,500 being made May 2, 1932, five months after the new schedule of commission rates went into effect. The record shows that similar advances were made to other district sales managers occupying positions similar to that of appellant. On May 23, 1932, while appellant was attending a sales convention in Chicago, he was handed the following letter: “By authority of the Board of Directors, I beg to advise you of the termination of our sales contract dated April 1, 1929, and supplementary amendment thereto dated February 18, 1930, in accordance with the terms and provisions of the contract. “This termination becomes effective as provided in the contract December 31, 1932. However, it is our intention ‘to take immediate physical charge of the direction of sales in the district covered by the agreement at once, and you will be credited with compensation as provided by the contract until the termination thereof, such commissions to be credited against our advances to you until such a time as that has been disposed of. “We will appreciate your immediate acceptance, and we are taking steps to authorize a representative to take over the office immediately upon hearing from you. We will at that time advise you the name of the party to whom you shall turn over the records, etc. “Very truly yours, “Continental-Diamond Fibre Company “(Signed) N. N. Wright Sales Manager” Upon appellant’s return to Cleveland, appellee sent other employees to take possession of the office which appellant surrendered, voluntarily, according to testimony offered in behalf of appellee, and under threat of replevin, according to appellant’s own testimony. There is considerable dispute in the evidence as to the circumstances surrounding the surrender of the offices. Appellant testified that when the letter of discharge was handed to him, the General Manager of appellee stated that they would send him his commissions to the end of the contract, and that the gross commissions would be net commissions so that financially ‘ he would not be so very badly off. He also testified that he talked to the treasurer of the company soon after his return from Chicago, and that when he objected to turning over the keys of the offices the treasurer said: “I can assure you, as an officer of the company, that surrendering your keys is not going to affect your legal status in any way, and while we have always been good friends and I hope we will remain that way, you know that if you refuse to. give me'the keys I would simply have to go over to the court house and get a replevin action and then I would have them.” Each officer denied the testimony as to himself. The Genera] Manager testified that when he gave appellant the letter the latter stated that he had no particular objection to leaving the company if that was what the company wished; that he had various interests which, in the aggregate, had paid him a very satisfactory income and that his relationship with Continental in building up the Cleveland territory had been a losing proposition; that if the company wanted to release him and wanted to take possession of the Cleveland office that could be arranged. The treasurer said that while appellant did say he wished to discuss the situation regarding his surrender of the keys and possession of the office, and suggested that the company pay him a sum of money for completing the settlement of the contract arrangement to the end of 1932, he replied that he was without authority to negotiate a settlement, and such discussion would have to be taken up with the president of the company. He flatly denied saying to appellant in substance: “You have my assurance, as Treasurer of the Company, that you are entirely safe in turning' this over, and that whatever rights you have, will be properly safeguarded by the Company. I don’t like to see it, but if you would refuse to turn this over I would have to get a writ of replevin and take it over, and I hope you will not force me to do 'that.” After the surrender of the offices by appellant, he consulted with the president of the company with a view to settling for a lump sum. That officer testified that he refused to make any such agreement, stating that they would continue to the end of the year with regard to his compensation, if any was due him. Appellant subsequently returned to Chicago and started up a new business, organizing the American Phenolic Corporation which dealt in molded bakelite sockets. After the termination of the contract there was an exchange of letters with regard to the matter of compensation. The treasurer wrote in July, 1932, “* * * we will continue for the balance of the year to credit your account with commission on shipments made during the balance of this year to the territory previously handled by you. From the amount of the commissions so credited will be deducted the expenses covering salaries and all other operating expenses for sales made in this territory during the period until December 31. * * * As at the close of this year, December 31, 1932, the account will be stated setting forth the amount which you may owe the Company or the amount by which the Company may be indebted to you at that time under the terms of your contract. * * *” in reply, appellant wrote that the arrangement outlined was neither satisfactory nor in accordance with the understanding between the several members of the company and himself. He referred to the fact that the letter of May 23, 1932, terminating the sales contract, made no mention of debiting him with the expenses of his district except as to expense already incurred by him, and that when the general manager handed him that letter they discussed the matter and agreed that gross commissions would be net commissions except for the existing indebtedness. He protested the deductions of salaries and operating expenses then being paid in the district which had not been incurred or approved by him. In February following, a new series of letters was exchanged between appellant and the treasurer, beginning with a request from appellant dated February 2, 1933, for a statement as to the report of the company to the Gbvernment in connection with his income tax return for the year 1932. In reply the treasurer wrote that they had reported the amount of $10,576 income, comprising commissions of $40,663, less expenses paid of $30,087. In reply, appellant asked in substance for a breaking down of these figures, stating that in past years the Collector had always asked for particulars as to items of salary, railway and traveling, office and clerical, hotel and entertainment and miscellaneous. The tone of each of the letters is very friendly, and there is no indication in any of a disagreement over the accounting between them. There is nothing in the letters to indicate that appellant did not expect to be charged with expenses, and there seems to be no reason for the incurring of expense other than the operation of the sales office. The court found from the evidence that the contract consisted of the instrument of April 1, 1929, supplemented by the instrument of January 18, 1930, and further supplemented by the letter of December 14, 1931; that under its provisions, appellant was to have the exclusive agency for the Cleveland District, it being understood that he was to pay all expenses incident to the operation of the office for that district; that the parties acted under that contract until May 23, 1932, when there was delivered to appellant a letter notifying him of the termination of the contract, thereby validly terminating the contract as of December 31, 1932; that since the contract was validly terminated, appellant was not entitled to recover by way of damages or otherwise, any sum for or on account of such termination; that appellant did not suffer or sustain any damage by reason of the termination of the contract or by reason of any fault or default on the part of appellee; that appellee acted in good faith in terminating the contract; that on or about May 23, 1932, appellee assumed the operations of the Cleveland District, “it being the expressed intention of plaintiff and defendant that commissions, as provided in the contract, would be credited to plaintiff from May 23, 1932, to December 31, 1932; that the expenses of operating and the making of sales in the said ‘Cleveland District’ would be charged to plaintiff for said period; that if the commissions exceeded the expenses for said period, plaintiff would be credited with such excess, and if the expenses exceeded the commissions for said period, plaintiff would be charged and debited for the difference”; that no agreement was made on May 23, 1932, or at any other time between the parties that appellant was to receive commissions on sales made in the Cleveland District from and after May 23, 1932, without being charged and debited with the expenses of its operation; .that appellant had been duly credited with the commissions for the period from May 23, to December 31, 1932, and appellee had charged appellant with the expenses of operation for the same period, and that such expenses exceeded the amount of commissions for the period; and that appellant had not proved his case in that the evidence did not show that his contract of employment was wrongfully breached or terminated by appellee and did not show that appellee was guilty of any breach of duty owing to appellant or that the latter was damaged by reason of any fault of appellee. The court therefore entered judgment for the defendant. Many of the issues presented to us in the case at bar appear to have been presented to the Municipal Court of Chicago by a suit filed by the company against appellant here to recover from him the excess of advances to May 23, 1932, and expenses of operation of the office from then until December, 1932, over commissions earned between May and December, 1932. Certain pleadings in that suit were introduced as an exhibit by appellee, and were admitted by the court solely for the purpose of showing an alleged inconsistency between appellant’s pleadings in the two suits. The record does not show what disposition, if any, has been made of that litigation. The principal controversy between the parties arises over two questions, first, as to the validity of the supplemental contract of January 18, 1930, which appellant contends was without consideration, hence gave appellee no right to discharge him until the expiration of the term of the original contract; and second, as to the right of appellee to take over the business, charging appellant with all the expenses of its operation from May 23, to December 31, 1932. Appellant also contends that, regardless of the validity of the modification of January, 1930, no ground existed for his discharge in May, 1932, since he had complied with the provisions of the contract in every respect, while appellee argues that, under the terms of the supplemental contract, it was unnecessary for it to prove non-compliance on the part of appellant, provided it became dissatisfied with his volume of sales, and that as to that, it was the sole judge, provided only that it acted in good faith, as the trial judge found that it did. Appellant, of course, admits that he lost money on his contract during the year 1931, and the first five months of 1932, until its termination. Nevertheless, he contends that it was still a valuable contract to him for the reason that he was then in a position to reduce his expenses substantially and still keep up his volume of sales — that up until that time he had been spending a great deal in building up his territory and could afford to spend his own money on it since he thought he had a long term contract upon which he could realize in the future. He contends that since the notice of May, 1932, was ineffective to terminate his contract, the contract remained in full force until the end of the year 1935 when the new business begun by him shortly after he left appellee’s employ became sufficiently remunerative that he would have been unwilling to give it up to return to appellee’s employ. He therefore submitted evidence as to appellee’s sales and the commissions allegedly lost to him by appellee’s wrongful termination of the contract to and including the year 1935, purporting to show damages totalling $186,345. This evidence is highly speculative. The only known factor used is the amount of the gross sales of the appellee for each of the years involved. Appellant assumes that a certain percentage of this business would have originated in his district, the percentage increasing from 28% in 1932 to 31% in 1934 and 1935 — a wholly arbitrary figure so far as we are able to ascertain. Such percentage of business would have yielded him certain gross commissions, from the amount of which he subtracts expenses not exceeding $35,000 a year, leaving a total of $163,095 for the years 1932 to 1935, inclusive. To this he adds the commission on $100,000 of sales" alleged to have been lost to the company each year through the discharge of a friend of his who took his business amounting to that figure to another company immediately upon his discharge. Such business would have added $33,250 to the commissions of appellant in the three and a half years, according to his computations. The District Court was justified in disregarding such testimony as proof of appellant’s damages, and, in the absence of any better evidence, in holding that appellant had not proved his claim for damages, conceding for the moment that he had proved breach of the contract. However, from our consideration of all the facts of this case we are convinced of the correctness of the District Court’s conclusion that appellant did not prove his case, in that the evidence did not show that the contract of employment was wrongfully breached or terminated by appellee or that appellant was damaged by reason of any fault of appellee. We do not consider it essential to the decision of the case that we determine the validity of the supplemental contract. It is difficult to find consideration for the modification— certainly the promise of indemnification for liabilities incurred under the original contract in case of its abrogation in accordance with the terms of the supplemental, furnishes no such consideration. However, contracts may always be terminated by mutual consent, and we think there is ample evidence to establish the fact of such mutual consent. While appellant apparently had not planned to give up the district and was quite surprised at the action of appellee’s officers in notifying him of the termination of his contract, we think the oral evidence and the letters establish the fact that he acquiesced in its termination. Moreover, we consider it a matter of some significance that the original written contract does not appear to have been treated by the parties at any time as the complete and inflexible statement of all relations between them. Appellant entered upon performance of his duties under it over two months before the written contract was even presented to him for his signature. The written contract made no reference whatever to the payment of expenses of the operation of the business under it, and yet no question was ever raised during the period of its performance by appellant as to his obligation to meet all such expenses — as stated in a letter written before appellant entered upon his duties but not again referred to. The contract was modified on at least two occasions in appellant’s favor, the benefits of both modifications being accepted by him without objection. We refer to the provision for advancements under which he had received over $20,000 prior to the termination of the contract for carrying on the operations of his office, and the revision of the commission rates to provide a sliding scale so that in normal or good times the return would be about the same as under the original, but in periods of depression, it would provide for a greater return in proportion. That it appeared that other district managers received the same treatment seems to us irrelevant — their contracts are not be-fore us and we are not called upon to interpret appellant’s relationship with appellee in the light of facts involving other persons. While we do not wish to be understood as saying that these subsequent revisions in appellant’s favor furnish consideration for the earlier revision in appellee’s favor, we do say that they indicate the shifting, developing relationship between them, and lend some credence to appellee’s testimony of the willingness of appellant’s acceptance of the termination of the contract between them. The fact of the losses appellant had suffered under the contract in 1931 and 1932 lends further credence to appellee’s contentions. It is to be noted that even after the increase in the rate of commissions by the modification of the contract in December, 1931, appellee still made advances to appellant, the last, of $2,500 on May 2, 1932, shortly before the termination of the contract. Appellant’s testimony as to retrenchments is not convincing — while he does point to a reduction of average monthly expenditures from $5,552 in 1931, to $4,098 for the four months of his operation in 1932, the fact remains that commission averages still remained substantially below expense averages. Appellant testified that he contemplated an annual expense rate of not to exceed $35,000 after 1932, but he presented no figures whatever in support of this estimate. We note from our study of the record that after the first month of his operation when expenses totalled $5,520, appellant’s successor actually did succeed in reducing the monthly expense rate for the last half of the year 1932 below appellant’s average — the average for the last six months amounting to $3,896, according to our computation from the figures of record. During this same period, the successor maintained a slightly better average of commissions — appellant’s total for the five months of his operation in 1932 was $16,622, or a monthly average of about $3,324, while the total for the balance of the year was $24,015, or a monthly average of about $3,429. (These figures are not to be found in the printed record, but we have taken them from the amended statement of claim filed by appellee in its municipal court litigation, introduced as an exhibit in the case at bar.) We find nothing of record to support the finding of the District Court that it was the expressed intention of the parties that commissions as provided in the contract would be credited to appellant from May 23, 1932 to December 31, 1932, and that the expenses of operating and the making of sales in the district would be charged to appellant for that period, and that if commissions exceeded the expenses for the period appellant would be credited with such excess, while if expenses exceeded commissions, he would be charged with them. In view of the fact that' the written contract of April 1929, made no reference to the payment of expenses, we think it may not be construed as expressly providing for deduction of expenses so that the letter of May 23; 1932, “you will be credited with compensation as provided by contract until the termination thereof” is a definite settlement of that question between the parties. However, as we have already pointed out, that contract did not purport to define the entire relationship between the parties. By earlier letter from appellee’s president to appellant it had been clearly stated that appellant was expected to pay all the expenses of his district, and we think that either that provision must be read into the contract, or the contract must be construed with that provision in mind. Commission rates were adjusted to meet changing conditions, although the contract did not in terms make any provision for changes, nor did it provide for the allowance of advances such as were subsequently made to appellant. Hence, we are of the opinion, that while there was no express, intention to deduct expenses from commissions, such intention can certainly be implied' from all the circumstances which must be considered in deciding this case. We are not convinced that appellee is entitled to collect from appellant the difference between commissions and operating expenses as held by the District Court. In fact, were we called upon in this appeal to pass upon the actual accounting between the parties, we should question many of the items of expense charged to appellant during appellee’s seven months’ operation of the office in his name. For instance, we note in appellee’s itemized statement, many items arising in the Bridgeport office, and in view of the fact that Connecticut wás never in appellant’s district, we cannot understand why charges against him should arise there. Were the question before us, we would also be at a loss to understand why two contributions to the Cleveland Community Fund after he ceased management of the office and left Cleveland should be charged as office expense against him. However, the appeal here is from an adverse judgment in a suit for damages for breach of contract, and not for an accounting between the parties. Appellant has not challenged the accuracy of any figures presented by appellee, but rather denies the right to any deductions on account of expenses.' Hence these questions are not before us. We agree with the District Court that he has not proved the breach or the damage, as charged. Judgment affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. UNITED STATES of America, Appellee, v. Larry LOCKLEAR, Appellant. No. 71-1221. United States Court of Appeals, Fourth Circuit. Sept. 1, 1971. Philip A. Diehl, Raeford, N. C., on the brief for appellant. Williams L. Osteen, U. S. Atty., on the brief for appellee. Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges. PER CURIAM: Appellant was convicted of bank robbery by a jury in the district court. In this appeal he asserts that the evidence was insufficient to submit the issue to the jury, and that the verdict of the jury was contrary to all the evidence. An examination of the briefs of the parties and the record shows that although it was circumstantial, there was “clearly sufficient evidence from which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” Johnson v. United States, 265 F.2d 496, 497 (4th Cir. 1959). Accordingly, we dispense with oral argument and the judgment of the district court is affirmed. Affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the 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. Alvin Eugene BAKER, Appellant, v. UNITED STATES of America, Appellee. No. 19073. United States Court of Appeals Eighth Circuit. June 5, 1968. James L. Homire, Jr., St. Louis, Mo., for appellant. Jim J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief. Before VOGEL, Senior Circuit Judge, and BLACKMUN and LAY, Circuit Judges. VOGEL, Senior Circuit Judge. Defendant-appellant herein was convicted by a jury of a violation of 18 U.S.C.A. § 2312 and thereafter sentenced to confinement for a period of two years. He appeals from the judgment of conviction and raises the sole issue of sufficiency of the evidence to support the verdict of guilty. Viewing the evidence in the light most favorable to the government, it discloses that on the evening of August 8, 1967, a 1967 Buick automobile parked at 2415. Louisiana Street, Little Rock, Arkansas, was stolen. That same evening, the appellant testified that he entered the stolen car at Fourteenth and Chester in Little Rock. James Rideout and Kenneth Pippins were in the car when appellant entered it, and immediately upon entering the car appellant apparently learned that it was stolen. Appellant was 18 years of age and without any money at the time he entered the car. Appellant rode in the car as it was driven directly from Little Rock, Arkansas, to St. Louis, Missouri, where, six hours latér, he was. let out at his home at 4355 Maryland, in St. Louis. Appellant further testified that he did not drive the car, he bought no gas for the car, and he paid no expenses for the trip. There is no suggestion that appellant stole or helped steal the car and there is no evidence or suggestion that appellant entered into a conspiracy with the two other occupants of the car to steal a car for transportation to St. Louis. Thus, the only evidence, as testified to by appellant and by an FBI Agent, against the appellant was his admission that he rode in the stolen car. The trial court instructed the jury that it could infer transportation of the car by possession and further instructed the jury as to what constitutes active or constructive possession. The government argues that the ease may be affirmed under this theory. We disagree. There is no evidence suggesting even the barest elements of either actual or constructive possession of this car by appellant. As appropriately noted in another context in Barnes v. United States, 5 Cir., 1965, 341 F.2d 189, 191: “ * * * The effect of the charge in the instant case was to shift the burden of proof to the defendant to overcome a prima facie inference of guilt from the fact of possession, when possession had not been clearly established by the evidence. There was no direct testimony that defendant Barnes ever had possession of the vehicle, but only circumstantial evidence from which the jury could draw the conclusion that the defendant had been in possession.” It is obvious that here the jury would have to infer possession by appellant’s mere presence in the car. The constitutional infirmities of such an inference have already been suggested in United States v. Romano, 1965, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210. Even accepting the appropriateness of this initial inference, however, to further infer that appellant transported or caused to be transported this car from the inference of his possession of the car involves such obvious speculation as to be totally inconsistent with the requirements of due process. We agree, to this extent, with the holding in Julian v. United States, 9 Cir., February 28, 1968, 391 F.2d 279, that “where convicting presumptions are projected on possession, the evidence of possession ought to be very clear to satisfy the test of guilt beyond a reasonable doubt.” See, also, Wheeler v. United States, 10 Cir., 1967, 382 F.2d 998, 1000. (Appellants “correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge.”) The trial court also instructed the jury that they could return a guilty verdict if they found that appellant had aided and abetted in the transportation of this stolen car. These instructions properly required “participation” by the appellant in the crime because, as noted by Judge Learned Hand in discussing various definitions of aiding and abetting: “It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude towards it.” United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402. Accord: Nye & Nissen v. United States, 1949, 336 U.S. 613, 619-620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (aiding and abetting is “a rule of criminal responsibility for acts which one assists another in performing.”); Pereira v. United States, 1954, 347 U.S. 1, 10-11, 74 S.Ct. 358, 98 L.Ed. 435. This court has had occasion to consider the question of sufficiency of the evidence to find a defendant guilty as a principal because he aided and abetted the criminal acts of another. In a case involving facts similar to the instant case, this court stated, in Johnson v. United States, 8 Cir, 1952, 195 F.2d 673, 675: “ * . To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. * * * Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term ‘aiding and abetting’ implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient.” See, also, Mays v. United States, 8 Cir, 1958, 261 F.2d 662, 664; Mack v. United States, 8 Cir, 1964, 326 F.2d 481, 484-486. Mere association is not sufficient to establish aiding and abetting, Ramirez v. United States, 9 Cir, 1966, 363 F.2d 33, 34; presence by itself is not sufficient, Hicks v. United States, 1893, 150 U.S. 442, 450, 14 S.Ct. 144, 37 L.Ed. 1137; United States v. Williams, 1951, 341 U.S. 58, 64, n. 4, 71 S.Ct. 595, 95 L.Ed. 747; United States v. Minieri, 2 Cir, 1962, 303 F.2d 550, 557; and it is also established that knowledge that a crime was to be committed and presence at the scene of the crime are generally not sufficient. Ramirez v. United States, supra; United States v. Garguilo, 2 Cir, 1962, 310 F.2d 249, 253. This review of the law convinces us that the government has not sustained its burden of proving participation in transporting a car in interstate commerce when it proves only that someone has ridden in a stolen car as it was being so transported. The government argues that Lambert v. United States, 5 Cir, 1958, 261 F.2d 799, is sufficient authority for the government’s position here. There, the appellant waited at the corner of a parking lot as his friend entered the lot and stole a car in New Orleans. The two then drove to Birmingham, Alabama, where a service station operator testified that appellant was still a passenger in the car when the occupants thereof had the gasoline tank filled and drove off without paying. The crucial distinction in that case is that there appellant actually participated in the stealing of the car, possibly by acting as a lookout for his companion, or that the appellant there had formed a conspiracy with his companion to steal the ear. Moreover, the appellant was still with his companion in the car the next day and remained in the car even after his companion had left a filling station without paying for the car’s service. Thus Lambert involved not only association, but also evidence of participation in the illegal act. Here there is no evidence of participation. Neither does the government’s reliance on Garrison v. United States, 10 Cir, 1965, 353 F.2d 94, impress us because much more circumstantial evidence suggesting possession was presented in that case than is present here. In Garrison, defendant attempted to sell a tire from the car, defendant bought gasoline for the car, defendant directed his partner to drive the car when they left a motel, and defendant was later found in the front seat of the car while his partner was in the back seat. As the court there noted, this evidence “certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did.” No such circumstantial evidence of control is present in the instant case. A recent case in which the facts most closely parallel the facts here is Allison v. United States, 10 Cir, 1965, 348 F.2d 152. In Allison, a car was stolen in Springfield, Missouri, the night of July 11th. The morning of July 13th Allison was identified as occupying the right-hand front seat of the car which was parked in a field near Elk City, Kansas. This car was abandoned near Elk City and on the afternoon of July 13th another car was stolen in Elk City and found the next day in Pawhuska, Oklahoma. Allison and another were arrested several blocks from that car and one of them had a jumper cable in his pocket. The court found this evidence insufficient to sustain the Dyer Act conviction of Allison because, “Neither the fingerprint nor the presence in the ear shows control, dominion, or authority over the car.” 348 F.2d at 154. We find that the government has failed to present sufficient evidence to prove that appellant transported or caused to be transported the stolen car in interstate commerce so that appellant’s motion for directed verdict should have been granted. Reversed. . “Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably draw the inference and find, in the light of surrounding circumstances, that the person in possession not only knew it to be stolen property, but also transported or caused it to be transported in interstate commerce.” . “The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. “A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. “The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint. “If you find from the evidence beyond a reasonable doubt that the accused either alone or jointly with others had. actual or constructive possession of the automobile described in the indictment, then you may find that such automobile was in the possession of the accused within the meaning of the word ‘possession’ as used in these instructions.” . “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. “Every person who thus willfully participates in the commission of a crime may be found to be guilty of an offense. Participation is willful if done voluntarily and purposely and with specific intent to do some act the law forbids, or with specific intent to fail to do some act the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.” 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_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Mary F. DUNBAR, Plaintiff-Appellant, v. The UNION CENTRAL LIFE INSURANCE COMPANY, Defendant-Appellee. No. 17144. United States Court of Appeals Seventh Circuit. May 16, 1969. Thomas Clay Collier, Jr., Albert W. Zimmermann, Indianapolis, Ind., Dunbar, Collier & Zimmermann, Indianapolis, Ind., of counsel, for appellant. Ralph Hamill, John P. Price, Indianapolis, Ind., Hamill & Price, Indianapolis, Ind., of counsel, for appellee. Before KILBY, FAIRCHILD and KERNER, Circuit Judges. KILEY, Circuit Judge. The district court entered summary judgment against plaintiff in her suit to recover lump sum settlements of insurance policies on her husband’s life in lieu of a monthly settlement option she had chosen prior to her husband’s death. 283 F.Supp. 823. We affirm. At the time of her husband’s death, March 19, 1965, the total amount due under six policies issued by defendant covering decedent was $100,861.86. The several policies were issued to plaintiff as owner and in each she was named primary beneficiary. Each policy was subject to an “Agreement of Designation of Beneficiary and Method of Settlement” made September 14, 1945, which elected a settlement option providing for continuous monthly payments of $402.86 to plaintiff guaranteed for twenty years and for life thereafter. Plaintiff alleged in substance that she had timely performed all of her policy obligations; that defendant refused to pay, in accordance with her demand, the total face value, contrary to the express terms of the contract; and that defendant’s withholding its “consent” to election of the lump sum provision of the insurance contracts was arbitrary and in disregard of plaintiff’s interest. The district court entered summary judgment for defendant on the ground that “plaintiff ha[d] no right * * * to elect a lump sum payment, subsequent to maturity of the policies, without * * * consent of * * * defendant.” Plaintiff’s affidavits justify the following statement of facts: After her husband died on March 19, 1965, plaintiff, being uncertain as to her cash needs, did not immediately answer the repeated requests of the Company that she elect a mode of payment of the proceeds of the policies. On May 3, about six weeks after her husband’s death, the Company wrote plaintiff’s lawyer enclosing an inter-office memorandum to the effect that plaintiff had eighteen months to decide whether she would like a life income option. Plaintiff relied on the eighteen months representation and did not demand the lump sum settlement until October 29, 1965. On November 3, 1965, the Company refused the demand, stating that her election required the consent which they refused to give. Plaintiff argues that the foregoing post-maturity events “tacitly” admit her right to change the mode of payment and that the Company is estopped from withholding consent; that the withholding of consent was arbitrary and invalid; and that Indiana law prohibited the Company from changing its tacit position by failing, within two months after proof of death was submitted, to settle the claim. We see no merit in the last argument. The delay was due primarily to plaintiff’s uncertainty, and in the Company’s view it settled plaintiff’s claim by rejecting plaintiff’s demand of October 29,1965 in the next month after insured’s death. Under Sec. D1 of each policy, the “owner” could by written notice, before or after insured’s death, elect to have the proceeds paid according to any of several installment options instead of in a single sum. The beneficiary, “no prior election having been made,” could after insured’s death elect any one of the installment options instead of a single sum payment. The September, 1945 agreement which — under stipulation in subsequently issued policies — covered the six policies in issue, provided that “with consent of the Company” plaintiff at any time after maturity could “change or revoke the method of settlement.” The district court rejected the contention that plaintiff, as owner of the policy, did not need the Company’s consent to change her rights as beneficiary. The policies expressly provided that plaintiff was to have express ownership rights “during her lifetime,” and expressly provided that the insured was not owner and had no ownership rights. The 1945 agreement, however, reserved to plaintiff the right as owner to change the settlement option before maturity. This agreement also provided that plaintiff reserved the right after maturity to change or revoke the method of settlement “with * * * consent of the Company.” This modified the owner’s right “before or after” insured’s death. It is our view that plaintiff’s rights as beneficiary vested upon the insured’s death. Her rights as owner at that time ceased. This is consistent with the 1945 settlement agreement provisions, which reserved before maturity her ownership rights in the policies, and after maturity limited her right to change or revoke the method of settlement by requiring consent. After an examination of the record before us, we hold there is no genuine issue of fact concerning the claim that the Company arbitrarily withheld its consent. The district court noted that the provisions of the policies making plaintiff the owner were prepared by the insured. The letterhead under which the ownership provisions were submitted shows that the insured, Mr. Dunbar, was an attorney and a member of the firm of Dunbar & Dunbar “Specializing in Income and Inheritance Taxes, Wills and Trusts.” It is apparent to us that the life insurance program was carried out at the direction of the insured. The September 22, 1945 agreement electing a monthly settlement option was signed by plaintiff. Presumably it was with her husband’s acquiescence, in view of the fact that it was executed a few months after the policies became effective. This jointly-declared intention to provide plaintiff with a guaranteed income for life was done for her financial security. The agreement provided for continuous installments and expressly withheld from plaintiff the right to withdraw funds from the insurance proceeds retained as principal by the defendant. Violence would be done to this plan if the option could be changed merely because the beneficiary has so requested. Plaintiff has neither alleged nor brought forth any extraordinary facts to justify a change in the pattern of financial security designed by both her and her husband. Finally, we see no merit in plaintiff’s claim that the policy option for monthly installments elected prior to her husband’s death violated Burns’ Ind.Stat. Ann. Sec. 39-4207 (1965 Repl.), because “at maturity” the settlement could be of less value than the “amount insured” in the policies. The affidavit of defendant’s chief actuary shows that the value of the “guaranteed” monthly installments was the equivalent of the amounts insured, and this settlement option was approved by the State of Indiana Insurance Department. There was no genuine issue of fact about this point. For the reasons given, the judgment is affirmed. . Contingent beneficiaries, two daughters at the time of insured’s death, under the agreement were to receive the balance due of the guaranteed payments should plaintiff not survive the twenty years, . “OWNERSHIP. Mary P. Dunbar, wife of the insured, during her lifetime, may exercise every right and receive every benefit specified in and conferred by the provisions of the policy to the owner thereof, including, but without limiting the foregoing, the right of assignment, the privilege to change the beneficiary * * * and to agree with the Company to any change in or amendment of the policy, all without the consent of the insured.” . We do not decide or imply the extent, if any, of the insured’s control over the incidents of ownership in the policies. Question: What is the 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_habeas	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. UNITED STATES of America, v. Harry F. WERLING and Frances C. Werling, Appellants. No. 14541. United States Court of Appeals Third Circuit. Argued March 6, 1964. Decided March 31, 1964. Hubert I. Teitelbaum, Pittsburgh, Pa., (Morris, Sailer & Teitelbaum, Pittsburgh, Pa., on the briefs), for appellants. Burton Berkley, Dept, of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard, Atty., Dept, of Justice, Washington, D. C., Gustave Diamond, U. S. Atty., on the briefs), for appellee. Before McLAUGHLIN and FORMAN, Circuit Judges, and LEAHY, District Judge. PER CURIAM. This appeal was argued thoroughly and most competently on behalf of the appellants. However, we are not sitting as triers of the fact. And, in our appellate function, we must recognize that there was sufficient evidence to necessitate submission of the case to the jury and to adequately support the jury’s decision as to both defendants. The judgments of the district court will be affirmed. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation Answer:
songer_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. ENDERS RAZOR CO., Inc., et al. v. CHRISTY CO. et al. No. 7009. Circuit Court of Appeals, Sixth Circuit. June 30, 1936. Wilber Owen, of Toledo, Ohio, and E. S. Rogers, of New York City (Stern & Burnett, of St. Louis, Mo., Marshall, Melhorn, Marlar & Martin and Owen & Owen, all of Toledo, Ohio, B. L. Liberman, of St. Louis, Mo., and Donald F. Melhorn and Wilber Owen, both of Toledo, Ohio, on the brief), for appellants. Chas. S. Grindle, of Washington, D. C. (A. V. Baumann, of Fremont, Ohio, on the brief), for appellees. Before HICKS, SIMONS, and ALLEN, Circuit Judges. ALLEN, Circuit Judge. Appellants severally sought to enjoin appellees from infringing their registered trade-marks and trade names, from selling or advertising for sale razors and razor blades marked with the name “Enders” or “Keen Kutter,” and from engaging in alleged unfair competition, and prayed for an accounting. The District Court consolidated the cases, and after a full hearing, dismissed the bill of complaint. On March 13, 1935, the Durham-Duplex Razor Company succeeded to the business and rights of Enders Razor Company, Inc., and was made a party in this court to the appeal. Three patents on safety razors were issued to Russ J. Christy, predecessor of appellee, The Christy Company, in 1905 and 1907. Appellant, the Simmons Hardware Company, acquired these patents, Nos. 798,129, 788,820, and 853,960, shortly after their issue, and held them until their expiration. The Simmons Company distributed a razor and blades manufactured under these patents by The Christy Company, marked with the name “Enders,” and later registered this name in the form of a facsimile signature, “Wm. Enders,” as a trade-mark (No. 74,158). In 1911 The Simmons Company organized as its subsidiary the Enders Razor Company, Inc., which marketed razors and blades under Christy patent No. 853,960, using the Enders name and mark. The Simmons Company is a hardware jobber, selling a great variety of tools and implements. Since 1868 it has used as its trade-mark a peculiar wedge-shaped design carrying the words “Keen-Kutter.” This trade-mark was registered in 1906 (No. 53,687) for razors and blades made under the Christy patents, and in 1916 the same trade-mark was registered for a great variety of tools (No. 114,030). When the Enders Company was organized the Simmons Company sold razors and blades man-' ufactured only under Christy patent No. 788,820, and it was upon these razors and blades that the “Keen Kutter” trade-mark was carried. Both the Enders and Keen Kutter razors and blades were marked at first with the numbers, and later "with the numbers and dates of issue of all three Christy patents. The Christy Company had made razors and blades for the Simmons Company and the Enders Company from 1906 until 1933, with the exception of a short interval. Since 1923 appellees had manufactured razors and blades of the same type and sold them under the name “Christy.” They had also manufactured similar razors, prior to the expiration of the patents, under other names, such as “Buffalo” and “Crosby.” After the two material patents (Nos. 788,820 and 853,960) expired in 1922 and 1924, respectively, the Christy Company continued to make razors and blades of the same design for the Simmons Company and the Enders Company, until about July, 1933, when these companies contracted to buy the articles from another manufacturer. At that time also the Enders Company started to put out a razor manufactured under a different patent, called the “Enders Speed” razor. The new razor was adapted to blades which would fit the old style Enders razor, while the old style Enders blades would not fit the new Enders razor. The Enders and Keen Kutter razors and blades at no time bore markings indicating that they were manufactured by Christy until shortly before the bringing of the present suit. The Simmons and Enders companies were the largest distributors of razors and blades made under the Christy patents, and had spent substantial sttms in advertising these products. It is conceded that the profit of this business is in the sale of the blades. The Christy Company, therefore, when its largest buyers ceased to take its products, continued to manufacture razors and also manufactured the old style Enders and Keen Kutter blades and marketed them in packages labeled “Original and Genuine ENDERS [or KEEN KUTTER] BLADES Made by Christy.” In the circulars inserted in the razor boxes were statements applying to both the Enders and the Keen Kutter blades, as follows: “In buying Blades for your ENDERS [or KEEN KUTTER] Razor ask for ENDERS [or KEEN KUTTER] BLADES MADE BY CHRISTY. The words‘Made by CHRISTY’ and the outline of the Original and Genuine ENDERS [or KEEN KUTTER] Blade on the package, as shown above, are your assurance that you are getting the same fine quality for which ENDERS [or KEEN KUTTER] Blades have been known for over 25 years.” The packages for the razors bore the statement “Original and Genuine' ENDERS [or KEEN KUTTER] Razor Made by Christy.” The words “Enders Blades” and “Keen Kutter Blades” at first appeared in heavy block type, larger than the accompanying words, and were the most prominent words printed on the packages, but the words “Made by Christy” have recently been enlarged. It is this method of merchandising and the using of the registered trade names by appellees that appellants seek to enjoin. The District Court held that the case came squarely within the doctrine of Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 118. It considered that the names “Enders” and “Keen Kutter” became the generic names of razors and blades of this type, and were descriptively designative thereof, and that the appellees therefore were entitled to use the names after the expiration of the patents. It found that appellees had committed no acts of unfair competition and had not infringed the trade-marks of the Enders Company nor of the Simmons Company, and dismissed the bill. With reference to the use of the Enders name, we think that the decision is correct. While the precise form in which the name was displayed, as discussed later, is improper, it did become descriptively designative of the articles manufactured thereunder. The emphasis placed in the advertising and circulars of the Enders Company upon the name “Enders,” and its use upon the packages and in the trade literature for the most part without being accompanied by the name of the company manufacturing the articles, under the doctrine of Singer Mfg. Co. v. June Mfg. Co., supra, made the name “Enders” the generic designation of this type of razor and blade. Hence the name “Enders” may now be used by appellees in the sale of the safety razors and blades known during the life of the patents by the same name. This being the case, it is not necessary to consider the alleged policy of abandonment of the old style Enders razor and blade, arising out of the substitution of the new Enders Speed razor. A more difficult question is presented by the use of the name “Keen Kutter.” This name had been continuously used by the Simmons Company for more than thirty years before the Christy patents were issued. Apart from and prior to the registration of this name as a trade-mark it had acquired a secondary meaning whereby it had become a mark of origin. Cf. Rymer v. Anchor Stove & Range Co., 70 F.(2d) 386 (C.C.A.6). It was applied to all of the extensive line of cutlery products put out by the Simmons Company, and was used upon many articles besides razors and razor blades, including mining tools, farming tools and cutting tools of great variety. Its first application to safety razors and blades was to those made by Christy in 1907. If the name “Keen Kutter” is a generic designation of the razor and the blades, then it is also a generic designation for knives, saws, hatchets, etc. The same advertising of the name, the same emphasis has been given in its use as a trade name for all of the other products of the Simmons Company as for the razor and blades. While the Singer Case, supra, 163 U.S. 169, at page 179, 16 S.Ct. 1002, 41 L.Ed. 118, declares that the same name as a generic designation may apply to various species within the same genus, that case does not hold that the same name can be a descriptive designation for more than one genus. The fact that the name Keen Kutter was used on other totally different products long before these patents were issued, and that an extensive good will was built up around its use, irrespective of the patents and before the razors were sold, seems to us conclusively to show that this term is not generic. One might conceivably have gone to a retail store and asked for a “Singer” during the life of the Singer patents, and immediately have been shown a sewing machine; but if he had asked for a “Keen Kutter,” the -salesman would be compelled to ask whether the customer wanted a knife, a saw, a razor, scissors, or some other Simmons product. This homely illustration demonstrates that as to the Keen Kutter trade name the relief prayed for should have been granted. In addition to the circumstance that “Keen Kutter” is a trade name constituting part of a trade-mark applied to numerous articles, the name was used many years before the patents were obtained. Under these circumstances, the mark or name does not become public property upon the expiration of, the patent rights especially where, as here, the patents did not. contribute greatly to the' value of the trademark. The advertisements of the Simmons Company allocated to the Keen Kutter branch of the trade are shown by this record to have run over $3,000,000 during the life of this trade-mark. Hence it appears that the name, and not the patent, gave its value to the article. Nims’ Unfair Competition and Trade-Marks (2d Ed.), 405; Batcheller v. Thomson, 93 F. 660, 665 (C.C.A.2); President Suspender Co. v. MacWilliam, 238 F. 159, 163 (C.C.A.2); Avenarius v. Kornely, 139 Wis. 247, 268, 121 N.W. 336; Hopkins on Trademarks (3d Ed.) 90. Also we think that the form- used by appellees in the labeling of both types of razors and blades constituted unfair competition. The statement “Original and Genuine KEEN KUTTER, (or ‘ENDERS’)” together with the literature on the inside of the box, created a false impression in the mind of the buyer. A close reading of appellees’ labels would reveal The Christy Company as manufacturer. But this does not alter the fact that appellees attempted to palm off their goods as the old Enders and Keen Kutter articles, that is, as those put out under the original sponsorship. This is the essence of the wrong in an action for unfair competition. Samson Cordage Works v. Puritan Cordage Mills, 211 F. 603, 608, L.R.A.1915F, 1107 (C.C.A.6). Cf. O. & W. Thum Co. v. Dickinson, 245 F. 609 (C.C.A.6); Upjohn Co. v. Wm. S. Merrell Chemical Co., 269 F. 209 (C.C.A.6); Wisconsin Electric Co. v. Dumore Co., 35 F.(2d) 555 (C.C.A. 6). The record presents, evidence of actual cases of confusion, several persons testifying that upon asking for Enders or Keen Kutter blades since the Simmons contract was taken away from Christy, they were given those manufactured by Christy. Appellees in fact offered in open court to withdraw the phrase “Original and Genuine” from the razor boxes and blade packages. The decree is reversed and the case is remanded with instructions (1) to issue an injunction against- the use by appellees of the words “Original and Genuine” upon razors and blades marked with the name “Enders,” or upon packages containing the same, and in all advertising in connection with the marketing of these articles; (2) to issue an injunction against the use of the name “Keen Kutter” by appellee; (3) to order an accounting for damages suffered by appellant Enders Razor Company, Inc;, or appellant Durham-Duplex Razor Company, or both, as their respective interests may appear, during the period that unfair competition was engaged in, and to order an accounting for damages suffered by appellant Simmons Hardware Company from the use of the name “Keen Kutter” upon the blades and razors bearing that name and manufactured by appellees. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_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 Brian Dennis HUNT, Plaintiff-Appellant, v. NUCLEAR REGULATORY COMMISSION et al., Defendants-Appellees. No. 79-1647. United States Court of Appeals, Tenth Circuit. Argued Nov. 6, 1979. Decided Nov. 23, 1979. Certiorari Denied Feb. 25, 1980. See 100 S.Ct. 1084. Robert M. Hager, Tulsa, Okl., for plaintiff-appellant. Joseph B. Scott, Washington, D. C., and Leonard Schaitman, Dept, of Justice, Alice Daniel, Acting Asst. Atty. Gen., Washington, D. C., Hubert H. Bryant, U. S. Atty., Tulsa, Okl. (Stephen F. Eilperin, Sol., Washington, D. C., of counsel, and Steve Ostrach, Washington, D. C., on the brief), for Nuclear Regulatory Commission, defendant-appellee. Joseph Gallo of Isham, Lincoln & Beale, Washington, D. C., Kenneth W. East, Tulsa, Okl. (Martha E. Gibbs, Chicago, 111., of counsel and Peter Thornton of Isham, Lincoln & Beale, Chicago, 111., on the brief), for Public Service Co. of Oklahoma, defendantappellee. George L. Edgar and Kevin P. Gallen of Morgan, Lewis & Bockius, Washington, D. C. (F. Paul Thieman, Jr. and J. Kenton, Francy of Crowe & Thieman, Tulsa, Okl., of counsel and on the brief), for General Elec. Co., defendant-appellee. Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges. McWILLIAMS, Circuit Judge. The issue here is whether the Government in the Sunshine Act, 5 U.S.C. § 552b, et seq. (1976), applies to an adjudicatory hearing before the Atomic Safety and Licensing Board. The trial court held that the Act did not apply. We agree. The Public Service Company of Oklahoma filed an application with the Nuclear Regulatory Commission, hereinafter generally referred to as the Commission, requesting that it be granted a construction permit to build and operate a nuclear power plant, to be located some 23 miles east of Tulsa, Oklahoma and known as the Black Fox Station. As a part of the Commission’s proceedings, the Commission’s adjudicatory arm, the Atomic Safety and Licensing Board, hereinafter generally referred to as the Board, commenced hearings on Public Service Company’s application, such hearings being held in Tulsa, Oklahoma. During the course of these hearings, an internal report of the General Electric Company, which company was under contract to supply the Nuclear Steam Supply System for the proposed Black Fox Station, became pertinent and relevant to the issues then under consideration by the Board. General Electric was reluctant to produce its report, known as the Reed Report, without protective orders, claiming that the report contained trade secrets. An agreement was worked out between the parties whereby the Reed Report, or at least the pertinent portions thereof, were produced with the understanding that the hearings of the Board which concerned the Reed Report would be held in camera, i. e., a closed hearing not open to the public. It was in this general setting that Brian Dennis Hunt, a resident of Tulsa, Oklahoma, brought the present action against the Commission and the Board. Jurisdiction was based on 5 U.S.C. § 552b(h)(l). The complaint generally alleged the background facts summarized in the paragraph immediately above. The gist of the complaint was that the Government in the Sunshine Act precluded the Board from holding hearings closed to the general public. The relief sought was a temporary restraining order, and a preliminary and permanent injunction enjoining the Board from holding closed hearings “on any matter relating to the Reed Report.” General Electric and the Public Service Company of Oklahoma were permitted to intervene as defendants. Each filed an answer, admitting that all hearings before the Board relating to the Reed Report were to be closed hearings, i. e., not open to the public, and denying that the Sunshine Act covered the hearings of the Board. A motion opposing the request for a temporary restraining order, as well as a motion to dismiss, were filed on behalf of the Commission and the Board. At the conclusion of a hearing on Hunt’s request for a temporary restraining order, the trial court, after denying the request for a temporary restraining order, indicated, with the apparent approval of all concerned, that the entire case boiled down to a single issue: Did the Sunshine Act cover and apply to the adjudicatory hearing then about to take place before the Board? The trial court stated that if the Act by its terms did apply, then injunctive relief was in order; but that if the Act did not cover the Board’s hearing, then the entire action should be dismissed. The parties were then granted three days to file simultaneous briefs, all concerned being desirous of a speedy determination of the matter. The trial court later ruled that the Sunshine Act by its terms did not encompass the hearings of the Board, and accordingly dismissed the action. The trial court’s order now appears as Hunt v. Nuclear Regulatory Commission, 468 F.Supp. 817 (N.D.Okl.1979). From that dismissal order Hunt prosecutes the present appeal. In this Court Hunt asked for an injunction pending final disposition of his appeal. In this regard Hunt sought an order of this Court enjoining the Commission from issuing a construction permit to Public Service Company for the construction and operation of the Black Fox Station, pending final disposition of the appeal. We declined to take immediate action on Hunt’s motion for injunction pending appeal, and accelerated the briefing of the appeal proper. Briefing is now complete and the case has been orally argued, again on an expedited basis. Accordingly, the appeal is itself ripe for final determination. Before examining the Sunshine Act, reference should first be made to the nature of both the Commission and the Board and the relationship between the two. The Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq., gave the Atomic Energy Commission the authority, among other things, to regulate nuclear power. The Energy Reorganization Act of 1974, 42 U.S.C. § 5801, et seq., transferred the licensing and related regulatory functions of the Atomic Energy Commission to the Nuclear Regulatory Commission. The Nuclear Regulatory Commission is composed of five members appointed by the President by and with the advice and consent of the Senate. 42 U.S.C. §§ 5841(a)(1) and 5841(b)(1). The 1974 Act also requires that “a quorum for the transaction of [Nuclear Regulatory Commission] business shall consist of at least three members present.” 42 U.S.C. § 5841(a)(1). Pursuant to statutory authority, the Nuclear Regulatory Commission provides a comprehensive agency process for consideration of the public health and safety and of the environmental aspects of nuclear power plant licensing. Utility companies wishing to construct or operate a nuclear power plant must make detailed héalth, safety, and environmental submissions. The Commission’s staff initially reviews these submissions and subsequent to that review the Commission participates as an independent party to the licensing process. In accordance with the Administrative Procedure Act, 5 U.S.C. § 551, et seq., adjudicatory hearings are then held on all construction permit applications. Any person whose interest may be affected by the proceeding may intervene as a party to such hearings. 42 U.S.C. § 2239(a). The hearings are conducted for the Commission by three-member Atomic Safety and Licensing Boards. Atomic Safety and Licensing Boards are provided for by 42 U.S.C. § 2241. That statute reads as follows: Atomic safety and licensing boards; establishment; membership; functions; compensation (a) Notwithstanding the provisions of 7(a) and 8(a) of the Administrative Procedure Act, the Commission is authorized to establish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Commission deems appropriate to the issues to be decided, to conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization under the provisions of this chapter, any other provision of law, or any regulation of the Commission issued thereunder. The Commission may delegate to a board such other regulatory functions as the Commission deems appropriate. The Commission may appoint a panel of qualified persons from which board members may be selected. (b) Board members may be appointed by the Commission from private life, or designated from the staff of the Commission or other Federal agency. . The composition of an Atomic Safety and Licensing Board varies from hearing to hearing and, we are informed, is typically composed of an environmental scientist, a nuclear engineer, and a lawyer. The licensing board in an individual case is selected by the Commission from a panel of some 60 full and part-time members. Advice and consent of the Senate is not required in this selection process. An appeal from a decision of an Atomic Safety and Licensing Board is heard by a three-member Atomic Safety and Licensing Appeal Board, also composed of scientists and' lawyers. The Nuclear Regulatory Commission itself has discretionary power to review a decision of an Appeal Board. Finally, the several Courts of Appeals have exclusive jurisdiction to review all final orders of the Commission entered in licensing proceedings. 42 U.S.C. § 2239 and 28 U.S.C. §§ 2341-44. See also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). As above indicated, Hunt relies totally on the provisions of 5 U.S.C. § 552b of the so-called Sunshine Act in his effort to “open up” the Board’s hearings. That statute provides as follows: § 552b. Open Meetings (a) For purposes of this section— (1) the term “agency” means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency; (2) the term “meeting” means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and (3) the term “member” means an individual who belongs to a collegial body heading an agency. (b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation. (Emphasis added.) Except as provided for in 5 U.S.C. § 552b(b), which provision we need not reach in the present case because of our view that the statute itself does not apply to the Atomic Safety and Licensing Board, the statute in the last clause thereof provides that “every portion of every meeting of an agency shall be open to public observation.” (Emphasis added.) However, in preceding sections of the statute the term “meeting of an agency,” is so defined as to clearly mean that the mandate for open hearings does not apply to an adjudicatory hearing before an Atomic Safety and Licensing Board, though it would apply to a meeting of the Nuclear Regulatory Commission itself. 5 U.S.C. § 552b(a)(l) defines the term “agency” as that word is used in 5 U.S.C. § 552b(b). The term “agency” as used in the statute is defined as meaning an agency which, inter alia, is headed by a collegial body composed of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate. An Atomic Safety and Licensing Board is clearly not an agency within the meaning of the statute. Members of such a Board are not appointed by the President, but by the Nuclear Regulatory Commission. The last clause in 5 U.S.C. § 552b(a)(l) provides that the mandate that all meetings of agencies be open applies not only to agencies whose members, or a majority thereof, are appointed by the President with the advice and consent of the Senate, but also applies to any subdivision of such collegial body authorized to act on behalf of such an agency. In our view, an Atomic Safety and Licensing Board is not a subdivision of the Nuclear Regulatory Commission. This is not an instance where an agency, i. e. a collegial body, a majority of whose members are appointed by the President, has divided itself into sub-groups to conduct the business of the agency. No member of the Commission is on the Board with which we are here concerned. Any possible doubt on this particular matter is cleared up by ensuing sections in the statute. 5 U.S.C. § 552b(a)(2) defines the term “meeting” as the deliberations of at least the number of individual agency members required to take action on behalf of the agency. This language is entirely consistent with the premise that the “subdivision” mentioned in 5 U.S.C. § 552b(a)(1) is a subdivision of the “collegial body” and that such subdivision must be composed of a sufficient number of the members of the collegial body as to permit action on behalf of the collegial body. If there still be any doubt on this partictílar matter, such should be resolved by the provision of 5 U.S.C. § 552b(a)(3). That particular section defines the term “member” as that term is used in the definition of both the term “agency” and the term “meeting.” The statute defines the term “member” as an individual “who belongs to a collegial body heading an agency.” No member of the present Board belongs to the “collegial body heading the agency.” Based on our reading of 5 U.S.C. § 552b we are of the definite view that the Sunshine Act does not apply to the Board here involved. Since Hunt relies totally on the provisions of 5 U.S.C. § 552b to open up the Board hearings involving the Reed Report, the trial court acted properly in dismissing the action. Our analysis of the statute parallels that of the trial court, and we therefore are generally in accord with the trial court’s reasoning. 468 F.Supp. 817 (N.D.Okl.1979). Wé could well let the entire matter rest at this point, since in our view the statute is clear and unambiguous. However, we would briefly note that our understanding of the statute is in accord with the legislative history of the Act, is in accord with regulations of the Commission implementing the Act, and is in accord with an “Interpretative Guide to the Government in the Sunshine Act,” published by the Office of the Chairman of the Administrative Conference of the United States. Reference to legislative history is said to be quite proper, “however clear” the language of a statute may appear to be. Such reference is permissible in order to make certain that the apparent “clearness” is not superficial in nature. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976) and United States v. . American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). We do not propose to here dwell at length on the legislative history of the Sunshine Act. Such is fully reviewed in the trial court’s order. 468 F.Supp. 817, 820-21 (N.D.Okl.1979). The reader of this opinion is directed to the trial court’s order for legislative history. In promulgating its proposed regulations implementing the Sunshine Act, the Nuclear Regulatory Commission defined the term “commission” to mean “the collegial body of five commissioners or a quorum thereof . or any subdivision of that collegial body authorized to act on its behalf, and shall not mean any body not composed of members of that collegial body.” 41 Fed. Reg. 55882 (1976). In that regard the Commission commented: The definition of Commission is taken from the definition of ‘agency’ in the Act, 5 U.S.C. 552b(a)(1). Subdivisions of the Commission not composed of Commission members such as the Atomic Safety and Licensing Board, or the Advisory Committee on Reactor Safety, are specifically excluded from the definition. 41 Fed. Reg. 55880 (1976). This proposed regulation of the Nuclear Regulatory Commission as finalized provides that the “Commission” means the collegial body of five Commissioners and any subdivision of that collegial body, but does not “mean any body not composed of members of that collegial body.” 10 C.F.R. § 9.101(a) (1979). In line with the foregoing, the Commission commented that the legislative history of the Sunshine Act plainly supports the conclusion that an Atomic Safety and Licensing Board is not subject to the Act. 42 Fed.Reg. 12875 (1975). Under the Administrative Conference Act, 5 U.S.C. §§ 574(2), 575(c)(14) (1976), the Office of the Chairman of the Administrative Conference of the United States is generally charged with advising and assisting federal agencies on matters relating to administrative procedure. Under the Sunshine Act, the Office of the Chairman is specifically charged to consult with each agency subject to the Sunshine Act and to review any regulations proposed for promulgation under the Act by such agency. 5 U.S.C. § 552b(g). With regard to the question of the applicability of the open meeting requirement to lower-level agency boards and tribunals, the Office of the Chairman in the “Interpretative Guide to the Government in the Sunshine Act” commented as follows: It should be noted that ‘subdivision thereof’ refers back to ‘collegial body,’ not to ‘agency.’ Subdivisions made up entirely of employees other than members of the collegial body are not covered by the Act, even though they may be authorized to act on behalf of the agency. The basis for excluding subdivisions made up of agency employees is well stated in the Senate Report: ‘The agency heads are high public officials, having been selected and confirmed through a process very different from that used for staff members. Their deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and rationale of decision-making.’ Since the judgment of the trial court is being affirmed, Hunt’s request for injunction pending appeal is rendered moot. Judgment affirmed. . The Board members in the instant case are two full-time Commission employees and one part-time consultant from private life. . At oral argument opposing counsel were in agreement that the ultimate question in this case is whether the term “any subdivision thereof’ as used in 5 U.S.C. § 552b(a)(1) means any subdivision of a “collegial body” or any subdivision of an “agency.” Hunt agreed that if the term “any subdivision thereof’ means any subdivision of a “collegial body,” then under such interpretation the Atomic Safety and Licensing Board is not a subdivision of the Nuclear Regulatory Commission. In our view the term “any subdivision thereof’ can only mean subdivision of a collegial body. In this statute we are not concerned with an “agency” in the broad sense of that word. The statute itself limits the Sunshine Act to any agency headed by a collegial body, a majority of whose members are appointed by the President with the advice and consent of the Senate. That is the only type of an agency covered by the Act. Hence, the term “any subdivision thereof’ can only mean a subdivision of the “collegial body” type of agency. . We are advised that a rule that the open meeting requirement of the Sunshine Act applies only to meetings in which members of the collegial body heading the agency are present and participating has been promulgated by such agencies as Civil Aeronautics Board, Civil Service Commission, Federal Trade Commission, Interstate Commerce Commission, National Labor Relations Board, United States Parole Commission, as well as numerous other agencies. . R. Berg and S. Klitzman, An Interpretative Guide to the Government in the Sunshine Act, Office of the Chairman of the Administrative Conference of the United States (June 1978). Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appel1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. HOWE et al. v. FEDERAL TRADE COMMISSION. No. 10486. Circuit Court of Appeals, Ninth Circuit. April 4, 1945. Rehearing Denied May 7, 1945. Edward Starin, of Seattle, Wash., for petitioners. W. T. Kelley, Chief Counsel, Joseph J. Smith, Jr., Asst. Chief Counsel, and Jno. W. Carter, Jr., Sp. Atty., Federal Trade Commission, all of Washington, D. C., for respondent. Before GARRECIÍT, MATHEWS, and HEALY, Circuit Judges. GARRECHT, Circuit Judge. The petitioners, Phil Howe, David A. Howe, and Joanne B. Howe, trading as Howe and Company, are and have been engaged in the sale and distribution of cosmetic preparations. The preparations when sold are transported from their place of business in Seattle, Washington, to various other states of the United States and in the District of Columbia. For the purpose of inducing the purchase of the cosmetics, the petitioners use the trade name “Hollywood” and the legend under that “Favorite of the Stars.” Of the some twenty items sold by the petitioners, only three are obtained from sources in Hollywood, although more than 52% of the firm’s purchases consist of the three items manufactured in Hollywood, and as to such items the trade name is not inhibited. The Federal Trade Commission after considering the evidence found that the word “Hollywood” when used to designate cosmetic preparations is associated by a substantial portion of the purchasing public with the motion picture industry and is understood as indicating that the cosmetics are manufactured there and are used by Flollywood stars, which is further strengthened by use of the legend “Favorite of the Stars.” The Commission found that the use of the word “Hollywood” was deceptive and misleading, and concluded such deception to constitute unfair practice within the meaning of the Federal Trade Commission Act. An order was issued to cease and desist from using the word “Hollywood” to designate any product which is not in fact manufactured in Hollywood, California, or using the words, “Favorite of the Stars.” The other matters contained in the order have been complied with and are not in issue here. The petitioners have asked this court to review the order of the Federal Trade Commissiom If the findings are supported by evidence, they are conclusive, and the order must be affirmed. Federal Trade Commission Act, § 5, 15 U.S.C.A. § 45(c). Witnesses testified that the label “Howe’s Hollywood, favorite of the Stars” gave the impression that it was a Hollywood preparation and was endorsed by the stars of motion pictures. Two other witnesses testified that they would interpret it to mean that the product was used by the movie stars. Another testified that Hollywood is one city in the world most every one knows and it is outstanding because of the motion picture industry, and the label “Hollywood, favorite of the Stars” could only mean that it was a product of Hollywood and used and preferred by the stars. There was other testimony that the legend “Favorite of the Stars” meant certain Hollywood actresses favored it. Another witness said “that the word ‘Hollywood’ used in connection with any ■ aid to beauty or cosmetics has more significant meaning than the word ‘Hollywood’ used in other lines of products and has more value.” A great many witnesses testified on behalf of the Commission and on behalf of the petitioners. To some of these witnesses the word “Hollywood” had no particular significance. However, a substantial portion of the purchasing public and persons in the cosmetic trade associated the label with the motion picture colony and thought the cosmetics were manufactured there. There was also evidence that a Hollywood origin in a cosmetic product was a business asset. The evidence showed also that the preparations in question were not recognized by the actresses of Hollywood as being of superior quality. In the case of Stanley Laboratories, Inc., v. Federal Trade Commission, 138 F.2d 388, this court found that the use of the words “M.D.” in marketing a douche was a deception attempting to capitalize on the prestige of the medical profession. In the cosmetic field, a parallel endorsement would be that of actresses of Hollywood. It was reasonable therefore to find the advertisement misleading and deceptive, and where there is a rational basis for the conclusion of the administrative body, our duty is ended. The motion to insert after the words “Hollywood, California” in the order, the parenthetical sentence: (The term “Hollywood, California,” as used herein, means the entire city of Los Angeles, California, and those adjacent or contiguous independent municipalities which are generally regarded as comprising the Los Angeles metropolitan area, such as Culver City, Beverly Hills, Glendale and Santa Monica.), is hereby granted and the order as amended is affirmed and must be so enforced. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:
sc_issue_1	05	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. TRUPIANO et al. v. UNITED STATES. No. 427. Argued March 9, 1948. Decided June 14, 1948. Frank G. Schlosser argued the cause for petitioners. With him on the brief was Anthony A. Calandra. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Quinn, Robert S. Erdahl and Beatrice Rosenberg. Mr. Justice Murphy delivered the opinion of the Court. This case adds another chapter to the body of law growing out of the Fourth Amendment to the Constitution of the United States. That Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, the Fourth Amendment is a recognition of the fact that in this nation individual liberty depends in large part upon freedom from unreasonable intrusion by those in authority. It is the duty of this Court to give effect to that freedom. In January, 1946, the petitioners sought to lease part of the Kell farm in Monmouth County, New Jersey, and to erect a building thereon. Kell suspected that they intended to build and operate an illegal still. He accordingly reported the matter to the appropriate federal authority, the Alcohol Tax Unit of the Bureau of Internal Revenue. The federal agents told Kell to accept the proposition, provided he did nothing to entice or encourage the petitioners into going ahead with their plans and provided he kept the agents informed of all developments. Nilsen, one of the agents, was assigned in February to work on the farm in the disguise of a “dumb farm hand” and to accept work at the still if petitioners should offer it. Toward the end of March, 1946, Kell agreed with petitioners to let them rent part of his farm for $300 a month. Kell and Nilsen assisted petitioners in the erection of the building, a roughly constructed barn about 200 yards from the Kell farmhouse. Nilsen also assisted in the erection of the still and the vats. Operation of the still began about May 13, 1946. Nil-sen thereafter worked as “mash man” at a salary of $100 a week, which he turned over to the Government. During this period he was in constant communication with his fellow agents. By prearrangement, he would meet one or more of the agents at various places within a few miles of the Kell farm; at these meetings “the conversation would be about the still building I had assisted in erecting or about the illicit distillery that I was working at on the Kell farm.” On May 20 he met with one of his superior officers and gave him samples of alcohol, several sugar bags, a yeast wrapper and an empty five-gallon can which had been taken from the still premises. On May 26 Nilsen received a two-way portable radio set from his superiors. He used this set to transmit frequent bulletins on the activities of the petitioners. On the basis of radio intelligence supplied by Nilsen, a truckload of alcohol was seized on May 31 about an hour after it had left the farm. At about 9 p. m. in the evening of June 3, 1946, Nilsen radioed his superior that the still operators were awaiting the arrival of a load of sugar and that alcohol was to be taken from the farm when the sugar truck arrived. Nil-sen apparently knew then that a raid was scheduled for that night, for he told Kell during the evening that “tonight is the night.” He radioed at 11 p. m. that the truck had been delayed but that petitioners Roett and Antoniole were at the still. Three federal agents then drove to within three miles of the farm, at which point they were met by Kell. The remainder of the distance was traversed in Kell’s automobile. They arrived at the farm at about 11:45 p. m. The agents stated that the odor of fermenting mash and the sound of a gasoline motor were noticeable as the car was driven onto the farm premises; the odor became stronger and the noise louder as they alighted from the car and approached the building containing the still. Van De Car, one of the agents, went around one end of the building. Looking through an open door into a dimly lighted interior he could see a still column, a boiler and a gasoline pump in operation. He also saw Antoniole bending down near the pump. He entered the building and placed Antoniole under arrest. Thereupon he “seized the illicit distillery.” After this arrest and seizure, Van De Car looked about further and observed a large number of five-gallon cans which he later found to contain alcohol and some vats which contained fermenting mash. Another agent, Casey, testified that he could see several of these cans through the open door before he entered; he subsequently counted the cans and found that there were 262 of them. After he entered he saw the remainder of the distillery equipment, including four large mash vats. The third agent, Gettel, proceeded to a small truck standing in the yard and “searched it thoroughly for papers and things of an evidentiary nature.” It does not appear whether he was successful in his search or whether he took anything from the truck. A few minutes later Roett was arrested outside the building. Petitioners Trupiano and Riccardelli apparently were arrested later that night by other agents, the place and the circumstances not being revealed by the record before us. In addition, three other persons were arrested that night because of their connections with the illegal operations; one of them, who was unknown to Nilsen, was arrested when he arrived at the farm with a truck loaded with coke. The agents engaged in this raid without securing a search warrant or warrants of arrest. It is undenied that they had more than adequate opportunity to obtain such warrants before the raid occurred, various federal judges and commissioners being readily available. All of the persons arrested were charged with various violations of the Internal Revenue Code arising out of their ownership and operation of the distillery. Prior to the return of an indictment against them, the four petitioners filed in the District Court for the District of New Jersey a motion alleging that the federal agents had illegally seized “a still, alcohol, mash and other equipment,” and asking that “all such evidence” be excluded and suppressed at any trial and that “all of the aforesaid property” be returned. The District Court denied the motion after a hearing, holding that the seizure was reasonable and hence constitutional. 70 F. Supp. 764. The Circuit Court of Appeals for the Third Circuit affirmed per curiam the order of the District Court. 163 F. 2d 828. Thus we have a case where contraband property was seized by federal agents without a search warrant under circumstances where such a warrant could easily have been obtained. The Government, however, claims that the failure to secure the warrant has no effect upon the validity of the seizure. Reference is made to the well established right of law enforcement officers to arrest without a warrant for a felony committed in their presence, Carroll v. United States, 267 U. S. 132, 156-167, a right said to be unaffected by the fact that there may have been adequate time to procure a warrant of arrest. Since one of the petitioners, Antoniole, was arrested while engaged in operating an illegal still in the presence of agents of the Alcohol Tax Unit, his arrest was valid under this view even though it occurred without the benefit of a warrant. And since this arrest was valid, the argument is made that the seizure of the contraband open to view at the time of the arrest was also lawful. Reliance is here placed on the long line of cases recognizing that an arresting officer may look around at the time of the arrest and seize those fruits and evidences of crime or those contraband articles which are in plain sight and in his immediate and discernible presence. Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, supra, 158; Agnello v. United States, 269 U. S. 20, 30; United States v. Lee, 274 U. S. 559, 563; Marron v. United States, 275 U. S. 192, 198-199; Go-Bart Co. v. United States, 282 U. S. 344, 358; United States v. Lefkowits, 285 U. S. 452, 465; Harris v. United States, 331 U. S. 145, 150-151. We sustain the Government’s contention that the arrest of Antoniole was valid. The federal agents had more than adequate cause, based upon the information supplied by Nilsen, to suspect that Antoniole was engaged in felonious activities on the farm premises. Acting on that suspicion, the agents went to the farm and entered onto the premises with the consent of Kell, the owner. There Antoniole was seen through an open doorway by one of the agents to be operating an illegal still, an act felonious in nature. His arrest was therefore valid on the theory that he was committing a felony in the discernible presence of an agent of the Alcohol Tax Unit, a peace officer of the United States. The absence of a warrant of arrest, even though there was sufficient time to obtain one, does not destroy the validity of an arrest under these circumstances. Warrants of arrest are designed to meet the dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime. Those dangers, obviously, are not present where a felony plainly occurs before the eyes of an officer of the law at a place where he is lawfully present. Common sense then dictates that an arrest in that situation is valid despite the failure to obtain a warrant of arrest. But we cannot agree that the seizure of the contraband property was made in conformity with the requirements of the Fourth Amendment. It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. Carroll v. United States, supra, 156; Go-Bart Co. v. United States, supra, 358; Taylor v. United States, 286 U. S. 1, 6; Johnson v. United States, 333 U. S. 10, 14-15. This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. United States v. Lefkowitz, supra, 464. In their understandable zeal to ferret out crime and in the excitement of the capture of a suspected person, officers are less likely to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed. To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement. The facts of this case do not measure up to the foregoing standard. The agents of the Alcohol Tax Unit knew every detail of the construction and operation of the illegal distillery long before the raid was made. One of them was assigned to work on the farm along with the illicit operators, making it possible for him to secure and report the minutest facts. In cooperation with the farm owner, who served as an informer, this agent was in a position to supply information which could easily have formed the basis for a detailed and effective search warrant. Concededly, there was an abundance of time during which such a warrant could have been secured, even on the night of the raid after the odor and noise of the distillery confirmed their expectations. And the property was not of a type that could have been dismantled and removed before the agents had time to secure a warrant; especially is this so since one of them was on hand at all times to report and guard against such a move. See United States v. Kaplan, 89 F. 2d 869, 871. What was said in Johnson v. United States, supra, 15, is equally applicable here: “No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the consti-tutionál requirement. ... If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.” And so when the agents of the Alcohol Tax Unit decided to dispense with a search warrant and to take matters into their own hands, they did precisely what the Fourth Amendment was designed to outlaw. Uninhibited by any limitations that might have been contained in a warrant, they descended upon the distillery in a midnight raid. Nothing circumscribed their activities on that raid except their own good senses, which the authors of the Amendment deemed insufficient to justify a search or seizure except in exceptional circumstances not here present. The limitless possibilities afforded by the absence of a warrant were epitomized by the one agent who admitted searching “thoroughly” a small truck parked in the farmyard for items of an evidentiary character. The fact that they actually seized only contraband property, which would doubtless have been described in a warrant had one been issued, does not detract from the illegality of the seizure. See Amos v. United States, 255 U. S. 313; Byars v. United States, 273 U. S. 28; Taylor v. United States, supra. Moreover, the proximity of the contraband property to the person of Antoniole at the moment of his arrest was a fortuitous circumstance which was inadequate to legalize the seizure. As we have seen, the existence of this property and the desirability of seizing it were known to the agents long before the seizure and formed one of the main purposes of the raid. Likewise, the arrest of An-toniole and the other petitioners in connection with the illicit operations was a foreseeable event motivating the raid. But the precise location of the petitioners at the time of their arrest had no relation to the foreseeability or necessity of the seizure. The practicability of obtaining a search warrant did not turn upon whether Antoniole and the others were within the distillery building when arrested or upon whether they were then engaged in operating the illicit equipment. Antoniole just happened to be working amid the contraband surroundings at 11:45 p. m. on the night in question, while the other three petitioners chanced to be some place else. But Antoniole might well have been outside the building at that particular time. If that had been the case and he had been arrested in the farmyard, the entire argument advanced by the Government in support of the seizure without warrant would collapse. We do not believe that the applicability of the Fourth Amendment to the facts of this case depends upon such a fortuitous factor as the precise location of Antoniole at the time of the raid. In other words, the presence or absence of an arrestee at the exact time and place of a foreseeable and anticipated seizure does not determine the validity of that seizure if it occurs without a warrant. Rather the test is the apparent need for summary seizure, a test which clearly is not satisfied by the facts before us. A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest. The mere fact that there is a valid arrest does not ipso facto legalize a search or seizure without a warrant. Carroll v. United States, supra, 158. Otherwise the exception swallows the general principle, making a search warrant completely unnecessary wherever there is a lawful arrest. And so there must be some other factor in the situation that would make it unreasonable or impracticable to require the arresting officer to equip himself with a search warrant. In the case before us, however, no reason whatever has been shown why the arresting officers could not have armed themselves during all the weeks of their surveillance of the locus with a duly obtained search warrant — no reason, that is, except indifference to the legal process for search and seizure which the Constitution contemplated. We do not take occasion here to reexamine the situation involved in Harris v. United States, supra. The instant case relates only to the seizure of contraband the existence and precise nature and location of which the law enforcement officers were aware long before making the lawful arrest. That circumstance was wholly lacking in the Harris case, which was concerned with the permissible scope of a general search without a warrant as an incident to a lawful arrest. Moreover, the Harris case dealt with the seizure of Government property which could not have been the subject of a prior search warrant, it having been found unexpectedly during the course of a search. In contrast, the contraband seized in this case could easily have been specified in a prior search warrant. These factual differences may or may not be of significance so far as general principles are concerned. But the differences are enough to justify confining ourselves to the precise facts of this case, leaving it to another day to test the Harris situation by the rule that search warrants are to be obtained and used wherever reasonably practicable. What we have here is a set of facts governed by a principle indistinguishable from that recognized and applied in Taylor v. United States, supra. The Court there held that the seizure of illicit whiskey was unreasonable, however well-grounded the suspicions of the federal agents, where there was an abundant opportunity to obtain a search warrant and to proceed in an orderly, judicial way. True, the Taylor case did not involve a seizure in connection with an arrest. And the officers there made an unlawful entry onto the premises. But those factors had no relation to the practicability of obtaining a search warrant before making the seizure. It was the time element and the foreseeability of the need for a search and seizure that made the warrant essential. The Taylor case accordingly makes plain the illegality of the seizure in the instant proceeding. The Fourth Amendment was designed to protect both the innocent and the guilty from unreasonable intrusions upon their right of privacy while leaving adequate room for the necessary processes of law enforcement. The people of the United States insisted on writing the Fourth Amendment into the Constitution because sad experience had taught them that the right to search and seize should not be left to the mere discretion of the police, but should as a matter of principle be subjected to the requirement of previous judicial sanction wherever possible. The effective operation of government, however, could hardly be embarrassed by the requirement that arresting officers who have three weeks or more within which to secure the authorization of judicial authority for making search and seizure should secure such authority and not be left to their own discretion as to what is to be searched and what is to be seized. Such a requirement partakes of the very essence of the orderly and effective administration of the law. It is a mistake to assume that a search warrant in these circumstances would contribute nothing to the preservation of the rights protected by the Fourth Amendment. A search warrant must describe with particularity the place to be searched and the things to be seized. Without such a warrant, however, officers are free to determine for themselves the extent of their search and the precise objects to be seized. This is no small difference. It is a difference upon which depends much of the potency of the right of privacy. And it is a difference that must be preserved even where contraband articles are seized in connection with a valid arrest. It follows that it was error to refuse petitioners’ motion to exclude and suppress the property which was improperly seized. But since this property was contraband, they have no right to have it returned to them. Reversed. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:
sc_authoritydecision	G	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. BUSHNELL v. ELLIS, CORRECTIONS DIRECTOR. No. 561. Argued May 2, 1961. Decided May 22, 1961. Percy D. Williams, acting under appointment by the Court, 364 U. S. 917, argued the cause and filed a brief for petitioner. B. H. Timmins, Jr., Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Will Wilson, Attorney General, and Linward Shivers, Assistant Attorney General. Per Curiam. The judgment of the Court of Criminal Appeals of Texas is reversed and the cause is remanded to that court with directions to grant petitioner a hearing upon his petition for a writ of habeas corpus. Uveges v. Pennsylvania, 335 U. S. 437; Cash v. Culver, 358 U. S. 633; McNeal v. Culver, 365 U. S. 109. Mr. Justice Stewart took no part in the consideration or decision of this case. 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_caseorigin	083	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. WEST v. CONRAIL et al. No. 85-1804. Argued February 25, 1987 Decided April 6, 1987 Stevens, J., delivered the opinion for a unanimous Court. Paul Alan Levy argued the cause for petitioner. With him on the briefs were Alan B. Morrison and Arthur L. Fox II. Laurence Gold argued the cause for respondents. With him on the brief for respondents Brotherhood of Maintenance of Way Employes, Local 2906, et al. were William J. Birney, William G. Mahoney, and David Silberman. W. Cary Edwards, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, and Jeffrey Burstein, Deputy Attorney General, filed a brief for respondent New Jersey Transit Corp. Lucy S. L. Amerman, John B. Rossi, Jr., and Bruce B. Wilson filed a brief for respondent Consolidated Rail Corporation. Justice Stevens delivered the opinion of the Court. Petitioner Thomas West brought a “hybrid” suit against his employer, his union, and his union representative under the Railway Labor Act. He alleged that the employer had breached the collective-bargaining agreement and that the union and its representative had breached their duty of fair representation. The parties agree, for the purpose of our review of the Court of Appeals’ judgment, that petitioner’s cause of action accrued on March 25,1984, the date petitioner learned of the alleged breach of the union’s duty of fair representation. His complaint was filed on September 24, 1984, less than six months after the statute of limitations began to run. The summonses and complaints were mailed to respondents on October 10, 1984. Respondents acknowledged service of the complaint on dates ranging from October 12, 1984, through November 1, 1984. Thus, both the date on which the complaints were mailed and the date when the first acknowledgment of service was made were more than six months after the statute began to run. Because service was not effected within the 6-month period prescribed in § 10(b) of the National Labor Relations Act, the District Court granted respondents’ motion for summary judgment. App. to Pet. for Cert. 15a. The Court of Appeals for the Third Circuit affirmed. 780 F. 2d 361 (1986). We granted certiorari, 478 U. S. 1004 (1986), because the Third Circuit’s decision is at odds with a decision of the Court of Appeals for the Sixth Circuit, Macon v. ITT Continental Baking Co., 779 F. 2d 1166 (1985), cert. pending, No. 85-1400. Congress did not enact a federal statute of limitations that is expressly applicable to federal duty of fair representation claims. In DelCostello v. Teamsters, 462 U. S. 151 (1983), we filled that gap in federal law by deciding that the 6-month period prescribed in § 10(b) should be applied to hybrid claims under § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185. Section 10(b) authorizes the National Labor Relations Board (NLRB) to issue a complaint when a charging party asserts that an employer or a union has engaged in an unfair labor practice. The statute does not impose any time limit on the issuance of such a complaint, but it does provide that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . See n. 1, supra. Given our holding in DelCostello, the Court of Appeals read this statutory language to require in hybrid suits of this kind that both the filing and the service of the complaint be made within the 6-month period of limitations. We did not, however, intend that result. The only gap in federal law that we intended to fill in DelCostello was the appropriate limitations period. We did not intend to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b) of the National Labor Relations Act. Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service and the period within which service must be made. The clerk of the district court must “forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt service of the summons and a copy of the complaint.” Fed. Rule Civ. Proc. 4(a). Service must normally be made within 120 days. See Rule 4(j). Although we have not expressly so held before, we now hold that when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been “commenced” in compliance with Rule 3 within the borrowed period. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056 (1969). We decline respondents’ invitation to require that when a federal court borrows a statute of limitations to apply to a federal cause of action, the statute of limitation’s provisions for service must necessarily also be followed, even when the borrowed statute is to be applied in a context somewhat different from the one in which those procedural rules originated. Inevitably our resolution of cases or controversies requires us to close interstices in federal law from time to time, but when it is necessary for us to borrow a statute of limitations for a federal cause of action, we borrow no more than necessary. Here, because of the availability of Rule 3, there is no lacuna as to whether the action was brought within the borrowed limitations period. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Section 10(b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160(b), provides: “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of title 28.” (Emphasis added.) Although DelCostello and the Sixth Circuit’s opinion in Macon v. ITT Continental Baking Co., 779 F. 2d 1166 (1985), both involved a hybrid action brought under § 301 of the Labor Management Relations Act, 1947, 29 U. S. C. § 185, rather than a hybrid action brought under the Railway Labor Act, the parties agree that § 10(b) provides the applicable statute of limitations in this case. We find no reason to distinguish the Labor Management Relations Act, 1947, from the Railway Labor Act for the limited purpose of determining whether service must be effected within the limitations period. Under § 10(b), the employee’s charge is timely if a copy is served personally or mailed within the limitations period. See 29 CFR § 102.113(a) (1986). The complaint in an unfair labor practice proceeding is filed by the General Counsel after he or she has investigated the employee’s charge. See 29 U. S. C. § 153(d). When the underlying cause of action is based on state law, and federal jurisdiction is based on diversity of citizenship, state law not only provides the appropriate period of limitations but also determines whether service must be effected within that period. Walker v. Armco Steel Corp., 446 U. S. 740, 752-753 (1980). Respect for the State’s substantive decision that actual service is a component of the policies underlying the statute of limitations requires that the service rule in a diversity suit “be considered part and parcel of the statute of limitations.” Id., at 752 (footnote omitted). This requirement, naturally, does not apply to federal-question cases. Indeed, Walker expressly declined to “address the role of Rule 3 as a tolling provision for a statute of limitations, whether set by federal law or borrowed from state law, if the cause of action is based on federal law.” Id., at 751, n. 11. Our holding that the statute of limitations was tolled when the complaint was filed eliminates the potential difficulty of determining the actual dates on which service of the complaint was made on the various defendants. In some cases, the determination of the length of the borrowed period may require examination of the tolling rules that are followed in the jurisdiction from which the statute of limitations is borrowed. See, e. g., Wilson v. Garcia, 471 U. S. 261, 269 (1986) (suggesting that length of limitations period and “closely related questions of tolling and application” are governed by state law in action brought under 42 U. S. C. § 1983); Chardon v. Fumero Soto, 462 U. S. 650, 661-662 (1983) (§ 1988 requires borrowing Puerto Rico’s statute of limitations and its rule that, after tolling ends, the statute of limitations begins to run anew in § 1983 action); Board of Regents, Univ. of N. Y. v. Tomanio, 446 U. S. 478, 484-485 (1980) (§ 1988 requires federal courts in § 1983 actions to refer to state statute of limitations and coordinate tolling rules unless state law is inconsistent with federal law). The governing principle is that we borrow only what is necessary to fill the gap left by Congress. Respondents also argue that §10(b)’s service requirement must be adopted in order to assure that defendants receive prompt notice of suit against them. The requirement of timely service in Rule 4(j) satisfies this need without recourse to the service requirement of § 10(b). While it is possible that a defendant Will not be served with the complaint until 10 months after the cause of action accrues, this result is not inconsistent with our adoption of a 6-month statute of limitations for breach of contract/ breach of duty of fair representation claims. See DelCostello v. Teamsters, 462 U. S. 151 (1983). The administrative scheme for unfair labor practices only requires that the charge be filed and served within six months of the date the cause of action accrued. The defendant does not receive the complaint, if any, until the General Counsel has investigated the charge and decided to proceed. Under both the administrative procedure for unfair labor practices and the judicial procedure for hybrid claims, the statute of limitations and the tolling provisions extinguish stale claims; they guarantee that the defendant is not subject to suit for conduct that occurred more than six months before the complaining party initiates appropriate legal process, by filing either a charge with the NLRB or a complaint in federal court. 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_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. Andrew CAPOROSSI v. ATLANTIC CITY, a municipal corporation of the State of New Jersey; Lester Warren, Inc., a corporation of the State of New Jersey, and Mollie Gerber and Shepard Gerber, Atlantic City, a municipal corporation of the State of New Jersey, Appellant. No. 14661. United States Court of Appeals Third Circuit. Argued Feb. 20, 1964. Decided March 10, 1964. Samuel P. Orlando, Camden, N. J., for appellant. Ralph W. Campbell, Asbury Park, N. J. (Campbell, Mangini, Foley & Lee, As-bury Park, N. J., on the brief), for appellee. ' Before KALODNER and HASTIE, Circuit Judges, and KIRKPATRICK, District Judge. PER CURIAM. On review of the record we find no error. The judgment of the District Court entered pursuant to the jury’s verdict will be affirmed for the reasons so well stated by Judge Cohen in his excellent opinion reported at 220 F.Supp. 508 (D.C.N.J.1963). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_numappel	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Frank A. WISE and WDW, Inc., Appellants, v. George DeWERD, Cote de la Mer Corporation and Palm Beach, Inc. No. 16105. United States Court of Appeals Third Circuit. Argued Jan. 30, 1967. Decided Feb. 15, 1967. George H. T. Dudley, Charlotte Amalie, St. Thomas, V. I., for appellants. Thomas D. Ireland, Charlotte Amalie, St. Thomas, V. I., for appellees. Before STALEY, Chief Judge, and MARIS and FREEDMAN, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is the second appeal by the plaintiffs in this case. The facts are sufficiently stated in our opinion disposing of the first appeal, 3 Cir., 358 F.2d 389, 5 V.I. 493, and need not be repeated here. It is enough to say that we vacated the judgment which the district court had entered and ordered the entry of a new judgment conforming to the directions contained in our opinion. The district court entered a revised judgment , which the plaintiffs on the present appeal contend does not follow our mandate. There is no merit in this contention. On the contrary, we are satisfied that the revised judgment entered by the district court loyally follows our mandate in form and substance so far as the merits of the case are concerned. The plaintiffs urge that the revised judgment is erroneous because it does not direct the payment by the defendants to the plaintiffs of two-thirds of the total outstanding obligations, amounting to $27,401.47, incurred by-plaintiff WDW, Inc., in its joint venture with Cote de la Mer Corporation. This same contention was made by the plaintiffs at the trial, as well as in this court on the first appeal, and was rejected. Por these obligations, so far as appears, have not actually been paid by WDW, Inc., which is, therefore, not yet entitled to enforce its right to reimbursement by defendant Cote de la Mer Corporation of two-thirds of the amounts paid in settlement of them. This brings us to a matter not considered on the first appeal. The district court in its original judgment allowed the defendants counsel fees of $5,-000.00 and costs. Exactly the same allowance was made in the revised judgment entered on our mandate. The plaintiffs urge on the present appeal that they are the prevailing parties and that the award of counsel fees to the defendants is, therefore, erroneous. We think this contention is well taken. By their amended complaint the plaintiffs claimed $61,849.60, and the defendants by counterclaim claimed $192,-000.00. By the first judgment entered by the district court on June 29, 1965 defendant DeWerd was awarded $40,000.00 against plaintiff Wise and $68,553.00 against plaintiff WDW, Inc., while plaintiff WDW, Inc., was awarded $10,652.97 against defendant Cote de la Mer Corporation. By the revised judgment entered on our mandate defendant DeWerd was awarded only $7,148.67 against plaintiff WDW, Inc., and nothing against plaintiff Wise, while plaintiff Wise was awarded $5,000.00 against defendant De-Werd in addition to the unchanged award of $10,652.97 in favor of plaintiff WDW, Inc., against defendant Cote de la Mer Corporation. It will thus be seen that whereas in the pleadings the defendants claimed $130,000.00 more than the plaintiffs and under the original judgment the defendants’ net recovery from the plaintiffs was $97,900.03, under the revised judgment entered upon our mandate, the plaintiffs secured a net recovery of $8,-504.30. It is thus perfectly clear that the plaintiffs are the prevailing parties in this litigation within the meaning of section 541, title 5, V.I.C., and should have been so considered by the district court in determining the award of counsel fees in the revised judgment. Whether under all the circumstances they should be awarded counsel fees or whether the parties should bear their own costs is, of course, a matter for the district court to determine. The judgment appealed from will be affirmed except as to the award of counsel fees and costs. The award of counsel fees and costs will be vacated and the cause will be remanded for such award of counsel fees and costs, if any, to the plaintiffs as the district court may determine to be appropriate in the circumstances. Question: What is the total number of appellants in the case? Answer with a number. 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. SIMON v. CITY CAB CO., Inc. No. 6265. United States Court of Appeals for the District of Columbia. Argued Jan. 8, 1935. Decided May 13, 1935. Rehearing Denied June 11', 1935. HITZ, J., dissenting. Louis Ottenberg, George D. Horning, Jr., and H. M. Ammerman, all of Washington, D. C., for appellant. Alwin L. Newmyer and David G. 'Bress, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. VAN ORSDEL, Associate Justice. This action was brought in the Supreme Court of the District of Columbia by appellant, plaintiff below, against defendant, City Cab Company, for damages sustained by the plaintiff through the alleged negligence of the driver of one of the defendants cabs. At the conclusion of all the evidence the court, on motion of defendant, directed the jury to return a verdict in its favor. From the judgment, this appeal was taken. It appears that one James Hall Semmes, Sr., had been employed by the defendant company in June, 1932, to operate the taxicab in question. He paid defendant $3.25 daily, whether he did any business or not. He was entitled to retain all he earned above that amount. He was permitted to keep the cab at his place of residence in Tacoma Park, Md., but was required to report to defendant each day. When he returned home in the evening, it was his custom to leave the cab standing in the driveway beside his house, and to leave the keys in the switch of the car. His son, James Hall Semmes, Jr., a licensed hacker, occasionally drove the cab at night, sometimes with and sometimes without his father’s permission. The son was driving the car on the night of the accident, having taken it without his father’s permission, and, after discharging a passenger, was returning home about half past two on the morning of October 4, 1932, when the accident occurred. Plaintiff belonged to one of the fire companies, and was' in attendance at a fire on Tenth street in this city. He was engaged in replacing the hose in a fire truck when Semmes, Jr., driving the taxicab, ran into him, crushing his leg between the taxicab and the hose wagon, so severely injuring his leg as to require its amputation. On the issue of negligence, there is ample evidence to take the case to the jury, but the court directed a verdict on the ground that Semmes, Jr., was not the agent of the defendant for the operation of the taxicab, and that the company was therefore not liable. This raises the single question necessary for the determination of this case. The uncontradicted evidence discloses that Semmes, Sr., under his contract with the defendant to operate the taxicab, was without authority to permit any one else to use or operate the cab for any purpose whatever. We think, therefore, that whether or not he permitted his son to drive the cab on the night of the accident is immaterial. In neither event ’could Semmes, Sr., to this extent extend the scope of his agency without the consent of his principal. This elementary rule of agency we think is decisive of this case. It was not within the power of Semmes, Sr., to permit any one else to use the cab, either in the course of the company’s business or otherwise, without the consent of the company; and if Semmes, Jr., on the night in question was using the cab without the permission of his father, the situation is not different from a case where a car has been stolen and an accident occurs when it is operated by the thief. Under no circumstances in such a case could the owner of the car be held liable. Counsel for plaintiff invoke the rule of law that where the plaintiff is injured by a taxicab hearing the name of the owner, the presumption arises that the vehicle is in the custody and on the business of the defendant, and that the driver is its agent and acting within the scope of his employment. This presumption, if standing alone, is sufficient to establish a prima facie case, and if uncontradicted, to carry the case to the jury. In Callas v. Independent Taxi Owners’ Association, 62 App. D. C. 212, 66 F.(2d) 192, 194, the taxicab bore the peculiar colors and trade-name of the defendant company, and it was held that this was sufficient to raise the presumption that it was “in the custody and on the business of the person whose name it bore.” The president of the company testified that it did not own a cab and intimated that it was not in the cab business, and there was no evidence to show that the operator of the cab was or was not a member, servant, or agent of the company. It was there held that these facts were not .sufficient to overcome the presumption to the extent of authorizing the court to take the case from the jury. On this point the court said: “Whether the effect of this presumption was overcome by the testimony of the president of the company that it did not own a cab, and his intimations that it was not in the cab business was a question of fact for the jury, and consequently its decision as a question of law by the court was error.” The court, in ■ support of this holding, quoted with approval from Holzheimer et ux. v. Lit Brothers, 262 Pa. 150, 152, 105 A. 73, as follows: “So far as the liability of the defendant was concerned, the plaintiffs’ case rested wholly upon a presumption. There was no direct evidence as to who was the owner of the truck that inflicted the injury, nor as to who was in charge of it when the collision occurred. There was evidence, however, that the truck bore the name of the defendant company. This was sufficient to establish, not only a prima facies that the defendants were the owners of the truck, but also that it was then in charge of their servant or employee. This was presumptive evidence, and, as has frequently been ruled, was quite sufficient to carry the case to the jury.” The instant case, however, can be clearly differentiated from the Callas Case. The facts in the present case are all disclosed, leaving no room for reliance upon a presumption. Whatever presumption arose was overcome by uncontradicted proof. Where that situation clearly arises, a motion for a directed verdict should be granted. If, however, the evidence is contradictory, or reasonably subject to contradictory interpretations, as was held in the Callas Case, the question of liability then is one for the jury. In the instant case, defendant admits the ownership of the taxicab, admits the employment and agency of Semmes, Sr., and proved conclusively, at the time of the accident, the car was in the possession of Semmes, Jr., a total stranger to defendant, who possessed no authority, express or implied, to operate the car for the defendant or to use it in carrying on its business; and whose prior and instant use of the cab was without its knowledge or consent. Indeed, these facts stand uncontradicted, and to submit the issue to the jury of whether or not they are sufficient to overcome the presumption establishing a prima facie case, would be to submit the rights of the defendant to the speculation and sympathy of the jury. It is difficult to conceive of a case where the owner of an automobile, used privately, for business purposes, or publicly as a taxicab, could be held liable for an accident caused by the car while operated by a person unknown to the owner and without his express or implied permission. Clear it is, that the agent of the owner, in whatever capacity he is charged with the use or operation of the car, cannot without the knowledge or consent of the owner transmit his agency to a person unknown to the owner, and thereby impose liability on the owner for the reckless or negligent operation of the car. Nor does it follow that the owner is always liable for’an accident occurring through the negligent operation of his car by his servant, agent, or employee. In Peabody v. Marlboro Implement Company, 63 App. D. C. 288, 72 F.(2d) 81, 82 (certiorari denied by the Supreme Court, 293 U. S. 601, 55 S. Ct. 117, 118, 79 L. Ed. -), defendant company admitted the ownership of the automobile but denied that the operator thereof, at the time of the accident, was operating it as the agent or employee of the defendant. The testimony disclosed that the driver of the car was in the general employ of defendant company, and was in custody and control of the car and permitted to use it in the business of the company, and when it was not in such use to keep it in his own garage. The uncontradicted testimony showed that at the time of the accident the agent was using the car on a personal mission, not directly or indirectly connected with the company’s business, or with its knowledge or consent. The court, speaking through Mr. Chief Justice Martin, distinguishing the Callas Case, and, holding that the verdict had been directed properly for the defendant, said: “It is true that in Callas v. Independent Taxi Owners’ Association, 62 App. D. C. 212, 66 F.(2d) 192, we held that a car operated as a taxicab at the time of an accident, bearing the peculiar colors and trade name of the defendant company, was legally presumed to be in the custody and on the business of the company whose name it bore. But in Curry v. Stevenson, 58 App. D. C. 162, 26 F.(2d) 534, we held that where the prima facie inference of possession of the automobile at the time of the accident, arising from the fact of ownership, is overcome by uncontradicted proof that in fact the automobile was not in possession of the owner or his servant or agent, the question is one for the court, and not for the jury. We think that this rule is equally applicable where the issue relates to the liability of an owner for the alleged negligence of an agent in the operation of a car.” Special stress is placed by counsel for plaintiff on the case of Schweinhaut v. Flaherty, 60 App. D. C. 151, 49 F.(2d) 533, 535. In that case the agent of the taxicab company in whose hands the taxicab had been placed for the purpose of soliciting and obtaining fares and transporting passengers departed from the purpose for which he was employed to take a woman friend to her place of residence free of charge. While thus engaged, he collided with a pedestrian, and the injury complained of was sustained. It was therefore contended that the company was not responsible for the reason that its servant or agent was not engaged in the regular course of the company’s business at the time the accident occurred. We held the company liable, but in so doing we approached so close to the line that the rule of liability announced in this case will admit of little if any extension. In that case the court, speaking through Mr. Justice Groner, clearly stated the rule of liability in taxicab cases, as follows: “In these circumstances, it seems to us the duty of the courts to indulge no subtle reasoning in extending the doctrine of nonliability to the owner of such an instrumentality who, in his search of gain and profit, places one of these in irresponsible hands, but rather to require of him such supervision of his servant as will avoid disobedience to and disregard of his rules, or, failing so to do, when injury occurs to a stranger, to shoulder the responsibility. Hence we are of opinion that whatever may be the rule in the case of a private chauffeur who, in violation of his master’s orders, takes his private automobile and uses it without the master’s knowledge and for the servant’s purposes alone, or, in the case of one intrusted for the moment by its owner with an automobile for a specific purpose who, in disregard of that. purpose, uses it for another, the rule in the case of one who, as a carrier of passengers for hire, places an automobile in the hands of a servant for the purpose of soliciting and obtaining 'fares and transporting them from one part of the city to another, and who, in such circumstances, admittedly would be liable to a pedestrian negligently injured by the servant, should reasonably be held to include liability for an injury inflicted by the negligence of the servant where that servant, in violation of the master’s rules, is, as was here the case, transporting free a friend to her home nearby. There is, we think, nothing novel in such a rule.” That case, however, is easily distinguished from the one at bar for the reason that the agent of the company was in charge of the cab and driving it at the time the accident occurred. Here, when the accident occurred, the cab was being driven by a total stranger — one with whom the company had no express or implied contractual relation. His possession of the automobile was not such as in any manner to attach liability to defendant. The judgment is affirmed, with costs. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES v. BURKE et al. No. 91-42. Argued January 21, 1992 Decided May 26, 1992 Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Kennedy, JJ., joined. Scalia, J., post, p. 242, and Souter, J., post, p. 246, filed opinions concurring in the judgment. O’Connor, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 248. Jeffrey R, Minear argued the cause for the United States. On the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Kent L. Jones, Ann Belanger Durney, and Bruce R. Ellisen. Joseph E. Finley argued the cause for respondents. With him on the brief was Lucinda M. Finley. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Steven S. Zaleznick, Cathy Ventrell-Monsees, Raymond C. Fay, and Thomas F. Joyce; for the American Civil Liberties Union et al. by C. Cabell Chinnis, Jr., Alison C. Wetherfield, Martha F. Davis, Steven R. Shapiro, Isabelle Katz Pinzler, Julius L. Chambers, and Charles Stephen Ralston; for the Equal Employment Advisory Council by Robert E. Williams and Douglas S. McDowell; for Equal Rights Advocates, Inc., by Stephen V. Bomse, Nancy L. Davis, and Maria Blanco; for Women Employed et al. by Michael B. Erp, Mary K. O’Melveny, and Stephen G. Seliger; for the National Employment Lawyers Association by Robert B. Fitzpatrick; and for the National Women’s Law Center by Walter J. Rockier. Raymond C. Fay, Alan M. Serwer, and Thomas F. Joyce filed a brief for the United Airlines Pilot Group as amicus curiae. Justice Blackmun delivered the opinion of the Court. In this case we decide whether a payment received in settlement of a backpay claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., is excludable from the recipient’s gross income under § 104(a)(2) of the federal Internal Revenue Code, 26 U. S. C. § 104(a)(2), as “damages received ... on account of personal injuries.” I The relevant facts are not in dispute. In 1984, Judy A. Hutcheson, an employee of the Tennessee Valley Authority (TVA), filed a Title VII action in the United States District Court for the Eastern District of Tennessee alleging that TVA had discriminated unlawfully in the payment of salaries on the basis of sex. The Office and Professional Employees International Union, which represented the affected employees, intervened. Among the represented employees were respondents Therese A. Burke, Cynthia R. Center, and Linda G. Gibbs. The complaint alleged that TVA had increased the salaries of employees in certain male-dominated pay schedules, but had not increased the salaries of employees in certain female-dominated schedules. In addition, the complaint alleged that TVA had lowered salaries in some female-dominated schedules. App. in No. 90-5607 (CA6) (hereinafter App.), pp. 28-32 (Second Amended Complaint). The plaintiffs sought injunctive relief as well as backpay for all affected female employees. Id., at 33-34. The defendants filed a counterclaim against the union alleging, among other things, fraud, misrepresentation, and breach of contract. Id., at 35. After the District Court denied cross-motions for summary judgment, the parties reached a settlement. TVA agreed to pay $4,200 to Hutcheson and a total of $5 million for the other affected employees, to be distributed under a formula based on length of service and rates of pay. Id., at 70-71, 76-77. Although TVA did not withhold taxes on the $4,200 for Hutcheson, it did withhold, pursuant to the agreement, federal income taxes on the amounts allocated to the other affected employees, including the three respondents here. Respondents filed claims for refund of the taxes withheld from the settlement payments. The Internal Revenue Service (IRS) disallowed those claims. Respondents then brought a refund action in the United States District Court for the Eastern District of Tennessee, claiming that the settlement payments should be excluded from their respective gross incomes under § 104(a)(2) of the Internal Revenue Code as “damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness.” The District Court ruled that, because respondents sought and obtained only back wages due them as a result of TVA’s discriminatory underpayments rather than compensatory or other damages, the settlement proceeds could not be excluded from gross income as “damages received ... on account of personal injuries.” 90-1 USTC ¶ 50,203 (1990). The United States Court of Appeals for the Sixth Circuit, by a divided vote, reversed. 929 F. 2d 1119 (1991). The Court of Appeals concluded that exclusion under § 104(a)(2) turns on whether the injury and the claim are “personal and tort-like in nature.” Id., at 1121. “If the answer is in the affirmative,” the court held, “then that is the beginning and end of the inquiry.” Id., at 1123 (internal quotation marks omitted). The court concluded that TVA’s unlawful sex discrimination constituted a personal, tort-like injury to respondents, and rejected the Government’s attempt to distinguish Title VII, which authorizes no compensatory or punitive damages, from other statutes thought to redress personal injuries. See id., at 1121-1123. Thus, the court held, the award of backpay pursuant to Title VII was excludable from gross income under § 104(a)(2). The dissent in the Court of Appeals, 929 F. 2d, at 1124, took the view that the settlement of respondents’ claims for earned but unpaid wage differentials — wages that would have been paid and would have been subjected to tax absent TVA’s unlawful discrimination — did not constitute compensation for “loss due to a tort,” as required under § 104(a)(2). See id., at 1126. We granted certiorari to resolve a conflict among the Courts of Appeals concerning the exclusion of Title VII backpay awards from gross income under § 104(a)(2). 602 U. S. 806 (1991). II A The definition of gross income under the Internal Revenue Code sweeps broadly. Section 61(a), 26 U. S. C. § 61(a), provides that “gross income means all income from whatever source derived,” subject only to the exclusions specifically enumerated elsewhere in the Code. As this Court has recognized, Congress intended through § 61(a) and its statutory precursors to exert “the full measure of its taxing power,” Helvering v. Clifford, 309 U. S. 331, 334 (1940), and to bring within the definition of income any “accessio[n] to wealth.” Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 431 (1955). There is no dispute that the settlement awards in this case would constitute gross income within the reach of § 61(a). See Brief for Respondents 9-10. The question, however, is whether the awards qualify for special exclusion from gross income under § 104(a), which provides in relevant part that “gross income does not include — ” “(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness ... .” Neither the text nor the legislative history of § 104(a)(2) offers any explanation of the term “personal injuries.” Since 1960, however, IRS regulations formally have linked identification of a personal injury for purposes of § 104(a)(2) to traditional tort principles: “The term ‘damages received (whether by suit or agreement)’ means an amount received . . . through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution.” 26 CFR § 1.104-1(c) (1991). See Threlkeld v. Commissioner, 87 T. C. 1294, 1305 (1986) (“The essential element of an exclusion under section 104(a)(2) is that the income involved must derive from some sort of tort claim against the payor. ... As a result, common law tort law concepts are helpful in deciding whether a taxpayer is being compensated for a ‘personal injury’”) (internal quotation marks omitted), aff’d, 848 F. 2d 81 (CA6 1988). A “tort” has been defined broadly as a “civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.” See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 2 (1984). Remedial principles thus figure prominently in the definition and conceptualization of torts. See R. Heuston, Salmond on the Law of Torts 9 (12th ed. 1957) (noting that “an action for damages” is “an essential characteristic of every true tort,” and that, even where other relief, such as an injunction, may be available, “in all such cases it is solely by virtue of the right to damages that the wrong complained of is to be classed as a tort”). Indeed, one of the hallmarks of traditional tort liability is the availability of a broad range of damages to compensate the plaintiff “fairly for injuries caused by the violation of his legal rights.” Carey v. Piphus, 435 U. S. 247, 257 (1978). Although these damages often are described in compensatory terms, see Memphis Community School Dist. v. Stachura, 477 U. S. 299, 306 (1986), in many cases they are larger than the amount necessary to reimburse actual monetary loss sustained or even anticipated by the plaintiff, and thus redress intangible elements of injury that are “deemed important, even though not pecuniary in [their] immediate consequence[s].” D. Dobbs, Law of Remedies 136 (1973). Cf. Molzof v. United States, 502 U. S. 301, 306-307 (1992) (compensatory awards that exceed actual loss are not prohibited as “punitive” damages under the Federal Tort Claims Act). For example, the victim of a physical injury may be permitted, under the relevant state law, to recover damages not only for lost wages, medical expenses, and diminished future earning capacity on account of the injury, but also for emotional distress and pain and suffering. See Dobbs, at 540-551; Threlkeld v. Commissioner, 87 T. C., at 1300. Similarly, the victim of a “dignitary” or nonphysical tort such as defamation may recover not only for any actual pecuniary loss (e. g., loss of business or customers), but for “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974). See also Dobbs, at 510-520. Furthermore, punitive or exemplary damages are generally available in those instances where the defendant’s misconduct was intentional or reckless. See id., at 204-208; Molzof v. United States, supra. We thus agree with the Court of Appeals’ analysis insofar as it focused, for purposes of § 104(a)(2), on the nature of the claim underlying respondents’ damages award. See 929 F. 2d, at 1121; Threlkeld v. Commissioner, 87 T. C., at 1305. Respondents, for their part, agree that this is the appropriate inquiry, as does the dissent. See Brief for Respondents 9-12; post, at 250. In order to come within the § 104(a)(2) income exclusion, respondents therefore must show that Title VII, the legal basis for their recovery of backpay, redresses a tort-like personal injury in accord with the foregoing principles. We turn next to this inquiry. B Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a)(1). If administrative remedies are unsuccessful, an aggrieved employee may file suit in a district court, § 2000e-5(f)(1), although the Courts of Appeals have held that Title VII plaintiffs, unlike ordinary tort plaintiffs, are not entitled to a jury trial. See, e. g., Johnson v. Georgia Highway Express, Inc., 417 F. 2d 1122, 1125 (CA5 1969). See also Curtis v. Loether, 415 U. S. 189, 192-193 (1974) (describing availability of jury trials for common-law forms of action); id., at 196-197, n. 13 (citing Title VII cases). If the court finds that the employer has engaged in an unlawful employment practice, it may enjoin the practice and “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.” §2000e-5(g). It is beyond question that discrimination in employment on the basis of sex, race, or any of the other classifications protected by Title VII is, as respondents argue and this Court consistently has held, an invidious practice that causes grave harm to its victims. See Brief for Respondents 35-39; Griggs v. Duke Power Co., 401 U. S. 424 (1971). The fact that employment discrimination causes harm to individuals does not automatically imply, however, that there exists a tort-like “personal injury” for purposes of federal income tax law. Indeed, in contrast to the tort remedies for physical and nonphysical injuries discussed above, Title VII does not allow awards for compensatory or punitive damages; instead, it limits available remedies to backpay, injunctions, and other equitable relief. See §2000e-5(g); Patterson v. McLean Credit Union, 491 U. S. 164, 182, n. 4 (1989) (noting that a plaintiff in a Title VII action is “limited to a recovery of backpay”); Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 374-375 (1979); Sparrow v. Commissioner, 292 U. S. App. D. C. 259, 262-263, 949 F. 2d 434, 437-438 (1991) (collecting cases). An employee wrongfully discharged on the basis of sex thus may recover only an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits; similarly, an employee wrongfully denied a promotion on the basis of sex, or, as in this case, wrongfully discriminated against in salary on the basis of sex, may recover only the differential between the appropriate pay and actual pay for services performed, as well as lost benefits. The Court previously has observed that Title VII focuses on “legal injuries of an economic character,” see Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975), consisting specifically of the unlawful deprivation of full wages earned or due for services performed, or the unlawful deprivation of the opportunity to earn wages through wrongful termination. The remedy, correspondingly, consists of restoring victims, through backpay awards and injunctive relief, to the wage and employment positions they would have occupied absent the unlawful discrimination. See id., at 421 (citing 118 Cong. Rec. 7168 (1972)). Nothing in this remedial scheme purports to recompense a Title VII plaintiff for any of the other traditional harms associated with personal injury, such as pain and suffering, emotional distress, harm to reputation, or other consequential damages (e.g., a ruined credit rating). See Walker v. Ford Motor Co., 684 F. 2d 1355, 1364-1365, n. 16 (CA11 1982). No doubt discrimination could constitute a “personal injury” for purposes of § 104(a)(2) if the relevant cause of action evidenced a tort-like conception of injury and remedy. Cf. Curtis v. Loether, 415 U. S., at 195-196, n. 10 (noting that “under the logic of the common law development of a law of insult and indignity, racial discrimination might be treated as a dignitary tort” (internal quotation marks omitted)). Indeed, the circumscribed remedies available under Title VII stand in marked contrast not only to those available under traditional tort law, but under other federal antidiscrimination statutes, as well. For example, Rev. Stat. § 1977, 42 U. S. C. § 1981, permits victims of race-based employment discrimination to obtain a jury trial at which “both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages” may be awarded. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 460 (1975). The Court similarly has observed that Title VIII of the Civil Rights Act of 1968, whose fair housing provisions allow for jury trials and for awards of compensatory and punitive damages, “sounds basically in tort” and “contrasts sharply” with the relief available under Title VII. Curtis v. Loether, 415 U. S., at 195, 197; 42 U. S. C. § 3613(c). Notwithstanding a common-law tradition of broad tort damages and the existence of other federal antidiscrimination statutes offering similarly broad remedies, Congress declined to recompense Title VII plaintiffs for anything beyond the wages properly due them — wages that, if paid in the ordinary course, would have been fully taxable. See L. Frolik, Federal Tax Aspects of Injury, Damage, and Loss 70 (1987). Thus, we cannot say that a statute such as Title VII, whose sole remedial focus is the award of back wages, redresses a tort-like personal injury within the meaning of § 104(a)(2) and the applicable regulations. Accordingly, we hold that the backpay awards received by respondents in settlement of their Title VII claims are not excludable from gross income as “damages received ... on account of personal injuries” under § 104(a)(2). The judgment of the Court of Appeals is reversed. It is so ordered. The pretax figures for the three respondents ranged from $673 to $928; the federal income tax withheld ranged from $114 to $186. 90-1 USTC ¶ 50,203, p. 83,747 (1990). Although respondents also sought a refund of taxes withheld from their incomes pursuant to the Federal Insurance Contributions Act (FICA), 26 U. S. C. § 3101 et seq., neither the parties nor the courts below addressed the distinct analytical question whether back-pay received under Title VII constitutes “wages” subject to taxation for FICA purposes. See 26 U. S. C. § 3101(a) (imposing percentage tax on “wages”), § 3121(a) (defining “wages” as “all remuneration for employment”). Hence, we confine our analysis in this case to the federal income tax question. The Civil Rights Act of 1991 recently amended Title'VII to authorize the recovery of compensatory and punitive damages in certain circumstances. See nn. 8 and 12, infra. Compare the Sixth Circuit’s opinion in this ease with Sparrow v. Commissioner, 292 U. S. App. D. C. 259, 949 F. 2d 434 (1991) (Title VII backpay awards not excludable), and Thompson v. Commissioner, 866 F. 2d 709 (CA4 1989) (same). See also Johnston v. Harris County Flood Control Dist., 869 F. 2d 1565, 1579-1580 (CA5 1989) (noting, for purposes of district court consideration of tax liability in computing damages, that Title VII backpay awards may not be excluded under § 104(a)(2)), cert. denied, 493 U. S. 1019 (1990). Section 104, entitled “Compensation for injuries or sickness,” provides similar exclusions from gross income for amounts received for personal injuries or sickness under worker’s compensation programs (§ 104(a)(1)), accident or health insurance (§ 104(a)(3)), and certain federal pension programs (§ 104(a)(4)). See, e. g., H. R. Rep. No. 1337, 83d Cong., 2d Sess., 15 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 15-16 (1954). Although the IRS briefly interpreted §104(a)(2)’s statutory predecessor, § 213(b)(6) of the Revenue Act of 1918, 40 Stat. 1066, to restrict the scope of personal injuries to physical injuries, see S. 1384, 2 Cum. Bull. 71 (1920) (determining, on basis of statutory text and “history of the legislation” that “it appears more probable .. . that the term ‘personal injuries,’ as used therein means physical injuries only”); Knickerbocker, The Income Tax Treatment of Damages, 47 Cornell L. Q. 429, 431 (1962), the courts and the IRS long since have recognized that § 104(a)(2)’s reference to “personal injuries” encompasses, in accord with common judicial parlance and conceptions, see Black’s Law Dictionary 786 (6th ed. 1990); 1 S. Speiser, C. Krause, & A. Gans, American Law of Torts 6 (1983), nonphysical injuries to the individual, such as those affecting emotions, reputation, or character, as well. See, e. g., Rickel v. Commissioner, 900 F. 2d 655, 658 (CA3 1990) (noting that “it is judicially well-established that the meaning of ‘personal injuries’ in this context encompasses both nonphysical as well as physical injuries”); Roemer v. Commissioner, 716 F. 2d 693, 697 (CA9 1983) (noting that § 104(a)(2) “says nothing about physical injuries,” and that “[t]he ordinary meaning of a personal injury is not limited to a physical one”); Rev. Rule 85-98, 1985-2 Cum. Bull. 51 (holding that the § 104(a)(2) exclusion “makes no distinction between physical or emotional injuries”); 1972-2 Cum. Bull. 3, acquiescing in Seay v. Commissioner, 58 T. C. 32, 40 (1972) (holding that damages received for “personal embarrassment,” “mental strain,” and injury to “personal reputation” may be excluded under § 104(a)(2), and noting prior rulings regarding alienation of affections and defamation). See also B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts 13-11 (2d ed. 1989); Burke & Friel, Tax Treatment of Employment-Related Personal Injury Awards, 50 Mont. L. Rev. 13, 21 (1989). Congress' 1989 amendment to § 104(a)(2) provides further support for the notion that “personal injuries” includes physical as well as nonphysical injuries. Congress rejected a bill that would have limited the § 104(a)(2) exclusion to cases involving “physical injury or physical sickness.” See H. R. Rep. No. 101-247, pp. 1354-1355 (1989) (describing proposed § 11641 of H. R. 3299, 101st Cong., 1st Sess. (1989)). At the same time, Congress amended § 104(a) to allow the exclusion of punitive damages only in cases involving “physical injury or physical sickness.” Pub. L. 101-239, § 7641(a), 103 Stat. 2379,26 U. S. C. § 104(a) (1988 ed., Supp. I). The enactment of this limited amendment addressing only punitive damages shows that Congress assumed that other damages (i. e., compensatory) would be excluded in cases of both physical and nonphysical injury. Notwithstanding Justice Scalia’s contention in his separate opinion that the term “personal injuries” must be read as limited to “health”related injuries, see post, at 244, the foregoing authorities establish that § 104(a)(2) in fact encompasses a broad range of physical and nonphysical injuries to personal interests. Justice Scalia implicitly acknowledges that the plain meaning of the statutory phrase can support this well-established view. See post, at 243-244. The dissent nonetheless contends that we “misapprehen[d] the nature of the inquiry required by § 104(a)(2) and the IRS regulation” by “[focusing on [the] remedies” available under Title VII. See post, at 249-250. As discussed above, however, the concept of a “tort” is inextricably bound up with remedies — specifically damages actions. Thus, we believe that consideration of the remedies available under Title VII is critical in determining the “nature of the statute” and the “type of claim” brought by respondents for purposes of § 104(a)(2). See post, at 250. As discussed below, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, amended Title VII in significant respects. Respondents do not contend that these amendments apply to this case. See Tr. of Oral Arg. 35-36. We therefore examine the law as it existed prior to November 21, 1991, the effective date of the 1991 Act. See Pub. L. 102-166, § 402(a), 105 Stat. 1099. Unless otherwise indicated, all references are to the “unamended” Title VII. Some courts have allowed Title VII plaintiffs who were wrongfully discharged and for whom reinstatement was not feasible to recover “front pay” or future lost earnings. See, e. g., Shore v. Federal Express Corp., 777 F. 2d 1155, 1158-1160 (CA6 1985). Title VIPs remedial scheme was expressly modeled on the backpay provision of the National Labor Relations Act. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 419-420, and n. 11 (1975); 29 U. S. C. § 160(c) (Board shall order persons to “cease and desist” from unfair labor practices and to take “affirmative action including reinstatement of employees with or without back pay”). This Court previously has held that backpay awarded under the Labor Act to an unlawfully discharged employee constitutes “wages” for purposes of the Social Security Act. See Social Security Board v. Nierotko, 327 U. S. 358 (1946). Respondents’ attempts to prove that Title VII redresses a personal injury by relying on this Court’s characterizations of other antidiscrimination statutes are thus unpersuasive in light of those statutes’ differing remedial schemes. For example, respondents’ reliance on Goodman v. Lukens Steel Co., 482 U. S. 656 (1987), is misplaced, as that case involved the interpretation of § 1981. See Brief for Respondents 35-37. Respondents’ attempt to apply the Court’s statement in Curtis v. Loether, 415 U. S., at 195, that Title VIII “sounds basically in tort” to the Title VII context similarly fails. See Brief for Respondents 32. Indeed, Curtis itself distinguishes Title VII from Title VIII on a host of different grounds. See 415 U. S., at 196-197. The dissent commits the same error as respondents in attempting to analogize suits arising under Title VII to those involving other federal antidiscrimination statutes for purposes of § 104(a)(2). See post, at 250-252. Respondents contend that Congress’ recent expansion of Title VII’s remedial scope supports their argument that Title VII claims are inherently tort-like in nature. See Brief for Respondents 34. Under the Civil Rights Act of 1991, victims of intentional discrimination are entitled to a jury trial, at which they may recover compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,” as well as punitive damages. See Pub. L. 102-166, 105 Stat. 1073. Unlike respondents, however, we believe that Congress’ decision to permit jury trials and compensatory and punitive damages under the amended Act signals a marked change in its conception of the injury redressable by Title VII, and cannot be imported back into analysis of the statute as it existed at the time of this lawsuit. See, e. g., H. R. Rep. No. 102-40, pt. 1, pp. 64-65 (1991) (Report of Committee on Education and Labor) (“Monetary damages also are necessary to make discrimination victims whole for the terrible injury to their careers, to their mental and emotional health, and to their self-respect and dignity”); id., pt. 2, p. 25 (Report of Committee on the Judiciary) (“The limitation of relief under Title VII to equitable remedies often means that victims of intentional discrimination may not recover for the very real effects of the discrimination”). Our holding that damages received in settlement of a Title VII claim are not properly excludable under § 104(a)(2) finds support in longstanding rulings of the IRS. See, e. g., Rev. Rule 72-341, 1972-2 Cum. Bull. 32 (payments by corporation to its employees in settlement of Title VII suit must be included in the employees’ gross income, as the payments “were based on compensation that they otherwise would have received”). Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_r_fiduc	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 "fiduciaries". 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. MELODY MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. No. 18857. United States Court of Appeals District of Columbia Circuit. Argued Jan. 14, 1965. Decided April 8, 1965. Mr. Marcus Cohn, Washington, D. C., with whom Messrs. Paul Dobin and Stanley S. Neustadt, Washington, D. C., were on the brief, for appellant. Mr. John Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, Gen. Counsel, and Daniel R. Ohlbaum, Deputy Gen. Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Howard Jay Braun, Counsel, Federal Communications Commission, also entered an appearance for appellee. Before Bazelon, Chief Judge, and Fahy and Weight, Circuit Judges. BAZELON, Chief Judge: The Federal Communications Commission refused to renew appellant’s license to operate WGMA, a standard radio broadcast station in Hollywood, Florida. Appellant’s only shareholders, Daniel En-right and Jack Barry, produced television quiz shows prior to 1960 in which some contestants were secretly given assistance in answering questions. The hearing examiner stated that Enright and Barry “have engaged in activities relating to television quiz programs which are censurable and [which] * * * reflect adversely upon their character qualifications to be a licensee of a radio station. However * * * such activities do not constitute an absolute disqualification. * * The examiner found, as mitigating factors, that WGMA had provided “outstanding service,” and that Enright and Barry had violated no law or express Commission policy when they conducted the deceptive programs, though Congress has since amended the Communications Act to forbid such practices. The examiner further stated: “[S] imple justice requires that Barry and Enright’s conduct be considered in the light of the then-existing circumstances. Certainly the networks which broadcast these then highly rated programs had both network and licensee responsibility, since the programs in question were broadcast over their own stations, as well as over those of their affiliates. “From the evidence, it appears that, at least, the higher echelons of the networks were not aware of the use of such controls. It is, however, equally evident that there had been public exposés which would appear likely to alert persons with a desire to know the facts * * * and to cause real investigations to be made * * . [A]s was pointed out to the vice president and general attorney of NBC by at least two members of the congressional committee [which investigated these practices in 1960], it was singular indeed that no suspicion had been aroused * On the basis of these findings, the examiner recommended license renewaL On April 15, 1964, the Commission reversed the examiner, because Enright and Barry “lack the requisite character qualification to be licensees” on the ground that their “prolonged deception practiced upon the television viewing public * * * is so patently and flagrantly contrary to the public interest as to warrant, without more, the denial of an application for renewal * * The Commission also found that Enright and Barry had attempted “to discourage and to frustrate” initial investigations by a New York City grand jury and by network officials. Appellant petitioned the Commission to reconsider its decision and to consolidate oral argument with pending applications for renewal of operating licenses by the National Broadcasting Company, the network which carried, and for a time owned, the quiz shows produced by En-right and Barry. Alternatively appellant asked the Commission to vacate its decision and withhold further decisions until it had decided the NBC case. It appears that before the Commission’s initial decision in the present case, the hearing examiner in the NBC case rendered his opinion, stating in pertinent part: “NBC contends that it was duped, and that it acted promptly to protect the public interest as soon as it determined what was going on. * * * The manner in which NBC reacted when the revelations inescapably broke upon it shows how clearly it was recognized inside the company that the trickery of its quiz shows was on the wrong side of the line separating downright dishonesty from the permissible make-believe of show business. The record urges the judgment that so long as there was no danger of disclosure to threaten audience acceptance of the shows, NBC turned its back on the evidence that the quiz programs might be counterfeit, and acted finally only when it was compelled by the growing tide of public dissatisfaction and by the threat posed in the aroused interest of various public agencies. Clearly, any disposition to frame conduct not according to ordinary morality and public requirements but in response to business necessities, and which shuns misconduct only because of the risks in discovery, is a substantial discredit.” The examiner concluded, however, that this discredit was counterbalanced by “the record of the network” in broadcasting, and that its role in the deceptive quiz shows thus did not disqualify it from holding broadcast licenses. On July 24, 1964, while the NBC proceedings were still pending, the Commission denied appellant’s request for reconsideration in conjunction with the NBC applications on the ground that “no useful purpose would be served.” One week later, on July 30, 1964, the Commission granted several license renewals to NBC without any mention of the network’s role in the deceptive quiz shows. We think the Commission’s refusal at least to explain its différent treatment of appellant and NBC was error. Both were connected with the deceptive practices and their renewal applications were considered by the Commission at virtually the same time. Yet one was held disqualified and the other was not. Moreover, while in other cases the Commission found that criminal violations of antitrust laws were not sufficient character disqualifications to bar license renewals, in the present case it found noncriminal conduct sufficient. The Commission stated, “Obviously, misconduct of the nature here involved in the broadcast field is necessarily in a somewhat different category [from criminal antitrust violations] and, on the facts of this case, of a most serious consequence.” Without intimating any opinion as to whether any of the misconduct discussed here is “in a somewhat different category” from appellant’s, we think the differences are not so “obvious” as to remove the need for explanation. And whether there are differences may be a question of decisional importance. Moreover, “the Commission has not explained its decision ‘with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. * * * We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ ” Secretary of Agriculture v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 832, 98 L.Ed. 1015 (1954). We therefore remand this case for further proceedings. The Commission should reconsider appellant’s application in accordance with the purposes of this remand. Whatever action the Commission takes on remand, it must explain its reasons and do more than enumerate factual differences, if any, between appellant and the other cases; it must explain the. relevance of those differences to the purposes of the Federal Communications Act. So ordered. . Section 509, Federal Communications Act, 47 U.S.C. § 509 (Supp. V, 1964). . In re Applications of Nat’l Broadcasting Co., Docket Nos. 13085, 14091-92, 14054-56, initial decision of Hearing Examiner, released Nov. 20, 1963. . Following oral argument before this court, counsel for the Oommission submitted a memorandum stating that “no formal findings as to the network’s lack of knowledge or participation in the shows had been publicly made” by the Oommission. . Any inconsistency here may not be explained as a ehange in policy or correction of a previously erroneous ruling since the cases were decided contemporaneously. Compare Federal Communications Comm’n v. WOKO, 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946); Leedom v. International Brotherhood of Elec. Wkrs., 107 U.S.App.D.C. 357, 278 F.2d 237 (1960); Shawmut Ass’n v. Securities & Exchange Comm’n, 146 F.2d 791 (1st Cir. 1945); Feinstein & Co. v. United States, 317 F.2d 509 (2d Cir. 1963); Lanolin Plus Cosmetics v. Marzall, 90 U.S.App.D.C. 349, 196 F.2d 591 (1952). . General Electric Company, 2 Pike & Fischer R.R.2d 1038 (1964); Westinghouse Broadcasting Co., 22 Pike & Fischer R.R. 1023 (1962). . Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Hornsby v. Allen, 326 F.2d 605, 330 F.2d 55 (5th Cir. 1964); Mary Carter Paint Co. v. Federal Trade Comm’n, 333 F.2d 654 (5th Cir. 1964). . See Sunbeam Television Corp. v. Federal Communications Comm’n, 100 U.S.App.D.C. 82, 243 F.2d 26 (1957), where the case was remanded to the Commission because of its apparent failure to apply consistent standards in a comparative hearing for a broadcast license. See also Secretary of Agriculture v. United States, supra; Carter Mountain Transmission Corp. v. Federal Communications Comm’n, 116 U.S.App.D.C. 93, 321 F.2d 359 (1963). Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". David S. JACOBANIS, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. No. 5377. United States Court of Appeals First Circuit. Submitted June 5, 1958. Decided June 13, 1958. Rehearing Denied July 2, 1958. David S. Jacobanis, pro se, on motion. Anthony Julian, U. S. Atty., and William J. Koen and Charles F. Barrett, Asst. U. S. Attys., Boston, Mass., for ap-pellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. PER CURIAM. There awaits our disposition a motion by David S. Jacobanis for the appointment of counsel. Though Jacobanis has not prosecuted this appeal in forma pau-peris, because he is not a citizen of the United States, an affidavit attached to his motion affirms that he is “indigent” and wholly without legal knowledge necessary to conduct his appeal. It seems that on October 27, 1952, the United States District .Court for the District of Massachusetts, after verdict of guilty, entered judgment and commitment against Jacobanis for a term of twenty-five years’ imprisonment on a charge of bank robbery and incidental crimes, in violation of 18 U.S.C. § 2113. Jacobanis took an appeal from this judgment of conviction, but this court on April 17, 1953, entered the following order: “Upon consideration of motion of appellee to docket and dismiss, and of memorandum of appellant in opposition thereto, It is ordered that this case be docketed, and It is further ordered that the appeal herein be, and the same hereby is, dismissed for want of diligent prosecution.” Under date of March 23, 1958, Jacobanis, writing from Alcatraz, California, addressed a lengthy and rather confusing letter or document to Chief Judge Sweeney. This letter, proceeding upon the erroneous assumption that the district court had granted a new trial to Jacobanis’ co-defendant Theodore Green, asked the court of its own motion to “grant me the same relief granted Green, whatever that may have been.” Following various allegations of misconduct by the prosecuting officials, Jacobanis concluded with a prayer that the court “grant me a new trial”, which of course the court had long since lost power to grant. Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C. Other allegations seem directed toward a revival of the old appeal from the judgment of conviction, which the court of appeals had dismissed in 1953. This part of the letter was of no concern to the district court. Certain other allegations in the document or letter might by a bit of liberal interpretation be construed to be a pleading for relief under 28 U.S.C. § 2255. Judge Wyzanski, to whom Judge Sweeney had transmitted the foregoing letter, entered an order on April 17,1958, in the following terms: “Whether the document dated March 23, 1958 addressed to Chief Judge Sweeney be construed as a motion to vacate sentence imposed on October 27, 1952 or as a motion for some other type of relief, the said motion, in accordance with the memorandum filed this day, is Ordered denied.” There followed some correspondence between Jacobanis and Judge Wyzanski with reference to the judge’s memorandum of April 17, 1958. Finally, on May 19, 1958, Jaeobanis filed in the district court a so-called Notice of Appeal which, for failure to comply with the requirements of Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C., was obviously inadequate to confer upon this court any appellate jurisdiction. This notice, in designating the order appealed from, states merely “Correspondence Seeking Relief”. We shall therefore on our own motion enter an order dismissing the appeal for lack of jurisdiction. It necessarily follows that the motion for appointment of counsel to prosecute the appeal is also denied. 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:
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. Jefferson B. SESSIONS, III, Attorney General, Petitioner v. Luis Ramón MORALES-SANTANA. No. 15-1191. Supreme Court of the United States Argued Nov. 9, 2016. Decided June 12, 2017. Edwin S. Kneedler, Washington, DC, for Petitioner. Stephen A. Broome, Los Angeles, CA, for Respondent. Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner. Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Donald E. Keener, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, DC, for Petitioner. Kathleen M. Sullivan, Todd Anten, Justin T. Reinheimer, Ellyde R. Thompson, Quinn Emanuel Urquhart, & Sullivan, New York, NY, Stephen A. Broome, Quinn Emanuel Urquhart, & Sullivan, LLP, Los Angeles, CA, for Respondent. Justice GINSBURG delivered the opinion of the Court. This case concerns a gender-based differential in the law governing acquisition of U.S. citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a citizen of another nation. The main rule appears in 8 U.S.C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years' physical presence prior to the child's birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child's birth. The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)'s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons "the equal protection of the laws." Nevertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination. I A We first describe in greater detail the regime Congress constructed. The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), § 301, 66 Stat. 235-236. Section 1401 sets forth the INA's rules for determining who "shall be nationals and citizens of the United States at birth" by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth. § 1401(a) (1958 ed.) ; § 1401 (2012 ed.). The primacy of § 1401 in the statutory scheme is evident. Comprehensive in coverage, § 1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here, § 1401(a)(7) provided for the U.S. citizenship of "a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph." Congress has since reduced the duration requirement to five years, two after age 14. § 1401(g) (2012 ed.). Section 1409 pertains specifically to children with unmarried parents. Its first subsection, § 1409(a), incorporates by reference the physical-presence requirements of § 1401, thereby allowing an acknowledged unwed citizen parent to transmit U.S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c) -a provision applicable only to unwed U.S.-citizen mothers-states an exception to the physical-presence requirements of §§ 1401 and 1409(a). Under § 1409(c)'s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad. B Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U.S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household. José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55-56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U.S. ----, ---- - ----, 136 S.Ct. 1863, 1868-1869, 195 L.Ed.2d 179 (2016) ; 8 U.S.C. § 1101(a)(38) (1958 ed.) ("The term United States... means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U.S.] Virgin Islands." (internal quotation marks omitted)); § 1101(a)(38) (2012 ed.) (similar), and José became a U.S. citizen under the Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 953 (a predecessor to 8 U.S.C. § 1402 ). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)'s requirement of five years' physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U.S. company in the then-U.S.-occupied Dominican Republic. Ibid. By 1959, José attested in a June 21, 1971 affidavit presented to the U.S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. Id., at 166-167. While the record before us reveals little about Morales-Santana's childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana's birth certificate as his father. Id., at 163-164, 167. José also related in the same affidavit that he was then saving money "for the susten[ance] of [his] family" in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369. C In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years' physical presence after age 14. See supra, at 1686 - 1687, and n. 3. An immigration judge rejected Morales-Santana's claim to citizenship derived from the U.S. citizenship of his father, and ordered Morales-Santana's removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a-49a. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution's equal protection guarantee. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a-44a. The United States Court of Appeals for the Second Circuit reversed the BIA's decision. 804 F.3d 520, 524 (2015). Relying on this Court's post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. Id., at 527-535. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen. Id., at 535-538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar, 536 F.3d 990 (2008), see 804 F.3d, at 530, 535, n. 17. We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). Taking up Morales-Santana's request for review, 579 U.S. ---- (2016), we consider the matter anew. II Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana's birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father's right to the equal protection of the laws. Ordinarily, a party "must assert his own legal rights" and "cannot rest his claim to relief on the legal rights... of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). But we recognize an exception where, as here, "the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). José Morales' ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the "close relationship" requirement. So, too, is the "hindrance" requirement well met. José Morales' failure to assert a claim in his own right "stems from disability," not "disinterest," Miller v. Albright, 523 U.S. 420, 450, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring in judgment), for José died in 1976, Record 140, many years before the current controversy arose. See Hodel v. Irving, 481 U.S. 704, 711-712, 723, n. 7, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (children and their guardians may assert Fifth Amendment rights of deceased relatives). Morales-Santana is thus the "obvious claimant," see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the "best available proponent," Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), of his father's right to equal protection. III Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (women are the "center of home and family life," therefore they can be "relieved from the civic duty of jury service"); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (States may draw "a sharp line between the sexes"). Today, laws of this kind are subject to review under the heightened scrutiny that now attends "all gender-based classifications." J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; see, e.g., United States v. Virginia, 518 U.S. 515, 555-556, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits "on the basis of the sex of the qualifying parent," our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee. Califano v. Westcott, 443 U.S. 76, 84, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) ; see id., at 88-89, 99 S.Ct. 2655 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, 430 U.S. 199, 206-207, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors' benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648-653, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688-691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76-77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child's estate). Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed,Frontiero,Wiesenfeld,Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an "exceedingly persuasive justification." Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) (internal quotation marks omitted). A The defender of legislation that differentiates on the basis of gender must show "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ; alteration in original); see Tuan Anh Nguyen v. INS, 533 U.S. 53, 60, 70, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Moreover, the classification must substantially serve an important governmental interest today, for "in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality... that once passed unnoticed and unchallenged." Obergefell v. Hodges, 576 U.S. ----, ----, 135 S.Ct. 2584, 2603, 192 L.Ed.2d 609 (2015). Here, the Government has supplied no "exceedingly persuasive justification," Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted), for § 1409(a) and (c)'s "gender-based" and "gender-biased" disparity, Westcott, 443 U.S., at 84, 99 S.Ct. 2655 (internal quotation marks omitted). 1 History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940 (1940 Act), see 54 Stat. 1139-1140, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. "[D]ominance [of] the husband," this Court observed in 1915, "is an ancient principle of our jurisprudence." Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4-15. Through the early 20th century, a male citizen automatically conferred U.S. citizenship on his alien wife. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604; see Kelly v. Owen, 7 Wall. 496, 498, 19 L.Ed. 283 (1869) (the 1855 Act "confers the privileges of citizenship upon women married to citizens of the United States"); C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 15-16, 20-21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. See, e.g., Act of Mar. 3, 1903, ch. 1012, § 37, 32 Stat. 1221 (wives and children entering the country to join permanent-resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S.Rep. No. 1515, 81st Cong., 2d Sess., 415-417 (1950) (wives exempt from literacy and quota requirements). And from 1790 until 1934, the foreign-born child of a married couple gained U.S. citizenship only through the father. For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child's natural and sole guardian. At common law, the mother, and only the mother, was "bound to maintain [a nonmarital child] as its natural guardian." 2 J. Kent, Commentaries on American Law 215-216 (8th ed. 1854); see Nguyen, 533 U.S., at 91-92, 121 S.Ct. 2053 (O'Connor, J., dissenting). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice. See Hearings on H.R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op. Atty. Gen. 397, 397-398 (1939); 39 Op. Atty. Gen. 290, 291 (1939). See also Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2199-2205 (2014) (hereinafter Collins). In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: "[T]he mother [of a nonmarital child] stands in the place of the father... [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian." 1940 Hearings 431 (internal quotation marks omitted). This unwed-mother-as-natural-guardian notion renders § 1409's gender-based residency rules understandable. Fearing that a foreign-born child could turn out "more alien than American in character," the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Id., at 426-427. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture. See id., at 431; Collins 2203 (in "nearly uniform view" of U.S. officials, "almost invariably," the mother alone "concern[ed] herself with [a nonmarital] child" (internal quotation marks omitted)). 2 For close to a half century, as earlier observed, see supra, at 1689 - 1690, this Court has viewed with suspicion laws that rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 ; see Wiesenfeld, 420 U.S., at 643, 648, 95 S.Ct. 1225. In particular, we have recognized that if a "statutory objective is to exclude or 'protect' members of one gender" in reliance on "fixed notions concerning [that gender's] roles and abilities," the "objective itself is illegitimate." Mississippi Univ. for Women, 458 U.S., at 725, 102 S.Ct. 3331. In accord with this eventual understanding, the Court has held that no "important [governmental] interest" is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that "unwed fathers [are] invariably less qualified and entitled than mothers" to take responsibility for nonmarital children. Caban v. Mohammed, 441 U.S. 380, 382, 394, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on "[s]tereotypes about women's domestic roles," the Court has observed, may "creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver." Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. See ibid. In light of the equal protection jurisprudence this Court has developed since 1971, see Virginia, 518 U.S., at 531-534, 116 S.Ct. 2264, § 1409(a) and (c)'s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic. B In urging this Court nevertheless to reject Morales-Santana's equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 ; and Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115. None controls this case. The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788-789, and n. 1, 97 S.Ct. 1473. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791, 97 S.Ct. 1473. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' "exceptionally broad power" to admit or exclude aliens. Id., at 792, 794, 97 S.Ct. 1473. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review. See Nguyen, 533 U.S., at 60-61, 70, 121 S.Ct. 2053 ; Miller, 523 U.S., at 434-435, n. 11, 118 S.Ct. 1428 (opinion of Stevens, J.). The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U.S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U.S. citizenship to those children. See § 1409(a)(4) (2012 ed.). After Miller produced no opinion for the Court, see 523 U.S., at 423, 118 S.Ct. 1428 we took up the issue anew in Nguyen. There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. See 533 U.S., at 62-63, 121 S.Ct. 2053. Morales-Santana's challenge does not renew the contest over § 1409's paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana's father, by marrying Morales-Santana's mother, satisfied that requirement. Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent's prebirth residency in the United States, not to the parent's filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman "in order to have assimilated citizenship-related values to transmit to [his] child." 804 F.3d, at 531. And unlike Nguyen's parental-acknowledgment requirement, § 1409(a)'s age-calibrated physical-presence requirements cannot fairly be described as "minimal." 533 U.S., at 70, 121 S.Ct. 2053. C Notwithstanding § 1409(a) and (c)'s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing "statelessness," i.e., a child's possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, but see supra, at 1683 - 1693, neither rationale survives heightened scrutiny. 1 We take up first the Government's assertion that § 1409(a) and (c)'s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U.S. values than unmarried women do. See supra, at 1694. Instead, it presents a novel argument, one it did not advance in Flores-Villar. An unwed mother, the Government urges, is the child's only "legally recognized" parent at the time of childbirth. Brief for Petitioner 9-10, 28-32. An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the "competing national influence" of the alien mother. Id., at 9-10. Congress, the Government suggests, designed the statute to bracket an unwed U.S.-citizen mother with a married couple in which both parents are U.S. citizens, and to align an unwed U.S.-citizen father with a married couple, one spouse a citizen, the other, an alien. Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U.S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the "competing national influence" that, according to the Government, justifies imposing on unwed U.S.-citizen fathers, but not unwed U.S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, see id., at 9, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. See supra, at 1690 - 1693. Lump characterization of that kind, however, no longer passes equal protection inspection. See supra, at 1692 - 1693, and n. 13. Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U.S. citizen continuously present in the United States for one year at any point in her life prior to the child's birth. The transmission holds even if the mother marries the child's alien father immediately after the child's birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U.S.-citizen father who falls a few days short of meeting § 1401(a)(7)'s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child's birth and raises the child in the United States. One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151-152, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) (holding unconstitutional state workers' compensation death-benefits statute presuming widows' but not widowers' dependence on their spouse's earnings); Westcott, 443 U.S., at 88-89, 99 S.Ct. 2655. 2 The Government maintains that Congress established the gender-based residency differential in § 1409(a) and (c) to reduce the risk that a foreign-born child of a U.S. citizen would be born stateless. Brief for Petitioner 33. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U.S.-citizen mother than it was for the foreign-born child of an unwed U.S.-citizen father. Ibid. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers. As the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and reports on the 1940 and 1952 Acts "refer[s] to the problem of statelessness for children born abroad." 804 F.3d, at 532-533. See Collins 2205, n. 283 (author examined "many hundreds of pre-1940 administrative memos... defend[ing] or explain[ing] recognition of the nonmarital foreign-born children of American mothers as citizens"; of the hundreds, "exactly one memo by a U.S. official... mentions the risk of statelessness for the foreign-born nonmarital children of American mothers as a concern"). Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. See 1940 Hearings 430 ("stateless[ness]" is "object" of section on foundlings). The justification for § 1409's gender-based dichotomy, however, was not the child's plight, it was the mother's role as the "natural guardian" of a nonmarital child. See supra, at 1690 - Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_civproc1	11	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. INSURANCE BENEFIT ADMINISTRATORS, INC., an Illinois corporation, Plaintiff-Appellee, v. Jon MARTIN, individually and d/b/a the Communicators, BiJo, Inc., an Illinois corporation; William Mueller, individually and d/b/a Wilkare Typographers, Defendants, Appeal of John W. GAVIN, one of the attorneys for Jon Martin, et al. No. 87-2671. United States Court of Appeals, Seventh Circuit. Argued June 8, 1988. Decided April 18, 1989. James J. Gavin, Gavin & Gavin, West-chester, Ill., for appellant. Matthew F. Kennelly, Cotsirilos Crowley Stephenson Tighe & Streicker, Ltd., Chicago, Ill., for plaintiff-appellee. Before CUMMINGS, COFFEY, and KANNE, Circuit Judges. KANNE, Circuit Judge. Based on two separate requests, the district court imposed sanctions against Attorney John W. Gavin. The first sanction against Gavin was a $3,000 assessment for frivolously contesting his client’s employment status. The second sanction was an assessment of more than $31,000 for various actions, relating to pretrial and trial matters, taken by Gavin. This appeal solely contests the imposition of sanctions, not the underlying RICO decision in favor of the plaintiff. Gavin appeals, claiming that both determinations that his conduct was sanctionable were erroneous. He alternatively argues that the monetary amounts of both sanctions were excessive. We affirm the grant of IBA’s initial motion for sanctions and the $3,000 penalty imposed. We reverse and remand the second imposition of sanctions so that the district court may review the matter to determine whether Gavin’s conduct was in fact sanctionable, and if so, under what authority sanctions should be imposed and what type of sanctions they should be. I. Background Insurance Benefit Administrators, Inc. (“IBA”) hired Jon Martin in January, 1982 as its Advertising/Public Relations Director. Thereafter, without the knowledge of IBA, Martin formed a corporation called BiJo, Inc. Joining with Martin to set up BiJo, Inc., was William Mueller, the owner of a typography firm used by IBA at Martin’s direction. Martin then used his authority as advertising director of IBA to “hire” BiJo to act as IBA’s advertising agency and to contract with printers that had agreed to pay BiJo “commissions” to do work for IBA. Over a 16-month period, BiJo received over $18,000 in these “commissions.” BiJo also did business with IBA under the name “The Communicators,” placing IBA’s advertising in publications. The evidence at trial established that some publications charge ad agencies less than they charge businesses which place ads directly, with the difference (about 15%) being paid to the agency as a commission. IBA also paid The Communicators for the design of promotional material. These fees through April, 1984 amounted to over $128,000. Once it discovered this caper, IBA brought suit, charging Martin, Mueller and BiJo with several RICO violations, breach of fiduciary duty, and fraud. The defendants counterclaimed on several grounds. The jury found in favor of IBA on both the RICO and pendent state law claims and awarded damages in excess of $156,000 (after trebling) plus attorneys’ fees in the sum of $63,805. Martin initially retained another lawyer to represent him. He replaced that lawyer, however, with appellant, John W. Gavin. Mr. Gavin, it appears, was not familiar with the ways of the federal courts in general— and with the proscriptions of Rule 11 in particular. Although Gavin’s predecessor had made admissions that Martin was an employee of IBA, the answers to the First and Second Amended Complaints, signed by Gavin, claimed that Martin was an independent contractor who owed no fiduciary duty to IBA. When Martin testified during the trial, however, he conceded that he was employed by IBA. Following Martin’s admission of employment, IBA made an oral motion under Rule 11 of the Federal Rules of Civil Procedure requesting that sanctions be imposed against Gavin for his pri- or pleading denying Martin's employee status. In addition, after the conclusion of the trial, IBA made a supplemental written motion for sanctions pursuant to Rules 11, 26(g) and 37 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927 and common law “bad faith.” It based the second request for sanctions upon several instances of allegedly improper conduct by Gavin, including: (a) Gavin’s denial of 17 allegations in the second amended complaint that were either admitted or not contested at trial, and three defenses relied upon by defendants, citing Rule 11 and 28 U.S.C. § 1927; (b) Gavin’s accusation during trial that IBA fabricated an exhibit, citing 28 U.S.C. § 1927 and common law “bad faith;” (c) The denial of 36 out of 45 transactions which were the subject of requests for admission that Gavin later conceded were true by stipulation, citing Rules 11 and 26(g); (d) The tendering of a psychologist and a psychiatrist as experts to show emotional distress claimed to have been caused by the alleged libel and slander of Martin, citing Rules 11, 26(g) and 28 U.S.C. § 1927; and (e) Various other improprieties connected with allegations in the defendant’s counterclaim, including an accusation that IBA and Mr. & Mrs. Gaik (the owners of IBA) had hired someone to burglarize Mueller’s home, and an allegation that the defendants were watched, followed or harassed. Judge Getzendanner granted IBA’s initial request for sanctions and assessed Gavin $3,000 for contesting whether or not Martin was an employee of IBA. Additionally, the court ruled in favor of IBA on its supplemental motion for sanctions, and ordered an additional assessment against Gavin in the amount of $31,902, half of the attorneys’ fees awarded to IBA. II. IBA’s Initial Request for Sanctions Whether or not Martin was an employee of IBA was a crucial issue in the case. Gavin argues that he reasonably disputed whether or not Martin was employed by IBA because the record did not clearly indicate an employer-employee relationship. Gavin claims that his only source of information on whether Martin was an employee of IBA was Martin himself. Martin represented to him, Gavin argues, numerous facts to which he also testified at trial supporting his claim of independent contractor status. Gavin further contends that he could not rely upon IBA’s owners or upon documents supporting this arrangement because there was no agreement reduced to writing. IBA argues in response that evidence adduced during discovery and offered by IBA at trial established that although Martin initially was retained on a free-lance basis in late 1981, he became a salaried employee in January 1982, was placed on IBA’s payroll and began to have income and Social Security taxes withheld from his pay. He was given a title and an office, and a staff was hired to work under him. Martin himself conceded at trial that he was an employee of IBA. Quite aside from the trial testimony itself, however, IBA points out that it established Martin’s employee status at trial mainly through documentary evidence that had been available to Gavin before he signed the pleadings in question. W-2 forms provided to Martin by IBA listed Martin as “employee” and IBA as his “employer.” In October, 1985, Martin filed a wage claim application with the Illinois Department of Labor seeking recovery of wages, payment for “two weeks notice” (presumably this is severance pay) and for unpaid vacation and sick leave. He listed his “employer” as IBA, stated that he was its “Advertising Director,” and “salaried,” and that he worked an eight-hour day. These documents were noted by Judge Get-zendanner in her opinion. In addition, a new W-4 form filled out by Martin in July, 1983, listed IBA as “employer” and was signed by Martin in the space marked “employee.” Beginning in 1982, moreover, Martin was paid with IBA payroll checks, and IBA withheld Social Security and income taxes therefrom. Martin’s performance was appraised by IBA in 1982 and 1983 on forms identifying him as “employee,” which forms were signed by him in a space marked “employee’s signature.” Gavin does not deny that these documents existed, nor does he claim that they were not available to him before he signed any of the pleadings in question. Rather, he claims that these were “factors” to be weighed against other “incidents of the [employee-employer] relationship” in order to determine employee status, citing NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.Ct. 988, 999, 19 L.Ed.2d 1083 (1968). We disagree. Gavin, as discussed above, relied on Martin’s statements for the facts he claims support Martin’s claim of independent contractor status. Yet these documents, which clearly belie this claim, existed and were available to Gavin at that time. Cf. Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1436 (7th Cir.1987) (where record was developed by the time third lawyer was substituted in the case, it was not necessary for him to rely on his client for the factual foundation). Under Rule 11, attorneys are required to make a reasonable inquiry to determine whether pleadings or other documents they sign are well-grounded in fact and warranted by existing law. If the district court concludes that the motion, pleading, or other document was not well-grounded in fact or warranted by the existing law, or was meant to harass, then the court must impose a sanction. Fed.R.Civ.P. 11; Brown, 830 F.2d at 1433. There are two grounds for sanctions in Rule 11: the “frivolousness clause” and the “improper purpose clause.” As set forth in Brown, the frivolousness clause of Rule 11 has two subparts: whether the party or attorney made a reasonable inquiry into the facts, and whether the party or attorney made a reasonable inquiry into the law. Brown, 830 F.2d at 1435-36. Similar to the district judge in Brown, the trial court’s ruling here seems to be based on Gavin’s failure to make reasonable inquiries into either the facts or the law, which violated the two subparts of the frivolousness clause. See Thomas v. Capital Security Services, Inc., 812 F.2d 984, 988 (5th Cir.1987), aff'd in part, vacated and remanded in part, 836 F.2d 866 (5th Cir.1988) (en banc). In Brown, we analyzed the inquiries a district court must make in determining whether an attorney’s conduct has violated the frivolousness clause thus: To determine whether the attorney made a reasonable inquiry into the facts of a case, a district court should consider: whether the signer of the documents had sufficient time for investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion, or other paper; whether the case was accepted from another attorney; the complexity of the facts and the attorney’s ability to do a sufficient prefiling investigation; and whether discovery would have been beneficial to the development of the underlying facts.... To determine whether the attorney in question made a reasonable inquiry into the law, the district court should consider: the amount of time the attorney had to prepare the document and research the relevant law; whether the document contained a plausible view of the law; the complexity of the legal questions involved; and whether the document was a good faith effort to extend or modify the law. Brown, 830 F.2d at 1435 (citations omitted). We review the factual findings made by the district court in deciding whether Rule 11 was violated under the clearly erroneous standard. Stotler & Co. v. Able, 870 F.2d 1158, 1166 (7th Cir.1989); Borowski v. De Puy, Inc., 850 F.2d 297, 304 (7th Cir.1988); Brown, 830 F.2d at 1434; Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir.1987), cert. dismissed, — U.S. -, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988). Whether or not there was a Rule 11 violation, however, has been subject to appellate review in this circuit under two different standards. Some opinions have employed the abuse of discretion standard. See, e.g., FDIC v. Tekfen Constr. & Installation Co., 847 F.2d 440, 443 (7th Cir.1988); In re Ronco, Inc., 838 F.2d 212, 217 (7th Cir.1988); In re Central Ice Cream Co., 836 F.2d 1068, 1072 (7th Cir.1987); Ordower v. Feldman, 826 F.2d 1569, 1574 (7th Cir.1987); R.K. Harp Investment Corp. v. McQuade, 825 F.2d 1101, 1103 (7th Cir.1987). Other cases in this circuit have employed a de novo standard of review in addressing whether a party or attorney violated Rule 11. See, e.g., Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 751 (7th Cir.1988); Brown, 830 F.2d at 1429 (citing Szabo Food Service, 823 F.2d at 1082); Shrock v. Altru Nurses Registry, 810 F.2d 658, 661 (7th Cir.1987) (applies de novo standard without discussion). In this case, however, it does not matter which standard of review we employ: we conclude that Rule 11 was violated under either standard. Magnus Electronics, Inc. v. Masco Corp. of Ind., 871 F.2d 626, 630 (7th Cir.1989); Stotler & Co., 870 F.2d at 1166-67. If a determination is properly made that sanctions are warranted, the district court shall impose a sanction. Frantz v. United States Powerlifting Fed’n, 836 F.2d 1063, 1065 (7th Cir.1987). The district judge has, however, a wide range of sanctions that he or she may impose. Available sanctions range from such judicial actions as an off-the-record reprimand to reprimand on the record, to monetary assessments or penalties. Cf. Frantz, 836 F.2d at 1066. The type of sanction devised by the court should, of course, relate to the severity of the violation. In any event, a finding that a sanction is warranted does not necessarily require a monetary assessment. Such a finding requires only that some remedial action be taken by the court. Once a violation is found and sanctions are warranted, whether the type of sanctions imposed (and, if a monetary assessment is imposed, the amount imposed) is proper is subject to the abuse of discretion standard of review. Tekfen, 847 F.2d at 433 n. 3; Frantz, 836 F.2d at 1066; Brown, 830 F.2d at 1434 and cases cited therein. To facilitate an appropriate review, the district court should impose sanctions with some precision. Rule 11 does not require lawyers to conduct “exhaustive research.” Szabo Food Service, 823 F.2d at 1081. It does, however, require them to make a reasonable inquiry into the facts. Mere good faith is not enough. Ordower, 826 F.2d at 1574. It is clear that Gavin did not make a reasonable inquiry here. Thus, we affirm Judge Getzendanner’s ruling that the denial of the allegation that Martin was an employee of IBA violated Rule 11. In this case, moreover, we do not think that the amount of the sanction imposed, $3,000, constituted an abuse of discretion. As this circuit has pointed out in other cases, Rule 11 permits the imposition of monetary penalties (apart from those for expenses and attorneys’ fees) for frivolous conduct. Cf. Cheek v. Doe, 828 F.2d 395, 397-98 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 349, 98 L.Ed.2d 374 (1987). We do not feel that the district judge abused her discretion in this case. The amount of the penalty imposed by the district court appears roughly commensurate with the frivolous nature of Gavin’s denial, and with the burden imposed on IBA in proving the employee issue at trial. Ordower, 826 F.2d at 1576 (collecting cases); Cheek, 828 F.2d at 397. III. IBA’s Supplemental Request for Sanctions We now turn to IBA’s second request for sanctions. The court granted this supplemental motion for sanctions and assessed Gavin over $31,000. Gavin argues both that the sanction was unwarranted and that it was excessive and unduly harsh. Thus, we must first address whether Gavin’s conduct was in fact sanctionable. We find that Judge Getzendanner failed adequately to specify the authority or authorities under which she imposed this sanction upon Gavin. Because of the confusion as to which conduct was being sanctioned under which statute or rule, it is not entirely clear to us that all of Gavin’s conduct deemed improper was sanctionable. Hence, we remand this matter for redeter-mination by the district court of whether Gavin’s conduct violated any statutes or rules regarding attorney conduct, and if so, a specification of which statutes or rules. The reason why the record in this case is confusing is this: IBA sought sanctions under Rules 11, 26(g) and 37 of the Federal Rules of Civil Procedure as well as 28 U.S.C. § 1927 and common law “bad faith.” Judge Getzendanner’s order imposing sanctions, however, stated that IBA requested “an award of fees against John W. Gavin under both Rule 11 and Rule 37 of the F.R.Civ.P.” Following a discussion of her analysis of the various allegations of sanctionable conduct, Judge Getzendanner concluded: The court has determined that a substantial sanction must be imposed on Mr. Gavin. The court noted after the trial that Mr. Gavin’s performance was inadequate. Most of the problems stemmed from his unrealistic view of the facts and the law of the case. However, in addition, he knew nothing about RICO, he very likely had a conflict of interest in representing both Martin and Mueller since Mueller could have relied on a defense antagonistic to Martin’s defense, and he lacked rudimentary familiarity with the Federal Rules of Evidence. Focusing only on the conduct of Gavin “which the court has found constituted a violation of Rule 11 or Rule 37 of the F.R.Civ.P. and of 28 U.S.C. § 1927,” the district judge then imposed the sanction of $31,902. In only a few instances prior to this statement did she specify which particular rule specific aspects of Gavin’s conduct had or had not violated. As we discuss below, however, even these conclusions may have been erroneous. The district judge’s failure to specify clearly under what authority each aspect of Gavin’s conduct was sanctionable impedes our review of her imposition of this sanction. This is because the standards to be utilized for determining whether sanctiona-ble conduct exists are not consistent among the applicable rules and statutes. Rule 11 has been discussed in Section II above, and we need not repeat our discussion here. A court may impose sanctions under 28 U.S. C. § 1927 against an attorney for conduct “unreasonably and vexatiously” multiplying the proceedings, where that attorney has acted in an objectively unreasonable manner by engaging in a “serious and studied disregard for the orderly process of justice_” Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir.1988) (citations omitted). The district judge did not specify under which subsection of Rule 37 Gavin’s conduct was sanctionable. It appears to us, however (although we by no means intend for this to limit the district court’s review on remand), that the district judge might have been imposing this sanction under Rule 37(c). Under that rule, district judges may require parties to pay reasonable expenses, including attorneys’ fees, for failure of a party to admit the genuineness of any document later proved genuine or the truth of any matter later proved true. Because there are several grounds under which district judges can deny requests for expenses and attorneys’ fees under this rule, and because the rule does not allow such fees as a matter of course, district judges have “almost absolute discretion” under this rule. Popeil Bros. v. Schick Electric, Inc., 516 F.2d 772, 777 (7th Cir.1975). Since the rule by its express terms applies only to parties, and not to attorneys, however, it may not be the basis for sanctions against an attorney. Apex Oil Co. v. Belcher Co. of N.Y., Inc., 855 F.2d 1009, 1014 (2d Cir.1988) (where rule by its terms applied only to parties, and other remedies for attorney misconduct existed, court refused to construe Rule 37(e) broadly to fill perceived “gap” in the federal rules). We note that any conduct of an attorney which would be sanctionable under Rule 37(c) if the attorney were a party may, however, be sanctionable under Rule 26(g). Id., 855 F.2d at 1014. Rule 26(g) allows district courts to impose sanctions for discovery requests, responses and objections that fail to meet criteria similar to those for other pleadings laid out in Rule 11. Although this circuit has not addressed this rule before in detail, other circuits have noted that Rule 26 sanctions are to be analyzed like those imposed under Rule 11, even though the former rule imposes a more stringent certification requirement. See id., 855 F.2d at 1015. In one of the few clear specifications in her order, Judge Getzendanner did note that Gavin’s conduct in pursuing the defense that the plaintiffs “sustained no damages” was “unreasonable and vexatious and warranted sanctions under 28 U.S.C. § 1927.” This clearly stated finding, however, is undercut by the district judge’s troubling observation that “due to Mr. Gavin’s belief that the plaintiff would be unable to prove any damages, the defendants lost the opportunity to settle this case in advance of trial for a relatively small amount of money.” From this wording, it is not unreasonable to conclude that the sanctions under § 1927 may have been based, at least partially, on a “lost ... opportunity to settle [the] case.” We emphasize that the loss of an opportunity for settlement should not be considered as a factor in determining the propriety or the amount of sanctions. Section 1927 does not command settlement as a requirement in the proper course of litigation, nor does any other statute or rule authorizing sanctions. Sanctions imposed for failure to settle constitute a clear abuse of discretion. Cf. Heileman v. Oat Corp., 871 F.2d 648, 653 (7th Cir.1989) (en banc) (a district court cannot coerce settlement). Compare Calloway v. Marvel Entertainment Group, 854 F.2d 1452, 1482 (2d Cir.1988), cert. granted sub nom. Pavelic & LeFlore v. Marvel Entertainment Group, — U.S. -, 109 S.Ct. 1116, 103 L.Ed.2d 179 (1989) (while recognizing general rule that district court may not use the threat of sanctions to bring about the particular settlement of a case, court of appeals mentioned, without deciding, that sanctions might be appropriate against attorney for needlessly and vexatiously multiplying the proceedings by rejecting a settlement offer that would afford complete relief). The district court’s failure to specify which conduct of Gavin violated which rule or statute also merits remand because not every type of attorney misconduct is sanc-tionable under every rule. The literal language of Rule 11 covers all papers filed in a case, and thus this rule would seem to overlap with Rule 26. Pantry Queen Foods, Inc. v. Lifschultz Fast Freight, Inc., 809 F.2d 451, 454 (7th Cir.1987) (“Rule 11 applies to all papers filed in the litiga-tion_ Papers in discovery also are covered by Rule 26(g)_”). Rule 11, it has been observed, also may overlap with § 1927. Walter, 840 F.2d at 433. Other circuits that specifically have addressed this issue, however, have opined that Rules 26(g) and 37 are the primary provisions covering discovery abuses, that Rule 11 only applies to discovery motions, as well as of course to other papers, pleadings and motions to which other authorities are not applicable, and that 28 U.S.C. § 1927 applies to instances where there is no violation of the technical rules, but where the proceeding is conducted in bad faith in order to cause delay or increase costs. See, e.g., Sheets v. Yamaha Motors Corp., 849 F.2d 179, 186 (5th Cir.1988); Matter of Yagman, 796 F.2d 1165, 1187 (9th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987); Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir.1986). Regardless of whether we agree with the other circuits on this point, we certainly can envision scenarios where conduct is covered by one rule but not by another. For instance, we do not know whether the district judge’s assertion that Gavin “knew nothing about RICO ... and ... lacked rudimentary familiarity with the Federal Rules of Evidence” pertained to pleadings signed by Gavin or to Gavin’s trial conduct, or to both. Lack of familiarity with the law that manifested itself in pleadings might, of course, constitute a violation of Rule 11, Hays v. Sony Corp., 847 F.2d 412, 419 (7th Cir.1988), or of both that rule and § 1927. Trial conduct alone showing unfamiliarity with the law would, if the proper circumstances exist, violate only § 1927. In either event, such an action would not violate Rule 37, which relates solely to discovery matters. Judge Getzendanner’s opinion, as discussed above, also noted in determining that the supplemental sanctions were warranted that Gavin “very likely” had a conflict of interest in representing both Martin and Mueller. Not only does the district court’s opinion not indicate under what authority such conduct merits sanctions, but the few jurisdictions to address this problem have determined that sanctioning an attorney for not disclosing a conflict of interest requires a finding of some sort of wilfulness. See, e.g., United States v. Associated Convalescent Enters., 766 F.2d 1342, 1346-47 (9th Cir.1985) (sanctions under § 1927 for failure to disclose conflict of interest warranted where counsel’s actions in failing to disclose were “calculated”); Harris v. Marsh, 123 F.R.D. 204, 217-18 (E.D.N.C.1988) (sanctions for “deliberate indifference” to ethical responsibilities regarding conflict of interest permissible under court’s inherent power). The court made no such finding here. We do not intend to promulgate a requirement that district judges henceforth issue long, detailed orders in every case explaining to a minute degree their decisions to impose sanctions. Not every appeal involves as many different instances of alleged misconduct, or as many different rules and statutes, or such a substantial award. It is difficult to review such an award where the court gives no or few reasons therefor. Brown, 830 F.2d at 1438. This court, moreover, previously has remanded district court decisions awarding sanctions for more complete consideration. In Brown, we requested in cases involving substantial monetary awards, “that a district judge state with some specificity the reasons for the imposition of the sanction, and the manner in which the sanction was computed.... Moreover, the sanctions awarded must ‘be quantifiable with some precision and properly itemized in terms of the perceived misconduct and the sanctioning authority,’ ” 830 F.2d at 1438 (quoting Yagman, 796 F.2d at 1184); accord Magnus Electronics, 871 F.2d at 634; see also Pantry Queen, 809 F.2d at 453-56 (where district court did not specify the authority under which it imposed sanctions, court of appeals considered and rejected the applicability of Rule 11, but remanded for determination of whether sanctions were proper under the “American Rule”). Other circuits follow the practice of remanding where the district court fails to adequately specify the authority under which it imposes sanctions as well. See, e.g., Sheets, 849 F.2d at 184-86; Yagman, 796 F.2d at 1188; but see Apex Oil, 855 F.2d at 1014 (quoting In re Sutter, 543 F.2d 1030, 1032 n. 1 (2d Cir.1976)) (“order imposing sanctions ‘must be upheld if there is any basis upon which it can be justified’ ”). In this case, under what authority the district court considered each aspect of Gavin’s conduct to be sanctionable (and, to a lesser extent, whether some of the conduct the district court found sanctionable is sanctionable at all) is not readily apparent from the record. Compare Ordower, 826 F.2d at 1573 (where defendants moved for sanctions against plaintiffs for filing a frivolous complaint under § 1927, which covers only attorneys, but district court awarded sanctions against plaintiffs and their counsel, it was clear that the district court was proceeding under both Rule 11 and § 1927). Thus, we cannot review the district court’s decision to impose the supplemental sanction, because we do not know what the district court intended. Cf. Sheets, 849 F.2d at 185. Therefore, we vacate the award of sanctions under IBA’s supplemental request for sanctions, and remand this matter for proceedings in accordance with this opinion. Since we have vacated the second assessment of sanctions, we need not discuss whether it was excessive. If the district court on remand determines that a substantial monetary award is warranted as a sanction, however, we request that it follow the specificity requirements laid out in Brown, discussed above. IV. Conclusion We Affirm the imposition of sanctions under Rule 11 and the penalty of $3,000 assessed against John W. Gavin for his denial of Martin’s employment status with IBA. We Vacate the supplemental imposition of sanctions and Remand the matter to the district court for proceedings in accordance with this opinion. In remanding this case we make no indication as to whether sanctions should be imposed, or if they are imposed, what type they should be. That is, the district judge may choose, if he or she decides that sanctions are warranted at all, from an entire range of sanctions — including those which do not involve a monetary award. . IBA's motion itself cited Rule 37 of the Federal Rules of Civil Procedure, and did not cite Rule 26(g). Its memorandum in support of its motion, however, cited Rule 26(g) but not Rule 37. . Gavin claimed that he was informed of the following facts, to which Martin testified at trial: (i) That Martin did not sign an employment agreement as was required by Plaintiff's policy. (Tr. 540.) (ii) That Martin did not solely perform functions that were an essential part of Plaintiffs normal operations of marketing group insurance plans, but rather acted as an advisor and consultant. (Tr. 537.) (iii) That Martin worked for a number of other corporations in which Casey Gaik had an interest, and did not perform services exclusively for IBA. (Tr. 535, 537.) (iv) That Martin observed his own hours, and came and went at his own discretion, without supervision or control. (Tr. 540.) (v) That Martin was not treated like the other employees of Plaintiff. (Tr. 535.) (vi) That Gaik advised Martin to keep Gaik’s interests and activities confidential from the employees of Plaintiff. (Tr. 535.) (vii) That Martin entered into a verbal agreement with Gaik to establish an advertising agency in which they were to be partners. (Tr. 570-72.) . A note of caution is warranted. If Gavin had asserted that he deliberately was misled by Martin into making a denial of employment, we would have an entirely different, and very serious problem. Such an assertion would pit the attorney against his client to enable the attorney to defend against the request for sanctions. This scenario obviously presents far-ranging implications which we do not face in this case. See, e.g., Calloway v. Marvel Entertainment Group, 854 F.2d 1452, 1471, 1475-77 (2d Cir.1988), cert. granted sub nom. Pavelic & LeFlore v. Marvel Entertainment Group, — U.S. -, 109 S.Ct. 1116, 103 L.Ed.2d 179 (1989). . The opinions employing the abuse of discretion standard have noted that they have done so because whether a party has violated Rule 11 is a judgment call. Central Ice Cream, 836 F.2d at 1052. Trial courts, moreover, have "an intimate familiarity with the relevant proceedings," R.K. Harp, 825 F.2d at 1103. Thus, they urge that "the ultimate findings regarding sanctions should receive deference and be rejected only if the district court has abused its discretion.” Tekfen, 847 F.2d at 443. . See supra note 1. . See infra note 8. . Rule 37(c) provides that the court “shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit." . District courts also have the inherent power to impose sanctions for attorney misconduct. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-65, 65 L.Ed.2d 488 (1980); Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973); Magnus Electronics, 871 F.2d at 632. The district court in this case did not impose sanctions under this power, but rather cited to the authorities discussed above. Thus, we need not discuss whether the second sanction (or any portion thereof) was a proper exercise of that power. . Judge Getzendanner’s order previously had stated that the denial of plaintiffs allegation that defendants were “associated with" plaintiff violated Rule 11. This ruling, however, seems also to have been based upon Gavin’s conduct at trial, which made it clear to the district court that Gavin did not understand the legal significance under RICO of that term. We note in passing that the district court here was not relying on the outcome at trial which, as appellant correctly points out, is prohibited by our decision in R.K. Harp, 825 F.2d at 1103. Rather, it relied on the conduct at trial. Because we are remanding IBA’s supplemental request for sanctions, however, we need not consider the propriety of this action. . We employ slightly different criteria in determining whether to remand when a district court fails to give sufficient reasons when it denies a motion for sanctions. In Szabo, we said: We do not now join the Fifth Circuit in requiring judges to make findings and give explanations every time a party seeks sanctions under Rule 11 ... Sometimes the reason for decision is obvious. When the motion for sanctions is foolish, or when the reasons for denying a colorable motion are apparent on the record, the judge need not belabor the obvious. 823 F.2d at 1084; accord Local 232, Allied Industrial Workers of America v. Briggs & Stratton Corp., 837 F.2d 782, 788 (7th Cir.1988). But see Fred A. Smith Lumber Co., 845 F.2d at 752 (failure of the district court to address arguments made by the movants required remand, "as each of [the movants'] claims must be specifically and separately analyzed”). Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_district	C	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". HUFFMAN v. UNITED STATES. No. 3074. Circuit Court of Appeals, Tenth Circuit. April 7, 1945. Owen F. Renegar, of Oklahoma City, Old., for appellant. Robert E. Shelton, Asst. U. S. Atty., of Oklahoma City, Old. (Charles E. Dierker, U. S. Atty., of Oklahoma City, Old., on the brief), for appellee. Before PHILLIPS, BRATTON, and IIUXMAN, Circuit Judges. BRATTON, Circuit Judge. Pursuant to section 205(a) of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 58 Stat. 640, 50 U.S. C.A.Appendix, § 901 et seq., the Administrator of the Office of Price Administration instituted in the United States Court for Western Oklahoma an action against L. H. Pluffman to enjoin the demanding or receiving of rentals on certain properties in Oklahoma City in excess of those established by Maximum Rent Regulation No. 53. The defendant appeared, a hearing was had, and a preliminary injunction was granted. While the injunction was in force and effect, the defendant violated it by demanding and receiving rentals in excess of the maximum legal rate and by the serving of a notice to vacate. The Administrator, on behalf of the United States, filed in the court an application for an order to show cause why Huffman should not be punished for contempt. An order to-show cause was entered. No response was interposed, but a stipulation was filed which disclosed the receipt of excess rentals and the giving of the notice to vacate. The court adjudicated the defendant to be in contempt and imposed a fine of $1,000. The order contained a provision that in the event the defendant should furnish the court with satisfactory proof that restitution of overcharge had been made to any tenant involved in the action, the fine would be reduced by an amount equal to the restitution. The appeal is from that order. Appellant does not question the procedural manner in which the violation of the restraining order was presented to the court for consideration. He challenges the order imposing the fine on the ground that it is unreasonable and unconscionable. Section 268 of the Judicial Code, 28 U.S. C.A. § 385, empowers a district court to punish-by fine or imprisonment, at its discretion, for contempts. There is nothing in the statute which limits the punishment, except the reasonable discretion of the court. And since the matter rests in the sound judicial discretion of the court, an order imposing punishment on a contemnor will not be disturbed on appeal for being unreasonable unless the discretion has been grossly abused. In Rapp v. United States, 9 Cir., 146 F.2d 548, the defendant in the trial court was found guilty of six acts of criminal contempt in charging and receiving rentals exceeding in amount those fixed in the pertinent Maximum Price Regulation, in violation of a preliminary injunction; and she was sentenced to imprisonment for terms aggregating ninety days and to pay fines, in the aggregate amount of $1,500. The judgment was not attacked for' being excessive, but it was sustained on appeal. In United States v. Lederer, 7 Cir., 140 F.2d 136, certiorari denied 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568, the defendant was charged with contempt committed by the making of sales of meat in violation of a preliminary injunction which restrained him from selling at prices in excess of those fixed in the applicable Maximum Price Regulation. He was found guilty and sentenced to imprisonment for a year and a day. The sentence was expressly attacked on the ground of being excessive, and it was upheld. Here, there were five separate and distinct violations of the restraining order, and there is no room for doubt that they were deliberate and flagrant. It cannot be said in these circumstances that the punishment was unreasonable or unconscionable. It is further contended that the order appealed from cannot stand because it imposes punishment for the violation of a temporary injunction in a civil action in which no final judgment has been entered. To sustain the contention, cases are cited and relied upon in which it is held that a proceeding as for civil contempt for the violation of a preliminary injunction entered in a civil action cannot be maintained after such preliminary injunction has been superseded by the final judgment. There are well recognized differences between a proceeding as for civil contempt and a proceeding for criminal contempt for the violation of a preliminary injunction or other restraining order where the violation occurred before the injunction or order has been merged into final judgment but the proceeding in contempt is instituted after-wards. Be those differences as they may, there is no present need to consider them because here the preliminary injunction in the civil action was in force and effect at the time the excess rentals were received and at the time the notice to vacate was served, and it is not shown that such injunction has ever been terminated either ■by dissolution or by being merged into final judgment. So far as the record discloses, it may still be in force and effect. And the power of the court to impose punitive punishment for its violation is not open to doubt. Carter v. United States, 5 Cir., 135 F.2d 858; Rapp v. United States, supra; Taylor v. Bowles, 9 Cir., 147 F.2d 824. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES v. CORNELL. No. 9593. Circuit Court of Appeals, Eighth Circuit. Jan. 14, 1933. P. H. Wagener, Atty., Veterans’ Administration, of Lincoln, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, N.eb., and Edson Smith, Asst. U. S. Atty., and Lawrence I. Shaw, Asst. U. S. Atty., both of Omaha, Neb., on the brief), for the United States. Carl T. Self, of Omaha, Neb., for appellee. Before KENTON, GARDNER, and SANBORN, Circuit Judges. KENYON, Circuit Judge. This is an appeal from a judgment in fa.vor of appellee on a war risk insurance policy. Appellee will be designated' as plaintiff; appellant as defendant. The only error assigned is the action of the court in overruling defendant’s motion for a directed verdict made at the close of' all the evidence. Plaintiff enlisted in the Army of the United States in June, 1918, and'wus honorably discharged therefrom August 16, 1919. The instructions of the court are not in the record, but plaintiff seems to have rested his ease on the proposition that he was totally and permanently disabled at the time of his discharge August 16, 1919, although the contract of insurance did not lapse until January 1, 1923. Our inquiry here is whether the jury’s verdict of total and permanent disability at the date of his discharge is based on substantial evidence. The burden was upon plaintiff to establish total, permanent disability while the policy was in effect. Blair v. United States (C. C. A. 8) 47 F.(2d) 109; United States v. Le Duc (C. C. A, 8) 48 P.(2d) 789; Eggen v. United States (C. C. A. 8) 58 P.(2d) 616. In considering the question before us, the evidence introduced by plaintiff is entitled to the most favorable consideration that can fairly be accorded it. Tn the natural sympathy which all feel for,, disabled soldiers there is a humane tendency to regard this war risk insurance as in the nature of a bounty from a grateful gov-eminent, but it is not, and these policies of insurance are contracts, and must be so dealt with. The courts have quite generally adopted the definition of the Treasury Department that total disability is “any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation.” United States v. Perry (C. C. A. 8) 55 F.(2d) 819, 821; United States v. Harth (C. C. A. 8) 61 F.(2d) 541; Eggen v. United States (C. C. A.) 58 F.(2d) 616, where the recent cases are quite fully cited. Of course, the total disability must become permanent before the policy lapses. Permanency developing thereafter cannot resurrect a dead polipy. The terms of this definition have been given a rational and reasonable interpretation by the courts, for difficulties arise in any literal interpretation of some of the words or phrases employed, such as the words “impossible,” “continuously,” and the term “any substantially gainful occupation.” In Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170, 173, the court, referring to the use of the word “impossible,” said “it cannot fairly be said that it is ‘possible’ for an insured to work because, under the stimulus of a strong will power, it isi physically possible for him to stick to a task, if the work is done at the risk of substantially aggravating his condition.” See Barksdale v. United States (C. C. A. 10) 46 F.(2d) 762; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. McGill (C. C. A. 8) 56 F.(2d) 522. In United States v. Fly (C. C. A. 8) 58 F.(2d) 217, Judge Stone uses the phrase “inability to follow eontinu- ■ ously,” etc., instead of “impossible to follow continuously,” etc., which perhaps is more accurate. The word “continuously” as used in the ■ definition of total disability is generally construed to mean with reasonable regularity in contradistinction to spasmodically following a gainful occupation. Spasmodically is not continuously. Ford v. United States (C. C. A. 1) 44 F.(2d) 754; Carter v. United States (C. C. A. 4) 49 F.(2d) 221; White et al. v. United States (C. C. A. 5) 53 F.(2d) 565; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. Peet (C. C. A. 10) 59 F.(2d) 728; United States v. Harth (C. C. A. 8) 61 F.(2d) 541. “Substantially gainful occupation” as used in the definition means any occupation for which insured is by nature fitted or competent to follow which will enable him ordinarily to make a living for himself. Barks-dale v. United States, supra; United States v. Perry, supra. The performing of some work does not in itself show that a party was not totally disabled. The test is the ability to work without serious peril to the life or health, or as said in United States v. Harth, supra, at page 544 of 61 F.(2d), “without the risk of substantially aggravating the ailment with which he is afflicted.” United States v. Eliasson (C. C. A. 9) 20 F.(2d) 821; United States v. Phillips (C. C. A. 8) 44 F.(2d) 689; United States v. Rasar (C. C. A. 9) 45 F.(2d) 545; Sorvik v. United States (C. C. A. 9) 52 F.(2d) 406; United States v. Perry (C. C. A. 8) 55 F.(2d) 819. Total disability is permanent if conditions; are such that there is a reasonable certainty of its continuing throughout sufferer’s life. Eggen v. United States, supra. With these general legal principles in mind we turn to the evidence. On November 1, 1918, plaintiff, while serving in the United States Army in Franco, suffered a severe shrapnel wound on his left shoulder. The wound was a penetrating one from the base of the neck on the left side of the seventh cervical and • dorsal vertebra. His wound broke open after he got home, and the same discharged pus and was sore and feverish for some time. He had more or less trouble with it, and there were a number of operations between August 16, 1919, and 1932. The first one was serious, the last a minor affair. All were in connection with the wound. Dr. Wagener operated on him the first time. Thereafter Dr. Henry performed the operations. He was the main medical witness for plaintiff, and testified in part as follows: ■ “I treated him at that time from August, 1920 to May 1, 1921. His history as given to me was that he received this wound in one of the battles in France, the shrapnel went in one side of his neck and came out his back; he was treated on the battlefield and it apparently healed until this time but was always more or less sore and gave him more or less trouble; then it became acutely inflamed and required a further operation. “I have here a record of seven operations and they would vary. He would be in the hospital from three or four days to two or three weeks each time depending on the severity of the infection at that time. “The first operation was August 12, 1920, and the last one was January 3, 1930, that is ten years. * * * “There was always more or less stuffing off of the bone. That is what we call osteomyelitis. That condition was not there every time, possibly half of the time there would be a stuffing of the bone. It would have to be scraped off or chiseled off or taken out in some way. The shrapnel apparently were in this point (indicating the top 'shoulder wound) and of course he had his clothing on and it shot the clothing through a part of it and it came back in there (indicating the back wound) and it was my.job to get a pieee of the clothing or a pieee of a bullet or dead bone that had sluffed off as a result of the infection out of the wound, and I had actually pieked out some pieces of the clothing and pieces of bone out of this wound during those operations. * * * “Sometimes we would have to put him in the hospital for two or three weeks and sometimes there would be a month or two he could do light work. “He has been sick off and on and then he would have spells off and on and then have a month or two when he would be pretty well and then he would go back to his work but I never would say he was a well man but is a man that will have to watch his comers. He will never be like he was before he had this wound. “He is not able to do 'heavy work, heavy lifting with his arms and the like of that. I don’t think he ever will be able to do that. » * » “The reason I can’t be sure about this boy is that when bone once becomes infected some times for four or five years it will be dormant and then break out again. Now, the X-rays do not show anything at all and that was because we would find a little pieee of bullet behind the bone. We feel now that the boy is pretty well but I have thought that for ten years and he keeps coming back and I have to open that up and take another pieee out. There is a cord there and he is living-on a little crater and I don’t know when the thing will break out again, and all he can do is go to the doctor every time it opens up, and that is a thing that is facing this boy for awhile I am afraid. “There is a possibility that this wound in the vicinity of the spinal cord would affect his nervous system in some way. If there should be a little inflammation, the hole that ■the cord goes down is about that relative size (illustrating). Now if the bone would thicken and throw off the pus, it is likely to pinch the cord itself and he would be completely paralyzed from here on down and that would be quickly recognized and we could go in there and get that out — that is one of the things we have to watch for at all times, that that callous will not pinch the spinal cord and this side would be then paralyzed.” He further testified: “He was treated by me for the following periods:’ August 12, 1920 to May 21, 1921. August 19,1921 to November 25, 1921. July 10, 1923 to December 1, 1923. January 18, 1925 to May 1, 1925. October 3, 1925 to December 15,1925. October 10, 1928 to March 1, 1929. January 3, 1930 to February 10, 1930. I have not treated this man’s wound since February 10, 1930. His sear has remained healed since February 10, 1930. “During the following periods I did not treat this man and the, wounds were healed: May 21,1921 to August 19,1921. November 25,1921 to July 10, 1923. December 1, 1923 to January 18,1925. May 1,1925 to October 3, 1925. December 15, 1925 to October 10, 1928. March 1, 1929 to January 3, 1930, * * * “The last operation was nothing like so serious as the first operation. The Mst operation was a very minor affair. Just something came to the surface and all I had to do was open it up and take it out and pack it. The first operation was a very serious one. “The operations which I have performed on this man have grown less severe with each succeeding operation. During the times that I was treating him he could have followed some light occupation continuously. * * * “During- the times in which the wound was healed and when he was not getting treatment from me, he could do light work. He might not be as full of pep and might not be able to do as much work but he could do light work. I have not seen him about his wound since February 10, 1930. * * * “I don’t think many men can have such á severe injury and ever be up to'normal. It always reduces his vitality, his ability to keep up with the battle of life to a greater or less extent. He gets the little diseases going around very easily and that is probably due to the lowered vitality. As long as it is healed as well as it is now I don’t think that exercise hurts it particularly. I don’t think he has the strength or vitality to do heavy work, but up to the limit of his capacity I don’t think that work will hurt him a bit.” The evidence shows that plaintiff worked for a continuous eleven-month period in 1919 and 1920 for a Mr. Walker in his cleaning plant, receiving $25 per week most of the time. For nine weeks of! the time he received $27.50 per week. One week in July, 1920, he did not work. One week he received only $4.60, and one week $8.35. fie and his wife testify he worked with difficulty. Mr. Walker testified that “full value was received for his work”; that “he appeared for work regularly and was very competent, and was decidedly responsible.” At the time of his examination for compensation he made this statement: “Did practically no work for about two years after discharge on account of my physical condition. Then started to work in a Dry Cleaning Shop and was so employed until about in 1922. Wages $35 per week. Then started a Dry Cleaning Establishment of my own and have been so engaged ever since.” líe and his wife conducted a dry cleaning establishment after he worked for Walker and carried it on from 1922 to time of trial. He received vocational training while working for Walker. When he loft the service, he had practically lost tho use of his right eye, and is permanently blind in said eye. Dr. Holst testified as to the condition of plaintiff’s eye and that there was no •cure therefor; that it was completely atrophied ; that there were occupations which the loss of sight in this eye would make it impossible for him to follow; and that it was a serious handicap. The record is not clear as to just when this eye condition commenced. That this man suffered serious injury in the war cannot be gainsaid. With the wound in his back and the loss of the sight of one eye it is apparent- that he was considerably disabled, and that such disability was permanent. The case of United States v. Fly, supra, is very much like this one. Fly suffered a bone, wound which emitted pus, and caused pain and.fever, as here. His nervousness there, as here, was marked and interfered with his -chosen occupation. lie was, as here, pori•odieally incapacitated. This court said at page 219 of 58 F.(2d) : “it is quite evident that appellee has been and is under a considerable handicap because of his condition brought about by his injuries, and is suffering a decided disability which may be permanent. But how can this court say that such ■disability is total, to the extent that it prevents him from ‘following continuously any substantially gainful occupation,’ when the undisputed evidence of the appellee, his wife, and Ms employer agree that he was at the time of trial and for eighteen months had been steadily employed at normal wages and had, in the words of his employer, ‘performed his work there with me satisfactorily,’ with absences of only about a week, caused by sickness? The evident injury to apellee and the highly meritorious service origin of this injury have inclined us to view this record with lively sympathy, but our duty is to take the evidence as -we find it and to enforce the rights of these parties as defined by their contract. That contract required total injury before recovery could be lawfully had. This evidence clearly and unmistakably shows no such total injury. The motion for an instructed verdict should have been sustained.” The statement of plaintiff’s doctor, E. C. Henry, “During tho times that 1 was treating Mm he could have followed some light occupation continuously,” is most significant. The evidence shows lie could not do heavy work, but a gainful occupation might have consisted of light work, and such Ms doctor says he could do continuously. There is no evidence that the light occupation which Dr. Henry says he could carry on continuously was not a gainful occupation, and the evidence shows he worked for Mr. Walker in Ms cleaning plant in 1919 and 1920 for a continuous period of practically eleven months, for which ho received $25 and $27.50 per week most of the time, and thereafter carried on, or assisted in carrying on, a dry cleaning establishment. Dr. Henry did not testify that he was permanently and totally disabled at any time during the ten years ho had Mm under his care, nor does any other doctor so testify. Dr. Henry’s evidence is convincing more for what he carefully refrains from saying than for what he actually does say. If plaintiff could continuously carry on a light, gainful occupation he would not be totally disabled. Under Dr. Henry’s evidence, he could carry on a light occupation. The burden, however, was on plaintiff! to show that said occupation was not a gainful one, and there is no substantial evidence in tho record to show it was not gainful. The case was tried and submitted to the jury, on the theory of total and permanent disability on August 16, 1919, while the payments on the policy carried it to 1923. The record docs not advise us why the ease was not tried on the theory of total disability just prior to the lapsing of the policy. Our conclusion is that plaintiff’s evidence failed to establish that his disability was total at the time of Ms discharge, and that question is left in tho realm of speculation and conjecture. The motion of the government for a directed verdict should have been sustained. There -is nothing for us to do but to set aside the judgment and remand the ease for another trial. Reversed and remanded. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_caseorigin	046	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. LYNG, SECRETARY OF AGRICULTURE v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al. No. 86-1471. Argued December 7, 1987 Decided March 23, 1988 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 374. Kennedy, J., took no part in the consideration or decision of the case. Lawrence S. Robbins argued the cause for appellant. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, William Kanter, John S. Koppel, and Mark L. Gross. Richard W. McHugh argued the cause for appellees. With him on the brief were Jordan Rossen, Michael Holland, Judith A. Scott, and Wendy L. Kahn. John A. Powell, Helen Hershkojf, Steven R. Shapiro, and C. Edwin Baker filed a brief for the American Civil Liberties Union Foundation as amicus curiae urging affirmance. Justice White delivered the opinion of the Court. A 1981 amendment to the Food Stamp Act states that no household shall become eligible to participate in the food stamp program during the time that any member of the household is on strike or shall increase the allotment of food stamps that it was receiving already because the income of the striking member has decreased. We must decide whether this provision is valid under the First and the Fifth Amendments. I In the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, 95 Stat. 357, Congress enacted a package of budget cuts throughout the Federal Government. Among the measures contained in OBRA were more than a dozen specific changes in the food stamp program, id., §§ 101-117. One of them was the amendment at issue in this case, § 109 of OBRA, which is set out in the margin. The Committee Reports estimated that this measure alone would save a total of about $165 million in fiscal years 1982, 1983, and 1984. H. R. Rep., at 12; S. Rep., at 63. In 1984, two labor unions and several individual union members brought suit against the Secretary of Agriculture in District Court, contending that §109 is unconstitutional and requesting declaratory and injunctive relief. Plaintiffs moved for a preliminary injunction, and the Secretary moved to dismiss the complaint on the grounds that Congress’ action was well within its constitutional prerogatives. After a hearing, the District Court denied both motions. 648 F. Supp. 1234, 1241 (DC 1986) (Appendix). Both sides conducted discovery and filed cross-motions for summary judgment. On November 14, 1986, the District Court granted plaintiffs’ motion for summary judgment and issued a declaratory judgment, holding the statute unconstitutional. 648 F. Supp. 1234. Specifically, the District Court found that the amendment to the Food Stamp Act was unconstitutional on three different grounds. First, it interferes or threatens to interfere with the First Amendment rights of the individual plaintiffs to associate with their families, with their unions, and with fellow union members, as well as the reciprocal rights under the First Amendment of the union plaintiffs to their members’ association with them. Second, it interferes with strikers’ First Amendment right to express themselves about union matters free of coercion by the Government. Third, it violates the equal protection component of the Due Process Clause of the Fifth Amendment. As the basis for its conclusion on the equal protection claim, the District Court mentioned several somewhat related deficiencies in the amendment: it betrays an animus against an unpopular political minority, it irrationally treats strikers worse than individuals who quit a job, and it impermissibly directs the onus of the striker’s actions against the rest of his family. Id., at 1239-1241. The Secretary appealed the decision directly to this Court under 28 U. S. C. § 1252, and we noted probable jurisdiction. 481 U. S. 1036 (1987). We now reverse. II We deal first with the District Court’s holding that § 109 violates the associational and expressive rights of appellees under the First Amendment. These claimed constitutional infringements are also pressed as a basis for finding that appellees’ rights of “fundamental importance” have been burdened, thus requiring this Court to examine appellees’ equal protection claims under a heightened standard of review. Zablocki v. Redhail, 434 U. S. 374, 383 (1978). Since we conclude that the statute does not infringe either the associational or expressive rights of appellees, we must reject both parts of this analysis. A The challenge to the statute based on the associational rights asserted by appellees is foreclosed by the reasoning this Court adopted in Lyng v. Castillo, 477 U. S. 635 (1986). There we considered a constitutional challenge to the definition of “household” in the Food Stamp Act, 7 U. S. C. § 2012(i), which treats parents, siblings, and children who live together, but not more distant relatives or unrelated persons who do so, as a single household for purposes of defining eligibility for food stamps. Although the challenge in that case was brought solely on equal protection grounds, and not under the First Amendment, the Court was obliged to decide whether the statutory classification should be reviewed under a stricter standard than mere rational-basis review because it “ ‘directly and substantially’ interfere^] with family living arrangements and thereby burden[s] a fundamental right.” 477 U. S., at 638. The Court held that it did not, explaining that the definition of “household” does not “order or prevent any group of persons from dining together. Indeed, in the overwhelming majority of cases it probably has no effect at all. It is exceedingly unlikely that close relatives would choose to live apart simply to increase their allotment of food stamps, for the costs of separate housing would almost certainly exceed the incremental value of the additional stamps.” Ibid.; see also id., at 643 (Brennan, J-., dissenting) (stating that rational-basis review is applicable); ibid. (White, J., dissenting) (same). The same rationale applies in this case. As was true of the provision at issue in Castillo, it is “exceedingly unlikely” that § 109 will “prevent any group of persons from dining together.” Id., at 638. Even if isolated instances can be found in which a striking individual may have left the other members of the household in order to increase their allotment of food stamps, “in the overwhelming majority of cases [the statute] probably has no effect at all.” Ibid. The statute certainly does not “order” any individuals not to dine together; nor does it in any other way “ ‘directly and substantially’ interfere with family living arrangements.” Ibid. The statute also does not infringe the associational rights of appellee individuals and their unions. We have recognized that “one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means,” NAACP v. Claiborne Hardware Co., 458 U. S. 886, 933 (1982), and our recognition of this right encompasses the combination of individual workers together in order better to assert their lawful rights. See, e. g., Railroad Trainmen v. Virginia, 377 U. S. 1, 5-6 (1964). But in this case, the statute at issue does not “‘directly and substantially’ interfere” with appellees’ ability to associate for this purpose. Lyng, supra, at 638. It does not “order” appellees not to associate together for the purpose of conducting a strike, or for any other purpose, and it does not “prevent” them from associating together or burden their ability to do so in any significant manner. As we have just stated with respect to the effect of this statute on an individual’s decision to remain in or to leave his or her household, it seems “exceedingly unlikely” that this statute will prevent individuals from continuing to associate together in unions to promote their lawful objectives. 477 U. S., at 638. Prior cases indicate that § 109 has no unconstitutional impact on the right of individuals to associate for various purposes. Lincoln Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 530-531 (1949), for example, held that where a State forbids employers to restrict employment to members of a union, enforcement of that state policy does not abridge the associational rights of unions or their members, despite their claim that a closed shop “is ‘indispensable to the right of self-organization and the association of workers into unions.’ ” Similarly, in Board of Directors of Rotary Int’l v. Rotary Club, 481 U. S. 537, 548 (1987), we held that requiring Rotary Clubs to admit women “does not require the clubs to abandon or alter” any of their activities or their basic goals and therefore did not abridge the members’ associational rights. Both of those cases upheld state laws that exerted a much more direct and substantial threat to associational freedoms than the statute at issue here. Any impact on associational rights in this case results from the Government’s refusal to extend food stamp benefits to those on strike, who are now without their wage income. Denying such benefits makes it harder for strikers to maintain themselves and their families during the strike and exerts pressure on them to abandon their union. Strikers and their union would be much better off if food stamps were available, but the strikers’ right of association does not require the Government to furnish funds to maximize the exercise „of that right. “We have held in several contexts [including the First Amendment] that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.” Regan v. Taxation with Representation of Washington, 461 U. S. 540, 549 (1983). Exercising the right to strike inevitably risks economic hardship, but we are not inclined to hold that the right of association requires the Government to minimize that result by qualifying the striker for food stamps. In Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471 (1977), we upheld a statute that denied unemployment compensation benefits to workers who are thrown out of work as a result of a labor dispute other than a lockout, saying that the case “does not involve any discernible fundamental interest.” Id., at 489. Although the complaining worker there was a nonstriking employee of a parent company that found it necessary to close because its subsidiary was on strike, it is clear enough that the same result would have obtained had the striking employees themselves applied for compensation. B For the same reasons, we cannot agree that § 109 abridges appellees’ right to express themselves about union matters free of coercion by the Government. Appellees rely on Abood v. Detroit Board of Education, 431 U. S. 209 (1977). But we do not read either Abood or the First Amendment as providing support for this claim. In Abood, the challenged state law required certain employees to pay a fee to their representative union. We ruled that this law violated the First Amendment insofar as it allowed those funds to be used to promote political and ideological purposes with which the employees disagreed and to which they objected, because by its terms the employees were “compelled to make... contributions for political purposes.” Id., at 234. We based this conclusion on our observation that “at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Id., at 234-235. By contrast, the statute challenged in this case requires no exaction from any individual; it does not “coerce” belief; and it does not require appellees to participate in political activities or support political views with which they disagree. It merely declines to extend additional food stamp assistance to striking individuals simply because the decision to strike inevitably leads to a decline in their income. And this Court has explicitly stated that even where the Constitution prohibits coercive governmental interference with specific individual rights, it “‘does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.’” Regan, supra, at 550, quoting Harris v. McRae, 448 U. S. 297, 318 (1980). Ill Because the statute challenged here has no substantial impact on any fundamental interest and does not “affect with particularity any protected class,” Hodory, supra, at 489, we confine our consideration to whether the statutory classification “is rationally related to a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U. S. 528, 533 (1973). We have stressed that this standard of review is typically quite deferential; legislative classifications are “presumed to be valid,” Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 314 (1976), largely for the reason that “the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one.” Ibid.; see Dandridge v. Williams, 397 U. S. 471, 485 (1970). Appellant submits that this statute serves three objectives. Most obvious, given its source in OBRA, is to cut federal expenditures. Second, the limited funds available were to be used when the need was likely to be greatest, an approach which Congress thought did not justify food stamps for strikers. Third was the concern that the food stamp program was being used to provide one-sided support for labor strikes; the Senate Report indicated that the amendment was intended to remove the basis for that perception and criticism. S. Rep., at 62. We have little trouble in concluding that § 109 is rationally related to the legitimate governmental objective of avoiding undue favoritism to one side or the other in private labor disputes. The Senate Report declared: “Public policy demands an end to the food stamp subsidization of all strikers who become eligible for the program solely through the temporary loss of income during a strike. Union strike funds should be responsible for providing support and benefits to strikers during labor-management disputes.” Ibid. It was no part of the purposes of the Food Stamp Act to establish a program that would serve as a weapon in labor disputes; the Act was passed to alleviate hunger and malnutrition and to strengthen the agricultural economy. 7 U. S. C. § 2011. The Senate Report stated that “allowing strikers to be eligible for food stamps has damaged the program’s public integrity” and thus endangers these other goals served by the program. S. Rep., at 62. Congress acted in response to these problems. It would be difficult to deny that this statute works at least some discrimination against strikers and their households. For the duration of the strike, those households cannot increase their allotment of food stamps even though the loss of income occasioned by the strike may well be enough to qualify them for food stamps or to increase their allotment if the fact of the strike itself were ignored. Yet Congress was in a difficult position when it sought to address the problems it had identified. Because a striking individual faces an immediate and often total drop in income during a strike, a single controversy pitting an employer against its employees can lead to a large number of claims for food stamps for as long as the controversy endures. It is the disbursement of food stamps in response to such a controversy that constitutes the source of the concern, and of the dangers to the program, that Congress believed it was important to remedy. We are not free in this instance to reject Congress’ views about “what constitutes wise economic or social policy.” Dandridge, supra, at 486. It is true that in terms of the scope and extent of their ineligibility for food stamps, § 109 is harder on strikers than on “voluntary quitters.” See 648 F. Supp., at 1253-1254 (Appendix A); compare 7 CFR § 273.1(g) (1987) with id., § 273.7(n). But the concern about neutrality in labor disputes does not arise with respect to those who, for one reason or another, simply quit their jobs. As we have stated in a related context, even if the statute “provides only ‘rough justice,’ its treatment... is far from irrational.” Hodory, 431 U. S., at 491. Congress need not draw a statutory classification to the satisfaction of the most sharp-eyed observers in order to meet the limitations that the Constitution imposes in this setting. And we are not authorized to ignore Congress’ considered efforts to avoid favoritism in labor disputes, which are evidenced also by the two significant provisos contained in the statute. The first proviso preserves eligibility for the program of any household that was eligible to receive stamps “immediately prior to such strike.” 7 U. S. C. § 2015(d)(3). The second proviso makes clear that the statutory ineligibility for food stamps does not apply “to any household that does not contain a member on strike, if any of its members refuses to accept employment at a plant or site because of a strike or lockout.” Ibid. In light of all this, the statute is rationally related to the stated objective of maintaining neutrality in private labor disputes. In view of the foregoing, we need not determine whether either of the other two proffered justifications for § 109 would alone suffice. But it is relevant to note that protecting the fiscal integrity of Government programs, and of the Government as a whole, “is a legitimate concern of the State.” Hodory, supra, at 493. This does not mean that Congress can pursue the objective of saving money by discriminating against individuals or groups. But our review of distinctions that Congress draws in order to make allocations from a finite pool of resources must be deferential, for the discretion about how best to spend money to improve the general welfare is lodged in Congress rather than the courts. Bowen v. Owens, 476 U. S. 340, 345 (1986). “Fiscal considerations may compel certain difficult choices in order to improve the protection afforded to the entire benefited class.” Harris v. McRae, 448 U. S., at 355 (Stevens, J., dissenting). In OBRA Congress had already found it necessary to restrict eligibility in the food stamp program and to reduce the amount of deductions that were allowed to recipients. Rather than undertaking further budget cuts in these or other areas, and in order to avoid favoritism in labor disputes, Congress judged that it would do better to pass this statute along with its provisos. The Constitution does not permit us to disturb that judgment in this case. Appellees contend and the District Court held that the legislative classification is irrational because of the “critical” fact that it “impermissibly strikes at the striker through his family.” 648 F. Supp., at 1240. This, however, is nothing more than a description of how the food stamp program operates as a general matter, a fact that was acknowledged by the District Court. Ibid. Whenever an individual takes any action that hampers his or her ability to meet the program’s eligibility requirements, such as quitting a job or failing to comply with the work-registration requirements, the entire household suffers accordingly. We have never questioned the constitutionality of the entire Act on this basis, and we just recently upheld the validity of the Act’s definition of “household” even though that definition embodies the basic fact that the Act determines benefits “on a ‘household’ rather than an individual basis.” Lyng, 477 U. S., at 636. That aspect of the program does not violate the Constitution any more so today. The decision of the District Court is therefore Reversed. Justice Kennedy took no part in the consideration or decision of this case. Included were such fundamental changes as redefining the requirements to constitute a family unit, reducing the gross income eligibility standard (except for the elderly and the disabled), and adjusting the levels of deductions that are allowed to recipients. §§ 101, 104(a), 105, 106, 115. The Committee Reports estimated that these changes in the food stamp program would save several billion dollars in fiscal years 1982, 1983, and 1984. H. R. Rep. No. 97-158, pp. 11-13 (1981) (hereafter H. R. Rep.); S. Rep. No. 97-139, pp. 52-70 (1981) (hereafter S. Rep.). “Notwithstanding any other provision of law, a household shall not participate in the food stamp program at any time that any member of the household, not exempt from the work registration requirements... is on strike as defined in section 142(2) of title 29, because of a labor dispute (other than a lockout) as defined in section 152(9) of title 29: Provided, That a household shall not lose its eligibility to participate in the food stamp program as a result of one of its members going on strike if the household was eligible for food stamps immediately prior to such strike, however, such household shall not receive an increased allotment as the result of a decrease in the income of the striking member or members of the household: Provided further, That such ineligibility shall not apply to any household that does not contain a member on strike, if any of its members refuses to accept employment at a plant or site because of a strike or lockout.” OBRA, § 109, 95 Stat. 361, 7 U. S. C. § 2015(d)(3). The District Court did not find that any individuals had left their households in order to increase their allotment of food stamps. It found instead only that some individuals “have been told by state agencies or have learned that they can avoid household disqualification by having the striker leave the household.” 648 F. Supp. 1234, 1237 (DC 1986). Appellees note that one striker’s spouse and children left the household after he was denied food stamps, and that the couple was subsequently divorced. Affidavit of Mark Dyer, ¶¶ 4-8, App. 25-26; Deposition of Mark Dyer,.id, at 82-83. The District Court found that one individual quit his job and abandoned his union membership in order to receive food stamps, and another individual left a picket line to seek other work and lost his union membership. 648 F. Supp., at 1237. Some other strikers have voted to ratify or accept collective-bargaining agreements that were less favorable than they wished, motivated by lack of wages as a result of being out of work and, to a lesser degree, lack of food stamps. Ibid. It is clear from previous decisions that associational rights “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference,” Bates v. Little Rock, 361 U. S. 516, 523 (1960), and that these rights can be abridged even by government actions that do not directly restrict individuals’ ability to associate freely. See, e. g., Healy v. James, 408 U. S. 169, 183 (1972). But none of these cases indicates that the statute challenged here “will affect in any significant way the existing members’ ability to carry out their various purposes.” Board of Directors of Rotary Int’l v. Rotary Club, 481 U. S., at 548. The Court has found, for example, that compulsory disclosure of the membership lists of an organization, which led to harassment, physical threats, and economic reprisals against those individuals, worked “a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958). We also have held that the First Amendment “restricts the ability of the State to impose liability on an individual solely because of his association with another” when the individual lacks the specific intent to further any illegal aims that may be promoted by other members of a group. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 919-920 (1982). The facts of this case, however, do not demonstrate any “significant” interference with appellees’ associational rights of the magnitude found in decisions like Patterson and Claiborne Hardware. Exposing the members of an association to physical and economic reprisals or to civil liability merely because of their membership in that group poses a much greater danger to the exercise of associational freedoms than does the withdrawal of a government benefit based not on membership in an organization but merely for the duration of one activity that may be undertaken by that organization. The decision in Hodory was based on the Equal Protection Clause of the Fourteenth Amendment and not on the First Amendment, but our application of rational-basis review to the constitutional claim raised in that case indicated that fundamental rights guaranteed by the First Amendment were not implicated there. Appellees rely heavily on Sherbert v. Verner, 374 U. S. 398 (1963), 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_usc1sect	1988	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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Darrell BROWN, Plaintiff-Appellee, v. The CITY OF PALMETTO, GEORGIA, et al., Defendants-Appellants. No. 81-7759. United States Court of Appeals, Eleventh Circuit. Aug. 2, 1982. Glaze & McNally, Kirby A. Glaze, Steven M. Fincher, Jonesboro, Ga., for defendants-appellants. Watson, Brown, Foster & Murphy, John L. Watson, Jr., Jonesboro, Ga., for plaintiff-appellee. Before VANCE, JOHNSON and HENDERSON, Circuit Judges. VANCE, Circuit Judge: In April 1978 Darrell Brown filed suit under 42 U.S.C. § 1983 against the City of Palmetto, Georgia, Allstate Insurance Company, and a number of individual defendants, seeking to recover for the demolition of a fire damaged building. Brown alleged that defendants conspired to remove the building to lessen the insurance company’s liability and to benefit the city, in violation of his due process and equal protection rights. Because Brown offered no evidence at trial to prove a conspiracy existed the district court granted a directed verdict for defendants. Brown appealed, and in March 1981 the fifth circuit summarily affirmed. Over four months later defendants filed a motion for an award of attorney’s fees. The district court denied the motion, and defendants appeal pursuant to 28 U.S.C. § 1291. The district court denied defendants’ motion for attorney’s fees on the grounds that the motion was filed too late and that it was not clear until the directed verdict was entered against Brown that his case was frivolous. On appeal defendants argue that the case was frivolous from the outset and that the district court’s holding was erroneous because there is no jurisdictional time limit for the filing of a motion under 42 U.S.C. § 1988. Contrary to general rule, 42 U.S.C. § 1988 allows attorney’s fees in 1983 actions to be treated as part of the costs of litigation. Rule 54(d) of the Federal Rules of Civil Procedure, which provides for the awarding of costs, does not limit the period of time in which a motion for costs may be made. Consequently, there is no jurisdictional time limit on the filing of a motion for attorney’s fees under section 1988. Knighton v. Watkins, 616 F.2d 795, 798 (5th Cir. 1980). Brown contends, however, that defendants’ delay of four months before filing their motion for attorney’s fees violated a local court rule requiring bills of cost to be filed within thirty days after the time judgment is entered. District courts may adopt local rules establishing timeliness standards for the filing of claims for attorney’s fees. White v. New Hampshire Department of Employment Security, - U.S. -, -, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982). Such local rules may provide that such claims must be included in and filed within the time allowed for motions for other costs. Id. at 1168 n.17. There are, however, significant distinctions between attorney’s fees and other costs. Knighton v. Watkins, 616 F.2d at 798 n.2. Inclusion of a claim for attorney’s fees within the time constraints applicable to requests for other costs should be by explicit provision of the local rules. Absent violation of a local rule a claim for attorney’s fees would be untimely only on a showing of unfair surprise or prejudice. White v. New Hampshire Department of Employment Security, -U.S. at -, 102 S.Ct. at 1168. There is nothing in the local rule under consideration to indicate that it was intended to include claims for attorney’s fees under 42 U.S.C. § 1988. Additionally, Brown failed to make any showing of unfair prejudice or surprise. Consequently, we find that defendants’ motion for an award of attorney’s fees was timely filed. The award of attorney’s fees to a prevailing defendant is within the discretion of the district court if the plaintiff’s action is frivolous, unreasonable or without foundation, even though not brought in subjective bad faith. See Christianburg Garment Co. v. EEOC, 434 U.S. 412, 419, 421, 98 S.Ct. 694, 699, 700, 54 L.Ed.2d 648 (1978); Church of Scientology v. Cazares, 638 F.2d 1272, 1290 (5th Cir. 1981). The district court held that Brown’s case was “weak from the beginning” but that it was not apparent until the close of the evidence that the case was frivolous. Although we are puzzled by the suggestion that a case that was clearly frivolous at the close of the evidence could have been anything else at the beginning, we conclude that defendants have failed to show that it was an abuse of discretion to deny attorney’s fees for handling the case at the district court level. The district court also found, however, that Brown continued to litigate after it became clear that his case was frivolous. We therefore hold that the denial of attorney’s fees with respect to the appeal was an abuse of discretion and remand for computation of fees incurred after the district court directed a verdict for defendants. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. . The eleventh circuit is bound by the decisions of the former fifth circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). . Local Court Rule 351.1 for the Northern District of Georgia provides: Time Limit. A bill of cost must be filed by the prevailing party within 30 days after the entry of judgment or such cost will not be allowed to be taxed as part of the judgment. 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 42? Answer with a number. Answer:
songer_dissent	0	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Cruz RODRIGUEZ SALGADO, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 5633. United States Court of Appeals First Circuit. April 29, 1960. Cruz Rodriguez Salgado, pro se, on brief for appellant on the merits and on memorandum in opposition to motion to dismiss. Francisco A. Gil, Jr., U. S. Atty. and Raymond L. Acosta, Asst. U. S. Atty., San Juan, P. R., for appellee on motion to dismiss. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. The United States has moved to dismiss this appeal from an order of the United States District Court for the District of Puerto Rico denying a motion under Title 28 U.S.C. § 2255 to correct a sentence on the ground that the appeal is wholly without merit and frivolous. There is no dispute over the facts. In 1947 the court below gave the appellant, Cruz Rodriguez Salgado, a six months’ sentence under § 2596 of the Internal Revenue Code of 1939, 53 Stat. 282, 26 U.S.C.A. § 2596, on his plea of guilty to the charge of acquiring marihuana in violation of § 2593(a) id., 26 U.S.C.A. § 2593(a). In March, 1957, he pleaded guilty in the same court to each of four counts of an indictment charging him and two others, inter alia, with offenses and conspiring to commit offenses •described in part II of subchapter A of Chapter 39 of the Internal Revenue Code of 1954 as amended by the Narcotic Control Act of 1956 (70 Stat. 567) 26 U.S. C.A. § 4741 et seq., punishable under § 7237 of that code, as amended, 26 U.S. C.A. § 7237. The court postponed sentence and requested a pre-sentence investigation and report by its Probation Officer and in April, 1957, when Rodriguez appeared for sentence, the United States Attorney filed an information under § 7237(c) (2) of the 1954 Code setting forth Rodriguez’ prior conviction. Rodriguez in open court admitted his identity and that he was the person previously convicted and the court below sentenced him as a second offender to 10 years on each count, the sentences to run concurrently. Rodriguez Salgado’s contention that his conviction in 1947 was not for a felony but only for a minor offense that is to say, a misdemeanor, for the reason that he was then sentenced only to six months imprisonment, is obviously fallacious. In the first place, it would make no difference whether the offense for which he was sentenced in 1947 under § 2596 of the 1939 Code, which provided the punishment for violating § 2593(a) id. constituted a felony or not, for offenses punishable under § 2596 are specifically listed in § 7237(c) (1) (F) of the Internal Revenue Code of 1954 among the prior offenses to be counted in determining second offenses under § 7237(b) id. In the second place, the offense described in § 2593(a) of the Internal Revenue Code of 1939 made punishable by § 2596 id. as it stood in 1947, carried as maximum penalties a fine of not more than $2,000 or imprisonment for not more than 5 years or both. Thus, regardless of the sentence actually imposed, the offense constituted a felony as traditionally defined. See 18 U.S.C. (1946 ed.) § 541 and Title 18 U.S.C. § 1(1). Rodriguez Salgado’s other contention has to do with the provision of § 4774 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4774, as amended, providing that after the effective date of the Narcotic Control Act of 1956 certain sections of the Internal Revenue Code of 1954, some of which he was charged with violating “shall not apply to the Commonwealth of Puerto Rico unless the Legislative Assembly of the Commonwealth of Puerto Rico expressly consents thereto in the manner prescribed in the constitution of the Commonwealth of Puerto Rico for the enactment of a law.” It is not and cannot successfully be contended that Congress lacks the power to extend the provisions of its legislation for the control of traffic in narcotic drugs to the Commonwealth of Puerto Rico. Moreno Rios v. United States, 1 Cir., 1958, 256 F.2d 68, 71. Nor is it questioned that in July, 1956, the Legislative Assembly of the Commonwealth of Puerto Rico, in accordance with local constitutional requirements, by Joint Resolution No. 1 approved by the Governor of the Commonwealth, expressly consented to the application to Puerto Rico of the sections listed in § 4774 of the Internal Revenue Code of 1954. The contention is that by § 4774 the Congress delegated its power to enact federal law to the Legislative Assembly of the Commonwealth of Puerto Rico with the result that the joint resolution of July, 1956, to become law, would have to be submitted to the President of the United States in accordance with federal constitutional requirements for the enactment of federal legislation. The contention really needs no refutation. It is enough to say that in its joint resolution the Legislative Assembly of Puerto Rico was not enacting federal law. Congress did that in the Internal Revenue Code of 1954. The Puerto Rican legislature in its joint resolution only consented to the application of a federal law by grace of Congressional permission and that certainly is purely local legislation. Rodriguez Salgado’s remaining contention that he was entitled to be present in person in the court below at a hearing on his motion under Title 28 U.S.C. § 2255 is refuted by the fourth paragraph of the section which provides: “A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” Judgment will be entered affirming the order of the District Court. Question: What is the number of judges who dissented from the majority? Answer:
sc_respondent	180	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. DUNN, GOVERNOR OF TENNESSEE, et al. v. BLUMSTEIN No. 70-13. Argued November 16, 1971 Decided March 21, 1972 MARSHALL, J., delivered the opinion of the Court, in which Douglas, BreNNAn, Stewart, and White, JJ., joined. BlackmüN, J., filed an opinion concurring in the result, post, p. 360. Burger, C. J., filed a dissenting opinion, post, p. 363. Powell and Rehnquist, JJ., took no part in the consideration or decision of the case. Robert H. Roberts, Assistant Attorney General of Tennessee, argued the cause for appellants. With him on the brief were David M. Pack, Attorney General, and Thomas E. Fox, Deputy Attorney General. James F. Blumstein, pro se, argued the cause for appellee. With him on the brief were Charles Morgan, Jr., and Norman Siegel. Henry P. Sailer and William A. Dobrovir filed a brief for Common Cause as amicus curiae urging affirmance. Mr. Justice Marshall delivered the opinion of the Court. Various Tennessee public officials (hereinafter Tennessee) appeal from a decision by a three-judge federal court holding that Tennessee’s durational residence requirements for voting violate the Equal Protection Clause of the United States Constitution. The issue arises in a class action for declaratory and injunctive relief brought by appellee James Blumstein. Blumstein moved to Tennessee on June 12, 1970, to begin employment as an assistant professor of law at Vanderbilt University in Nashville. With an eye toward voting in the upcoming August and November elections, he attempted to register to vote on July 1, 1970. The county registrar refused to register him, on the ground that Tennessee law author- / izes the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months. After exhausting state administrative remedies, Blum-stein brought this action challenging these residence requirements on federal constitutional grounds. A three-judge court, convened pursuant to 28 U. S. C. §§ 2281, 2284, concluded that Tennessee’s durational residence requirements were unconstitutional (1) because they im-permissibly interfered with the right to vote and (2) because they created a “suspect” classification penalizing some Tennessee residents because of recent interstate movement. 337 F. Supp. 323 (MD Tenn. 1970). We noted probable jurisdiction, 401 U. S. 934 (1971). For the reasons that follow, we affirm the decision below. I The subject of this lawsuit is the durational residence requirement. Appellee does not challenge Tennessee’s power to restrict the vote to bona fide Tennessee residents. Nor has Tennessee ever disputed that appellee was a bona fide resident of the State and county when he attempted to register. But Tennessee insists that, in addition to being a resident, a would-be voter must have been a resident for a year in the State and three months in the county. It is this additional durational residence requirement that appellee challenges. Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote. The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens. To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. Cf. Williams v. Rhodes, 393 U. S. 23, 30 (1968). In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved. First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must x show a substantial and compelling reason for imposing durational residence requirements. A Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of “ 'a fundamental political right,... preservative of all rights.' ” Reynolds v. Sims, 377 U. S. 533, 562 (1964). There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the Judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U. S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U. S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663, 667 (1966); Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Reynolds v. Sims, supra. This “equal right to vote,” Evans v. Cornman, supra, at 426, is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e. g., Carrington v. Rash, supra, at 91; Oregon v. Mitchell, 400 U. S. 112, 144 (opinion of Douglas, J.), 241 (separate opinion of Brennan, White, and Marshall, JJ.), 294 (opinion of Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined). But, as a general matter, “before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.” Evans v. Cornman, supra, at 422; see Bullock v. Carter, ante, p. 134, at 143. Tennessee urges that this case is controlled by Drueding v. Devlin, 380 U. S. 125 (1965). Drueding was a decision upholding Maryland’s durational residence requirements. The District Court tested those requirements by the equal protection standard applied to ordinary state regulations: whether the exclusions are reasonably related to a permissible state interest. 234 F. Supp. 721, 724-725 (Md. 1964). We summarily affirmed per curiam without the benefit of argument. But if it was not clear then, it is certainly clear now that a more exacting test is required for any statute that “place[s] a condition on the exercise of the right to vote.” Bullock v. Carter, supra, at 143. This development in the law culminated in Kramer v. Union Free School District, supra. There we canvassed in detail the reasons for strict review of statutes distributing the franchise, 395 U. S., at 626-630, noting inter alia that such statutes “constitute the foundation of our representative society.” We concluded that if a challenged statute grants the right to vote to some citizens and denies the franchise to others, “the Court must determine whether the exclusions are necessary to promote a compelling state interest.” Id., at 627 (emphasis added); Cipriano v. City of Houma, supra, at 704; City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209 (1970). Cf. Harper v. Virginia Board of Elections, supra, at 670. This is the test we apply here. B This exacting test is appropriate for another reason, never considered in Drueding: Tennessee’s dura-tional residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the dura-tional residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel. “[Fjreedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” United States v. Guest, 383 U. S. 745, 758 (1966). See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S., at 237 (separate opinon of Brennan, White, and Marshall, JJ.), 285-286 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Black-mun, J., joined). And it is clear that the freedom to travel includes the “freedom to enter and abide in any State in the Union,” id., at 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although in Shapiro we specifically did not decide whether durational residence requirements could be used to determine voting eligibility, id., at 638 n. 21, we concluded that since the right to travel was a constitutionally protected right, “any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” Id., at 634. This compelling-state-interest test was also adopted in the separate concurrence of Mr. Justice Stewart. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, 397 U. S. 49 (1970), and Wyman v. Lopez, 404 U. S. 1055 (1972), Shapiro and the compelling-state-interest test it articulates control this case. Tennessee attempts to distinguish Shapiro by urging that “the vice of the welfare statute in Shapiro... was its objective to deter interstate travel.” Brief for Appellants 13. In Tennessee’s view, the compelling-state-interest test is appropriate only where there is “some evidence to indicate a deterrence of or infringement on the right to travel....” Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense. This view represents a fundamental misunderstanding of the law. It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other “right to travel” cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by “any classification which serves to penalize the exercise of that right [to travel] Id., at 634 (emphasis added) ; see id., at 638 n. 21. While noting the frank legislative purpose to deter migration by the poor, and speculating that “[a]n indigent who desires to migrate... will doubtless hesitate if he knows that he must risk” the loss of benefits, id., at 629, the majority found no need to dispute the “evidence that few welfare recipients have in fact been deterred [from moving] by residence requirements.” Id., at 650 (Warren, C. J., dissenting); see also id., at 671-672 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that because a durational residence requirement for voting “operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration..., [it] may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.” Oregon v. Mitchell, 400 U. S., at 238 (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis added). Of course, it is true that the two individual interests affected by Tennessee’s durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differences are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere: “It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution.... 'Constitutional rights would be of little value if they could be... indirectly denied’....” Harman v. Forssenius, 380 U. S. 528, 540 (1965). See also Garrity v. New Jersey, 385 U. S. 493 (1967), and cases cited therein; Spevack v. Klein, 385 U. S. 511, 515 (1967). The right to travel is an “unconditional personal right,” a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U. S., at 643 (Stewart, J., concurring) (emphasis added); Oregon v. Mitchell, supra, at 292 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Blackmun, J., joined). Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right. In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Cf. United States v. Jackson, 390 U. S. 570, 582-583 (1968). Absent a compelling state interest, a State may not burden the right to travel in this way. C In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are “necessary to promote a compelling governmental interest.” Shapiro v. Thompson, supra, at 634 (first emphasis added); Kramer v. Union Free School District, 395 U. S., at 627. Thus phrased, the. constitutional question may sound like a mathematical formula. But legal “tests” do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes. It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with “precision,” NAACP v. Button, 371 U. S. 415, 438 (1963); United States v. Robel, 389 U. S. 258, 265 (1967), and must be “tailored” to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose “less drastic means.” Shelton v. Tucker, 364 U. S. 479, 488 (1960). II We turn, then, to the question of whether the State has shown that durational residence requirements are needed to further a sufficiently substantial state interest. We emphasize again the difference between bona fide residence requirements and durational residence requirements. We have in the past noted approvingly that the States have the power to require that voters be bona fide residents of the relevant political subdivision. E. g., Evans v. Cornman, 398 U. S., at 422; Kramer v. Union Free School District, supra, at 625; Carrington v. Rash, 380 U. S., at 91; Pope v. Williams, 193 U. S. 621 (1904). An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny. But durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard. Cf. Shapiro v. Thompson, supra, at 636. It is worth noting at the outset that Congress has, in a somewhat different context, addressed the question whether durational residence laws further compelling state interests. In § 202 of the Voting Rights Act of 1965, added by the Voting Rights Act Amendments of 1970, Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections. 42 U. S. C. § 1973aa-1. In doing so, it made a specific finding that durational residence requirements and more restrictive registration practices do “not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.” 42 U. S. C. § 1973aa-1 (a)(6). We upheld this portion of the Voting Rights Act in Oregon v. Mitchell, supra. In our present case, of course, we deal with congressional, state, and local elections, in which the State’s interests are arguably somewhat different; and, in addition, our function is not merely to determine whether there was a reasonable basis for Congress’ findings. However, the congressional finding which forms the basis for the Federal Act is a useful background for the discussion that follows. Tennessee tenders “two basic purposes” served by its durational residence requirements: “(1) INSURE PURITY OF BALLOT BOX— Protection against fraud through colonization and inability to identify persons offering to vote, and “(2) KNOWLEDGEABLE VOTER —Afford some surety that the voter has, in fact, become a member of the community and that as such, he has a common interest in all matters pertaining to its government and is, therefore, more likely to exercise his right more intelligently.” Brief for Appellants 15, citing 18 Am. Jur., Elections, § 56, p. 217. We consider each in turn. A Preservation of the “purity of the ballot box” is a formidable-sounding state interest. The impurities feared, variously called “dual voting” and “colonization,” all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest. Preventing fraud, the asserted evil that justifies state lawmaking, means keeping nonresidents from voting. But, by definition, a durational residence law bars newly arrived residents from the franchise along with nonresidents. The State argues that such sweeping laws are necessary to prevent fraud because they are needed to identify bona fide residents. This contention is particularly unconvincing in light of Tennessee’s total statutory scheme for regulating the franchise. Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States, this purpose is served by a system of voter registration. Tenn. Code Ann. § 2-301 et seg. (1955 and Supp. 1970); see State v. Weaver, 122 Tenn. 198, 122 S. W. 465 (1909). Given this system, the record is totally devoid of any evidence that durational residence requirements are in fact necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. Tenn. Code Ann. § 2-304. His qualifications — including bona fide residence — are established then by oath. Tenn. Code Ann. § 2-309. There is no indication in the record that Tennessee routinely goes behind the would-be voter’s oath to determine his qualifications. Since false swearing is no obstacle to one intent on fraud, the existence of burdensome voting qualifications like durational residence requirements cannot prevent corrupt nonresidents from fraudulently registering and voting. As long as the State relies on the oath-swearing system to establish qualifications, a du-rational residence requirement adds nothing to a simple residence requirement in the effort to stop fraud. The nonresident intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residence requirement becomes an effective voting obstacle only to residents who tell the truth and have no fraudulent purposes. Moreover, to the extent that the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement could play in protecting against fraud. The State closes the registration books 30 days before an election to give officials an opportunity to prepare for the election. Before the books close, anyone may register who claims that he will meet the durational residence requirement at the time of the next election. Although Tennessee argues that this 30-day period between registration and election does not give the State enough time to verify this claim of bona fide residence, we do not see the relevance of that position to this case. As long as the State permits registration up to 30 days before an election, a lengthy dura-tional residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident. Even if durational residence requirements imposed, in practice, a pre-election waiting period that gave voting officials three months or a year in which to confirm the bona fides of residence, Tennessee 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:
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. UNITED STATES et al. v. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (SCRAP) et al. No. 72-535. Argued February 28, 1973 Decided June 18, 1973 Stewart, J., delivered the opinion of the Court, in which BreNNAn and BlacKMUn, JJ., joined; in Parts I and II of which Douglas and Marshall, JJ., joined; and in Parts I and III of which Burger, C. J., and White and RehNquist, JJ., joined. BlacKmuN, J., filed a concurring opinion, in which BreNNAN, J., joined, post, p. 699. Douglas, J., filed an opinion dissenting in part, post, p. 699. White, J., filed an opinion dissenting in part, in which Burger, C. J., and Rehnquist, J., joined, post, p. 722. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 724. Powell, J., took no part in the consideration or decision of the cases. Solicitor General Griswold argued the cause for the United States et al. in No. 72-535. With him on the briefs were Assistant Attorney General Frizzell, Edward R. Korman, Fritz R. Kahn, Betty Jo Christian, and James F. Tao. Hugh B. Cox argued the cause for appellants in No. 72-562. With him on the briefs were Charles A. Horsky, Michael Boudin, and Edward A. Kaier. Peter H. Meyers argued the cause pro hac vice for Students Challenging Regulatory Agency Procedures, ap-pellee in both cases. With him on the brief was John F. Banzhaf III. John F. Dienelt argued the cause pro hac vice for Environmental Defense Fund et ah, appellees in both cases. With him on the brief was Dennis M. Flannery. Together with No. 72-562, Aberdeen & Rockfish Railroad Co. et al. v. Students Challenging Regulatory Agency Procedures (SCRAP) et al., also on appeal from the same court. Jerome J. McGrath filed a brief for Independent Natural Gas Association of America as amicus curiae urging reversal. Echuard L. Merrigan filed a brief for National Association of Secondary Material Industries, Inc., as amicus curiae urging affirmance. Mr. Justice Stewart delivered the opinion of the Court. Under the Interstate Commerce Act, the initiative for rate increases remains with the railroads. But in the absence of special permission from the Interstate Commerce Commission, a railroad seeking an increase must provide at least 30 days’ notice to the Commission and the public before putting the new rate into effect. 49 U. S. C. § 6 (3). During that 30-day period, the Commission may suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision on the lawfulness of the new rates. 49 XL S. C. § 15 (7). At the end of the seven-month period, the carrier may put the suspended rate into effect unless the Commission has earlier completed its investigation and found the rate unlawful. Proceeding under this regulatory scheme, on December 13, 1971, substantially all of the railroads in the United States requested Commission authorization to file on 5 days’ notice a 2.5% surcharge on nearly all freight rates. The railroads sought a January 1, 1972, effective date for the new rates. The surcharge was proposed as an interim emergency measure designed to produce some $246 million annually in increased revenues pending adoption of selective rate increases on a permanent basis. As justification for the proposed surcharge, the railroads alleged increasing costs and severely inadequate revenues. In its last general revenue increase case, less than two years earlier, the Commission had found: “[T]he financial condition of the railroad industry as a whole, and the financial status of many individual carriers by rail, must be found to be at a dangerously low level. The precipitous decline in working capital and serious loss of liquidity has reduced many carriers to a truly marginal operation. This has been most clearly demonstrated by the recent bankruptcy application of the Penn Central. We think it undeniable that a number of other roads are approaching a similar financial crisis.” Ex parte Nos. 265/267, Increased Freight Rates, 1970 and 1971, 339 I. C. C. 125, 173. The railroads alleged that, since the close of that proceeding, their costs had increased by over $1 billion on an annual basis, including $305 million in increased wages, while economic indicators such as decreased working capital and increased debt obligations pointed toward an ever-worsening financial condition. In an order dated December 21, 1971, the Commission acknowledged the need, particularly of some carriers, for increased revenues, but it concluded that five days’ notice and a January 1, 1972, effective date “would preclude the public from effective participation.” Ex parte No. 281, Increased Freight Rates and Charges, 1972, 340 I. C. C. 358, 361. The Commission authorized the railroads to refile the 2.5% surcharge with not less than 30 days’ notice, and an effective date no earlier than February 5, 1972. On January 5, 1972, the railroads refiled the surcharge, to become effective on February 5, 1972. Shippers, competing carriers, and other interested persons requested the Commission to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund (EDF), two of the appellees here, protested that failure to suspend the surcharge would cause their members “economic, recreational and aesthetic harm.” Specifically, they claimed that the rate structure would discourage the use of “recyclable” materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. The railroads replied that since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that in the past general rate increases had not discouraged the movement of scrap materials. The Commission issued an order on February 1, 1972, shortly before the surcharge would have automatically become effective. It recognized that “the railroads have a critical need for additional revenue from their interstate freight rates and charges to offset, in part, recently incurred increased operating costs,” and announced its decision not to suspend the 2.5% surcharge for the seven-month statutory period. In anticipation of the proposed permanent selective increases to be filed by the railroads and to avoid further complication of the tariff rates, the Commission specified that its refusal to suspend was conditioned upon the carriers’ setting an expiration date for the surcharge of no later than June 5, 1972. The Commission ordered the investigation into the railroads’ rates which had been instituted by its December 21 order to be held in abeyance until the carriers requested permission to file the indicated permanent rate increases on a selective basis. With respect to the ap-pellees’ environmental arguments, the Commission found that “the involved general increase will have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the [National] Environmental Policy Act of 1969.” The proposed permanent selective increases, averaging 4.1%, were subsequently filed with the Commission, and various parties again requested that these proposed rates also be suspended. By order served March 6, 1972, the Commission did not grant the railroads’ request to have the selective increases go into effect on April 1, 1972, as they had sought but it allowed the carriers to republish their rates to become effective on May 1, 1972, upon not less than 45 days’ notice to the public. The carriers did republish the rates, and on April 24, 1972, the Commission entered an order suspending the proposed selective increase for the full seven-month period allowed by statute, or to and including November 30, 1972. The investigation into the increased rates was continued. Since the selective increases were to supplant the temporary surcharge, and since they had been suspended, the Commission modified its February 1 order and authorized the railroads to eliminate the June 5 expiration date for the surcharge and to continue collecting the surcharge until November 30, 1972. I On May 12, 1972, SCRAP filed the present suit against the United States and the Commission in the District Court for the District of Columbia seeking, along with other relief, a preliminary injunction to restrain enforcement of the Commission’s February 1 and April 24 orders allowing the railroads to collect the 2.5% surcharge. SCRAP stated in its amended complaint that it was “an unincorporated association formed by five law students,... in September, 1971. Its primary purpose is to enhance the quality of the human environment for its members, and for all citizens....” To establish standing to bring this suit, SCRAP repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members “suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure, as modified by the Commission’s actions to date in Ex Parte 281.” Specifically, SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members “[u]ses the forests, rivers, streams, mountains, and other natural resources surrounding the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes,” and that these uses have been adversely affected by the increased freight rates, that each of its members breathes the air within the Washington metropolitan area and the area of his legal residence and that this air has suffered increased pollution caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials. The main thrust of SCRAP'S complaint was that the Commission's decisions of February 1 and April 24, insofar as they declined to suspend the 2.5% surcharge, were unlawful because the Commission had failed to include a detailed environmental impact statement as required by § 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. § 4332 (2) (C). NEPA requires such a statement in “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment Ibid. SCRAP contended that because of its alleged adverse impact upon recycling, the Commission’s action with respect to the surcharge constituted a major federal action significantly affecting the environment. Three additional environmental groups, also appellees here, were allowed to intervene as plaintiffs, and a group of railroads, appellants here, intervened as defendants to support the 2.5% surcharge. After a single district judge had denied the defendants' motion to dismiss and SCRAP’S motion for a temporary restraining order, a statutory three-judge district court was convened pursuant to 28 U. S. C. §§ 2284, 2325, to decide the motion for a preliminary injunction and the cross-motion to dismiss the complaint. On July 10, 1972, the District Court filed an opinion, 346 F. Supp. 189, and entered an injunction prohibiting the Commission “from permitting,” and the railroads “from collecting” the 2.5% surcharge “insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court.” The court first rejected the contention that the appel-lees were without standing to sue because they allegedly had no more than “a general interest in seeing that the law is enforced,” id., at 195, and distinguished our recent decision in Sierra Club v. Morton, 405 U. S. 727, on the basis that, unlike the petitioner in Sierra Club, the environmental groups here had alleged that their members used the forests, streams, mountains and other resources in the Washington area and that this use was disturbed by the environmental impact caused by nonuse of recyclable goods. Second, the court found that its power to grant an injunction was not barred by our decision in Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 667, where we held that in enacting 49 U. S. C. § 15 (7), Congress had intentionally vested “in the Commission the sole and exclusive power to suspend” and withdrew “from the judiciary any pre-existing power to grant injunctive relief.” The court reasoned that NEPA “implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements” “so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed.” 346 F. Supp., at 197 and n. 11. Finally, turning to the merits, the court concluded that the Commission’s April 24 decision not to suspend the surcharge for the statutory seven-month period was a “ ‘major Federal action significantly affecting the quality of the human environment.’ ” Id., at 199. On the premise that an environmental impact statement is required “whenever the action arguably will have an adverse environmental impact,” id., at 201, the court held that “the danger of an adverse impact is sufficiently real to require a statement in this case.” Ibid. The District Court declined to stay its injunctive order pending appeal to this Court, and on July 19, 1972, The Chief Justice, as Circuit Justice for the District of Columbia Circuit, denied applications to stay the preliminary injunction. 409 U. S. 1207. On December 18, 1972, we noted probable jurisdiction of the appeals filed by the United States, the Commission, and the railroads. 409 U. S. 1073. II The appellants challenge the appellees’ standing to sue, arguing that the allegations in the pleadings as to standing were vague, unsubstantiated, and insufficient under our recent decision in Sierra Club v. Morton, supra. The appellees respond that unlike the petitioner in Sierra Club, their pleadings sufficiently alleged that they were “adversely affected” or “aggrieved” within the meaning of § 10 of the Administrative Procedure Act (APA), 5 U. S. C. § 702, and they point specifically to the allegations that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. The District Court found these allegations sufficient to withstand a motion to dismiss. We agree. The petitioner in Sierra Club, “a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations,” 405 U. S., at 739, sought a declaratory judgment and an injunction to restrain federal officials from approving the creation of an extensive ski-resort development in the scenic Mineral King Valley of the Sequoia National Forest. The Sierra Club claimed standing to maintain its “public interest” lawsuit because it had “ ‘a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country....’” Id., at 730. We held those allegations insufficient. Relying upon our prior decisions in Data Processing Service v. Camp, 397 U. S. 150, and Barlow v. Collins, 397 U. S. 159, we held that § 10 of the APA conferred standing to obtain judicial review of agency action only upon those who could show “that the challenged action had caused them 'injury in fact/ and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” 405 U. S., at 733. In interpreting “injury in fact” we made it clear that standing was not confined to those who could show “economic harm,” although both Data Processing and Barlow had involved that kind of injury. Nor, we said, could the fact that many persons shared the same injury be sufficient reason to disqualify from seeking review of an agency’s action any person who had in fact suffered injury. Rather, we explained: “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.” Id,, at 734. Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing. In Sierra Club, though, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club. In that case the asserted harm “will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort,” id.,, at 735, yet “[tjhe Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the... development.” Ibid. Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan Area. Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club, the challenged agency action in this case is applicable to substantially all of the Nation’s railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. See, e. g., Environmental Defense Fund v. Hardin, 428 F. 2d 1093, 1097 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing, 205 F. 2d 630, 631-632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion. But the injury alleged here is also very different from that at issue in Sierra Club because here the alleged injury to the environment is far less direct and perceptible. The petitioner there complained about the construction of a specific project that would directly affect the Mineral King Valley. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained — a general rate increase would allegedly cause increased use of nonre-cyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appel-lees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact. Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected. If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say on these pleadings that the ap-pellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact by the Commission’s action, and entitled under the clear import of Sierra Club to seek review. The District Court was correct in denying the appellants’ motion to dismiss the complaint for failure to allege sufficient standing to bring this lawsuit. Ill We need not reach the issue whether, under conventional standards of equity, the District Court was justified in issuing a preliminary injunction, because we have concluded that the court lacked jurisdiction to enter an injunction in any event. The District Court enjoined the Commission from “permitting,” and the railroads from “collecting,” the 2.5%' interim surcharge on recyclable commodities. Finding that NEPA implicitly conferred authority “on the federal courts to enjoin any federal action taken in violation of NEPA’s procedural requirements,” 346 F. Supp., at 197, it concluded that our decision in Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, did not affect judicial power to issue an injunction in the circumstances of this case. We cannot agree. In Arrow, the Commission had suspended a railroad’s proposed rates for the statutory seven-month period, and the railroad had voluntarily deferred the proposed rate for an additional five months. When the Commission had not reached a final decision within that period, the railroad announced its intent to adopt the new rates. In a suit brought to enjoin the railroad from effectuating that change, we held that the courts were without power to issue such an injunction. From the language and history of § 15 (7) of the Interstate Commerce Act, we concluded that Congress had vested exclusive power in the Commission to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief. The factual distinctions between the present cases and Arrow are inconsequential. It is true that the injunction in Arrow was sought after the statutory seven-month period had expired and thus represented an attempt to extend judicially the suspension period, while here the injunction was issued during the suspension period. But Arrow was grounded on the lack of power in the courts to grant any injunction before the Commission had finally determined the lawfulness of the rates, and that holding did not depend on the fact that the availability of the Commission’s power of suspension had passed. Indeed, the federal court decisions cited and approved in Arrow involved instances where the courts had been asked to enjoin rates during the statutory sevenmonth period. See, e. g., M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573, aff’d, 239 F. 718; Freeport Sulphur Co. v. United States, 199 F. Supp. 913; Bison S. S. Corp. v. United States, 182 F. Supp. 63; Luckenbach S. S. Co. v. United States, 179 F. Supp. 605, 609—610, acated in part as moot, 364 U. S. 280; Carlsen v. United States, 107 F. Supp. 398. Similarly, there is no significance in the fact that, unlike Arrow, the injunction in this litigation ran against the Commission as well as the railroads. The only way in which the Commission could comply with the court’s order would be to exercise its power of suspension and suspend the surcharge. The injunction constitutes a direct interference with the Commission’s discretionary decision whether or not to suspend the rates. It would turn Arrow into a sheer formality and effectively amend § 15 (7) if a federal court could accomplish by injunction against the Commission what it could not accomplish by injunction directly against the railroads. And, again, the federal court decisions on which Arrow relied were for the most part cases in which the courts had held that they were without power to compel the Commission to grant a rate suspension. See, e. g., Bison S. S. Corp. v. United States, supra; Luckenbach S. S. Co. v. United States, supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United States, supra. Thus, the only arguably significant distinction between the present litigation and Arrow is that here the Commission allegedly failed to comply with NEPA. However, we cannot agree with the District Court that NEPA has amended § 15 (7) sub silentio and created an implicit exception to Arrow so that judicial power to grant in-junctive relief in this case has been revived. NEPA, one of the recent major federal efforts at reversing the deterioration of the country’s environment, declares "that it is the continuing policy of the Federal Government... to use all practicable means and measures... in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U. S. C. § 4331. To implement these lofty purposes, Congress imposed a number of responsibilities upon federal agencies, most notably the requirement of producing a detailed environmental impact statement for "major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. § 4332 (2) (C). But nowhere, either in the legislative history or the statutory language, is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by § 15 (7) of the Interstate Commerce Act. The statutory language, in fact, indicates that NEPA was not intended to repeal by implication any other statute. Thus, 42 U. S. C. §4335 specifies that “[t]he policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies,” and 42 U. S. C. § 4334 instructs that the Act “shall [not] in any way affect the specific statutory obligations of any Federal agency....” Rather than providing for any wholesale overruling of prior law, NEPA requires all federal agencies to review their “present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of [NEPA] • and shall propose to the President... such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in [NEPA].” 42 U. S. C. §4333. It would be anomalous if Congress had provided at one and the same time that federal agencies, which have the primary responsibility for the implementation of NEPA, must comply with present law and ask for any necessary new legislation, but that the courts may simply ignore what we described in Arrow as “a clear congressional purpose to oust judicial power... 372 U. S., at 671 n. 22. The District Court pointed to nothing either in the language or history of NEPA that suggests a restoration of previously eliminated judicial power. While it relied primarily on the decisions of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs’ Coordinating Comm. v. Atomic Energy Comm’n, 146 U. S. App. D. C. 33, 449 F. 2d 1109, and Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U. S. App. D. C. 380, 463 F. 2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs’ held that a federal court had power to review rules promulgated by the Atomic Energy Commission, and there the court ordered further consideration of the rules on the ground that there had not been compliance with NEPA. In Committee for Nuclear Responsibility it was held that federal courts had jurisdiction to consider whether an executive decision to conduct a nuclear test had satisfied the procedural requirements of NEPA. The question here, however, is not whether there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not, cf. Arrow Transportation Co. v. Southern R. Co., supra, at 671 n. 22; Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, but rather whether in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by Congress. Calvert Cliffs’ and Committee for Nuclear Responsibility have nothing to say on this issue, for neither was concerned with a specific statute that restricts the power of the federal courts to grant injunctions. Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow as the basis for § 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged. First, Arrow found that the Commission had been granted exclusive suspension powers in order to avoid the diverse results that had previously been reached by the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates had been jeopardized, and different shippers, carriers, and areas of the country had been subjected to disparate treatment. Similarly, since a suit to enjoin a national rate increase on NEPA grounds could be brought in any federal district court in the country, see 28 U. S. C. §§ 2284, 2321-2325, the result might easily be that the courts would "[reach] diverse results,... [engendering] confusion and [producing] competitive inequities.” 372 U. S., at 663. In short, a rate increase allowed in New York might be disallowed in New Jersey. Second, we stressed in Arrow that § 15 (7) represents a careful accommodation of the various interests involved. The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that if the Commission did not act within the suspension period, then the new rates would automatically go into effect and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed accounts and eventually to repay the increased rates if found unlawful. To allow judicial suspension for noncompliance with NEPA, would disturb this careful balance of interests. A railroad may depend for its very financial life on an increased rate, and the rate may be perfectly just and reasonable. Granting an injunction against that rate based on the Commission’s alleged noncompliance with NEPA, although the Commission had determined not to suspend the rate, would deprive the railroad of vitally needed revenues and result in an unjustified windfall to shippers. Finally, we found in Arrow that any survival of a judicial power to grant interim injunctive relief would represent an undesirable interference with the orderly exercise of the Commission’s power of suspension. Similarly, to grant an injunction in the present context, even though not based upon a substantive consideration of the rates, would directly interfere with the Commission’s decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow that “Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.” 372 U. S., at 668. As the Court of Appeals for the Second Circuit explained in Port of New York Authority v. United States, 451 F. 2d 783, 788, where, on the basis of alleged noncompliance with NEPA, an injunction was sought against a Commission order refusing to suspend rates: “The basis of the decision in Arrow — that to permit judicial interference with the Commission’s suspension procedures would invite the very disruption in the orderly review of the lawfulness of proposed tariffs that Congress meant to preclude — applies with equal force to the issue now before us.” Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so, its judgment must be reversed and the cases remanded to that court for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Powell took no part in the consideration or decision of these cases. Title 49 U. S. C. § 6 (3) provides: “No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days’ notice to the Commission and to the public published as aforesaid, which shall plainty state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow' changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions: Provided further, That the Commission is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit in such rules and regulations the filing of an amendment of or change in any rate, fare, charge, or classification without filing complete schedules covering rates, fares, charges, or classifications not changed if, in its judgment, not inconsistent with the public interest.” Title 49 U. S. C. § 15 (7) provides in pertinent part: “Whenever there shall be filed with the Commission any schedule stating a new... rate, fare, or charge,... the Commission shall have... authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, [or] charge... ; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate, fare, [or] charge..., but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, [or] charge... goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, [or] charge... shall go into effect at the end of such period; but in case of a proposed increased rate or charge for or in respect to the transportation of property, the Commission may by order require the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a change in a rate, fare, [or] charge... after September 18, 1940, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, [or] charge... is just and reasonable, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.” Other statutory provisions giving suspension powers to the Commission include 49 U. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William James FARQUHARSON, Appellant, v. H. R. LANDON, District Director Immigration and Naturalization Service, Department of Justice, District No. 16, Appellee. No. 14318. United States Court of Appeals Ninth Circuit. Nov. 29, 1954. Harry Wolpin, Los Angeles, Cal., for appellant. Laughlin E. Waters, U. S. Atty., Max F. Deutz, Robert K. Grean, Andrew J. Davis, Jr., Los Angeles, Cal., for appellee. Before FEE and CHAMBERS, Circuit Judges, and WALSH, District Judge. JAMES ALGER FEE, Circuit Judge. This is an appeal from a judgment of the District Court denying a petition in behalf of Farquharson for a writ of habe-as corpus, dissolving a restraining order and remanding petitioner to the custody of the District Director for deportation according to law. The record shows that the petition was filed and order to show cause why petitioner should not be restored to his liberty was issued to the District Director, who had custody of Farquharson, together with an order restraining the official from removing petitioner from the jurisdiction of the court pending further order. Landon, the District Director, filed a return to the petition, setting up the regularity of the proceeding and attaching the complete administrative record of the Immigration and Naturalization Service pertaining to petitioner. The trial judge held a hearing at which no testimony was taken upon the question of whether the writ should issue. Petitioner was not brought into court since there was apparent agreement that all the facts were set out in the documents appended to the petition and the return. The court found the facts set forth below. Farquharson, an alien and citizen of England, entered this country at San Ysidro, California, during the month of November, 1952, while not in possession of a valid immigration visa and while not exempt from presentation of such a document. A warrant of arrest charged him, as an immigrant, with a violation in that he was not in possession of a valid immigration visa and therefore was excluded by law existing at the time of entry. On August 3, 1953, hearing was given him, and he was found deportable. The hearings were reopened to determine whether Farquharson should be allowed to depart voluntarily, but eventually this request was denied because of his conviction and imprisonment in Canada for theft in 1951. A warrant for deportation had been issued. Based upon these findings, the court concluded the acts were constitutional and that Farquharson was deportable, and passed the judgment from which appeal was taken. The questions submitted are (1) whether the trial court erred in denying a petition for habeas corpus, and (2) whether the hearing before the Special Inquiry Officer was valid by meeting requirements of fairness and impartiality or unconstitutional, null, void and viola-tive of due process. The procedure of the trial court is questioned, since Farquharson claims that there should have been a hearing and that he should have been produced in court. The law provides specifically that an “order directing the respondent to show cause why the writ should not be granted” should be served on “the person having custody”. The person detained need not be produced if “the application for the writ and the return present only issues of law”. There was no requirement that testimony be produced or that petitioner be brought into court in the instant cause. The court found the uncontroverted facts from the record. No other questions than the law to be applied remained. No question of fact is raised here. There is no error in this. The facts show that the administrative hearing was conducted fairly and impartially, that the evidence upon the points there decided was substantial, and that Farquharson was given notice and opportunity to rebut the proof relied on there. This concludes an appellate court. Due process was clearly accorded the alien. The standards of fairness and impartiality were observed. The alien does not claim any fact has been unfairly decided or that he was subject to bias or unfair treatment in his own hearing. Indeed, the facts are concededly set out in the findings of the court. The constitutional question is not reached. The shadow of a suspicion that someone might be done an injustice under the statute by a hearing before a biased official is not ground for overthrowing conclusions reached by an impartial hearing officer. With some regret, it must be admitted our legal history before the passage of the Administrative Procedure Act proves conclusively that neither citizen nor alien has a vested constitutional right in the doctrine of tripartite separation of powers. Farquharson claims that, since the due process clause of the federal Constitution applies to aliens as well as citizens, he was entitled to basic fair play in his hearing, and that, since the combination of investigative and prosecuting powers may possibly be exercised by an officer who may be called upon to adjudicate the status of persons under the present statute, currently prevailing standards of fairness and impartiality are violated. He likewise complains that the decision of the Attorney General is final and not that of the Special Inquiry Officer who presides at the hearing. It is also objected that it is “stretching the plain meaning of words to say that the order of the Special Inquiry Officer is the order of the Attorney General.” Finally, it is specified that the Special Inquiry Officer is by the terms of the Act subject to control of other officers of the Immigration Service engaged in investigation and prosecution, and that the entire service is subject to the supervision of the Attorney General, the highest law enforcement officer of the United States. The Supreme Court of the United States, in holding that the Administrative Procedure Act originally included deportation hearings, suggested that the agency had the legislative ear and could apply for relief if unduly hampered in the functions to which it was assigned. As a result, the legislative branch exempted “proceedings under law relating to the exclusion or expulsion of aliens” from the sweep of review under the Administrative Procedure Act. Apparently also as a result of this suggestion and as a pragmatic approach, subsequent legislation indicated a disposition to deal directly with the problem. The later act provided the therein prescribed procedure should be the sole and exclusive method of deportation and sets out the present congressional intention with clarity. Since the Administrative Procedure Act admittedly set standards narrower than those constitutionally prescribed in order to meet intolerable abuses in the developing field of executive action, the mere fact that Congress may have removed any particular process or agency from its scope does not necessarily prove that the act accomplishing removal is inherently defective. The legislative branch, with full knowledge and realization of the attitude of the highest court, attempted to set up deportation procedures which were conceived to accord with the established standards. It must be recognized that, if Congress removed deportation proceedings from the controls of the former statute, there were set up standards peculiar to this agency which were believed necessary on account of apparent necessity in dealing with a vital problem. The Wong case, which held that deportation proceedings under the previous statute were subject to the control of the Administrative Procedure Act, is, of course, no longer controlling under the new statute. Unless it can be said that Congress intended to import into the new Deportation Act the specific devices for division of powers rigidly prescribed by the Administrative Procedure Act, although it set up an entirely different method of obtaining experts by the Deportation Act, the courts are bound by the specific procedures therein laid down. But the knotty problem of statutory construction is not here reached. The alien in this case has followed procedures which would have been applicable under the Administrative Procedure Act. He has been accorded complete judicial review of the administrative process in the habeas corpus proceeding, as if the remedy specifically provided by that statute had been followed. The actual hearing in deportation has been carefully examined by the trial court, as it has been here. This Court need not decide whether the review is given under the express terms of the Administrative Procedure Act or accorded under the historic process of habeas corpus. In accordance with the cautious approach of the federal courts, the threshold of the consitutional question as to queries raised by the general application of the Deportation Act is not reached either. Although this Court expressly refuses to decide in the abstract whether the machinery now provided will under postulated circumstances establish complete protection for a hypothetical person under fundamental guaranties, that problem is not here. Farquharson is before this Court. The impeccability of the procedure in accomplishing the end in his case only is in issue. The correctness of the concrete result must be established substantively as to him. It must be determined whether or not Farquharson in the administrative hearing was proceeded against in accordance with current prevailing standards of fairness and impartiality and there was reasonable probative and substantial evi-deuce to warrant the result. Due process and a fair hearing must have been accorded the alien, else the trial court would have been bound to intervene. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499. This Court affirms the trial court in finding that the Immigration and Naturalization Service, which conducted the hearing, had jurisdiction; that the Special Inquiry Officer who conducted the proceedings did not participate in an investigative function in any case or matter connected with Farquharson; that the latter had notice of the hearings and had opportunity to show that he did not come within the classification of aliens whose deportation Congress has directed; that there were no procedural irregularities in said hearings, and the administrative proceedings were fair; and, finally, that there was substantial, reasonable and probative evidence to support the Warrant for Deportation. At the reopened administrative hearings, the alien was permitted to apply for voluntary departure, but this was properly denied, since his conviction and imprisonment in Canada for theft rendered him ineligible under the statute. 8 U.S.C.A. § 1254(e). There was no suggestion here that discretion was not properly exercised or was controlled by order, policy or by indirect implication. The requirements of due process were therefore fulfilled. One fact is plain under the findings of the trial court — this alien has no right in the United States. This Court is of opinion that, if there be a mere theoretical flaw in the statutes setting up the process of deportation, this should not render all aliens, no matter how undesirable, undeportable until the act can be amended. In any event, we find the administrative structure had no deleterious effect here. The order of the trial court is affirmed. . 8 U.S.C.A. § 1251(a) (1). . In particular, that 8 U.S.C.A. § 1252(b), prescribing the administrative procedure observed herein, is constitutional. . 28 U.S.C.A. § 2243. . 5 U.S.C.A. § 1001 et seq. . Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576. . 8 U.S.C.A. § 1252(b) provides: “No special inquiry officer shall conduct a proceeding in any case * * * in which he shall have participated in investigative functions or * * * in prosecuting functions.” . Wong Tang Sung v. McGrath, 339 U.S. 33, 50, 70 S.Ct. 445, 94 L.Ed. 616. . Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. . 64 Stat. 1048, 8 U.S.C.A. § 155a. . United States v. Morton Salt Company, 338 U.S. 632, 644, 70 S.Ct. 357, 94 L.Ed. 401. . Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. . 5 U.S.C.A. § 1009. . “Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.” 5 U.S.C.A. § 1009(a). . “The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.” 5 U.S. C.A. § 1009(b) (Emphasis supplied). . The case of Marcello v. Ahrens, 5 Cir., 212 F.2d 830, certiorari granted October 14, 1954, Marcello v. Bonds, 75 S.Ct. 39, does not rule this situation, since there were important facts there involved which were not present here. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_method	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. John N. BOWERS and Alma S. Bowers, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 83-1082. United States Court of Appeals, Fourth Circuit. Submitted March 17, 1983. Decided Aug. 31, 1983. John N. Bowers and Alma S. Bowers, pro se. Kenneth W. Gideon, Chief Counsel, Christina Burkholder, Chief Counsel, N. Jerold Cohen, Chief Counsel Internal Revenue Service; M. Carr Ferguson, Asst. Atty. Gen., Tax Division, Dept, of Justice, Washington, D.C., for appellee. Before RUSSELL, Circuit Judge, and HAYNSWORTH and BUTZNER, Senior Circuit Judges. PER CURIAM: This case arose when the Commissioner of Internal Revenue disallowed a business bad debt deduction claimed by the taxpayer, Bowers. The Tax Court upheld the Commissioner’s disallowance on the grounds that Bowers was not in the trade or business of lending money and he did not show the loan was proximately related to his trade or business. On appeal, we agreed the worthless loan could not be deducted as a business bad debt on either of these theories, but we remanded the ease for consideration and findings with respect to the taxpayer’s contention “that his sole or predominant motivation for the loan was to maintain the enhanced level of his income as an employee of the corporation resulting from the handling of the [relevant] transactions.” Bowers v. Commissioner, 678 F.2d 509, 510 (4th Cir.1982). The Tax Court, on remand, concluded again that the deduction was not allowable because the taxpayer’s “dominant motivation in making the loan was personal and not related to his position as an employee of John N. Bowers Realty, Inc., his business.” The taxpayer now appeals the Tax Court’s most recent decision. We conclude the Tax Court clearly erred in its findings, and, accordingly, we reverse. I. The taxpayer, at all times pertinent to this case, was president and sole shareholder of John N. Bowers Realty, Inc., which engaged in general real estate sales. He was also a real estate broker. Bowers had no fixed salary or a certain commission on any sales he made or for which he was the listing agent. Rather, he drew from the corporation as compensation the lion’s share of whatever profits were generated. Indeed, the taxpayer’s records indicate that although corporate profits, before deduction of any compensation to taxpayer, from 1969 to 1975 totalled more than $187,000, the corporation in 1975 actually had some $3,000 less in retained, accumulated earnings than it had six years before. And of the $187,000 profit generated over the six year period, the taxpayer drew out for himself some $169,000 in compensation. George Basiliko was top executive officer and owner of G & B Real Estate. In March of 1972, he purchased all the stock of Crown Oil and Wax Co., Inc., and was appointed Chairman of the Board. In 1972, 1973 and 1974, John N. Bowers Realty, Inc. acted as an agent in various real estate transactions for Basiliko, G & B, Crown Oil, or some combination of Basiliko’s ventures. For the fiscal years 1972-74, John N. Bowers Realty, Inc. received some $77,000 in commissions from transactions involving Basiliko or Basiliko affiliates, out of a total of $395,-000 in commissions. In 1972 and 1973, commissions traceable to Basiliko accounted for about $76,000 of the total of $275,000, or over 25%. On May 30, 1972, seventeen days after Bowers received a $40,000 commission from the sale of seven properties to Basiliko, Basiliko asked Bowers for a $10,000 loan. Bowers personally made the loan to Basiliko as an individual, not to any of his business concerns. Bowers did not have his own corporation make the loan because it did not have sufficient monies to fund the loan at the time. The loan agreement contained no provision for interest. Basiliko never repaid the loan, and it became worthless in December of 1974. II. The Tax Court, in considering Bowers’ motivation for the loan, concluded that While the petitioner has shown by [this] evidence that both he and his corporation profited from dealings with Basiliko, he has not shown that these profits are in any way related to the loan at issue in this case. Petitioner has not shown the loan to be related to his enhanced income. Bowers v. Commissioner, T.C.Memo. 1982-635 (1982). Although there are detailed criteria for determination of the proper tax characterization of various financial transactions, they do not counsel disregard of common sense or financial realities. We cannot agree with the Tax Court that it is realistic to characterize this loan as unrelated to corporate profits and personal profits through enhanced income. The taxpayer’s records showed: It is clear from the above and from what has been said before that commissions from Basiliko contributed significantly to the corporation’s profits, especially in 1972 and 1973. It is further evident that profits generated in the corporation were passed through to Bowers individually. Over an eight year period when corporate profits totalled about $204,000, Bowers drew out for himself almost 90%, or $181,000. In 1972 and 1973, when the largest Basiliko commissions accrued to the company, the benefit inuring to Bowers each year by way of compensation was more than four times what he was able to take out of the company in 1971 or 1974. Given the great benefits derived by the corporation and Bowers individually, from Basiliko’s business, Basiliko’s loan request undoubtedly was given careful consideration by Bowers with a view toward the possible consequences of denying the request. Particularly where Bowers had in hand sufficient funds to make the loan, funds which derived from a Basiliko transaction and of which Basiliko very likely was aware, Bowers no doubt made the business decision that he thought the circumstances required, in order to protect future corporate profits and thus his own enhanced income. We think it would defy logic and business reality to conclude in these circumstances that the loan was not made by Bowers solely or predominantly to maintain the enhanced level of his income resulting from the handling of the Basiliko transactions. III. Accordingly, we reverse and remand for further proceedings. REVERSED AND REMANDED. . The taxpayer’s records showed: . We can find no suggestion in the record that there was some nonbusiness relationship between Basiliko and Bowers that might invite another characterization of the circumstances. Included as part of Col. 2 Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). INTERNATIONAL CO. OF ST. LOUIS v. SLOAN et al. No. 2006. Circuit Court of Appeals, Tenth Circuit. July 12, 1940. Rehearing Denied Aug. 19, 1940. Writ of Certiorari Denied Nov. 12, 1940. See 61 S.Ct. 142, 85 L.Ed.-. William L. Mason, of St. Louis, Mo. (Mason & Flynn, of St. Louis, Mo., on the brief), for appellant. T. M. Lillard, of Topeka, Kan. (Lillard, Eidson & Lewis, of Topeka, Kan., on the brief), for appellee E. R. Sloan, receiver. George E. Brammer, of Des Moines, Iowa (Joseph I. Brody, Clyde B. Charlton and Louis A. Parker, all of Des Moines, Iowa, on the brief), for appellee Occidental Life Ins. Co. Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges. BRATTON, Circuit Judge. International Company of St. Louis, hereinafter called claimant, feels aggrieved at the action taken on its claim filed in this proceeding in receivership. The material facts are not in controversy. The Federal Reserve Life Insurance Company, organized under the laws of Kansas, hereinafter called Federal Reserve, was engaged in the life insurance business in Kansas, Missouri, and Indiana; Insurance Investment Corporation, having its principal place of business in Saint Louis, Missouri, was engaged in the business of buying and selling and otherwise dealing in stocks of insurance companies; and Reserve Company, with its principal place of business in Kansas City, Missouri, was likewise engaged in the business of buying and selling and otherwise dealing in stocks of insurance companies. In 1929 Federal Reserve had outstanding 30,000 shares of capital stock of the par value of $10 each, of which Insurance Investment Corporation and Reserve Company owned 5,683 and 8,800 shares, respectively. During that year the Insurance Commissioner of Kansas examined the affairs of Federal Reserve and made a report in which its financial condition was criticized and an impairment of capital and reserves was asserted. To meet that situation, Insurance Investment Corporation made an agreement with Fire Insurance Company of Chicago to advance to Federal Reserve, on behalf of Fire Insurance Company, $300,000 and to take therefor a participating certificate, and to sell to Fire Insurance Company a majority of the outstanding shares of 'stock of the Federal Reserve. Pursuant to such agreement, Insurance Investment Corporation, on November 18, 1929, advanced to Federal Reserve $300,000 and received therefor the participating certificate which contained these provisions: “For Value Received, The Federal Reserve Life Insurance Company, a Kansas Corporation (hereinafter called the ‘Company’) hereby promises to pay to Insurance Investment Corporation, a Delaware corporation, or its assigns, the sum of Three Hundred Thousand Dollars ($300,-000.00) together with interest thereon from the date hereof at the rate of six per cent (6%) per annum, payable semi-annually, out of a fund to be created by the company setting aside semi-annually on the 30th day of June and the 31st day of December, all net surplus gains in excess of Fifty Thousand Dollars ($50,000.00) until all principal and interest due under this obligation is fully paid. Net surplus gains in excess of Fifty Thousand Dollars ($50,000.00) shall mean that if at any time the Company has a net free surplus of Fifty Thousand Dollars ($50,000.00) that all moneys in excess of that sum shall be paid into the fund above specified. “The obligation of the Company hereunder is a contingent liability, not an absolute promise to pay, but is limited to its firm obligation and covenant to apply the said surplus gains to the making of the payments herein provided for and is not an obligation to be paid out of the general assets of the Company. other than the fund mentioned in this certificate.” “In the event of a reinsurance of the business of The Federal Life Insurance Company the reinsuring company shall be bound each six (6) months to pay the savings and profits arising out of the rein-sured business (less such part of such savings and profits as may be payable under prior contracts to other persons or corporations) to the then holder or holders of this certificate or any certificate or certificates issued in lieu of this certificate until the full balance of interest and principal due thereon shall have been paid.” . On the same day, and for a valuable consideration, Insurance Investment Corporation assigned and delivered such certificate to Fire Insurance Company, and also assigned and delivered, or caused to be assigned and delivered, to Fire Insurance Company, 15,100 shares of the capital stock of Federal Reserve, including its own shares and those held by Reserve 'Company. Claimant subsequently acquired and owns the certificate, on which no part of the principal or interest has been paid. In 1935, a stockholder and policyholder of Federal Reserve instituted this proceeding in equity in the United States Court for Kansas and prayed for the appointment of a liquidating receiver. The receiver and Occidental Life Insurance Company, hereinafter called Occidental, entered into a contract dated June 13, 1936, which provided among other things that, subject to the terms and conditions therein specified, and not otherwise, Occidental should reinsure and assume the liability of Federal Reserve under its contracts of insurance which were in force and effect on May 22; that coincident with the approval of the contract, title to all of the assets of Federal Reserve should vest in Occidental; that since such assets at their then value were insufficient in amount to cover the reserve liabilities, a lien of fifty per cent of the net equity should be placed against each policy thus reinsured, with provision that the lien should be adjusted at the times and in the manner therein specified, but in no event should it exceed fifty per cent of such net equity; that all assets conveyed, together with all net gains and profits from the business reinsured and from the assets administered by Occidental, should be covered into a separate fund called Federal Reserve Fund; that such fund should be kept in a separate bank account or accounts and that no investment should be acquired with such fund except with the consent and approval of the court ; and that Occidental should furnish the court an annual accounting of such fund as long as the lien should exist against the policies, but in no event after June ,30, 1951. At no time subsequent to the execution and delivery of the certificate did the books and records of Federal Reserve, or reports or statements published or filed with the insurance department of any state in which it was licensed to do business, show or include such certificate as a liability. Occidental had knowledge at the time of the execution of the contract of the existence of such certificate and of claimant’s asserted ownership of it. The court approved the contract and authorized its consummation. Occidental assumed its liability under the contracts of insurance; the receiver transferred, conveyed and delivered the assets to Occidental; the special fund was created; and the contract has been carried out according to its terms. With the money advanced by Insurance Investment Corporation, in the manner outlined, Federal Reserve purchased from a bank a certificate of deposit which was deposited with the Commissioner of Insurance of Indiana as a part of its reserve supporting its' outstanding policies of insurance in that state. A substantial part of the money was subsequently loanedj the notes and mortgages received therefor were deposited with the Commissioner of Insurance of Indiana, and they subsequently became a part of Federal Reserve Fund. On May 22, 1936, the total amount of required reserve on all policies issued or assumed by Federal Reserve exceeded $7,-500,000, and according to an appraisement made after the approval of the contract, the value of all its assets as of that date was $5,115,738.68. The lien imposed against the net equities of the policies assumed by Occidental, as of such date, amounted to $2,718,120.72; after the application of such lien, the surplus funds amounted to $172,511.67; by order of the court such surplus, or such part of it as might be necessary, was reserved for the payment of receivership expenses; and the expenses of the receivership to December 31, 1938, amounting to $157,896.55, were paid by the receiver with funds furnished to him from the Federal Reserve Fund. Claimant pleaded upon information and belief that profits arising out of the rein-sured business of Federal Reserve in excess of $200,000 had accrued and that profits were constantly and continuously accruing; and it prayed that it be adjudged entitled to a lien upon all such profits superior to that of the policyholders or other parties to the suit. The court disallowed the claim, and the appeal is from that judgment. The parties discuss at length many questions, but it is unnecessary to consider all of them. It was held on a prior appeal in this case that upon the adjudication of insolvency and the appointment of a receiver, the outstanding policies of Federal Reserve were terminated as enforceable obligations for their respective face amounts; that the holders became creditors with the right to participate pro rata in the assets in receivership, but had no other right; and that the effect of the reinsurance agreement was that with the assets in the hands of the receiver, the policyholders acquired new insurance protection which came from Occidental. Hobbs v. Occidental Life Ins. Co., 10 Cir., 87 F.2d 380. In other words, Occidental acquired from the receiver only the assets in his hands, not the policies as binding obligations of insurance for their respective face amounts. Claimant does not assert a lien upon all of the assets which the receiver transferred and conveyed to Occidental. It merely contends that it is entitled to a lien upon the gains'and profits of the reinsured business which have accrued under the management of Occidental. It is a rule of universal acceptation that where a contract is ambiguous or doubtful the intention of the parties is of primary importance in determining their rights. And in the ascertainment of such intention the language of the contract, the background against which it was entered into, and the interpretation which the parties placed upon it’ should be taken into account and given great weight. Federal Reserve was in serious financial difficulty. An examination of its affairs resulted in an official report which asserted impairment of its capital and reserve. The situation was critical. Correction was imperative. The condition could not be corrected by borrowing money if it immediately became a liability. To make the essential repair in the capital and reserve structure it was necessary to have new money in the business without a corresponding liability. There was cause for concern on the part of the stockholders.,, There was motive for them to lend aid. Insurance Investment Corporation, a stockholder, made arrangement to secure $300,000 in money which was to be used and was immediately used to increase the reserve for outstanding policies. But no reference to the certificate, as a liability was made on the books and records or in any subsequent report or publication of Federal Reserve, and it is not suggested that the owner of the certificate objected to such omission at any time during the seven years intermediate the date of the certificate and receivership. The facts and circumstances leading up to and attending the transaction, and the omission of reference to the certificate in the books, records, reports and publications, show clearly and convincingly that it was the intention of the parties that the money should go into the capital and surplus structure of the company, should become subject to the risks and hazards of the business, and should be repaid only in the event there were net gains and profits. The effect of the transaction was to create a relationship between the owner of the certificate and the holders of policies and other creditors substantially analogous to that ordinarily existing between a preferred stockholder and creditors. Hamlin v. Toledo, St. L. & K. C. R. Co., 6 Cir., 78 F. 664, 36 L.R.A. 826; In re Lathrap, 9 Cir., 61 F.2d 37. But claimant'relies strongly upon the language contained in the certificate. It insists that the instrument textually gives it a lien upon the gains and profits which have accrued to the business since Occidental assumed its management. The certificate was addressed to the rights of the parties in three separate and distinct factual situations. The first contemplated a continuation of business on the part of the obligor, and provided that all surplus gains in excess of $50,000 should be paid semi-annually to the holder until the obligation was liquidated in its entirety. That provision indicates a clear purpose to provide that the certificate should constitute a special obligation payable only in the event the company should continue the business and net surplus should accrue. The second contemplated financial difficulty on the part of the obligor, but it’s continuation of the business. It provided that the liability was contingent, not an absolute promise to pay, and was limited to the application of the surplus gains from the special fund referred to, and that the general, assets should not be liable. The third contemplated a discontinuance of the business of the obli-gor, and is the provision to which claimant points with- emphasis. It contemplated a reinsurance of the business, and provided that the reinsuring company should be bound to pay to the holder of the certificate, or any certificate or certificates issued in lieu thereof, the savings and profits arising from the reinsured business, less such part thereof as might be payable under prior contracts to other persons or corporations. It is stipulated that the “prior contracts to other persons or corporations” referred to a participating certificate which Federal Reserve issued to Farmers National Insurance Company of America, of Huntington, Indiana, in 1928, on which the unpaid balance as of May 22, 1936, was in excess of $200,000. But the entire instrument, the purpose for which it was executed, the circumstances attending, surrounding and following its execution, all considered in composite and each given due weight, are strongly indicative of an intent and purpose that this provision should have reference to a voluntary reinsurance of the business. This particular provision, as well as the entire instrument, was silent in respect of the reinsurance of the business in connection with a transfer and conveyance of the assets of Federal Reserve by judicial proceedings. Here the assets passed to Occidental by operation of law, not by mutual consent of the two insurance companies. Gazlay v. Williams, 210 U.S. 41, 28 S.Ct. 687, 52 L.Ed. 950. We think it is clear that the provision has no application whatever to a so-called reinsurance made in such circumstances. The sale and transfer of the assets under order of the court in the receivership proceeding was equivalent in law to a foreclosure of the paramount lien or interest of the policyholders. Since the only right which claimant had was analogous or akin to that of a preferred stockholder, such foreclosure extinguished any claim on its part to the gains and profits thereafter accruing to the business under the ownership and operation of Occidental. The judgment is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_judgdisc	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. David B. STOPPELMAN, Defendant, Appellant. No. 7174. United States Court of Appeals First Circuit. Jan. 16, 1969. Edward L. Richmond, Boston, Mass., with whom Parsons, Bloom, Richmond & Del Vecchio, Boston, Mass., was on brief, for appellant. Edward F. Harrington, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, WOODBURY , Senior Circuit Judge, and COFFIN, Circuit Judge. Sitting by designation. COFFIN, Circuit Judge. This appeal from a conviction for refusal to report for induction into the armed forces centers mainly on the question whether or not appellant made a timely written request to his draft board to reopen and reconsider his classification. Appellant was first classified in 1965 and given a student deferment. This was changed to 1-A in March, 1967, the board having no information that appellant was still a student. No appeal was taken and appellant subsequently took his physical examination and was found acceptable for induction. On October 2, 1967 the board issued an order to appellant, addressed to his home in Newton, Massachusetts, to report for induction on October 30. On the same day appellant, then in California, wrote his parents that he had come to a decision that he “simply cannot co-operate with the machinery for the war and am going to return my draft-card.” He asked his parents to obtain the names and addresses of the local board members so he could write to them personally. Shortly after receiving this letter, appellant’s father visited the local board clerk, and, deeply concerned, asked what could be done. According to the father’s testimony, the clerk replied that nothing could be done there, that the father should mail the notice to appellant and have his case transferred to San Francisco. There was no testimony by the father as to any talk of reopening appellant’s classification and the clerk remembered none. There is a conflict in the testimony, appellant’s father saying that he read the letter to her and the clerk saying that it had not been read. There was no other alleged conversation relating to names and addresses of the board members. Appellant’s father did not leave the letter with the clerk. Appellant shortly returned home, had consultations with his parents and with two Rabbis, and on October 20, 1967 visited his local board. He handed the clerk a letter and at the same time turned in his Notice of Classification and his Registration Certificate. The letter referred to United States participation in the war in Vietnam as “criminal” and to the Selective Service System as furnishing the “resources for this action and other suppressions of self-determination in the world.” It then declared that appellant would not cooperate with the Selective Service System and would accept no classification or deferment “which implies my consent to its right to function.” Appellant testified that he asked the clerk to bring the letter to the attention of the board. The clerk testified that appellant said very little, that she did not recall any request to show the letter to members of the board, and that she said, “I hope you know what you are doing, David.” The clerk did not bring the letter to the attention of the board, which in fact had no meeting between that day and the date scheduled for induction, October 30. She called the deputy state director of the selective service system, Colonel Feeney, and informed him of the letter and appellant’s return of his draft cards. He instructed her to file the letter and registration forms and, if appellant failed to report for induction on October 30, to notify the United States Attorney of appellant’s delinquency. 32 C.F.R. § 1642.41. Appellant did not report for induction on October 30 and the matter was referred to the United States Attorney. On December 20, 1967, appellant’s counsel wrote to the local board, requesting a Special Form for Conscientious Objector (150). This was never issued. Appellant’s major contention is that the local board never held a meeting to decide whether or not it would reopen his 1-A classification. The basic regulation is set forth in the margin. Our task is to assess the duty of the local board on the facts disclosed by the record as of October 2, when appellant’s father visited the clerk; October 20, when appellant made his visit; and December 20, when counsel requested the conscientious objector form. The father’s visit on October 2 clearly imposed no legal requirement on the clerk. Appellant’s letter to his parents, even if the evidence showed conclusively that it was read to the clerk, was not a request for action of any kind. At most it contemplated a future communication to board members. Admittedly, the clerk could have suggested the filing of a form 150 and an effort to secure reopening of appellant’s classification. But this is not to say that she was required to intervene with a registrant who had-supposedly made up his mind to turn in his draft cards. We have more difficulty with appellant’s letter of October 20. It was a deliberate communication of his philosophy and intended action which, it seems to us in view of the serious consequences to the registrant, might well have been brought to the attention of board members. Some thoughtful probing of appellant’s views might either have caused appellant to change them or to change his intended course of conduct by seeking reclassification as a Conscientious Objector. If the board were convinced, the subsequent course of events would have been avoided. The localized emphasis of the Selective Service System ought to foster such efforts to avoid the inexorability of fate stemming from premature judgments based on misunderstanding of regulations which must seem incredibly complex to the layman. We would say that clerks file such communications without calling them to the board members’ attention at considerable risk to the validity of subsequent proceedings. Appellant is quite right in pointing out that unilateral prior determination by a clerk that a communication is not a written request for classification reopening could effectively deprive a board of its responsibility to use its judgment. In this ease, however, the letter was all too clear that no reopening of classification was sought but that complete rejection of the system was the only course consistent with appellant’s stated views. This was corroborated in the most convincing way by appellant’s act of turning .in. his Kegistration Certificate and Notice of Classification. To say that the clerk had a responsibility in this case to notify the board would in effect be to write a new regulation that all communications evidencing an intent not to comply with board orders and selective service regulations must speedily be brought to the board’s attention. Such a detailed and arbitrary judicial mandate would, we think, be unwise. If the problem of non-communication by clerks to boards in proper cases is serious and widespread, it is the executive branch, perhaps prompted by Congressional concern, which should tailor the requirement to the need. This brings us to the post-reporting date request for a Conscientious Objector form. While courts have differed in their willingness to consider conscientious objector claims filed after an order to report but before refusal to report, see n. 7, there is virtual unanimity among the reported decisions in refusing to require boards to recognize post-induction date claims. Such is the clear, if not explicit, rationale of United States v. Stafford, 389 F.2d 215 (2d Cir. 1968); see also United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967); Palmer v. United States, 401 F.2d 226 (9th Cir. 1968); Davis v. United States, 374 F.2d 1 (5th Cir. 1967); Keene v. United States, 266 F.2d 378, 384 (10th Cir. 1959). Appellant has cited one case, United States v. McNeal, Crim. No. 41993 (N.D.Cal. Sept. 10, 1968), where the court held inter alia that a request for a form 150, made two days after the date set for induction, ought to have been considered by the board. This holding, however, would seem to have been implicitly overruled by the Ninth Circuit in Palmer v. United States, 401 F.2d 226 (9th Cir. Sept. 25, 1968) where the court held that a registrant had no right to have a post-induction date conscientious objector claim considered. Moreover, the only authority cited for the holding in McNeal was 32 C.F.R. § 1625.14. This regulation speaks only in terms of the effect of a board’s action in reopening a classification on noncompliance of its prior orders. It does not speak in terms of a registrant’s right to seek a reopening of his classification. We read it as saying merely that if a board, either on its own motion or on a timely request, has decided to reopen a classification, the fact that a registrant has, pending decision, refused to comply with a prior order to report, the registrant shall not be reported to be a delinquent. See 32 C.F.R. § 1642.41. This regulation gives a power to the board, not a post-induction date right to a registrant. So do we also read 32 C.F.R. § 1642.42 which empowers the board, after a delinquent has been reported as such to the United States Attorney for prosecution, to advise the United States Attorney of any action it has taken in the interim on the registrant’s classification. Here, too, is a safety valve for the board, not a button which can be pushed at will by the registrant. Were the law to permit registrants to remain silent after being ordered to report for induction, to refuse induction (or to fail to appear for induction) and only subsequently by a first request for reopening of their status on grounds of conscientious objection to compel board consideration of the request, a premium would be placed on dilatory tactics, on a deliberate strategy of non-compliance, or on extreme diffidence and neglect— or a combination of all. Moreover, such an indulgence granted to the registrant who fails to report for and submit to induction would discriminate against the registrant who pursued his rights in a timely manner, was unsuccessful, but dutifully reported for and submitted to induction. Such a person could well reflect that the day of reckoning is better postponed by sleeping on one’s rights. What we have said disposes of appellant’s claim that he was deprived of any right to have his local board consider the question of reopening his classification. He was, however, entitled to be issued a form 150. While this is irrelevant to his present objective to avoid either induction or punishment for refusal to report for induction, we see no limitation on a registrant’s right to file such a form, Boyd v. United States, supra 269 at n. 6. Section 1621.-11 says merely that the board, on request, shall furnish such a form. Sections 1642.32 and 1642.33 grant to persons in custody all the rights and privileges of registrants — which would seem to us to include the right to file a form 150. Section 1643.3 contemplates a parole decision taking into account a claim of conscientious objector status. The form should be issued. This action, of course, conveys no further right to appeal to appellant. United States v. Gearey, supra. Nor does it have any impact on appellant’s rights so far as this appeal is concerned. Appellant’s other challenges require less attention. He argues that the court erred in rejecting correspondence and conversations relating to the sincerity and time of maturation of his conscientious objection. We cannot reach this issue since we have held that no timely written request for reopening of classification was filed. Appellant’s father submitted an affidavit of a talk with the foreman of the jury in which the latter said that he voted only under pressure. The pressure, however, was indigenous to the jury system. The fact that some jurors have weaker wills than others — or that one individual may bow to the pressure of eleven — cannot be a cause for reopening a case. The refusal of the court to ask jurors on the voir dire some questions addressed to their attitude toward the draft laws and conscientious objection was not objected to. We can hardly invoke the plain error rule. We have considered other allegations of error but find that they do not merit discussion. Affirmed. . Appellant returned his completed Classification Questionnaire Form on February 23, 1965. He made no claim, for conscientious objector status in the space provided. . This part of the letter is the following: “Apart from laws exists Law: Love thy neighbor as thyself! My first allegiance is to my human citizenship. I cannot relinquish to others my responsibility. My conscience exists that I might declare I will not cooperate with the Selective Service System as long as it operates for the sustainance (sic) of graceless criminality. I can accept no classification or deferment from the Selective Service System which implies my consent to its right to function. “I am aware of the penalties prescribed by legislation regarding non-co-operation. The manner of protest, as you may wish to call it, that I have chosen is the only one consistent with my conscience. I do not regard this as a negative act, but as an affirmation of Humanity.” . “The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant * * * if such request is accompanied by a written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” 32 C.F.R. § 1625.2. . Appellant testified that he did not become aware that a person of Jewish faith could qualify for conscientious objector status until after he had refused induction. . For example, had the letter of October 20 simply contained information similar to that in the classification questionnaire in United States v. Sobczak, 264 F.Supp. 752 (N.D.Ga.1966) [“Have been raised in the faith of Jehovah’s Witnesses but am not an active preacher.”], the board might well have been obligated to furnish advice and a form 150. . We note a singular myopia in that part of appellant’s brief dealing with the possible interpretation of the letter of October 20. At no point in the argument are these contemporaneous acts referred to. . This discussion assumes that if appellant had requested reopening of his classification on conscientious objection grounds after being ordered to report for induction but before refusing induction, the board would have been obligated to consider the request. While we recognize the considerable authority holding that an eleventh hour change in belief cannot be deemed “circumstances over which the registrant had no control,” see, e. g., United States v. Helm, 386 F.2d 434 (4th Cir. 1967), cert. denied 390 U.S. 958, 88 S.Ct. 1045, 19 L.Ed.2d 1153 (1968) ; United States v. Porter, 314 F.2d 833 (7th Cir. 1963) ; Boyd v. United States, 269 F.2d 607 (9th Cir. 1959), but see Dugdale v. United States, 389 F.2d 482 (9th Cir. 1968) ; Keene v. United States, 266 F.2d 378 (10th Cir. 1959), but see Martinez v. United States, 384 F.2d 50 (10th Cir. 1968), we are not willing to take such a position as a matter of law. While we concede that a registrant bears a heavy burden in proving the sincerity, the timing, and his lack of control over his belated change of belief, we envisage the possibility of his carrying this burden and are persuaded by the reasoning of the Second Circuit in United States v. Gearey, 368 F.2d 144 (1966) and United States v. Stafford, 389 F.2d 215 (1968). See also Note, “Pre-Induction Availability of the Right to Claim Conscientious Objector Exemption,” 72 Yale L.J. 1459 (1963). This position has already been taken in this circuit in United States v. Blaisdell, Cr. No. 68-15 (D.Me. June 27, 1968). . The rationale followed by two district courts, see United States v. Crawford, 119 F.Supp. 729 (N.D.Cal.1954) and United States v. Underwood, 151 F.Supp. 874 (E.D.Pa.1955) that 32 C.F.R. § 1625.2 cannot be construed to deprive a registrant of consideration of a belated conscientious objector claim has been rejected by appellate courts which have considered the question. Boyd v. United States, supra 269 F.2d at 612; United States v. Kroll, 400 F.2d 923, 925 (3d Cir. 1968) ; see also Davis v. United States, 374 F.2d 1, 4 n. 4 (5th Cir. 1967), and United States v. Beaver, 309 F.2d 273, 276 (4th Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963). . Appellant also cited one other unreported district court decision, United States v. Federspiel, No. 67-240 (N.D.Ohio, February 19, 1968). In that case the court held that the local board was required to give a registrant a hearing on the issue of reopening his classification, notwithstanding the fact that the first written communication of conscientious objection was executed after refusal of induction. The transcript of the court’s oral opinion made no reference to cases and we do not find it persuasive. . “The reopening of the classification of a registrant by the local board shall cancel any Order To Report for Induction (SSS Form No. 252) or Order To Report for Civilian Work and Statement of Employer (SSS No. 153) which may have been issued to the registrant, except that if the registrant has failed to comply with either of those orders, the reopening of his classification thereafter by the local board for the purpose of placing him in Class IV-C or Class V-A shall not cancel the order with which he failed to comply.” 32 C.F.R. § 1625.14. . We subscribe to the view apparently taken by the Ninth Circuit in Palmer, supra 401 F.2d at 228 n. 1: “The board may (as 32 C.F.R. sec. 1625.14 seems to recognize) have power to reopen classification even after the registrant has refused to submit to induction and power thereby to cancel the induction order with which the registrant has refused to comply. This power is, if exorcised, no more than a sua sporvte response by the board to reexamination of its own proceedings. The registrant, however, has no right to a re-opening at this time. If the board chooses to stand on its record the registrant cannot assert prejudice resulting from that choice.” Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed 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. NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION NO. 1229, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. No. 15. Argued October 12, 1953. Decided December 7, 1953. Dominick L. Manoli argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, Marvin E. Frankel, George J. Bott, David P. Findling and Samuel M. Singer. Louis Sherman argued the cause for respondent. With him on the brief was Philip R. Collins. Mr. Justice Burton delivered the opinion of the Court. The issue before us is whether the discharge of certain employees by their employer constituted an unfair labor practice, within the meaning of §§8 (a)(1) and 7 of the Taft-Hartley Act, justifying their reinstatement by the National Labor Relations Board. For the reason that their discharge was “for cause” within the meaning of § 10 (c) of that Act, we sustain the Board in not requiring their reinstatement. In 1949, the Jefferson Standard Broadcasting Company (here called the company) was a North Carolina corporation engaged in interstate commerce. Under a license from the Federal Communications Commission, it operated, at Charlotte, North Carolina, a 50,000-watt radio station, with call letters WBT. It broadcast 10 to 12 hours daily by radio and television. The television service, which it started July 14, 1949, representing an investment of about $500,000, was the only such service in the area. Less than 50% of the station’s programs originated in Charlotte. The others were piped in over leased wires, generally from New York, California or Illinois from several different networks. Its annual gross revenue from broadcasting operations exceeded $100,000 but its television enterprise caused it a monthly loss of about $10,000 during the first four months of that operation, including the period here involved. Its rates for television advertising were geared to the number of receiving sets in the area. Local dealers had large inventories of such sets ready to meet anticipated demands. The company employed 22 technicians. In December 1948, negotiations to settle the terms of their employment after January 31, 1949, were begun between representatives of the company and of the respondent Local Union No. 1229, International Brotherhood of Electrical Workers, American Federation of Labor (here called the union). The negotiations reached an impasse in January 1949, and the existing contract of employment expired January 31. The technicians, nevertheless, continued to work for the company and their collective-bargaining negotiations were resumed in July, only to break down again July 8. The main point of disagreement arose from the union’s demand for the renewal of a provision that all discharges from employment be subject to arbitration and the company’s counterproposal that such arbitration be limited to the facts material to each discharge, leaving it to the company to determine whether those facts gave adequate cause for discharge. July 9, 1949, the union began daily peaceful picketing of the company’s station. Placards and handbills on the picket line charged the company with unfairness to its technicians and emphasized the company’s refusal to renew the provision for arbitration of discharges. The placards and handbills named the union as the representative of the WBT technicians. The employees did not strike. They confined their respective tours of picketing to their off-duty hours and continued to draw full pay. There was no violence or threat of violence and no one has taken exception to any of the above conduct. But on August 24, 1949, a new procedure made its appearance. Without warning, several of its technicians launched a vitriolic attack on the quality of the company’s television broadcasts. Five thousand handbills were printed over the designation “WBT TECHNICIANS.” These were distributed on the picket line, on the public square two or three blocks from the company’s premises, in barber shops, restaurants and busses. Some were mailed to local businessmen. The handbills made no reference to the union, to a labor controversy or to collective bargaining. They read: “IS CHARLOTTE A SECOND-CLASS CITY? “You might think so from the kind of Television programs being presented by the Jefferson Standard Broadcasting Co. over WBTV. Have you seen one of their television programs lately? Did you know that all the programs presented over WBTV are on film and may be from one day to five years old. There are no local programs presented by WBTV. You cannot receive the local baseball games, football games or other local events because WBTV does not have the proper equipment to make these pickups. Cities like New York, Boston, Philadelphia, Washington receive such programs nightly. Why doesn’t the Jefferson Standard Broadcasting Company purchase the needed equipment to bring you the same type of programs enjoyed by other leading American cities? Could it be that they consider Charlotte a second-class community and only entitled to the pictures now being presented to them? “WBT TECHNICIANS” This attack continued until September 3, 1949, when' the company discharged ten of its technicians, whom it charged with sponsoring or distributing these handbills. The company’s letter discharging them tells its side of the story. September 4, the union’s picketing resumed its original tenor and, September 13, the union filed with the Board a charge that the company, by discharging the above-mentioned ten technicians, had engaged in an unfair labor practice. The General Counsel for the Board filed a complaint based on those charges and, after hearing, a trial examiner made detailed findings and a recommendation that all of those discharged be reinstated with back pay. 94 N. L. R. B. 1507, 1527. The Board found that one of the discharged men had neither sponsored nor distributed the “Second-Class City” handbill and ordered his reinstatement with back pay. It then found that the other nine had sponsored or distributed the handbill and held that the company, by discharging them for such conduct, had not engaged in an unfair labor practice. The Board, accordingly, did not order their reinstatement. One member dissented. Id,., at 1507 et seq. Under § 10 (f) of the Taft-Hartley Act, the union petitioned the Court of Appeals for the District of Columbia Circuit for a review of the Board’s order and for such a modification of it as would reinstate all ten of the discharged technicians with back pay. That court remanded the cause to the Board for further consideration and for a finding as to the “unlawfulness” of the conduct of the employees which had led to their discharge. 91 U. S. App. D. C. 333, 202 F. 2d 186. We granted certiorari because of the importance of the case in the administration of the Taft-Hartley Act. 345 U. S. 947. In its essence, the issue is simple. It is whether these employees, whose contracts of employment had expired, were discharged “for cause.” They were discharged solely because, at a critical time in the initiation of the company’s television service, they sponsored or distributed 5,000 handbills making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income. The attack was made by them expressly as “WBT TECHNICIANS.” It continued ten days without indication of abatement. The Board found that— “It [the handbill] occasioned widespread comment in the community, and caused Respondent to apprehend a loss of advertising revenue due to dissatisfaction with its television broadcasting service. “In short, the employees in this case deliberately undertook to alienate their employer’s customers by impugning the technical quality of his product. As the Trial Examiner found, they did not misrepresent, at least wilfully, the facts they cited to support their disparaging report. And their ultimate purpose — to extract a concession from the employer with respect to the terms of their employment — was lawful. That purpose, however, was undisclosed; the employees purported to speak as experts, in the interest of consumers and the public at large. They did not indicate that they sought to secure any benefit for themselves, as employees, by casting discredit upon their employer.” 94 N. L. R. B., at 1511. The company’s letter shows that it interpreted the handbill as a demonstration of such detrimental-disloyalty as to provide “cause" for its refusal to continue in its employ the perpetrators of the attack. We agree. Section 10 (c) of the Taft-Hartley Act expressly provides that “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” There is no more elemental cause for discharge of an employee than disloyalty to his employer. It is equally elemental that the Taft-Hartley Act seeks to strengthen, rather than to weaken, that cooperation, continuity of service and cordial contractual relation between employer and employee that is born of loyalty to their common enterprise. Congress, while safeguarding, in § 7, the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” did not weaken the underlying contractual bonds and loyalties of employer and employee. The conference report that led to the enactment of the law said: “[T]he courts have firmly established the rule that under the existing provisions of section 7 of the National Labor Relations Act, employees are not given any right to engage in unlawful or other improper conduct. . . . “. . . Furthermore, in section 10 (c) of the amended act, as proposed in the conference agreement, it is specifically provided that no order of the Board shall require the reinstatement of any individual or the payment to him of any back pay if such individual was suspended or discharged for cause, and this, of course, applies with equal force whether or not the acts constituting the cause for discharge were committed in connection with a concerted activity.” H. R. Rep. No. 510, 80th Cong., 1st Sess. 38-39. This has been clear since the early days of the Wagner Act. In 1937, Chief Justice Hughes, writing for the Court, said: “The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” Labor Board v. Jones & Laughlin, 301 U. S. 1, 45-46. See also, Labor Board v. Fansteel Corp., 306 U. S. 240, 252-258; Auto. Workers v. Wisconsin Board, 336 U. S. 245, 260-263. Many cases reaching their final disposition in the Courts of Appeals furnish examples emphasizing the importance of enforcing industrial plant discipline and of maintaining loyalty as well as the rights of concerted activities. The courts have refused to reinstate employees discharged for “cause” consisting of insubordination, disobedience or disloyalty. In such cases, it often has been necessary to identify individual employees, somewhat comparable to the nine discharged in this case, and to recognize that their discharges were for causes which were separable from the concerted activities of others whose acts might come within the protection of § 7. It has been equally important to identify employees, comparable to the tenth man in the instant case, who participated in simultaneous concerted activities for the purpose of collective bargaining or other mutual aid or protection but who refrained from joining the others in separable acts of insubordination, disobedience or disloyalty. In the latter instances, this sometimes led to a further inquiry to determine whether their concerted activities were carried on in such a manner as to come within the protection of § 7. See, e. g., Hoover Co. v. Labor Board, 191 F. 2d 380; Maryland Drydock Co. v. Labor Board, 183 F. 2d 538; Albrecht v. Labor Board, 181 F. 2d 652; Labor Board v. Kelco Corp., 178 F. 2d 578; Joanna Cotton Mills Co. v. Labor Board, 176 F. 2d 749; Labor Board v. Reynolds Pen Co., 162 F. 2d 680; Home Beneficial Life Ins. Co. v. Labor Board, 159 F. 2d 280; Labor Board v. Montgomery Ward & Co., 157 F. 2d 486; Labor Board v. Draper Corp., 145 F. 2d 199; Labor Board v. Aintree Corp., 135 F. 2d 395; United Biscuit Co. v. Labor Board, 128 F. 2d 771; Labor Board v. Condenser Corp., 128 F. 2d 67; Hazel-Atlas Glass Co. v. Labor Board, 127 F. 2d 109; Conn, Ltd. v. Labor Board, 108 F. 2d 390. The above cases illustrate the responsibility that falls upon the Board to find the facts material to such decisions. The legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough. The difficulty arises in determining whether, in fact, the discharges are made because of such a separable cause or because of some other concerted activities engaged in for the purpose of collective bargaining or other mutual aid or protection which may not be adequate cause for discharge. Cf. Labor Board v. Peter Cailler Kohler Co., 130 F. 2d 503. In the instant case the Board found that the company’s discharge of the nine offenders resulted from their sponsoring and distributing the “Second-Class City” handbills of August 24 — September 3, issued in their name as the “WBT TECHNICIANS.” Assuming that there had been no pending labor controversy, the conduct of the “WBT TECHNICIANS” from August 24 through September 3 unquestionably would have provided adequate cause for their disciplinary discharge within the meaning of § 10 (c). Their attack.related itself to no labor practice of the company. It made no reference to wages, hours or working conditions. The policies attacked were those of finance and public relations for which management, not technicians, must be responsible. The attack asked for no public sympathy or support. It was a continuing attack, initiated while off duty, upon the very interests which the attackers were being paid to conserve and develop. Nothing could be further from the purpose of the Act than to require an employer to finance such activities. Nothing would contribute less to the Act’s declared purpose of promoting industrial peace and stability. The fortuity of the coexistence of a labor dispute affords these technicians no substantial defense. While they were also union men and leaders in the labor controversy, they took pains to separate those categories. In contrast to their claims on the picket line as to the labor controversy, their handbill of August 24 omitted all reference to it. The handbill diverted attention from the labor controversy. It attacked public policies of the company which had no discernible relation to that controversy. The only connection between the handbill and the labor controversy was an ultimate and undisclosed purpose or motive on the part of some of the sponsors that, by the hoped-for financial pressure, the attack might extract from the company some future concession. A disclosure of that motive might have lost more public support for the employees than it would have gained, for it would have given the handbill more the character of coercion than of collective bargaining. Referring to the attack, the Board said “In our judgment, these tactics, in the circumstances of this case, were hardly less ‘indefensible’ than acts of physical sabotage.” 94 N. L. R. B., at 1511. In any event, the findings of the Board effectively separate the attack from the labor controversy and treat it solely as one made by the company’s technical experts upon the quality of the company’s product. As such, it was as adequate a cause for the discharge of its sponsors as if the labor controversy had not been pending. The technicians, themselves, so handled their attack as thus to bring their discharge under § 10 (c). The Board stated “We ... do not decide whether the disparagement of product involved here would have justified the employer in discharging the employees responsible for it, had it been uttered in the context of a conventional appeal for support of the union in the labor dispute.” Id., at 1512, n. 18. This underscored the Board’s factual conclusion that the attack of August 24 was not part of an appeal for support in the pending dispute. It was a concerted separable attack purporting to be made in the interest of the public rather than in that of the employees. We find no occasion to remand this cause to the Board for further specificity of findings. Even if the attack were to be treated, as the Board has not treated it, as a concerted activity wholly or partly within the scope of those mentioned in § 7, the means used by the technicians in conducting the attack have deprived the attackers of the protection of that section, when read in the light and context of the purpose of the Act. Accordingly, the order of the Court of Appeals remanding the cause to the National Labor Relations Board is set aside, and the cause is remanded to the Court of Appeals with instructions to dismiss respondent’s petition to modify the order of the Board. It is so ordered. “Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3). “Sec. 8. (a) It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 140, 29 U. S. C. (Supp. V) §§ 157, 158 (a)(1). “Sec. 10. . . . “(c) ... If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: .... If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. . . (Emphasis supplied in last sentence.) 61 Stat. 146, 147, 29 U. S. C. (Supp. V) § 160 (c). Pursuant to proceedings begun in October 1948, and to an election in May 1949, under the supervision of the Board, the union (by a vote of 12 to 2 of the 14 technicians participating) was chosen as the exclusive collective-bargaining representative of the company’s technicians. May 9, 1949, the union was so certified by the Board. 94 N. L. R. B. 1507, 1529. “Dear Mr. . . . , “When you and some of our other technicians commenced early in July to picket against this Company, we felt that your action was very ill-considered. We were paying you a salary of . . . per week, to say nothing of other benefits which you receive as an employee of our Company, such as time-and-a-half pay for all work beyond eight hours in any one day, three weeks vacation each year with full pay, unlimited sick leave with full pay, liberal life insurance and hospitalization, for you and your family, and retirement and pension benefits unexcelled anywhere. Yet when we were unable to agree upon the terms of a contract with your Union, you began to denounce us publicly as ‘unfair.’ “And ever since early July while you have been walking up and down the street with placards and literature attacking us, you have continued to hold your job and receive your pay and all the other benefits referred to above. “Even when you began to put out propaganda which contained many untruths about our Company and great deal of personal abuse and slander, we still continued to treat you exactly as before. For it has been our understanding that under our labor laws, you have a very great latitude in trying to make the public believe that your employer is unfair to you. “Now, however, you have turned from trying to persuade the public that we are unfair to you and are trying to persuade the public that we give inferior service to them. While we are struggling to expand into and develop a new field, and incidentally losing large sums of money in the process, you are busy trying to turn customers and the public against us in every possible way, even handing out leaflets on the public streets advertising that our operations are ‘second-class,’ and endeavoring in various ways to hamper and totally destroy our business. Certainly we are not required by law or common sense to keep you in our employment and pay you a substantial salary while you thus do your best to tear down and bankrupt our business. “You are hereby discharged from our employment. Although there is nothing requiring us to do so, and the circumstances certainly do not call for our doing so, we are enclosing a check payable to your order for two weeks’ advance or severance pay. “Very truly yours, “Jefferson Standard Broadcasting Company “By: Charles H. Crutchfield “Vice President “Enclosure” Allegations based on the same facts and charging violations of § 8 (a) (3) and (5) of the Tart-Hartley Act do not require discussion here. 61 Stat. 148-149, 29 U. S. C. (Supp. V) § 160 (f). The Court of Appeals said: “Protection under § 7 of the Act ... is withdrawn only from those concerted activities which contravene either (a) specific provisions or basic policies of the Act or of related federal statutes, or (b) specific rules of other federal or local law that is not incompatible with the Board’s governing statute. . . . “We think the Board failed to make the finding essential to its conclusion that the concerted activity was unprotected. Sound practice in judicial review of administrative orders precludes this court from determining ‘unlawfulness’ without a prior consideration and finding by the Board.” 91 U. S. App. D. C., at 335, 336, 202 F. 2d, at 188, 189. See note 2, supra. The Act’s declaration of the policy says: “Section 1. . . . “(b) Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another’s legitimate rights in their relations with each other, and above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest. “It is the purpose and policy of this Act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce.” 61 Stat. 136, 29 U. S. C. (Supp. V) § 141 (b). See note 1, supra. National Labor Relations Act of July 5, 1935, 49 Stat. 449, 29 U. S. C. § 151 et seq. “. . . An employee can not work and strike at the same time. He can not continue in his employment and openly or secretly refuse to do his work. He can not collect wages for his employment, and, at the same time, engage in activities to injure or destroy his employer’s business.” Hoover Co. v. Labor Board, 191 F. 2d 380, 389, and see Labor Board v. Montgomery Ward & Co., 157 F. 2d 486, 496; United Biscuit Co. v. Labor Board, 128 F. 2d 771. See Labor Board v. Rockaway News Co., 345 U. S. 71 (discharge, for violation of an obligation to make deliveries, even though crossing a picket line, sustained); Auto. Workers v. Wisconsin Board, 336 U. S. 245, 255-263 (arbitrary unannounced interruptions of work, not protected by § 7); Southern S. S. Co. v. Labor Board, 316 U. S. 31 (discharge of seamen, for disobedience on shipboard while away from home port, sustained); Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740 (mass picketing, unprotected); Hotel Employees’ Local v. Wisconsin Board, 315 U. S. 437 (violence, while picketing, unprotected); Labor Board v. Sands Manufacturing Co., 306 U. S. 332 (discharge, for repudiation of employee’s agreement, sustained); Labor Board v. Fansteel Corp., 306 U. S. 240 (discharge, for tortious conduct, violence or sit-down strike, sustained); and see Associated Press v. Labor Board, 301 U. S. 103, 132; Labor Board v. Jones & Laughlin, 301 U. S. 1, 45-46. See also, Cox, The Right to Engage in Concerted Activities, 26 Ind. L. J. 319 (1951); Recent Cases, 66 Harv. L. Rev. 1321 (1953). 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Robert A. SWANSON, Defendant-Appellant. No. 71-1115. United States Court of Appeals, Seventh Circuit. Jan. 5, 1972. Gerald M. Werksman, Sheldon Golding, Chicago, 111., for defendant-appellant. James R. Thompson, U. S. Atty., Donald C. Shine, Asst. U. S. Atty., William J. Bauer, U. S. Atty., Chicago, 111., for plaintiff-appellee. John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel. Before CASTLE, Senior Circuit Judge, and KILEY and SPRECHER, Circuit Judges. CASTLE, Senior Circuit Judge. The defendant-appellant Robert A. Swanson, was convicted upon his plea of guilty to a three-count indictment charging him with transporting forged securities in interstate commerce in violation of 18 U.S.C.A. § 2314. On February 8, 1968, the District Court entered judgment sentencing the defendant to three years imprisonment on each count, the sentences to run concurrently. The judgment order suspended execution of the sentences and placed the defendant on probation for a period of three years. It further ordered that during such period the defendant “shall conduct himself as a law-abiding, industrious citizen”. The defendant prosecutes this appeal from a November 10, 1970, order of the District Court revoking his probation and committing him to custody under the sentences originally imposed. This revocation order was entered after a hearing was held pursuant to a rule on the defendant to show cause why probation should not be revoked. Defendant had been arrested on a bench warrant, and he was present with counsel who participated in the hearing. Defendant’s probation was revoked because of his conviction and sentence to the Illinois penitentiary in September 1970 for a burglary committed following his release on probation. He had been arrested on June 10, 1968, on the state burglary charge and indicted therefor in January 1969 but did not report these facts to the Probation Office on subsequent reporting dates. The defendant contended on brief that the District Court was without jurisdiction or authority to enter the November 10, 1970, order which revoked his probation and committed him under the sentences originally imposed. In this connection the defendant pointed out that the record discloses that on February 11, 1970, the government, acting on a report from the Probation Office that defendant had complied with all of the conditions of probation satisfactorily and “is no longer in need of probation supervision”, moved to “terminate” defendant’s probation, and the court entered an order that the defendant “be discharged from probation”. The defendant urged that, therefore, the court had no jurisdiction over him after February 11, 1970. However, on oral argument before this Court the defendant’s counsel conceded that under the controlling statutory provisions (18 U. S.C.A. §§ 3651 and 3653) the District Court’s jurisdiction over the defendant had not terminated prior to the entry of the revocation order. That concession was correctly made. It is in keeping with the rationale and holdings of the cases cited and relied upon by the government to the effect that a district court’s jurisdiction over a person admitted to probation continues throughout the maximum probation period authorized by the statute (now 5 years under § 3651) even though the court fixed the period of supervised probation at a lesser time. In this respect, although § 3651 provides that a defendant’s liability for punishment imposed as to which probation is granted “shall be fully discharged by the fulfillment of the terms and conditions of probation”, § 3653 explicitly provides that: “ . . . At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. . As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, . . . ” Here, after the defendant was arrested for violation of his probation he was afforded a hearing, with counsel, in the District Court in conformity with Hahn v. Burke, 7 Cir., 430 F.2d 100. He does not contest that the showing made with respect to his conviction for a state felony committed during the period of his probation did establish a violation of the terms and conditions of probation. The remaining contention of the defendant is premised on the fact that the record discloses that on March 12, 1970, the District Court on an ex parte motion of the government, and without notice to the defendant, ordered defendant’s probation “reinstated” because of his failure to report his arrest and subsequent indictment on the state burglary charge. In this connection the defendant argues that the trial court made a fundamental constitutional error by reinstating defendant’s probationary status without notice to the defendant and without affording him an opportunity to be heard thereon. But this argument is based on a misconception. It would have merit if such a “reinstatement” had been necessary as a condition prerequisite to the court’s revocation of probation. Such a reinstatement, however, was wholly unnecessary, and any infirmity of the March 12 order, constitutional or otherwise, due to lack of notice and hearing, supplies no basis which requires a reversal or vacation of the November 10, 1970 order revoking probation and committing defendant under the sentences originally imposed. The step taken by the government to “reinstate” defendant’s probation was not essential to the court’s exercise of its jurisdiction and authority under Sections 3651 and 3653 to enter the November 10 order. The only effect of the order of February 11 “discharging” the defendant from probation was to terminate his supervision by the Probation Office. In this respect § 3653 provides: “When directed by the court, the probation officer shall report to the court, with a statement of the conduct of the probationer while on probation. The court may thereupon discharge the probationer from further supervision and may terminate the proceedings against him, or may extend the probation, as shall seem advisable. ft The February 11 order did not terminate the court’s jurisdiction and authority under the remaining portion of § 3653, previously quoted herein, to act within the probation period to “revoke the probation and require [the probationer] to serve the sentence imposed”. The District Court acted timely within the period of its jurisdiction and authority over the defendant to revoke his probation on grounds which are uncontested and to require him to serve the sentences originally imposed but suspended. It is obvious that the reinstatement order was entered without procedural due process. But that order was surplusage and the defendant was in no manner prejudiced thereby. The order appealed from is affirmed. Affirmed. . The plea was entered November 17, 1967, under Rule 20 of the Federal Rules of Criminal Procedure. . Those cases include Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282; Williams v. Hunter, 10 Cir., 165 F.2d 924; Whitehead v. United States, 6 Cir., 155 F.2d 460; United States v. Van Riper, 2 Cir., 113 F.2d 929; and United States v. Moore, 2 Cir., 101 F.2d 56. Insofar as here pertinent the only difference in the statute at the time of these decisions was that the maximum probation period was measured by the maximum period for which the defendant might originally have been sentenced, rather than the 5 year period now prescribed in § 3651. . In the interim between the February 11 order discharging the defendant from supervised probation and March 12, 1970, the government had learned from other sources of the defendant’s 1969 arrest and indictment for burglary. It was thus apprised of the Probation Office’s mistake in having earlier reported favorably on defendant’s compliance with the conditions of probation — which mistake had been occasioned by the defendant’s failure to disclose his arrest and indictment in the reports he was required to make. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party William MITCHELL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., and Department Store and Wholesale Drivers, Warehousemen and Helpers, Local Union # 177, Defendants-Appellees. No. 748, Docket 79-7803. United States Court of Appeals, Second Circuit. Argued Feb. 29, 1980. Decided March 3, 1980. David Jaroslawicz, New York City (Ira Leitel, Carol Mellor, and Leitel & Jarosla-wicz, New York City, on the brief), for appellant Mitchell. M. David Zurndorfer, New York City (Edward Silver, Mark L. Goldstein, and Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for appellee United Parcel Service, Inc. Albert S. Parsonnet, Newark, N. J. (Par-sonnet, Duggan & Pykon, Newark, N. J., on the brief), for appellee Department Store And Wholesale Drivers, Warehousemen And Helpers Local Union # 177. Before KAUFMAN, Chief Judge, TIMBERS, Circuit Judge, and WERKER, District Judge. Hon. Henry F. Werker, United States District Judge for the Southern District of New York, sitting by designation. TIMBERS, Circuit Judge: Appellant William Mitchell appeals from a judgment entered in the Eastern District of New York, Charles P. Sifton, District Judge, dismissing his wrongful discharge complaint under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), as barred by the 90 day limitation period of § 7511 of the New York Civil Practice Law & Rules. The sole issue on appeal is whether the district court erred in applying § 7511 to the instant action. We hold that it did. I. Appellant, a member of Local Union # 177 of the Department Store and Wholesale Drivers, Warehousemen and Helpers, was employed as a car washer by United Parcel Service, Inc. (UPS). In January 1977 appellant was discharged by UPS for dishonest acts, including “stealing time” and falsifying time cards. Appellant, who denied the charges against him, requested that his union file a grievance on his behalf contesting the discharge. As a member of Local Union # 177, the terms of appellant’s employment, including grounds for discharge and grievance procedures, were governed by the collective bargaining agreement between UPS and Local Union # 177. Pursuant to this agreement, appellant’s grievance was submitted to an arbitration panel — the Joint Atlantic Area Parcel Grievance Committee — for final resolution. Appellant was represented by his union at the hearing before this panel. On February 16, 1977 the arbitration panel denied appellant’s grievance and upheld his discharge. According to the collective bargaining agreement, this decision was final and binding. Seventeen months after the arbitral decision was rendered, appellant commenced an action under LMRA § 301 against his union and employer, alleging that UPS had breached the collective bargaining agreement by wrongfully discharging him and that Local Union # 177 had breached its statutory duty of fair representation by the manner in which it handled appellant’s grievance. The district court granted ap-pellees’ motions for summary judgment, dismissing the complaint on the ground that the action was barred by the 90 day limitation period set forth in § 7511. II. There is no federal statute of limitations applicable to § 301 actions. As a result, the Supreme Court has held that “the timeliness of a § 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.” International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05 (1966). The district court, reasoning that “[t]he effect of any grant of relief would be to vacate the determination of the arbitrators”, held that the appropriate state statute of limitations was the 90 day period for “application[s] to vacate or modify an [arbitration] award”. N.Y.Civ.Prac.Law § 7511 (McKinney 1963). We disagree. We hold that the limitation period which should have been applied is New York’s six year period for actions alleging breach of contract. N.Y.Civ.Prac.Law § 213(2) (McKinney 1972). In addressing the question of which New York statute of limitations should be applied in this case, we turn first to our decision in Abrams v. Carrier Corp., 434 F.2d 1234 (2 Cir. 1970), cert. denied, 401 U.S. 1009 (1971), where we held that: “when a § 301 suit is brought against an employer alleging breach of the collective bargaining agreement in conjunction with a claim that the union breached its fair representation duty to pursue the employee’s grievance, the same period of limitations should be applied to both claims. In the present case, the proper limitation period ... is the six-year limitation set out in N.Y. CPLR § 213(2) for ‘an action upon a contractual obligation or liability express or implied.’ ” Id. at 1252-53 (footnote omitted). The factual claims underlying the § 301 action in Abrams were the same as those in the instant case, namely, a wrongful discharge by the employer coupled with a bad faith failure by the union to represent the employee adequately in discharge proceedings. The only difference between Abrams and the instant case is that here the employee was terminated after his grievance was rejected at arbitration, whereas in Abrams the grievance was not taken to arbitration. Citing this difference, appel-lees urge that we apply a different statute of limitations to the § 301 action in this case than the six year statute of limitations which we applied to the § 301 action in Abrams. We do not believe that such a fractionalized approach to § 301 wrongful discharge actions is warranted. In determining which state statute of limitations to apply to a federal cause of action, courts must characterize the action in the manner that “best effectuates the federal policy at issue.” Butler v. Local Union 823, Int’l Brotherhood of Teamsters, etc., 514 F.2d 442, 446 (8 Cir. 1975); Charney v. Thomas, 372 F.2d 97, 100 (6 Cir. 1967). Appellees, pointing chiefly to the federal policy of according finality to arbitration awards and the federal goal of “relatively rapid disposition of labor disputes”, Int’l Union, etc. v. Hoosier Cardinal Corp., supra, 383 U.S. at 707, argue that § 301 wrongful discharge actions commenced after arbitral decisions should be governed by the 90 day limitation period even if other § 301 wrongful discharge actions are governed by another statute. We do not agree. The Supreme Court has made it clear that the federal policy of according finality to arbitration awards must yield to the conflicting federal policy of providing employees with the opportunity “to secure individual redress for damaging failure of the employer to abide by the [collective bargaining] contract.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 571 (1976). In Hines, the Court granted discharged employees the right to sue employers and unions under § 301 despite the fact that the discharges had been upheld in “final” arbitration. In so doing, the Court rejected the argument that the federal policy of according finality to arbitration awards prevented employees from contesting arbitral decisions in § 301 actions. If we were to limit employee § 301 actions to a 90 day period following the adverse arbitral decision, we would severely restrict the Supreme Court’s decision to allow employees to challenge arbitral decisions in conjunction with charges of bad faith representation by their union. Furthermore, § 301 actions do not require the short limitation periods which generally are applied to assaults on arbitration awards. Contrary to the district court’s characterization, § 301 actions cannot be equated to direct attacks on arbitration awards, nor can they be viewed as the same threat to the finality of arbitration awards. Arbitration awards cannot be vacated pursuant to § 301 on the ground that the arbitrators erred in their factual findings, or that the arbitrators reached faulty legal conclusions, or that the proceedings were flawed. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 571; Barbarino v. Anchor Motor Freight, Inc., 421 F.Supp. 1003, 1005 (W.D.N.Y.1976). Rather, actions under § 301 are limited to those rare cases where the discharged employee can demonstrate both that the employer violated the collective bargaining agreement by discharging him and that the union violated its statutory duty by failing to represent him in good faith. This is a heavy burden which the § 301 plaintiff must shoulder in order to overturn his discharge. There is no need to increase this burden by requiring the employee to commence the action in an unduly short period of time after his discharge. To require an employee — who is suddenly out of work — to obtain new counsel and file an action against his union and employer all within 90 days of his discharge strikes us as unwarranted. Neither do we accept the argument that the 90 day limitation period is necessary to further the federal goal of relatively rapid disposition of labor disputes. The Court in Hoosier, supra, 383 U.S. at 707, indicated that a six year statute of limitations adequately furthered this federal labor policy. Far from suggesting that a 90 day period was needed to reach the goal of “relatively rapid” resolution of disputes, the Hoosier Court indicated that “unusually short” limitation periods — such as a 60 day New Mexico statute — should not be applied to § 301 actions. 383 U.S. at 707 n.9. Finally, we note that the characterization of § 301 actions such as the instant one as actions “to vacate arbitration awards” is not even conceptually sound. First, an action to vacate an arbitration award under New York law may not be instituted by discharged employees like appellant. In re Soto, 7 N.Y.2d 397, 165 N.E.2d 855, 198 N.Y.S.2d 282 (1960). This difference is not an insubstantial one. While it may be reasonable to require the parties to a bargaining agreement (i.e., the union and the employer) to contest an arbitral decision within 90 days, individual employees may well lack the resources to act as quickly. Second, a § 301 action is procedurally quite distinct from an action to vacate or modify an arbitration award. “Although the effect of a judgment for [the discharged employee] would be to nullify the arbitral decision, the § 301 action is ‘independent’ of the grievance process .... Indeed, such a claim can be brought even before an arbitral decision where a union refuses in bad faith to process a grievance.” Smart v. Eliis Trucking Co., 580 F.2d 215, 219 (6 Cir. 1978), cert. denied, 440 U.S. 958 (1979); see Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 567-68; Vaca v. Sipes, 386 U.S. 171 (1967). Regardless of whether an arbitration decision has been entered, the issue in a § 301 wrongful discharge action remains whether the employer has breached the collective bargaining contract and whether a union breach of duty contributed to the contractual breach. Hines v. Anchor Motor Freight, Inc., supra, 424 U.S. at 568. The mere fact that an arbitral decision has been rendered during the course of the employee termination process does not convert the character of a § 301 action from an action for breach of contract to an action for vacating an arbitration award. III. In summary, we reject the district court’s characterization of the instant § 301 action as an action to vacate an arbitration award, and accordingly reverse the district court’s dismissal of appellant’s complaint as barred by § 7511. We hold that New York’s six year limitation period for contractual breaches, § 213(2), is applicable to LMRA § 301 actions by employees alleging wrongful discharge by the employer and breach of the fair representation duty by the union — regardless of whether the discharge was upheld by an arbitral panel or became final short of arbitration. Applying the six year limitation period of § 213(2) provides for relatively rapid disposition of labor disputes without undermining an employee’s ability to vindicate his rights through § 301 actions. Thus, application of § 213(2), rather than § 7511, allows us to “best effectuate” the several federal policies implicated by actions under § 301. Reversed and remanded. . On appeal, appellees argue that the complaint was properly dismissed not only because it was time-barred, but also because appellant failed to exhaust his intra-union remedies and failed to raise a triable issue concerning appellee union’s alleged breach of its duty of fair representation. The district court, however, did not address these issues. We therefore shall not address them for the first time here. Appellees are free to raise these issues in the district court on remand. . Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), provides in relevant part: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter . may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” . N.Y.Civ.Prac.Law § 7511 (McKinney 1963) provides that: “[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him.” Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILLOW MAINTENANCE CORP., Respondent. No. 422, Docket 28658. United States Court of Appeals Second Circuit. Argued May 13, 1964. Decided May 13, 1964. Seymour Strongin, Atty., National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lee M. Modjeska, Atty., Washington, D. C., on the brief), for petitioner. Stephen A. Cohen, New York City (Henry G. Friedlander and W. Harvey Mayer, New York City, of counsel), for respondent. Before KAUFMAN, HAYS and MARSHALL, Circuit Judges. PER CURIAM. The Board here seeks enforcement of an order which, inter alia, directs respondent Willow Maintenance, a taxicab company, to reinstate and make whole one Jose Torres, a driver discharged because he distributed union literature in the company’s waiting room. Earlier this term, in N. L. R. B. v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), we held that enforcement of a company rule which prohibited the distribution of union literature in non-work areas on non-work time was an unfair labor practice, in the absence of special circumstances necessitating such a rule for the maintenance of production or discipline. The major question raised in this proceeding was whether the waiting room was, in fact, a non-work area. Both the Labor Board and its Trial Examiner determined that it was, and we agree. Although 80 of the room’s 300 square feet are occupied by the company’s dispatcher and cashier, testimony before the Trial Examiner revealed that the remainder of the room is lined with lockers, contains an L-shaped bench, and is open to drivers as a lounging place when they are waiting to be dispatched. The drivers are permitted to read newspapers, watch television and converse freely. In the words of the company’s dispatcher, “they discuss everything. Sometimes they discuss about horses, they will discuss about fights. Among the cab drivers, we are the best philosophers, we discuss all conversations.” And, most significantly, at the very moment that Torres was distributing his union cards, “the television set was on, * * * some men were reading, * * * others were conversing [and] the room was far from crowded.” Under these circumstances, we find that the Board was entirely correct in concluding that the waiting-room was a “non-work” area. In Judge Clark’s words, “[w]e have long passed the point where the bundle of property rights can be used arbitrarily or capriciously to restrict a worker’s freedom of association or expression.” NLRB v. United Aircraft Corp., 324 F.2d at 131. Especially in light of the proviso to the Board’s order, which emphasizes that nothing contained therein “shall require Respondents to permit activity in the waiting room which disrupts the operation of the business,” we find that the company’s legitimate interests have been well protected, and we accordingly enforce those portions of the order which pertain to the distribution of union literature and Torres’ discharge. In addition, however, the Board found that the company had violated § 8 (a) (1) in briefly interrogating Torres about union activity at a time prior to the incident in the waiting-room, and accordingly ordered the company to cease and desist from any such interrogation in the future. Since we do not believe that the questioning at issue was either explicitly or implicitly coercive, we hold that this violation was not established, and we hence modify the order by deleting that portion which refers to the interRogation. See NLRB v. Montgomery Ward & Co., 192 F.2d 160 (2d Cir. 1951). The order is modified accordingly, and, as so modified, is enforced in open court. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appel1_1_3	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. SATELLITE BROADCASTING COMPANY, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Associated Information Services Corporation, Intervenor. No. 86-1247. United States Court of Appeals, District of Columbia Circuit. Argued April 13, 1987. Decided July 7, 1987. As Amended July 7, 1987. Paul J. Sinderbrand, with whom Stephen R. Bell, Washington, D.C., was on brief, for appellant. Roberta L. Cook, Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for appellee. Paul J. Berman, with whom Paul G. Ga-ston, Washington, D.C., was on brief, for intervenor. Before SILBERMAN, BUCKLEY and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. SILBERMAN, Circuit Judge: Satellite Broadcasting Company (“SBC”) appeals from a decision of the Federal Communications Commission (“FCC”) sustaining a decision of its staff to dismiss as untimely SBC applications to operate microwave radio stations employing channels allocated to the Private Operational-Fixed Microwave Service (“OFS”) in Chicago, Illinois and Sacramento, California. In both cases, SBC filed its applications with the FCC in Washington, D.C. during October 1983, shortly before the applicable deadlines. Since a number of competing applications had been received for the Chicago and Sacramento areas, the Commission, pursuant to 47 U.S.C. § 309(i) (1982), conducted lotteries in the spring of 1985 to rank-order the competing applications. SBC was a winner in both lotteries; its applications were ranked higher than any other applications with which they were mutually exclusive. After the lotteries, the FCC staff examined the winning applications in detail to determine if they could be granted. During this post-lottery examination, the staff determined that the Commission’s rules in effect during October 1983 had required OFS applications to be filed in Gettysburg, Pennsylvania, not Washington, D.C. Because SBC’s applications did not arrive in Gettysburg prior to the cut-off date, the staff dismissed the applications as untimely filed. The full Commission subsequently sustained the dismissals. SBC appeals on the grounds that the FCC arbitrarily and capriciously interpreted its rules to require filing in Gettysburg. In the alternative, SBC maintains that the FCC failed to provide adequate notice of where applications should be filed and therefore may not penalize an applicant for failing to file in the proper location. We agree that the FCC failed to give clear notice of where to file and on that basis remand the case to the Commission with instructions to reverse the dismissal of SBC’s applications. I. In October 1983, when SBC’s applications were filed, section 1.227(b)(4) of the Commission’s rules, 47 C.F.R. § 1.227(b)(4) (1983), allowed, inter alia, competing applications in the private radio services to be consolidated for hearing with prior applications if the competing applications were “tendered for filing” within “60 days after the date of public notice listing the first prior application as having been accepted for filing.” Although it has now been amended to require applications to be filed in Gettysburg, see 49 Fed.Reg. 30,943 (Aug. 2, 1984), the rule did not, in October 1983, specify the location at which applications in the private radio services, of which OFS is a part, should be “tendered for filing.” Several other sections of the FCC’s rules did address that matter but, unfortunately, did so in a baffling and inconsistent fashion. On the one hand, the general filing requirements for private radio services set forth in section 1.912, 47 C.F.R. § 1.912 (1983), directed that all applications, with certain exceptions not relevant here, “be filed with the Commission’s offices in Gettysburg, Pennsylvania.” 47 C.F.R. § 1.912(e). On the other hand, section 1.972, 47 C.F.R. § 1.972 (1983), which specifically applied to applications, such as SBC’s, subject to random selection, stated that “[applications in the services specified above” — of which OFS was one — “shall be tendered, filed, accepted or dismissed ... in accordance with ... the rules and policies established for each respective service.” 47 C.F.R. § 1.972(b). As § 1.972 expressly noted, the rules and policies applicable to OFS are set forth in Part 94 of the FCC’s rules. Section 94.25(b) of that Part instructed that “[e]very application for a radio station authorization, and all correspondence relating thereto, shall be submitted to the Commission’s office at Washington, D.C.” 47 C.F.R. § 94.25(b) (1983). Faced with this conflict between section 94.25 and section 1.912, an applicant might have looked to section 1.901 for guidance. That section provided that: “[i]n the case of any conflict or inconsistency between the rules set forth in the subpart [F of Part 1, governing private radio services applications and proceedings] and the rules for the specific services enumerated in this section, the former shall govern.” 47 C.F.R. § 1.901 (1983). If the conflict here is seen as one between a subpart F of Part 1 and a Part 94 rule, then section 1.901 directs that the general requirements of 1.912 (file in Gettysburg) should control those set forth in section 94.25 (file in Washington). But the requirements of section 94.25 are applicable only because they have been incorporated by section 1.972, which like section 1.912 is also a subpart F rule. It is thus also possible to view the conflict as between two subpart F rules, in which case section 1.901 does not control. Counsel for SBC reconciled these provisions of the FCC’s rules by concluding that sections 1.972 and 94.25(b) (which together require filing in Washington) should control because they dealt specifically with OFS applications, whereas section 1.912 was a general rule applying to all private radio services. Accordingly, counsel filed in Washington, D.C. Over nineteen months later, FCC staff informed SBC that a post lottery examination of its applications had revealed that they had been improperly filed in Washington and consequently had been dismissed. The full Commission upheld the staff decision, explaining that section 1.901 stated that in the event of a conflict the provisions of 1.912 (file in Gettysburg) controlled, since section 94.25 was not a Part 1 (subpart F) rule. The Commission also pointed to a 1981 News Release and a 1982 Order, which announced that OFS applications processing had been transfered to Gettysburg and that all applications should be submitted there, effective July 13, 1981, as further support for the proposition that SBC had fair warning of the FCC’s filing requirements. , II. Traditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule. See Gates & Fox Co., Inc. v. OSHRC, 790 F.2d 154, 156 (D.C.Cir.1986). The dismissal of an application, we have held, is a sufficiently grave sanction to trigger this duty to provide clear notice. See Maxcell Telecom Plus, Inc. v. FCC, 815 F.2d 1551, 1560-61 (D.C.Cir.1987); Salzer v. FCC, 778 F.2d 869, 875 (D.C.Cir. 1985). As we said in Salzer, “the FCC cannot reasonably expect applications to be letter-perfect when, as here, its instructions for those applications are incomplete, ambiguous or improperly promulgated.” Id. “The quid pro quo for stringent acceptability criteria is explicit notice of all application requirements.” Id. To be sure we normally defer to an agency’s reasonable interpretation of its own rules. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965). And we assume, arguendo, that the FCC’s interpretation here is a reasonable one. But as counsel for the FCC conceded at oral argument — as we thought she must — if the Commission had interpreted its rules as did petitioner we similarly would have been obliged to defer to that interpretation because it, at minimum, is also reasonable. There is the rub. The Commission through its regulatory power cannot, in effect, punish a member of the regulated class for reasonably interpreting Commission rules. Otherwise the practice of administrative law would come to resemble “Russian Roulette.” The agency’s interpretation is entitled to deference, but if it wishes to use that interpretation to cut off a party’s right, it must give full notice of its interpretation. We accordingly vacate as arbitrary and capricious the FCC’s order dismissing these applications and remand this case for their reinstatement nunc ■pro tunc. Reversed and remanded. . Although the FCC’s Washington office, upon receipt of the misfiled applications, transferred them to Gettysburg, they did not arrive there until after the specified cut-off date had passed. . Section 1.972(b) was promulgated after section 1.912(e) and became effective just three months before SBC filed the applications in issue. See Amendment of § 1.912 of the Commission’s Rules and Regulations, 47 Fed.Reg. 9208 (March 4, 1982); Amendment of the Commission’s Rules to Allow the Selection from Among Certain Competing Applications Using Random Selection of Lotteries Instead of Comparative Hearings, 48 Fed.Reg. 27,182, 27,199 (June 13, 1983) (promulgating section 1.972). . SBC counsel was also apparently influenced by the pendency of a proposal to amend section 94.25 to provide for filing of OFS applications in Gettysburg, thereby suggesting that the current rules did not so provide. See Amendment of Parts 1, 90 and 94 of the Commission's Rules to Eliminate Outdated and Unnecessary Rules, 48 Fed.Reg. 43,355 (Sept. 23, 1983). The rule was not actually amended until the following year. See Amendment of Parts 1, 90 and 94 of the Commission’s Rules to Eliminate Outdated and Unnecessary Rules, 49 Fed.Reg. 36,373 (Sept. 17, 1984). . The FCC’s argument that other indications that filings should be made in Gettysburg provided SBC sufficient notice is unpersuasive. The FCC points to a 1981 News Release and a 1982 Order announcing that the Private Radio Bureau’s processing operations were being moved to Gettysburg, see J.A. at 4, but section 1.972 — the principal source of the confusion here — was promulgated sixteen months after those announcements, see Amendment of the Commission's Rules to Allow the Selection from Among Certain Competing Applications Using Random Selection of Lotteries Instead of Comparative Hearings, 48 Fed.Reg. 27,182 (June 13, 1983), and it was certainly reasonable for SBC to assume that the requirements in section 1.972 took precedence over the earlier statements of FCC intent. . Intervenor Associated Information Services Corp. — but not the FCC — argues that our recent decision in Reuters Limited v. FCC, 781 F.2d 946 (D.C.Cir.1986) compels affirmance of the FCC’s decision. Although Reuters did note in dicta that FCC rules for OFS require filing in Gettysburg, id., at 947, it pointedly did not decide the issue before us today. Id. at 950 n. 5. No party in that case claimed that it lacked notice of the timing rules involved there. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
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. UNITED STATES v. KNIGHT. No. 406. Argued March 4, 1949. Decided April 4, 1949. Philip R. Monahan argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl. Robert T. McCracken argued the cause for respondent. With him on the brief were George G. Chandler and J. Julius Levy. Mr. Justice Douglas delivered the opinion of the Court. Robert Michael was trustee in bankruptcy of the Central Forging Co. and Donald Reifsnyder was his counsel. Maxi Manufacturing Co. was a competitor of Central and one of its creditors. George Fenner and respondent Harry S. Knight were attorneys for Maxi. After negotiations which it is unnecessary to relate here, a plan of reorganization under ch. X of the Bankruptcy Act, 52 Stat. 883, 11 U. S. C. § 501 et seq., was approved by the court and accepted by more than two-thirds of the creditors. Under this plan Maxi was to acquire all the assets of Central; the stockholders of Central were to receive nothing; the secured creditors of Central were to receive 20 per cent and its unsecured creditors 5 per cent of their claims in bonds of Maxi; and all taxes, costs, and expenses of the reorganization were to be paid in full in cash by the trustee. The cash requirements of the plan were to be furnished by Maxi. The amount of those requirements and the nature of Maxi’s commitment are sources of the present controversy. Michael and Reifsnyder concededly obtained funds in connection with the reorganization for which they did not account. It is the theory of the prosecution that those funds were part of the bankruptcy estate. It is the theory of the defense that they were gifts by Maxi of its own property. There was evidence (including Michael’s testimony in this case and one construction of respondent’s testimony concerning the same transactions in an earlier contempt case against Michael) that Maxi agreed to pay $26,404.33 in cash for Central’s net current assets in addition to the $17,000 in bonds. If this version of the transaction were believed, there was a scheme to value the assets of Central at $3,000 less than $26,404.33 and to divert the $3,000 to Michael’s and Reifsnyder’s own ends. There was another version of this phase of the plan which is also supported by evidence, viz. that Maxi was to pay in cash all expenses of the reorganization provided they did not exceed $26,404.33. In this view the difference between $26,404.33 and the expenses allowed by the Court, $23,404.33, was Maxi’s to do with as it pleased. The court confirmed the plan and ordered the transfer of all of Central’s assets to Maxi on receipt of the bonds and on payment of the costs and expenses as allowed by the court, “within the limits of the funds as set forth in the Trustee’s report filed April 15, 1942.” That report listed the net current assets of Central at $23,404.33. There was some evidence that the value of those assets had been falsified in the report by deducting $3,000 from the accounts receivable. The expenses approved by the court and paid by Maxi included allowances for the fees and expenses of Michael and Reifsnyder. Knight arranged for Maxi also to draw a check for $3,000 to Fenner which Fenner cashed and, after deducting $500 for income tax, paid over to Michael and Reifsnyder who never accounted to the court for it. Knight and Fenner were indicted for aiding and abetting Michael to appropriate property of the bankruptcy estate in violation of the Bankruptcy Act, 30 Stat. 554, as amended, 11 U. S. C. § 52 (a), and for conspiring with Michael and others to do the same. Knight and Fenner were found guilty by a jury on all counts. Knight was fined $1,000. The Court of Appeals reversed his conviction and directed entry of a judgment of acquittal, one judge dissenting. 169 F. 2d 1001. The case is here on a petition for certiorari which we granted because of the importance of the ruling in the administration of the Bankruptcy Act. There was substantial evidence that Maxi agreed to pay $26,404.33 for the net current assets of Central and that Knight was party to a scheme to divert $3,000 of that consideration to the personal ends of Michael and Reifsnyder. It was therefore an improper interference with the jury’s function for the Court of Appeals to reject that theory of the case and to accept one which to it seemed more credible. See Glasser v. United States, 315 U. S. 60, 80; Kotteakos v. United States, 328 U. S. 750, 763-764. But even if, as the defense urges, Maxi only agreed to pay expenses up to $26,404.33, the result is the same. Maxi in fact paid that amount. It was paid in connection with the reorganization. It was paid for services allegedly rendered by Michael and Reifsnyder in the proceedings. It was paid secretly and in a devious way. The assets of the estate which were transferred to Maxi were worth $26,404.33. This is a substantial showing that $26,404.33 was in fact paid for the assets and that the form of the arrangement served only to syphon a part of the consideration to Michael and Reifsnyder without court approval. All the consideration which is paid for a bankrupt’s assets becomes part of the estate. No device or arrangement, however subtle, can subtract or divert any of it. It is the substance of the transaction, not its form, which controls. If that requirement were not rigidly enforced, control of the plan of reorganization and control of allowances would pass from the court to the parties. That would subvert the statutory scheme. This consequence is sought to be avoided here by the argument that when the $3,000 was diverted to Michael and Reifsnyder, the rights of creditors and stockholders in the estate had been fixed and all the allowances had been determined. It is therefore said that there would have been no rightful claimants to the money had it been paid into court. By that procedure parties would arrogate to themselves the control over the estate which Congress has entrusted to the bankruptcy judge. Reversed. Mr. Justice Murphy, Mr. Justice Jackson, and Mr. Justice Rutledge took no part in the consideration or decision of this case. “A person shall be punished by imprisonment for a period of not to exceed five years or by a fine of not more than $5,000, or both, upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to the estate of a bankrupt which came into his charge as trustee, receiver, custodian, marshal, or other officer of the court.” Even after confirmation of the plan of reorganization under § 221 of ch. X, it may be altered or modified pursuant to the procedure prescribed in § 222. See §§ 241-244 of ch. X; Leiman v. Guttman, 336 U. S. 1. See note 2, supra. 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_respond1_1_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Mrs. Amanda Stewart RABB, Administratrix of the Estate of Johnny Rabb, Plaintiff-Appellant, v. The CANAL BARGE COMPANY, Defendant-Appellee. No. 28866. United States Court of Appeals, Fifth Circuit. June 18, 1970. Norman L. Breland, Holleman & Necaise, Gulfport, Miss., Robert L. Netterville, Natchez, Miss., for plaintiff-appellant. George Morse, Gulfport, Miss., John Peters, Jr., Jones'^ Walker, Waechter, Poitevant, Carrere & Denegre, New Orleans, La., for defendant-appellee. Before BELL, COLEMAN and AINSWORTH, Circuit Judges. AINSWORTH, Circuit Judge: The issue before us is whether there is an evidentiary basis to sustain the jury’s finding of no negligence or unseaworthiness in this action against Canal Barge Company, Inc., growing out of the unexplained drowning of Johnny Rabb, a seaman. We find that there is and affirm. Suit was brought under the Jones Act and the general maritime law by decedent’s mother as the administratrix of his estate. Decedent is also survived by sisters and brothers. On the date in question, Johnny Rabb was employed by appellee ' Canal Barge Company as a deck hand aboard the tug, The M/V Eugenia P. Jones. The vessel at the time was pushing seven barges loaded with sulphur up the Ohio River. Rabb, who had been standing available for a fog watch, was last seen alive about midnight on August 2, 1968. Shortly before 3:25 a. m. he was ordered by the Pilot through the ship’s intercom to proceed to the head of the tow as the vessel was beginning to come into fog. After a lapse of several minutes, the Pilot, having been unable to see a flashlight on the tow and having failed in his attempts to contact Rabb through the intercom, awakened the Captain who immediately ordered and shortly thereafter assisted with a general search of the tug and the barges in an attempt to find Rabb. A searchlight was turned on, and the vessel immediately following the tug and all towboats in the vicinity were notified to keep watch. Some time later, about daylight, a launch was put over the side to look for Rabb. The search, however, proved futile. Rabb’s body, without a life jacket, was found the next day. By special verdict, the jury found for defendant. The Court denied motions of both parties for a directed verdict and all other post-trial motions. Appellant’s argument, basically a factual one, is addressed to the weight of the evidence and the Court’s refusal to grant a peremptory instruction on both the negligence and unseaworthiness issues. The standard for testing the sufficiency of the evidence in a Jones Act case is that expressed by the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), as follows: “It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” See also McBride v. Loffland Bros. Co. & Travelers Ins. Co., 5 Cir., 1970, 422 F.2d 363. Cf. Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365. We must determine, therefore, whether there was a reasonable evidentiary basis upon which the jury could have found for appellee. Appellant calls attention to the following omissions of the Captain of the vessel and appellee barge line: the alleged dilatory actions of the Captain by remaining in bed ten to fifteen minutes after having been told of Rabb’s disappearance; his further delay in stopping the vessel and in putting a launch over to look for Rabb; failure to provide a backup man to watch for men overboard in dense fog; and failure to sound distress signals. Appellant further alleges that the failure of appellee to provide adequate lighting and guard rails around the tug constituted actionable unseaworthiness of the vessel. Having been given the proper instructions by the Court on negligence, unseaworthiness and proximate cause, it was the jury’s function properly to assess that evidence against the following evidence favorable to appellee in determining whether there was liability: Deck hands, venturing out on the barge, were required under all circumstances to wear life jackets and encouraged to use flashlights. There was no life jacket on decedent’s body, and the Pilot looked for, but was unable to see, a flashlight on the head of the tow. Under these circumstances, the jury could have reasonably concluded that decedent’s negligence was the sole proximate cause of his drowning. There were no eyewitnesses to the accident, thus necessitating the jury to draw on inferences. We may assume, therefore, that a certain amount of conjecture forms the basis of the verdict. This, however, does not detract from its validity. As said by the Supreme Court in a F.E.L.A. case, the counterpart of a Jones Act proceeding, “Fact finding does not require mathematical certainty. Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.” Schulz v. Pennsylvania Railroad Company, 350 U.S. 523, 527, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956). (Emphasis supplied.) See also Lavender v. Kurn, 327 U.S. at 653, 66 S.Ct. at 744. Appellant stresses the alleged negligent failure of the tug’s Captain to take proper and adequate measures when informed of Rabb’s disappearance. We cannot say that the jury was unreasonable in refusing to find the Captain derelict or dilatory in his duty by allowing no more than fifteen minutes to lapse between being awakened and actively participating in the search. There was evidence that the vessel had already been stopped and that the Captain was aware of it, indicating that the necessary emergency measures were already in motion. Nevertheless, the Captain responded immediately by ordering a search; a searchlight was used to assist; all towboats in the vicinity were notified to keep watch; any search of the river and the banks by launch prior to daylight and a break in the fog would have been dangerous and useless. There was also evidence to refute appellant’s contention that the absence of handrails and additional lights on the barges constituted unseaworthiness. Testimony showed the impracticality and danger of placing life lines around the perimeter of the barges; that all necessary navigational lights were in use and that any other lights aboard the barges would have created confusion and danger. There was also evidence that a one-man fog watch was normal; that there was a clear and unobstructed walkway for a deck hand to use in proceeding to the bow to serve as fog watch. Around the perimeter of the barges was a white glossy enamel stripe about eighteen inches wide painted there as a safety measure to warn a deck hand that he was approaching the edge of a barge. Appellant nevertheless urges that the tug was unseaworthy as a matter of law and that the unexplained drowning of Rabb requires the application of the res ipsa loquitur doctrine. Resort to this doctrine, however, is not warranted in the absence of showing at least a malfunction, failure or misuse of the vessel, its appurtenances or gear, or some defect therein. Compare Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415; Marshall v. Ove Skou Rederi A/S, 5 Cir., 1967, 378 F.2d 193. The facts of this case are vastly distinguishable from those of Gibbs v. Kiesel, 5 Cir., 1967, 382 F.2d 917, and authorities cited therein, relied on by appellant. In Gibbs the petitioner was struck from behind by doors which unaccountably fell from above. Inability of petitioner to pinpoint the cause which triggered the doors to fall did not preclude a finding of unseaworthiness. We expressed our approval of the application of the res ipsa doctrine to an action for unseaworthiness noting that “the logical inference is often that the gear or appurtenance would not have broken had it not been defective.” 382 F.2d at 919. Here, however, there was no evidence of any untoward effect from which a possible unseaworthy “cause” could be argued. The District Judge, in a very fair and comprehensive charge, instructed the jury that all of the alleged derelictions of appellee were matters to be decided by them in determining whether there was causal negligence or unseaworthiness. The Court properly instructed the jury on the “slight-negligence” test to be applied in determining liability under the Jones Act. See Webb v. Illinois Central Railroad Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957); Ferguson v. Moore McCormack Lines, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). The Court also informed the jury of the absolute duty of the shipowner in respect to seaworthiness. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The jury nevertheless found for appellee on both issues. We cannot say the verdict was without evidentiary basis. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the 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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The ANTHONY COMPANY d/b/a Eldorado Club, Respondent. No. 76-1059. United States Court of Appeals, Ninth Circuit. July 18, 1977. Margery E. Lieber, Atty., N.L.R.B., Washington, D. C., argued for petitioner. Larry A. Curtis, argued, Musick, Peeler & Garrett, Los Angeles, Cal., for respondent. Before CHAMBERS and WALLACE, Circuit Judges, and CRARY, District Judge. The Honorable E. Avery Crary, Senior United States District Judge, Central District of California, sitting by designation. CHAMBERS, Circuit Judge: This is an application by the National Labor Relations Board (the Board) under section 10(e) (29 U.S.C. § 160(e)) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq., for enforcement of its order issued against the Anthony Company (the Company), requiring correction of the Company’s several alleged unfair labor practices. The Board’s decision and order are reported at 220 NLRB No. 152 (1975). The Company operates a gaming establishment, used for the playing of poker, and an adjoining restaurant in Gardena, California. The restaurant holds about 160 people and the cardroom about 280. The Company employs approximately 200 persons, with only about 65 of these working in the restaurant. All of the employees are covered by the same collective bargaining agreement between the Company and the Culinary Workers and Bartenders Union (the Union). The poker parlor exists by local option, being operated solely pursuant to local ordinances. Thus, the card parlor is subject to strict control and regulation by the Gardena City Council on such matters as licensing, revenue reports, betting limits, age limits, hours of operation and advertising. There is no state supervision of the industry. Approximately 300 such poker parlors exist in California, with six similar parlors in Gardena alone. Although advertising of the casino is not permitted under the local regulations, the Company can and does advertise its restaurant inside and out of California. The vast majority of the Company’s patrons are local, or at least from California. With respect to its financial structure, the Company annually imports from out-of-state suppliers about $50,-000 worth of playing cards and $125,000 worth of meat • for the restaurant. The Company receives approximately $3 million a year in gross revenue from its combined restaurant-gaming operation. The card parlor, which is the only portion of the Company’s business involved here, operates in the following manner. The Company “rents” seats to card-playing customers, who sit at tables divided into three distinct sections for card games. In the first section (section I), the card games have the highest stakes and the highest rental price for a seat. Additionally, the tips given to employees in section I are the largest and most frequent, since new decks are “broken” most often in games in section I, and tips usually accompany the breaking of each new deck. The stakes, rental price for a seat, and employees’ tips decrease in sections II and III, respectively. The rent for chairs is collected every one-half hour by chipgirls, whose activities are overseen by floormen. The floormen basically break new decks of cards at certain.time intervals. On each work shift there is generally one floorman covering each of the three sections and "one relief floorman to substitute during the former’s breaks. Floormen are supervised by a manager who reports to the owner-operator, George Anthony. Both chipgirls and floormen receive tips for their services. Since tips for floormen are larger and more frequent in section I, the more senior floormen predominate in that section. The unfair labor practices found in this case relate to the Company’s treatment of two of its floormen-employees, Melvin Hogg and Richard Flynn. Hogg, a 13-year employee and senior floorman in section I, was terminated in December, 1973, and his grievance through the Union resulted in arbitration. Flynn, a relief floorman covering all three sections during the previous three years, attended the first of two sessions of Hogg’s arbitration hearing on March 13, 1974. During the next few months, Flynn received several warnings for lateness; his work schedule was altered such that he received little or no time in sections I or II and consequently lost out on the tips that attended the more frequent breaking of new decks there; and he received a three-day suspension for failing to timely turn in his collection slips. When Flynn complained about being mistreated because of his appearance at Hogg’s arbitration hearing, Flynn was told that he “wasn’t on the Company’s ball team” and “would have to take it like a man.” Flynn ultimately was discharged for having received three lateness warnings. On July 19, 1974, the arbitrator found Hogg’s December, 1973, discharge unjustified and therefore ordered his reinstatement with full seniority and back pay. Upon Hogg’s return to work, he was seen with a cigarette on the casino floor. A new company rule initiated during his absence but made known to him prohibited such smoking. Hogg and other employees present claimed that he had merely picked up a stray cigarette from the floor to discard it, but George Anthony claimed to have seen Hogg smoking it. Hogg was therefore given a written warning for the rule infraction, the first of its kind. In late August, 1974, as a result of a mandatory change in opening and closing hours imposed by an amended city ordinance, with no corresponding change in customers’ playing times, Hogg’s break at work coincided with a time of heavy breaking of new decks. Consequently, the relief floorman rather than Hogg benefitted from the tips that accompanied such breaks, and Hogg’s intake decreased drastically. Despite Hogg’s pleas, no efforts were made by the Company to adjust Hogg’s work schedule to permit him to receive a reasonable amount of card breaks. On these facts, the Board, adopting the findings, conclusions and recommended order of the Administrative Law Judge, found that the Company was within the Board’s statutory and discretionary jurisdiction, and that exercising its jurisdiction would effectuate the policies of the Act; that the Company violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by making coercive statements to employees; that the Company violated sections 8(a)(3) and (1) of the Act, id. § 158(a)(1), (3), by discharging Flynn and by discriminating against both Flynn and Hogg because of their participation in the Union’s grievance-arbitration procedure set forth in the collective bargaining agreement; and that the case was not appropriate for deferral to arbitration under that agreement. The Board’s order requires the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining or coercing employees in the exercise of their statutory rights. The order also requires the Company to offer reinstatement and restoration of all rights to Flynn, to make Flynn and Hogg whole for any lost earnings they suffered because of the Company’s unlawful discrimination against them, and to post appropriate notices. The Board now seeks enforcement of this order. The Company first argues that the Board abused its discretion by arbitrarily asserting jurisdiction over its card parlor. There is no dispute that the Board had statutory power under section 10(a) of the Act, 29 U.S.C. § 160(a), to assert jurisdiction, but rather the Company urges that the Board’s discretionary jurisdiction under section 14(c)(1), id. § 164(c)(1), was improperly exercised. The Company bases its argument on the Board’s repeated refusal to assert jurisdiction over racetracks, claiming that the considerations underlying that refusal apply with equal force to card parlors. With regard to racetracks, the Board has not entered the picture because of the local nature of their operations, the extensive local regulation and control of the industry, their insubstantial impact on interstate commerce and the Board’s conclusion that exercise of its discretionary jurisdiction over them would not substantially contribute to stability in labor regulation. As this court recently recognized, “(t)he extent to which the Board ‘chooses to exercise its statutory jurisdiction is a matter of administrative policy within the Board’s discretion, . . . and is not a question for the courts, ... in the absence of extraordinary circumstances, such as unjust discrimination.’ ” NLRB v. Timberland Packing Corp., 550 F.2d 500, 501 (9th Cir. 1977), quoting NLRB v. Carroll-Naslund Disposal, Inc., 359 F.2d 779, 780 (9th Cir. 1966); see NLRB v. Harrah’s Club, 362 F.2d 425, 427 (9th Cir. 1966), cert. denied, 386 U.S. 915, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). Moreover, substantial prejudice flowing from the Board’s assertion of jurisdiction over one industry but not another must be shown. NLRB v. Harrah’s Club, supra, at 427. Neither unjust discrimination nor substantial prejudice were established in this case. It is also clear that this particular card parlor is dissimilar from the unencompassed racetracks in several respects. The Company’s game room is operated in close connection with its adjacent restaurant, which admittedly is engaged in a substantial amount of interstate commerce. The Company employs a relatively stable, full-time work force with a lower turnover rate than that characterizing the racetrack industry. Finally, the extensive local regulations controlling the Gardena card parlors do not address the matter of labor relations, and thus they do not render the Board’s involvement unnecessary or redundant. Therefore, we conclude that the Board properly exercised its discretion in asserting jurisdiction over the card parlor here. The Company next alleges that it was denied a fair hearing by the Administrative Law Judge and thereby deprived of due process of law. The Judge allegedly was unduly biased in crediting the testimony of all of the General Counsel’s witnesses and discrediting the conflicting testimony of all of the Company’s witnesses, and also abused his discretion in failing to properly weigh the evidence in arriving at a determination as to its preponderance. In support of its argument, the Company points to a string of labor relations cases in which this particular Administrative Law Judge repeatedly made blanket credibility resolutions in favor of the Board and against the employer. Be that as it may, the Administrative Law Judge has the responsibility of evaluating the credibility of the witnesses and the weight to be given their testimony, NLRB v. Vegas Vic, Inc. d/b/a Pioneer Club, 546 F.2d 828 (9th Cir. 1976), and his credibility resolutions will not be overturned unless found to be inherently incredible or patently unreasonable. United Ass’n of Journeymen & Apprentices, etc. v. NLRB, 553 F.2d 1202 (9th Cir. 1977); NLRB v. Ayer Lar Sanitarium, 436 F.2d 45 (9th Cir. 1970). While obvious indications of judicial bias or incompetence will not be disregarded by a reviewing court, we cannot conclude on this record that the Administrative Law Judge was so clearly biased or that his methods of evaluating the testimony were so improper or arbitrary as to render his credibility resolutions vulnerable. See NLRB v. Central Press, 527 F.2d 1156 (9th Cir. 1975). The Company contends that there is not substantial evidence in the record as a whole to support the Administrative Law Judge and the Board’s finding that the Company coerced, restrained and discriminated against its employees Flynn and Hogg in violation of sections 8(a)(1) and (3) of the Act. We disagree. Reference to the facts above indicates that there was sufficient direct and circumstantial evidence to support the conclusion that the Company’s treatment of Flynn and Hogg was motivated by their participation in Hogg’s arbitration hearing. The Board could reasonably infer from the evidence that all but one of Flynn’s written warnings for lateness, his three-day suspension for failing to timely turn in his collection slips, the change in his work schedule and his ultimate discharge were attributable to the Company’s unhappiness with Flynn’s appearance at Hogg’s arbitration hearing. With respect to Hogg, substantial evidence similarly exists to support the Board’s finding that the warning for Hogg’s allegedly smoking on the card-room floor in violation of a new company rule was actually motivated by Hogg’s successful resort to the grievance-arbitration procedure to challenge adverse actions taken against him by the Company. The last of the Company’s unfair labor practices found by the Administrative Law Judge and the Board is more troublesome. While the above violations relating to Flynn and Hogg arose from discriminatory, unlawfully motivated actions by the Company, this final alleged violation instead arose from the Company’s inaction with respect to Hogg’s request to have his work schedule adjusted after August, 1974. Following the arbitrator’s favorable decision on July 19, 1974, Hogg was reinstated with full seniority and back pay. In late August, the Company’s operating hours were changed because of an amendment to the city ordinance, requiring the club to open an hour later than before. As a result, the work schedules of all club employees were correspondingly moved back one hour. The combination of this change with the unaltered card-playing patterns of the Company’s customers resulted in a situation where the major time for breaking of new decks coincided with the time when Hogg was scheduled to take his relief break. Consequently, Hogg’s opportunity for breaking new decks was less than one-third of what it was before the schedule change, and tips which he used to receive went instead to his relief man. On these facts, the Administrative Law Judge and the Board found that the Company violated section 8(a)(1) and (3) by failing to take affirmative steps, pursuant to Hogg’s requests, to rearrange or adjust his schedule so as to allow him to regain some of the tips that the schedule change deprived him of. We have difficulty with the general proposition that an employer must make special provisions for an employee who is adversely affected by a change in working terms or conditions, even though the change is nondiscriminatorily imposed without any action on the employer’s part and uniformly affects all employees. See Gulf Building Corp., 159 NLRB No. 122 (1966). Nevertheless, we believe substantial evidence supports the Board’s finding of a violation in this particular case. The record reveals that after the August schedule change, Hogg complained to the Company managers Hackman and John Anthony several times that he (Hogg) was not getting enough decks to break and was being discriminated against. Hogg also testified that, to his knowledge, he was the only employee so adversely affected by the schedule change. Aside from this, there is a noticeable lack of any evidence indicating that other employees were similarly disadvantaged or, if any were, that they, like Hogg, sought and were denied a beneficial adjustment in their personal work schedules. Company manager Hackman, who had the responsibility to set work schedules and claimed to deal equally and fairly with all employees, generally was aware that under the new hours the times for changing decks fell within Hogg’s break time. Under these circumstances, while the question is a close one, the Board could rationally infer that the Company’s refusal to at least slightly modify Hogg’s work schedule, allowing him to benefit'from a reasonable amount of card breaks, was based on its displeasure with Hogg’s persistent and successful use of the grievance-arbitration machinery and thus in violation of the Act. Therefore, we conclude that the Board’s order shall be enforced in full. . Local No. 814 (AFL-CIO). The collective bargaining agreement involved here ran from June 23, 1973, through June 23, 1976, and provided for a grievance-arbitration procedure. . See 29 CFR § 103.3 (1976); Walter A. Kelley, 139 NLRB 744 (1962); Meadow Stud, Inc., 130 NLRB 1202 (1961); Hialeah Race Course, Inc., 125 NLRB 388 (1959); Jefferson Downs, Inc., 125 NLRB 386 (1959); Independent Ass’n of Pari-Mutuel Emp. v. Gulfstream Racing Ass'n, Inc., 407 F.Supp. 855 (S.D.Fla.1976). . See authorities cited note 2 supra. In contrast, the Board has determined that assertion of its jurisdiction over Nevada gambling establishments is warranted. See El Dorado Club, 151 NLRB 579 (1965). In NLRB v. Harrah’s Club, 362 F.2d 425 (9th Cir. 1966), this court upheld the Board’s exercise of jurisdiction over a Nevada gambling casino, notwithstanding the Board’s established policy of not invoking its jurisdiction over racetracks. . As this court recently stated in United Ass’n of Journeymen & Apprentices, etc. v. NLRB, supra, “(w)here the trier of fact has made explicit findings crediting the testimony of witnesses for one side, and has given no credit to witnesses for the other side, we are especially reluctant to overturn his conclusions.” In his lengthy decision, the Administrative Law Judge here made such explicit findings of credibility. . Since tips are undoubtedly a reasonable expectation of the club’s floormen and part of their anticipated remuneration, we believe Hogg’s lost tips at issue here constitute a “term or condition of employment” within the meaning of section 8(a)(3). Cf. NLRB v. Electro Vector, Inc., 539 F.2d 35 (9th Cir. 1976). . The Board also rejected the Company’s contention that the Board should have deferred to the arbitration procedure set forth in the collective bargaining agreement. Although the Company apparently has abandoned this contention on appeal, the Board’s refusal to defer in this case cannot seriously be questioned. See Stephenson v. NLRB, 550 F.2d 535, 537 (9th Cir. 1977), citing Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 675-76 (9th Cir. 1976); Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44 (1972). 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_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee CALHOUN, Defendant-Appellant. No. 79-1017. United States Court of Appeals, Ninth Circuit. Sept. 20, 1979. J. Toney (argued), Toney & Trivellini, West Sacramento, Cal., for defendant-appellant. Julian G. Macias, Jr., Fern M. Segal, Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee. Before ELY and SNEED, Circuit Judges, and EAST , District Judge. Honorable William G. East, Senior Judge of the United States District Court for the District of Oregon, sitting by designation. SNEED, Circuit Judge: Appellant Donald Calhoun appeals from his jury trial conviction for bank robbery, 18 U.S.C. § 2113(a)(d), and possession of a firearm by a convicted felon, 18 U.S.C.App. § 1202(a)(1). Because we find that the trial court admitted improper, prejudicial evidence, we reverse. FACTS Two black males robbed the Citizens Savings and Loan in Sacramento, California July 17, 1978. The robbers wore masks with eye cutouts. Two tellers viewed one of the robbers for approximately sixty and fifty seconds, respectively. One shot was fired at the vault in an attempt to open it. Bullet fragments from the shot were collected for identification. On August 15, 1978, appellant purchased a used car with $3,000 in small denomination bills that he removed from a brown paper bag. Two days later, the person from whom he bought the car recognized a photograph in a local newspaper, called the Federal Bureau of Investigation, and turned over $2,975 of the cash paid by appellant. Subsequent to a photo identification by one of the tellers, appellant was arrested August 18, 1978 while driving the recently purchased automobile. During a search of the car to which the appellant consented, agents discovered a loaded pistol concealed under the spare tire cover. Ballistics comparison revealed that the bullet fired in the robbery had been fired from the pistol found in appellant’s trunk. Conflicting testimony indicated that appellant’s sister received the pistol prior to the Citizens robbery, but that she was not the person who placed the gun in appellant’s car. At trial a large part of the government’s case depended upon identification of the appellant by the two tellers. The government emphasized that appellant’s unique eyes aided identification. The defense attempted to attack the identifications in several ways that were thwarted by the trial court’s rulings. Critical to our disposition, however, is the propriety of certain testimony elicited by the government on redirect examination of a prosecution witness. The government elicited testimony first that appellant paid for the car with $3,000 cash in small bills. On cross-examination of an agent, defense counsel brought out the fact that none of the $2,975 turned over to the agents was bait money that could be traced to the Citizens robbery: Q. Was any of the money in that $2,975.00 taken from the Citizens Savings and Loan, — or were there any bait bills from Citizens Savings and Loan in that money? A. Not from Citizens. Reporter’s Transcript at 161. On redirect, the government, over objection, connected the bait bills to a different bank robbery. The agent testified that $70 of the bills were bait bills from an unrelated bank robbery for which appellant had not been charged. The appellant attacks the admission of this testimony. DISCUSSION Federal Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This provision is a so-called “inclusionary” rule; all evidence of other crimes relevant to an issue at trial is admissible under Rule 404(b) unless the evidence tends to prove only a criminal disposition. 2 Weinstein’s Evidence H 404[08]. The government’s evidence will clear the Rule 404(b) hurdle in this case only if it was relevant to an issue at trial. Even if particular evidence is admissible under Rule 404(b), Rule 403 provides for discretionary exclusion: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Although the trial judge has broad discretion in assessing the balance of these factors in a given case, our duty is to reverse if we are convinced that there has been an abuse of discretion. United States v. Hearst, 563 F.2d 1331, 1348-49 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). We do not believe that the evidence the government elicited on redirect only tends to prove a criminal disposition on the part of the defendant. The government contends with considerable force that this evidence was relevant to rebut an exculpatory inference raised by the defense. It argues that the defense raised the bait bill issue, first by questioning the tellers to establish that the robbers of Citizens had taken bait bills, R.T. at 91, 132, and later by establishing that a check of the $2,975 against lists of bait bills did not show that any bait bills from the Citizens robbery were used by appellant to purchase the car, R.T. at 161. Having opened the door, it was proper, the government insists, to show that in fact some of the bills were bait bills from another robbery. In support of its position, the government cites United States v. Cook, 538 F.2d 1000 (3d Cir. 1976). On cross-examination of a federal agent in that case, the defense attorney asked whether it was a federal crime to transport an unregistered firearm across state lines. The agent answered that it was not, and further testified that the seized pistol appeared to be a legal weapon. The defense attorney next asked whether it was against Maryland law to carry a concealed weapon. The agent answered affirmatively . 538 F.2d at 1002. The trial court then allowed the prosecution to establish that the defendant had been convicted of sodomy previously and thus it was a federal crime for him to be in possession of a firearm. The Third Circuit, however, reversed the conviction. The circuit court recognized that evidence of other crimes could be introduced “to dispel an exculpatory implication implanted by the defense attorney during cross-examination of a prosecution’s witnesses.” 538 F.2d at 1004. Although it thus found the prior conviction relevant, it applied the balancing analysis of Rule 403 and reversed, stating: If the inference suggested to the jury is only vaguely favorable to the defendant, is irrelevant to the issues at trial, and does not truly harm the government’s case, then the need to refute that inference is not sufficient to outweigh the risk of prejudice that would be posed by the introduction of evidence of other crimes. 538 F.2d at 1004-05. We believe our disposition should be guided by Cook. In pursuing the bait bill question as it did at trial, the defense sought to imply that the $2,975 did not derive from the Citizens robbery. The testimony elicited from the tellers and from the agent was all directed to this exculpatory goal. Testimony that $3,000 in $20 and smaller denominations were used to purchase a car obviously implied that the money may have come from the Citizens robbery. That the money was pulled from a brown paper bag strengthened this inference. The defense sought to demonstrate that the government had not established that the bills came from the Citizens robbery. Not content with the still strong inculpatory implication of the manner of payment, the government then went further and sought to connect the appellant with another robbery. This it should not have done. If strengthening of its already strong inference on redirect were thought necessary, it perhaps could have been done by eliciting responses concerning the denominations of the bills taken from the Citizens robbery and the approximate number of bait bills in the Citizens robbery loot. Even if this means of inference strengthening were not available, the exculpatory force of the defense bait bill inquiry was relatively weak. The possible prejudicial effect of the prosecution’s evidence strongly implying that the bait bills came from another robbery, on the other hand, is quite apparent. In short, we believe the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. Therefore, it should have been excluded pursuant to Rule 403. Not to have done so constitutes an abuse of discretion. We also reject the argument that the prosecution’s error was harmless. The government’s case rested in large part on witness identification based on brief exposure to a robber wearing a mask covering all but the eyes and upon a gun given to the appellant’s sister and found in his car. The elicited evidence linked the appellant to a bank robbery, the precise type of crime with which he was charged. A reasonable jury could have regarded this as the evidence that provided the final weight that enabled it to find the appellant guilty beyond a reasonable doubt. . REVERSED. . Appellant attacks trial court decisions to exclude certain defense presentations and testimony. Such decisions are within the discretion of the trial court in managing the trial. In light of our holding as to the appellant’s contention concerning prejudicial prosecution evidence, we need not reach these other arguments. 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_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES ex rel. HACK v. CLARK, U. S. Atty. Gen., et al. No. 9165. Circuit Court of Appeals, Seventh Circuit. Feb. 11, 1947. Harold O. Mulks, of Chicago, Ill., for appellant. J. Albert Woll, U. S. Atty., and John Peter Lulinski, Asst. U. S. Atty., both of Chicago, Ill., for appellees. Before EVANS, KEENER, and MIN-TON, Circuit Judges. MINTON, Circuit Judge. The Attorney General of the United States has ordered the relator deported to Germany as an enemy alien whose pres^ ence here is dangerous to the public peace and safety, and he is now in the custody of Andrew Jordan, District Director of the Chicago District, the United States Department of Justice, Immigration and Naturalization Service. The relator has brought a proceeding in habeas corpus to be released from said custody, in which petition it appears that he was born in Germany on November 7, 1899, that he left the port of Hamburg, Germany on December 6, 1923 and entered the port of New York on December 20, 1923, and that he has never become a naturalized citizen of the United States. The District Court has sustained the motion of the respondent Jordan to dismiss the petition for a writ of habeas corpus, and the relator has appealed. The relator alleges in his petition: 1. That he has been denied a hearing according to the principles of due process of law. 2. That the President of the United States could not delegate to the Attorney General the duty of determining, pursuant to 50 U.S.C.A. § 21, whether the relator was dangerous to the public peace and safety of the United States. 3. That hostilities having ceased between the United States and Germany and the sovereign state of Germany having been completely subjected by opposing powers, the state of Germany no longer exists to which he may be deported or of which he may claim to be a citizen, subject, or denizen. 4. That the Attorney General may not authorize citizens who are not officers of the United States to hold hearings to determine whether the relator shall, first, be confined to a detention camp, and secondly, be repatriated to the country from whence he came, the result of said hearing to be used by the Attorney General in an advisory manner. All of these questions have been answered contrary to the relator’s contentions. United States ex rel. Knauer v. Jordan, 7 Cir., 158 F.2d 337; Citizens Protective League v. Clark, App.D.C., 155 F.2d 290; United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 137 F.2d 898, 900; United States ex rel. Schlueter v. Watkins, D.C., 67 F.Supp. 556, affirmed 2 Cir., 158 F.2d 853. In a proceeding of this kind but one question is open to the relator, and that is whether he is an enemy alien. United States ex rel. Schwarzkopf v. Uhl, supra. If he is, that ends the proceeding. He may not contest in the courts of the host nation when or under what circumstances he, an enemy alien, shall be ordered to depart. Whether the country from whence he came is still at war with the United States or is still in existence as a sovereign power is not for any court to say; that is a political question to be answered only by those branches of our. Government charged with the responsibility of political decisions, namely, the executive and legislative branches. Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Citizens Protective League v. Clark, supra. The District Court committed no error in dismissing the relator’s petition in habeas corpus, and the judgment is Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_injunct	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". CORICA v. RAGEN et al. No. 8477. Circuit Court of Appeals, Seventh Circuit. Feb. 15, 1944. Floyd E. Thompson, of Chicago, 111., for appellants. Daniel M. Healy, of Chicago, 111., Geo. D. Locke, of Phoenix, Ariz., and Plarry E. Kopald, of Chicago, 111., for appellee. Before EVANS, KERNER, and MIN-TON, Circuit Judges. KERNER, Circuit Judge. This appeal is from an order granting plaintiff a preliminary injunction. Jurisdiction, which rests upon diversity of citizenship and the requisite amount in controversy, is not in dispute. Plaintiff’s complaint alleges that plaintiff is conducting a business of selling news of sporting events under the name of “Washoe Publishing Co.” and that defendants are conducting a business of gathering and distributing sporting news under the name of “Continental Press Service"; that plaintiff employed Continental Press to gather news in the eastern part of the United States for distribution to his customers; that in July, 1943, agents of Continental Press approached plaintiff’s customers, represented to them that the news being distributed to them was being distributed by Continental Press and not by plaintiff, and that they should no longer pay plaintiff for such news; that as a consequence of such representations, customers have refused to pay plaintiff for the news distributed to them; that by said acts, defendants have injured plaintiff in his business and unless restrained will destroy his business; and that plaintiff therefore prays for an injunction, damages, and an accounting. Another important phase of the complaint, which is not directly in issue on this appeal, was that in which plaintiff sought a preliminary injunction against Western Union Telegraph Company, alleging that plaintiff was the lessee of a Morse circuit of Western Union originating at St. Louis and terminating in various cities in the Rocky Mountain and Pacific Coast States where plaintiff’s customers were located. On the basis of averments in the defendants’ answer, supporting affidavits, and arguments, the District Court denied this injunction, finding that plaintiff’s contract with Western Union was properly terminated in August, 1942. Several affidavits and an exhibit of the contract between Western Union and Continental Press, offered by defendants, show that the telegraph facilities in question were leased to Continental Press in 1942. Defendants filed a joint and several answer in which they allege that whatever news service plaintiff has rendered to customers since August 12, 1942, has been pursuant to an arrangement under which he purchased news from Continental Press Service and under which Continental delivered the news to the subscribers for such service; that Continental sells news to distributors located in various parts of the United States pursuant to oral contracts entered into between Continental and such distributors, said contracts being for three-month periods, the amounts thereof being determined at or about the commencement of each contract period; that in January, 1941, and from time to time thereafter, plaintiff entered into a contract with Continental whereby it sold news to him for distribution by him to subscribers in the Rocky Mountain and Pacific Coast States; that for the period beginning in April, 1943, plaintiff paid to Continental the sum of $3,-500 a week; that upon the expiration of the contract for this period, on or about July 3, 1943, Continental advised plaintiff that the charge would be $5,500 a week for the next three-month period and plaintiff continued to accept such service; that for the next two weeks plaintiff failed to pay for the service; that on July 15, 1943, and again on July 20, plaintiff notified Continental that he would not pay for the service; that Continental thereupon discontinued service to plaintiff, and on or about July 20, 1943, entered into an agreement with one Edward Maloney whereby Continental agreed to sell sporting news gathered by it to Edward Maloney at $5,500 a week and to deliver such news to customers of Maloney in the Rocky Mountain and Pacific Coast States. Plaintiff filed an affidavit in support of his application for an injunction in which he said that he began to distribute news in the western part of the United States in 1939; that he had expended large sums in perfecting an organization for gathering such news and that he employed Continental Press Service to gather news east of the Mississippi; that he controlled the telegraph facilities till July 13, 1943, and that the change of the lease from him to Continental Press in August, 1942, was simply for billing convenience; that Edward Maloney, to whom Continental directed the customers to account, was his former employee; that Maloney is furnishing Continental Press Service news to affiant’s customers and has no customers of his own; and that the increased charge for the news ($5,500 in place ■ of the former $3,500 a week) was unjustified. James M. Ragen, Jr., filed his affidavit in opposition to the application in which he stated that plaintiff did not commence the operation of a news distribution business in 1939, but that plaintiff was assigned as a distributor of Continental Press Service in May, 1940; that the news plaintiff gathered was at the request and under the direction, and at the expense of Continental Press Service; that plaintiff has not spent money in developing the news distributing business, but took over an established business when he was appointed distributor and continued to sell news to the same customers to whom his predecessor had sold; that the increased charge was justified because it depended upon the season when the service was furnished, the amount of news that was available, the cost of gathering the news, and the demand for the service; that Maloney was familiar with the territory and had long had contact with most of the subscribers for the service through his employment with another distributor of sporting news in the territory; that Maloney was paying $5,500 per week for the news; and that plaintiff at all times had full knowledge of the fact that the affiant had complete control of the telegraph facilities after August 12, 1942. The fact that plaintiff refused to pay the price defendants asked for Continental Press Service news in July, 1943, is established by the affidavits of other witnesses produced by defendants. Plaintiff submitted no proof, by affidavit or otherwise, that he had offered to pay for this service or that he paid anything for the service during the two weeks prior to July 20, 1943. After a hearing on the pleadings and the affidavits in support of and in opposition to the application for the injunction, the District Court concluded that “ * * * the Continental Press has improperly interfered with' the plaintiff’s business and customers and should be restrained from further conduct of that nature.” It was then decreed that the defendants and their agents and attorneys “be and they hereby are enjoined and restrained until the further order of this court from interfering with plaintiff’s business and customers and from approaching or causing to be approached the customers of plaintiff; and from in any manner or by any means furnishing or attempting to furnish news to plaintiff’s customers; from in any manner interfering with the plaintiff’s distribution of news to his customers; from intimidating or persuading plaintiff’s customers to cease doing business with the plaintiff; from notifying plaintiff’s customers that they should no longer deal with plaintiff; from notifying plaintiff’s customers that if they did deal with plaintiff, they would be deprived of all news service; from notifying plaintiff’s customers to cease making any payments to plaintiff; from directing or persuading plaintiff’s customers not to pay any moneys to plaintiff for news service heretofore or hereafter furnished to them by the plaintiff; from collecting from plaintiff’s customers any sums of money or other things from the furnishing of news service ; from notifying or telling plaintiff’s customers that unless all payments are made direct to said defendants individually or under the name of Continental Press, all distribution of news will be shut off, and that such customers will be deprived thereof; from representing to plaintiff’s customers that all of the business of plaintiff has been taken over by said defendants individually or under the name of Continental Press and from notifying plaintiff’s customers that they will be served by Continental Press and not by plaintiff; and from serving or attempting to serve plaintiff’s customers in said territory with news of any sort whatsoever, and from doing any other act or thing which would interfere with plaintiff’s customers and business.” This injunctional order, which was entered September 28, 1943 and reinstated November 24, 1943, is now before us and our problem is to ascertain whether it was proper for the District Court to issue such an order. In essence, what plaintiff seeks to accomplish by the injunction, is not to maintain the status quo, but rather to coerce defendants into giving him an exclusive franchise to use Continental Press Service as a means of controlling the business of subscribers for its service in the Rocky Mountain and Pacific Coast States. In our freely competitive economy, there is no vested and indefeasible right to monopolize customers. Yet plaintiff asserts that the purchasers of this news service are his customers and seeks to exclude defendants from selling to them. Customers cannot be owned as plaintiff seeks to own them. Although plaintiff alleges that he had existing contracts with customers, he sets forth no contracts and furnishes no affidavit of a customer. Thus his naked allegation of existing contracts stands wholly unsupported. When those he claims were his customers were consulted in September, 1943, they replied that they wanted Continental Press Service news service continued and that the arrangements with the then distributor were satisfactory. There is no proof that plaintiff ever had a contract with a customer, except his uncorroborated statement, and the facts in the record seem to indicate that the most he could have had were parol contracts terminable at will. These customers were interested in buying Continental Press news service, and there is nothing to show that they would be satisfied with any other news service. They-were buying Continental Press service before plaintiff was appointed distributor by Continental in 1940, and when plaintiff’s appointment as distributor was terminated, they stated that they Wanted to continue to receive Continental Press Service from the new distributor. Since these customers were buying Continental news service, it seems clear that when plaintiff no longer had that service to sell, they ceased to be his customers. By refusing to pay for Continental service, plaintiff by his own conduct terminated whatever contracts he had with those who had been his customers. This is not to say that plaintiff may not make every effort to sell these customers some substitute for Continental service, but it seems clear that Continental’s agents may make a similar effort to sell Continental service to these customers. Thus the order is defective because it is too broad and sweeping. It enjoins defendants “from in any manner or by any means furnishing or attempting to furnish news to plaintiff’s customers” and “from serving or' attempting to serve plaintiff’s customers in said territory with news of any sort whatsoever,” without identifying the customers whom Continental is prohibited from serving, on describing the news Continental is barred from furnishing, or limiting the restraint to unlawful acts of defendants. Without indicating what defendants may do in carrying on their normal business operations, the injunction prohibits them from doing acts which are usual and necessary in the business of gathering, editing, and distributing news. If plaintiff has other news to furnish to his customers and these customers are willing to take the other news, then plaintiff is not deprived of rights by defendants’ attempt to sell to the same customers. If plaintiff does not have other news to sell to these customers and refuses to buy the news of Continental on its terms, these customers cannot be deprived of news essential to their business simply because plaintiff has placed himself in a position where he cannot serve them. A court of equity must exercise its discretion in such manner as to safeguard the interests of both parties, and, in certain circumstances, such as those in the instant case, it is an abuse of judicial discretion to issue an injunction which permits one party to obtain an advantage by acting, while the hands of the adverse party are tied by the writ. See Spring Valley Water Co. v. San Francisco, C. C., 165 F. 667, 709, 710. Thus, as the Supreme Court said in Russell v. Farley, 105 U.S. 433, 438, 26 L.Ed. 1060, a court of chancery should “ * * * regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. * * * And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party; * * It is apparent from this record that defendants receive more than twenty times as much net income per year as plaintiff from business operations in the territory in question. Moreover, Continental Press has spent thousands of dollars in developing its news service, and its good will must suffer impairment from a serious interruption of service. Thus the hardship inflicted is far greater by allowing the injunction than would be the hardship if there were no injunction. Accordingly, granting it involved a violation of the comparative injury principle. Taking all the circumstances into consideration, including the fact that the only grounds for granting the injunction were to be found in the unsupported, contradicted and impeached affidavit of plaintiff, we do not think it can be said that plaintiff had established his right to the relief sought so clearly as to be reasonably free from doubt, so as to warrant an injunction prior to trial. For the foregoing reasons, the preliminary injunction granted by the District Court will be dissolved. It is so ordered. On October 16, 1943, it was stipulated by the parties that the order for temporary injunction be vacated without prejudice to the rights of the parties. Pursuant to this stipulation an order was entered vacating the order of September 28, 1943. A pendente lite agreement had been entered into, under which the parties were operating at the time of the vacation of the order. But negotiations failed to result in a final determination or settlement, so plaintiff filed an application to reinstate the order of injunction of September 28, 1943. Defendants filed an answer thereto. Plaintiff made a reply by affidavit to the answer. A hearing was had, and at the conclusion thereof, the District Court ordered the reinstatement. Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-3-5	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". COLORADO INTERSTATE GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, K N Energy, Inc., Public Service Company of Colorado, Western Gas Supply Company, and Cheyenne Light, Fuel and Power Company, Intervenors. Nos. 88-1169, 88-1273 and 88-1478. United States Court of Appeals, Tenth Circuit. Dec. 1, 1989. Donald C. Shepler, Gen. Atty. and Daniel F. Collins, Sr. Vice President, Colorado Interstate Gas Co., Washington, D.C. (William W. Brackett, Atty., Washington, D.C., with him on the brief), for petitioner. Robert H. Solomon, Atty. (Catherine C. Cook, Gen. Counsel, Jerome M. Feit, Sol., and Frank R. Lindh, Atty., on the brief), F.E.R.C., Washington, D.C., for respondent. T.J. Carroll, III, Lakewood, Colo., for intervenor, K N Energy, Inc. James K. Tarpey and Kenneth V. Reif of Kelly, Stansfield & O’Donnell, Denver, Colo., filed a brief for intervenor, Public Service Group. Before SEYMOUR and BARRETT, Circuit Judges, and WEST, District Judge. Honorable Lee R. West, United States District Judge for the Western District of Oklahoma, sitting by designation. SEYMOUR, Circuit Judge. In this consolidated appeal, petitioner Colorado Interstate Gas Company (CIG), a transporter of natural gas, protests the imposition of various conditions which respondent Federal Energy Regulatory Commission (FERC) attached to its approval of CIG’s three applications for certificates of public convenience and necessity under section 7(c) of the Natural Gas Act (NGA), 15 U.S.C. § 717f(c) (1988). In all three cases, FERC limited the duration of the certificates to either one year, or until CIG accepted a blanket certificate, instead of approving the longer terms CIG had requested. In one application, FERC required in addition that CIG charge a higher transport rate than it had proposed. In this application, FERC also refused to certify the firm transport service CIG had requested, limiting CIG to providing interruptible service only. CIG challenges all of the conditions as arbitrary and capricious, and attacks the rate condition as beyond FERC’s statutory authority to impose conditions on its approval of certificates under the NGA. We hold that CIG’s acceptance of a blanket certificate, which caused the three individual certificates to expire and allowed CIG to offer firm service at the rate it originally requested, has mooted the claims based on the one-year term limitation, the rate condition, and the denial of firm service. We also hold that we cannot review the validity of the blanket certificate acceptance term limitation in the three applications at issue because CIG did not properly challenge this limitation in administrative proceedings below. I. BACKGROUND CIG is a major interstate seller and transporter of natural gas, subject to FERC regulation under the NGA, 15 U.S.C. §§ 717 et seq. (1988). The NGA prohibits the transport of natural gas absent FERC certification. Traditionally, FERC has certified energy transactions on an individual basis, which are the type of certificates at issue in the present appeal. Following FERC’s promulgation of Order No. 436, however, interstate natural gas companies also have been able to obtain authorization to transport gas under a so-called “blanket” certificate procedure. A blanket certificate enables a transporter of natural gas to provide service throughout its pipeline system without the necessity of individual section 7(c) certification for each transaction with each customer. This added freedom is not without its regulatory quid pro quo, however. A transporter under blanket certification must provide access to all shippers on a “first-come, first-served” basis, even if the shipper intends to compete with the pipeline company in the sale of gas. Holders of blanket certificates are also under loose rate regulation and are subject to a variety of other procedural and substantive constraints. See generally 18 C.F.R. §§ 284.1-.13; §§ 284.-221-.226 (1989) (promulgated as part of Order No. 436, 50 Fed.Reg. 42,408 (1985)), vacated sub nom. Associated Gas Distribs. v. FERC, 824 F.2d 981 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988), repromulgated as Order No. 500, 52 Fed.Reg. 30,334 (1987). The purpose of the new blanket procedure is to increase downstream competition in natural gas sales by ensuring that sellers who do not transport their own gas have access to transportation facilities. See Associated Gas Distribs., 824 F.2d at 994. Throughout the administrative proceedings in the present case, CIG was negotiating for a suitable blanket certificate. See rec., tab 7, at 105 n. 1. A. Case No. 88-1169 In December 1986, CIG applied for an individual certificate of public convenience and necessity authorizing the transport of up to 125,000 Mcf/day, and up to 22.5 Bcf/year of natural gas for its largest customer, Intervenor Public Service Company of Colorado and its subsidiaries (PSCo). The application ensued from an agreement under which CIG would transport gas that PSCo purchased from Inter-venor K N Energy, Inc. (K N), a gas producer. In its application, CIG requested an initial ten-year term, and proposed that PSCo have the option to elect “firm” or “interruptible” service. The proposed initial rate of transport was $.306/Mcf for the first 40,000 Mcf/day transported and $.18/Mef for any volume above 40,000. These charges would be credited against a monthly reservation charge of $3.07/Mcf for any firm service that PSCo might elect. In September 1987, FERC approved CIG’s application subject to the following limitations: (1) CIG must charge PSCo its maximum volume No. 1-A tariff rate for inter-ruptible service — a rate significantly higher than that which CIG had proposed in its application; (2) CIG could offer PSCo only interruptible service and not the firm service option CIG had requested; and (3) the certificate would expire once CIG accepted a blanket certificate or after one year. Of course, CIG could apply to renew the certificate. See 40 F.E.R.C. If 61,231 (1987). In its request for rehearing, CIG noted three “errors,” namely: (1) the refusal to certify firm service; (2) the imposition of a one-year term; and (3) the failure to approve the rate negotiated by the parties. CIG did not list as error the imposition of the blanket certificate acceptance term limitation. CIG requested only that “on rehearing [FERC] should eliminate the 1 year restriction imposed by the September 15 order and issue a certificate for the requested ten-year term.” Rec., tab 7, at 114 (emphasis added). FERC denied rehearing. See 42 F.E.R.C. ¶ 61,157 (1988). B. Case No. 88-1273 Since December 26, 1985, CIG had held an individual section 7(c) certificate authorizing it to transport gas acquired by PSCo. In May 1987, CIG applied, inter alia, to extend the certificate for two more years, and month-to-month thereafter, in accord with its contract with PSCo. FERC granted the application, but again mandated that the certificate expire after one year from the date of the order, or earlier if CIG accepted a blanket certificate. Rec., tab 9, at 170. In its rehearing request, CIG argued that the one-year limitation was unreasonable, but did not argue that the blanket certificate acceptance limitation was similarly unacceptable. CIG’s request concluded that “on rehearing [FERC] should eliminate the one-year restriction ... and grant CIG’s petition for the requested term.” Id. at 173 (emphasis added). FERC denied the request. See 42 F.E.R.C. If 61,138 (1988). C. Case No. 88-1478 In April 1987, CIG sought to amend its individual 7(c) certificate under which it had transported gas for the City of Colorado Springs since October 1985. Among other requested amendments, CIG asked for an initial two-year extension, to be continued month-to-month thereafter. FERC granted the application but limited the term to one year, or until CIG accepted a blanket certificate. See 42 F.E.R.C. ¶ 61,020 (1988). In its request for rehearing, CIG claimed that FERC “erroneously limited the term of the authorization to the earlier of one year from the date of the order or the date CIG accepts a blanket certificate.” Rec., tab 11, at 220-21. As in the request in Case No. 88-1273, CIG targeted its argument only at the one-year term limitation. The rehearing request stated that FERC “fails to address why the parties’ need for, and CIG’s application for, a longer-term certificate should be arbitrarily limited in the Order.” Id. at 224 (emphasis added). The only discussion of blanket certificates occurred in the argument concerning the one-year limitation: CIG argued that the shorter term could “force” it to forego its individual certificate by accepting a blanket certificate. See id. at 225. CIG then requested that “on rehearing [FERC should] issue an order approving the amendment as requested by CIG.” Id. at 226. No indication exists that CIG sought to amend the blanket certificate acceptance limitation, which its preamendment certificate had contained. See FERC’s Order Amending Certificate, Colorado Interstate Gas Co., 42 F.E.R.C. ¶ 61,020, 61,118 (1988); see also FERC’s Order Amending Certificate, Colorado Interstate Gas Co., 39 F.E.R.C. If 62,214 (1987). FERC denied CIG’s request for rehearing. See 42 F.E.R.C. ¶ 61,341 (1988). D. CIG’s Acceptance of a Blanket Certificate From March 1987, CIG had pending before FERC an application for a blanket certificate. On August 4, 1988, five days after CIG filed its opening brief in the present appeal, CIG accepted a blanket certificate. The three individual certificates at issue in this appeal consequently expired prior to the running of the alternate one-year limitation. As near as we can fathom, CIG continued to supply PSCo and the City of Colorado Springs under its newly acquired blanket certificate authority. It appears undisputed that CIG is presently free to charge PSCo the rate it had requested in its December 1986 application. CIG also does not seem to dispute that it presently can offer PSCo the same firm service option it had originally requested. Finally, blanket certificate authority appears to be indefinite in duration. Of course, the new blanket certificate transportation service is subject to a different regulatory framework than had been the case under the expired section 7(c) individual certificates. II. DISCUSSION A. The Blanket Certificate Acceptance Limitations In all three certificates, FERC mandated that the certificate expire upon CIG’s acceptance of a blanket certificate. FERC argues that CIG cannot challenge this limitation on appeal because CIG did not argue this limitation’s invalidity in its requests for rehearing below. The statute giving this court jurisdiction to hear this appeal provides that “[n]o objection to the order of the Commission shall be considered by the [reviewing] court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.” 15 U.S.C. § 717r(b) (1988). The statute further provides that “[t]he application for rehearing shall set forth specifically the ground or grounds upon which such application is based.” Id. § 717r(a) (emphasis added). The aim of this exhaustion requirement is “to afford [FERC] an opportunity to bring its knowledge and expertise to bear on an issue before it is presented to a generalist court.” Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 78 (D.C.Cir.1988) (citing Federal Power Comm. v. Colorado Inters. Gas Co., 348 U.S. 492, 501, 75 S.Ct. 467, 472-73, 99 L.Ed. 583 (1955)). We agree with the District of Columbia Circuit that we must apply this statute “punctiliously” to carry out its purpose. New Jersey Zinc Co. v. FERC, 843 F.2d 1497, 1503 (D.C.Cir.1988). CIG’s requests for rehearing clearly did not put FERC on notice that CIG was attacking the validity of the blanket certificate acceptance limitation. In none of the requests did CIG specify a ground upon which the blanket certificate acceptance limitation was invalid. Instead, CIG objected specifically only to the alternate one-year limitation and asked for relief only from that limit. CIG’s arguments concentrated on FERC’s insistence on “short-term” limits, while the blanket certificate acceptance limitation carries no particular time limit. CIG argues in the alternative that it had a “reasonable ground” under section 717r(b) of the NGA for failing to address the blanket certificate acceptance limitation. In essence, CIG asserts that it should be excused for viewing the alternative term limitations as a single “one-year” limit, because FERC so viewed them in its orders. FERC did indeed state both conditions in the disjunctive in one sentence. But stating them in such a manner does not detract from the fact that the fixed term limitation has a wholly different effect than the blanket limitation and that the conditions were easily separable. CIG was therefore under a duty to specify on rehearing exactly what aspects of the term limitations displeased it. CIG inexcusably failed to do this and, accordingly, Congress precludes us from passing on the validity of the blanket certificate acceptance limitations on the duration of the three certificates at issue. B. The One-Year Fixed Term Limitations FERC limited the term of all three certificates to a maximum of one year, subject to renewal after further review, instead of the longer terms CIG had requested. CIG claims that the one-year limit is arbitrary and capricious because it lacks record support. We conclude that we have no jurisdiction to decide this issue, since CIG’s acceptance of a blanket certificate prior to the running of the one-year limits in all three certificates rendered the issue moot. Under Article III, Section 2 of the United States Constitution, the Federal Courts’ jurisdiction is limited to deciding “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988). Only a “ ‘real and substantial controversy admitting of specific relief through a decree of conclusive character’ ” allows us to adjudicate this matter. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). “ ‘Generally an appeal should be dismissed as moot when events occur that prevent the appellate court from granting any effective relief.’ ” Ten Mile Industr. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1522 (10th Cir.1987) (quoting Thour-nir v. Buchanan, 710 F.2d 1461, 1463 (10th Cir.1983)). Under highly analogous facts, the court in New Jersey Zinc Co., 843 F.2d at 1503, held that the same one-year limitation was mooted after acceptance of a blanket certificate. In New Jersey Zinc, Tennessee Gas Pipeline Co. applied for five-year terms in two section 7(c) certificates. Id. at 1500. FERC imposed a blanket certificate acceptance limitation on both certificates and also limited them to one and two years, respectively. Id. As in the present case, several months later Tennessee Gas accepted a blanket certificate, causing the certificates to expire. The court was unable to pass on the validity of the blanket certificate acceptance limitation for the identical reason involved in this case: failure to raise the issue on rehearing. The court in New Jersey Zinc held that the prior expiration of the certificates upon acceptance of blanket certification mooted the challenge to the one-year and two-year limits. The court reasoned that “[bjecause of the alternative and operative blanket certificate limitation, Tennessee would be in no different position today had FERC set the fixed term at two, five, or any other number of years.” Id. at 1503. This same reasoning applies to moot the one-year limitations in the present case. Moreover, now that CIG’s certificates have expired under presumptively valid terms, our order granting CIG its right to a ten-year term would be completely ineffective. CIG argues in desultory fashion that FERC’s imposition of the one-year limit “forced” it to accept blanket certification, causing the individual certificates to expire. Were we to find that the limit impermissi-bly coerced CIG, then the limitation would not be moot. But CIG in this case did not adequately demonstrate that the combination of the blanket certificate acceptance limitation and the one-year limit impermis-sibly coerced it into accepting blanket certification. Obviously, FERC wanted to discourage pipelines in most cases from obtaining simultaneous individual and blanket certification. No indication exists that FERC sought to prohibit CIG’s use of individual section 7(c) certificates. CIG’s con-clusory statements in its reply brief that operating under the short-term individual certificates, subject to renewal, was “wholly infeasible”, Reply Brief at 3, finds no factual support in the record. Thus we must conclude that CIG voluntarily accepted the blanket certificate. Accordingly, we hold that the one-year limit issue is moot. We also agree with the reasoning of the court in New Jersey Zinc, under which it did not apply the “capable of repetition, yet evading review” exception to the mootness doctrine, see Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The court in New Jersey Zinc observed that similar fixed term limits had been properly adjudicated on the merits in several cases. See, e.g., New Jersey Zinc, 843 F.2d 1500-01; Florida Gas Transmission Co. v. FERC, 876 F.2d 42, 44-45 (5th Cir.1989). Moreover, now that CIG has blanket certificate authority, it is unlikely that it will reapply for a tion of the one-year term limit. At the very least, CIG has not indicated that it has reapplied. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (party invoking exception to mootness doctrine must show a reasonable expectation or demonstrated probability of repetition). C. The Rate Condition in Case No. 88-1169 CIG claims that FERC’s requirement that CIG charge PSCo its maximum tariff rate as a condition of approval of its individual 7(c) certificate is beyond its statutory authority and is arbitrary and capricious. We cannot decide this issue since CIG’s acceptance of a blanket certificate has rendered it moot. As we discussed above, the certificates expired by their own terms when CIG accepted a blanket certificate. Consequently, the challenged rate terms “disappeared into the regulatory netherworld when the certificates themselves entered the archives.” Northwest Pipeline Corp., 863 F.2d at 76. In Northwest Pipeline, the company challenged FERC’s requirement that it charge a different rate than it had proposed. Id. at 75. When the certificate expired pending appeal, the court held the challenge moot because it could no longer give prospective relief as to rates in validly expired certificates. See also ANR Pipeline Co., 876 F.2d at 129 (“If we should find the expiration of the individual certificate valid, ... ANR’s challenge to the rate condition would be moot_”). We find ourselves in a similar situation in the present case. The certificate here expired by its own terms when CIG accepted a blanket certificate. The rate condition expired with the certificate. We are unable to grant any prospective relief as to a condition contained in the now-expired certificate. Moreover, under its new blanket certificate authority, CIG apparently obtained the ability to charge PSCo the identical rate it had originally requested. Thus, even if we were to hold the rate condition unacceptable, any prospective relief we could offer would have no practical effect. We also are unable to conclude that the rate condition is “ ‘capable of repetition, yet evading review.’ ” Honig, 108 S.Ct. at 601. CIG has not reapplied, see Reply Brief at 2 n. 1, and the same rate condition in the future would not likely reappear. Moreover, CIG has not shown that imposition of such a rate condition in the future would necessarily evade review. Although a company forced to charge a higher rate obviously would have no damages from a rate differential, CIG contends that continued imposition of the rate condition would “kill the deal.” Reply Brief at 4. If this eventuality occurs, then a rate condition, such as the one in Case No. 88-1169, would be properly reviewable. See Northwest Pipeline Co., 863 F.2d at 77 (a claim for retroactive relief would avoid mootness problem). D. The Denial of Firm Service in Case No. 88-1169 CIG does not dispute FERC’s contention that CIG presently can give PSCo the identical firm service option it had requested in its section 7(c) certificate application. Moreover, the certificate at issue expired by virtue of a presumptively valid blanket certificate acceptance term limitation. Thus, CIG’s challenge to the denial of firm service is moot for substantially the same reasons given in the discussion of the rate condition above. III. CONCLUSION We are unable to review the validity of the blanket certificate acceptance limitation in the certificates in Case Nos. 88-1169, 88-1273, and 88-1478, since CIG did not properly challenge them on rehearing below. The one-year term limitation issue in each of those cases, the rate condition challenge in 88-1169, and the protest of FERC’s denial of firm service in 88-1169 are moot. Accordingly, we vacate the orders under review in each case. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Northwest Pipeline Corp., 863 F.2d at 78-79 (1988). . The court in Associated Gas Distribs. v. FERC, 824 F.2d 981 (D.C.Cir.1987), upheld most of the provisions in Order 436, but vacated the order in its entirety because the parts of the order it remanded to FERC for reconsideration were better considered in relation to the entire regulatory framework. Id. at 1044. Order No. 500, 52 Fed.Reg. 30,334 (1987), modified, 52 Fed.Reg. 35,539 (1987); 52 Fed.Reg. 39,630 (1987) (Order No. 500-B); 52 Fed.Reg. 48,986 (1987) (Order No. 500-C); 53 Fed.Reg. 8,439 (1988) (Order No. 599-D), did not contain any provisions different from Order 436 that have any bearing on this case. . "Mcf ’ refers to one thousand cubic feet at a pressure of 14.65 per square inch at 60 degrees Fahrenheit. . "Bcf” refers to billion cubic feet. . "Firm” service means "that the service is not subject to a prior claim by another customer or another class of service and receives the same priority as any other class of firm service." 18 C.F.R. § 284.8(a)(3) (1989). . "Interruptible” service means “that the capacity used to provide the service is subject to a prior claim by another customer or another class of service and receives a lower priority than such other classes of service.” 18 C.F.R. § 284.9(a)(3) (1989). . This rate derived from schedules CIG filed with FERC under section 311 of the Natural Gas Policy Act, 15 U.S.C. § 3371 (1988). . The certificate in case No. 88-1169 was due to expire on September 15, 1988 under the one-year limit. The certificates in case Nos. 88-1273 and 88-1478 were due to expire under the one-year limit on December 2, 1988 and January 19, 1989, respectively. All of these certificates were subject to renewal. . In FERC’s order in case No. 88-1169, the term limitations were referred to as follows: "We will also limit the authorization to a term of one year from the date of issuance of this order or the date that CIG accepts a blanket transportation certificate, whichever comes first.” 40 F.E.R.C. ¶ 61,231, 61,784 (1987) (emphasis added). FERC's Order in Case No. 88-1273, 41 F.E.R.C. ¶ 61,247, 61,647 (1987), contains similar language. In case No. 88-1478, FERC’s Order Amending Certificate apparently amended only the one-year portion of the term limitations. 42 F.E.R.C. ¶ 61,020, 61,118 (1988). The earlier October 11, 1985, order, as amended, 39 F.E. R.C. ¶ 62,214 (1987), which FERC was seeking to amend, already contained a blanket certificate acceptance limitation. . The D.C. Circuit’s decision in ANR Pipeline Co. v. FERC, 876 F.2d 124 (D.C.Cir.1989), fully supports our conclusion. In ANR Pipeline Co., as in the present case, ANR’s individual certificates were subject to a one-year limit, or earlier if it accepted a blanket certificate. ANR accepted a blanket certificate prior to the running of the one-year period, triggering the expiration of the certificates at issue. Id. at 128. In contrast to the facts before us, however, ANR had preserved for review both aspects of the term limitation. The court held that the challenge to both term limitations when considered in the aggregate was not moot since the automatic "open-access” condition in the blanket certificate regime is absent in the individual certificate regime. Id. In the present case, however, CIG failed to preserve for review its challenge to the blanket certificate acceptance limitation, precluding us from considering both term limitations in the aggregate. This case is more analogous to the ANR Pipeline Co. court’s mootness analysis of the blanket certificate acceptance limitation challenge after it had held that the one-year limit was valid on the merits. In this posture, the court held the blanket limitation issue moot, since the certificate had already validly expired under the one-year limit, and no party sought retroactive relief. Id. at 130. The same reasoning applies to the instant case, since we must deem valid the blanket certificate acceptance limitation, which operates to moot the alternative one-year provision. . The factual posture of this case contrasts markedly with the facts in ANR Pipeline Co., under which the court found Great Lakes’ challenge to the durational limitations "capable of repetition yet evading review.” 876 F.2d at 129. Great Lakes, as opposed to CIG in the present case, never accepted a blanket certificate. Instead, it chose to obtain an extension of its individual 7(c) certificate containing the identical term conditions. Id. at 128. Clearly, Great Lakes is more likely to be subjected to the identical constraints it challenged than is CIG, which accepted blanket certification and never reapplied for individual 7(c) certification. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
songer_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Peter Ray LAYCOCK, Petitioner-Appellant, v. STATE OF NEW MEXICO, et al. Respondents-Appellees. No. 88-1855. United States Court of Appeals, Tenth Circuit. July 26, 1989. Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant. Gail MacQuesten, Asst. Atty. Gen., Santa Fe, N.M., for respondents-appellees. Before LOGAN, WRIGHT, and MOORE, Circuit Judges. Honorable Eugene A. Wright, Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. EUGENE A. WRIGHT, Senior Circuit Judge. Peter Ray Laycock appeals the district court’s denial of his petition for habeas corpus relief. He claims that he entered an involuntary guilty plea, his counsel rendered ineffective assistance, his sentence exceeded the statutory maximum, and he received an inadequate sentencing hearing. We affirm the judgment. BACKGROUND In March 1983, the police arrested Lay-cock for armed robbery of a New Mexico convenience store. He admitted robbing it and shooting at a customer. The appointed public defender negotiated a plea agreement with the prosecutor. Laycock agreed to plead guilty to Count I of the information, armed robbery with a firearm enhancement, and the state agreed to dismiss Count II, assault with intent to commit a violent felony with a firearm enhancement. Laycock and his counsel discussed the possibility of his acceptance into the Delancey Street Drug Rehabilitation Center. The written plea agreement did not include this or any other sentencing provision. The court sentenced Laycock to nine years for armed robbery, one year for firearm enhancement and two years of parole. He filed a petition for post-conviction relief which the court denied. After the Supreme Court of New Mexico denied his petition for a writ of habeas corpus, he filed a second petition in the Federal District Court of New Mexico. The magistrate there found that he had exhausted his state court remedies as required by 28 U.S.C. § 2254(b). See Osborn v. Shillinger, 861 F.2d 612, 613 (10th Cir.1988). ANALYSIS I. Voluntary Plea Laycock alleges that his plea was involuntary. He claims that his attorney materially misrepresented the plea bargain by promising him a suspended sentence if Delancey Street accepted him into its drug treatment program. He does not contend that the prosecutor misrepresented the plea. Whether a plea is voluntary is a question of federal law subject to de novo review. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Oppel v. Meachum, 851 F.2d 34, 37 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 266, 102 L.Ed.2d 254 (1988). We accept the magistrate’s findings of fact unless they are clearly erroneous. Marshall, 459 U.S. at 432, 103 S.Ct. at 849-50. A plea may not be voluntary when an attorney materially misinforms the defendant of the consequences of the plea or the court’s probable disposition. Blackledge v. Allison, 431 U.S. 63, 75 n. 8, 97 S.Ct. 1621, 1630 n. 8, 52 L.Ed.2d 136 (1977); Worthen v. Meachum, 842 F.2d 1179, 1182 (10th Cir.1988); Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir.), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253, 90 L.Ed.2d 699 (1986). An erroneous sentence estimate does not render a plea involuntary, but an attorney’s unfair representation of probable leniency may be found coercive. United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir.1988) (citing Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970)). A petitioner’s understanding that he will serve less that his full sentence is neither a promise nor a plea bargain. Bonvillain, 780 F.2d at 1252. Laycock must prove that his attorney materially misrepresented the consequences of the plea. The facts and circumstances support the district court’s conclusion that counsel did not materially misrepresent the plea. Delancey Street was not mentioned in the written plea agreement, which Laycock signed following an explanation by the state judge. The judge asked Laycock specifically if other promises had been made and he replied “no.” Solemn declarations in open court carry a strong presumption of verity.” Estrada, 849 F.2d at 1306 (citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629). None of the participants mentioned Delancey Street at the plea or sentencing hearing. Laycock did not include it in his petition for post conviction relief. Finally, in his state court habeas petition, Laycock alleged his plea was involuntary because the judge failed to inform him of the mandatory parole term. He now alleges misrepresentation for the first time. Laycock has not established that his attorney misrepresented the plea agreement. II. Ineffective Assistance of Counsel Laycock argues that five of his counsel’s tactical decisions resulted in ineffective assistance. We review de novo the determination of whether an attorney’s performance was so deficient that it violated a defendant’s right to effective assistance. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Hopkinson v. Shillinger, 866 F.2d 1185, 1204 (10th Cir.1989). To prove ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Hopkinson, 866 F.2d at 1204. Although proposed in the capital sentence context, the Supreme Court has extended this test to guilty plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In this context, the first prong of this test would be satisfied if Laycock proves that counsel’s “advice was not within the wide range of competence demanded of attorneys in criminal cases.” See Hill, 474 U.S. at 56, 106 S.Ct. at 369 (citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). The proper standard for measuring attorney performance is reasonably effective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The second prong is met if Laycock shows that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59, 106 S.Ct. at 370-71. The defendant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. First, Laycock contends that his attorney’s advice to accept the plea bargain constituted ineffective assistance. The advice was well within the range of competence demanded of counsel in criminal cases. The client admitted both the robbery and the shooting, was identified by witnesses, and had a prior history of criminal activity. The claim fails the first element of the Strickland test. Second, Laycock claims that although he told counsel that he was intoxicated at the time of the offense, his attorney did not consider the possibility of the intoxication defense. He has not shown that he supplied counsel with facts necessary to raise such a defense or that counsel was unreasonable in deciding to recommend a plea agreement instead. This claim also fails the first prong of the Strickland test. Third, Laycock complains that counsel failed to inform him of the possibility that his offenses might merge for sentencing purposes. He says that this could shorten his sentence and reduce the benefit of the plea bargain to one year. He has not shown that counsel had a duty to inform him of this possibility, nor that knowledge of it would have caused him to reject the plea agreement. This claim fails both prongs of the Strickland test. Fourth, Laycock claims that counsel’s assistance was ineffective because he filed no motions. But he suggests nothing to demonstrate that motions were necessary or appropriate. This claim fails. Finally, Laycock contends that failure to advise him of his right to appeal after his guilty plea resulted in ineffective assistance. An attorney has no absolute duty in every case to advise a defendant of his limited right to appeal after a guilty plea. Marrow v. United States, 772 F.2d 525, 527 (9th Cir.1985); Carey v. Leverette, 605 F.2d 745, 746 (4th Cir.) (per curiam), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979); cf. Barber v. United States, 427 F.2d 70, 71 (10th Cir.1970); Crow v. United States, 397 F.2d 284, 285 (10th Cir.1968) (sentencing court has no duty to advise of right to appeal on guilty plea). Failure to notify the defendant of this limited right is not in itself ineffective assistance. Marrow, 772 F.2d at 527; Carey, 605 F.2d at 746. Normally, when a defendant pleads guilty, he has foreclosed his right to appeal. Marrow, 772 F.2d at 529. If a claim of error is made on constitutional grounds, which could result in setting aside the plea, or if the defendant inquires about an appeal right, counsel has a duty to inform him. Id. at 528. Laycock signed this plea agreement indicating that he understood that it constituted a waiver of his right to appeal. There is no indication that counsel should have known of other grounds for appeal. The claim fails. III. Sentence Exceeds Statutory Maximum Laycock contends erroneously that his sentence exceeded the statutory maximum. Williams v. Illinois, 399 U.S. 235, 240, 90 S.Ct. 2018, 2021-22, 26 L.Ed.2d 586 (1970). This claim is reviewed de novo. United States v. Marco, 868 F.2d 1121, 1123 (9th Cir.1989). Sections 30-16-2 N.M.S.A. (1978) and 31-18-15(A)(2) authorize a nine year sentence for armed robbery classified as a second degree felony. Laycock received nine years. Section 31-18-16 requires a one year enhancement for use of a firearm. He received one year. Sections 31-18-15(C) and 31-21-10(C) mandate a two year parole term. He received two years. Laycock has not specified how his sentence violated the statutory maximum. He appears to argue that, because the parole term was imposed after the rest of the sentence, the sentence is unconstitutional. Amending a sentence to conform to the statutory requirement is proper under New Mexico law. State v. Acuna, 103 N.M. 279, 280, 705 P.2d 685, 686 (App.1985). The sentence does not violate the statutory maximum. IV. Inadequate Sentencing Hearing Laycock contends erroneously that his sentencing hearing was unconstitutional because the judge gave him only cursory consideration. The judge obtained and reviewed the predisposition summary before the hearing, and indicated at the hearing that he had discussed the report with counsel. The judge discussed its factual accuracy with Laycock, and made a correction in the time to be served. The judge asked Laycock if he had any additional information to present and listened to his comments. This claim has no merit. AFFIRMED. . He acknowledged that he would first serve a one year mandatory sentence for firearm enhancement, but expected to receive a six month credit for time already served. 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_genresp2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. In re INSULL UTILITY INVESTMENTS, Inc. FENTRESS v. BIGELOW et al. (three cases). Nos. 5171-5173. Circuit Court of Appeals, Seventh Circuit. Jan. 2, 1935. Edwin H. Cassels, William S. Warfield, 111., and Richard H. Merrick, all of Chicago, 111., and Lawrence T. Allen and Everett L. Dalbey, both of Danville, 111., for appellant. Lessing Rosenthal, Charles H. Hamill, and Leo F. Wormser, all of Chicago, 111., for appellee Bigelow. Samuel A. Ettelson, of Chicago, 111., for appellee Ettelson. Before SPARKS, FITZHENRY, and ANDERSON, Circuit Judges. SPARKS, Circuit Judge. These appeals arise out of the ruling of the District Court in the bankruptcy proceedings of Insull Utility Investments, Incorporated, with respect to compensation to appellant as receiver, and fees for his attorneys. The claims were as follows: 1. (a) $10,000 for his services as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division, and ancillary receiver in bankruptcy in the District Court for the Southern District of New York. (b) $7,500 for his services as ancillary receiver in equity in the District Court for the Southern District of New York. 2. $9,000 for fees of Allen and Dalbey as his attorneys as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division. 3. $5,000 for fees of Cassels, Potter and Bentley as his attorneys as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division. The trustee in bankruptcy made no objection to'the amounts thus claimed. Appellee Ettelson made no objection to claim 3, but filed her written objections to the other claims on the ground that they were exorbitant and excessive. She objected further to claim 1 on the ground that Fentress was nominated and appointed as such equity and bankruptcy receiver at the instigation of, and in collusion with the bankrupt. She further objected to claim 2 on the ground that Allen and Dalbey were nominated and appointed as such attorneys at the instigation of, and in collusion with the bankrupt. The court after hearing evidence upon the petition and the objections, filed its memorandum opinion on December 22, 1933. On January 20,1934, it found the facts specially and rendered its conclusions of law thereon, and on the same day rendered three separate judgments to the effect that the petitions of appellant Fentress, Allen and Dalbey, and Gassels, Potter and Bentley, were denied in accordance with the views set forth in its written opinion. The expense accounts of both firms of attorneys were allowed. The memorandum opinion, whieh appears in 6 F. Supp. 653, 660, differs from the one first filed, as shown by the record, in that it adds the point that there was no ground for the appointment of a receiver in bankruptcy. The facts pertinent to this controversy, as disclosed by the record, are as follows: On April 16, 1932, upon a creditors’ bill in equity, filed in the District Court from which these appeals are prosecuted, appellant and one Cooke were appointed co-receivers of Insull Utility Investments, Incorporated. Cooke served in that capacity until his resignation on September 26, 1932, and appellant served until December 2, 1932, when he delivered the assets in his possession to himself as solo receiver in bankruptcy, having been so appointed on September 22, 1932, the day-on which the Utility Investments Corporation was adjudicated a bankrupt on a petition filed on April 16, 1932. Appellant served as receiver in bankruptcy until the appointmeni of the trustee in March, 1933, and shortly thereafter, on March 30, ho turned the as sets over to the trustee in bankruptcy. On May 19, 1932, appellant was appointed as ancillary equity receiver by the United States District Court for the Southern Dis triet of New York in order to safeguard valuable securities held as collateral by certain banks in New York City, and for the same reason, on October 5, following the adjudica, tion, appellant was appointed ancillary re ceiver in bankruptcy in the Southern District of New York, and served as such until he wat succeeded by the trustee in bankruptcy. In this jurisdiction and also that of the South ern District of New York, orders of court wore procured by appellant and his attorney:temporarily enjoining the sale of pledged collateral of the approximate value of ten mil lion dollars. Under authority of the court, appellant employed the law firms of Allen and Dalbey. and Casscls, Potter and Bentley, who served as his solicitors in the equity case, .and as his attorneys in the bankruptcy ease in the jurisdiction of the Northern District of lili nois. On August 29, 1932, prior to the bankruptcy adjudication, the District Court, on petition of appellant and his co-receiver, allowed on account, from the date of their appointments to September 15, 1932, the sum of $7500 to appellant as equity receiver, and the same amount to each firm of attorneys as fees for their services in the equity proceeding. After the adjudication in bankruptcy, on December 8, 1932, the District Court sitting as a court of bankruptcy, on petition of appellant and his co-receiver filed in the bankruptcy court, allowed to appellant on account for services in the .equity case, the sum of $5000, and a like amount to each firm of attorneys as fees for their services in the equity proceeding. After appellant had finished his work as receiver in bankruptcy and had delivered the assets to the trustee, he applied, in conneetion with his final report and account, for the compensation here involved covering his own services and those of his attorneys in the bankruptcy ease only, and his own services as ancillary equity receiver in New York. The application was made to the bankruptcy court with the approval of the United States District Judge for the Southern District of New York before whom the ancillary equity proceedings were had, for the reason that there were no available assets in the New York jurisdiction for the payment of the fees in that proceeding. No objection to his final report as receiver in bankruptcy was made and pursued, except by appellee Ettelson. The report was approved except as to the compensation requested, and appellant was discharged as such receiver on January 25, 1934. At the hearing on the questions raised by appellee Ettelson’s objections, there was no evidence offered by either party as to the value of the services or as to the fees, but the services were set forth with particularity. It was not contradicted that Allen and Dalbey had spent a little more than ninety days,, and Cassels, Potter and Bentley, 724% hours, solely in the bankruptcy ease,' and it does not appear specifically how much time was devoted by them in the equity receivership proceedings. The record does not disclose that the equity receiver’s final report as an entirety was ever approved by the court. It is contended by appellant (1) that the District Court, under the Bankruptcy Act, had no power to deny any compensation to appellant and his counsel for their services in the bankruptcy case; (2) that the District Court could not rightfully deny appellant any compensation for his services as ancillary receiver in equity in the Southern District of New York; and (3) that the District Court had no right or power to review the orders of another District Judge of the same court in the same case. In denying appellant’s petitions, it would seem on first impression that the court had refused compensation to the petitioners for the services rendered in the bankruptcy proceedings, and had also refused compensation to appellant for his services rendered in the ancillary receivership in equity. It will be noted, however, that the judgment recites that the petitions were denied in accordance with the views set forth in the opinion. A perusal of the opinion discloses that the court did not hold that the petitioners were not entitled to compensation for their services, or that the services were not efficiently and honestly rendered. Indeed, the court’s views were quite the contrary, but it held that each petitioner had already received an amount sufficient to compensate him for all services rendered in all the cases. It can scarcely be held that appellee Ettelson prevailed in her contentions. The result indeed was the one she sought, but it certainly was not obtained upon the theory which she presented. It is true, she alleged in her answer that the claims with the exception of that of Cassels, Potter and Bentley were exorbitant and excessive, but she offered no evidence to meet appellant’s case in that respect. Her attack was on the theory of collusion in both the equity and bankruptcy proceedings, and on that theory she asked that the petitions be denied in toto. The court found that the suit for an equity receivership was collusively brought, but it did not find that Fentress was knowingly a party to the collusion. Notwithstanding the fact that his appointment as equity receiver was one of the objects of the collusion, the court said he was entitled to compensation. It further found that there was no collusion in the appointment of Fen-tress as receiver in bankruptcy, but that he was appointed on the court’s own initiative, and uninfluenced by any outside recommendations. . The court commended him in the highest terms, and said he deserved the appointment as receiver in bankruptcy on account of his vigilance, honesty and industry, and the valuable service which he had rendered in the equity receivership. It further stated that no creditor, debenture holder nor anyone had objected to such appointment, and that there was no collusion in the naming of counsel. It is obvious, therefore, that the court’s views were not the same as appellee Ettelson’s. The opinion proceeds upon the theory that the court of bankruptcy had a right to review the prior allowances made both in the equity receivership and also by a different judge in the same court of bankruptcy. The court said: “While the objecting creditor has not contested the amount of the fees, if the right to recover exists’ at all, the court is not so readily absolved from responsibility. The court must determine the reasonableness of the charges, even though no objections are made by any security holder.” With respect to the issue relied upon by appellee Ettelson, the court said: “Whether the compensation of a receiver appointed under the circumstances here shown should bo denied in toto (where creditors do not object and the receiver renders valuable and honest service) or whether such compensation should be charged to the plaintiff who brought the suit, need not be decided in view of my determination of the fair value of the receiver’s services necessarily rendered.” We are constrained to believe that a decision of the two questions referred to was quite necessary for a proper and final determination of the suit, and we think the language of the opinion when considered in its entirety answers both questions negatively. In stating the issues to be considered, the court had said: “There are two specific questions which the court must determine: (a) Was there such collusion * * * as to justify the refusal of any compensation to him and to his attorneys? (b) If not, what sum would compensate him for work performed and what sum should be allowed his counsel for services rendered?” This means that unless the first question were answered negatively, it would be unnecessary to answer the second. However the court said: “I fix the value of his services at $12,500 in this ease.” This we think negatives the idea that the court was not passing on the question of sufficient collusion to justify the refusal of fees. The petitions involved final allowances for services, the settlement of which would permit a closing of the trusts immediately. If the issues were such as to permit a final adjudication as to all controverted questions, a speedy administration of justice would demand that they be determined at once. The court said that the bankruptcy receivership was not tainted by collusion and that the services rendered therein were of much value and well performed. If under such circumstances those services were necessary, the statutes required payment therefor, and there was no ground for denying payment in toto, or compelling payment from any source except the estate. It is clear that the court placed what it regarded as a fair value on the services of each petitioner, and this included all services in both receiverships. The court said: “Under all the circumstances the court finds that the allowance of $12,500 in each case is sufficient. The court concludes that further allowance in either case would be unjustifiable.” In other words, there is presen* a clear intention to compensate petitioner." for all necessary services rendered, and that intention is accomplished by paying for all necessary services rendered in the bankruptcy receivership and the ancillary equitable receivership by permitting petitioners to retain what the court regarded as an excessive allowance in the equity receivership. If the court hád authority to review the prior allowances of" another judge in the determination of values, it was likewise authorized to determine whether those allowances should be denied in whole or in part and refunded to the estate. Surely it will not be presumed that the court intended to pay for services which it considered valuable, if necessary, out of funds in petitioners’ hands which later might be recovered in toto for the benefit of the estate. That could scarcely be regarded as compensation. There was no reason for leaving that question open for future consideration, and there were many reasons for not doing so. We think it was not left open but was decided in the negative. The opinion states that the court’s valuation covers all services necessarily rendered. It nowhere holds that petitioners’ services were not necessary, but it suggests that there was, no ground for the appointment of the receiver in bankruptcy under subdivision 3 of section 2 of the Bankruptcy Act (11 USCA § 11 (3). With that suggestion there can be no controversy, for there was no finding of necessity, and under those circumstances, the equity receiver should have continued in possession. That fact, however, does not necessarily mean that the receiver’s services in the bankruptcy were not necessary. Both proceedings were before the same judge, and no objection was raised by anyone. If there had been, the error, no doubt, would have been immediately corrected by permitting the first receiver to continue in possession or by showing a necessity for the appointment of the second, for at no time was there a clash of jurisdiction. Fentress was not a lawyer, and in view of the fact that no person interested made objection, he had no reason to question the court’s power. He did precisely the same work in the bankruptcy receivership that ho would have done in the equity receivership had it continued. No one questioned his able administration or doubted the necessity of his services. That he acted in good faith is evidenced by the fact that during the receivership he refused to accept any compensation from the business corporation of which he was a member, but relied upon the appointment made by the bankruptcy court, and devoted his entire time to that work, to the satisfaction of everyone concerned. Certainly the bankruptcy court which operates on equitable principles should not be heard to say under these circumstances that Fentress should lose the value of his services on the ground that they were not necessary, merely because of the court’s oversight in making the appointment. Especially should this not be done where, -as here, there was no objection made, and the question was raised for the first time after appellant filed his brief in this court. To do so would clearly be inconsistent with the ruling as to receiver’s fees and costs in Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457, and Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435. This brings us to the question: Did the District Court have the power to review the orders of allowance for services by another District Judge of the same court in the same case? The court based its right to review those orders on Gross v. Irving Trust Company, 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215. We think the question presented in the instant case was not involved in the Gross Case. There the sole question was whether or not the state chancery court had the power to fix the compensation of its receivers and their counsel after bankruptcy had supervened within four months of the filing of the bill of complaint in, and the appointment of receivers by that court. It was there held that the state chancery court had.no such power. But in the instant ease the allowance of $7500 to each of the petitioners was made by the District Court sitting in chancery before bankruptcy had intervened. The second allowance of $5000 to each petitioner was not made by' a different court, but by the bankruptcy court itself although by a different judge. In Heinze v. Butte & Boston Consolidated Mining Co. (C. C. A.) 129 F. 337, it was held that allowances to a receiver before final settlement are interlocutory rather than final, and that they therefore are not appealable, but are subject to review on final settlement of the receiver’s account. In Hume v. Myers (C. C. A.) 242 F. 827, 830, a court of equity had appointed receivers of a corporation on the ground of insolvency at the instance of a stockholder owning nearly all the stock, in a proceeding to which no creditor, secured or unsecured, was made a party by service. "While the property was undisposed of in the hands of the receivers, the corporation was adjudicated a bankrupt. The court of equity then ordered its receivers to turn over the corporate property to the trustee in bankruptcy, and by the same order fixed the compensation of the receivers and their counsel, without making provision for its payment. The question was whether the order of the court of equity, making the allowances, was binding as res adjudieata on the court of bankruptcy. In holding that such order was not binding, the court said: “There is a distinction between the effect of the order before us and an order of a court of equity making such allowance, where the property has, through the instrumentality of the receivers, been disposed of, and the purchase money is in the hands of the receivers. In the latter situation there is reason in the view, though we do not commit ourselves to it, that the court of equity turns over only the net fund in its hands after deducting the expenses incurred in its production, including the compensation of its receivers and their counsel. It is true that in many of the cases broad language is used in favor of the authority of courts to fix the compensation of their officers; but these eases related to allowances and payment from funds in hand, not to fixing charges upon specific property to be turned over to the bankruptcy court. [Citing eases.] * * * When the court of equity has not reduced the property to money, it is not in possession of that definite knowledge of the value of the property which is an important factor in finally fixing compensation. “Any real services * * * win be allowed as a preferred claim in the administration of the property and the distribution of its proceeds to the extent that the services have benefited the estate. * * * But orders for such allowances are purely administrative, subject to entire disallowance or change by either increase or decrease with the development of the administration. The order of Judge Waddill * * * making allowance to the receivers was purely administrative. It was subject to change at his discretion at any time at least before actual payment, as long as he had the responsibility of administration. When the responsibilitjr of administration fell upon Judge McDowell, with it came the power to exercise the' same discretion. The point of logical contradiction, not to say absurdity, is reached when it is said that an allowance which Judge Wad-dill could have revoked, or increased or diminished, at his discretion, attached to the property as it passed to the bankruptcy court as an unalterable judgment beyond the control of the judge of the bankruptcy court. “The true rule is this: When a court of equity appoints receivers of corporate property, its allowance to its receivers and their attorney is an administrative order, presumptively right as to the justice of the allowance. When the corporate property falls by operation of law into the bankruptcy court, that court by comity will indulge the presumption in favor of the correctness of the allowance; but the court of bankruptcy, having the responsibility of administration, must exercise its independent judgment, giving due weight to ihe presumption in favor of the administrative finding of the court of equity. This, we think, is what the Supreme Court meant in the case of In re Watts, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933, when it said: sIt has been already assumed that the bankruptcy proceedings operated to suspend the further administration of the insolvent’s estate in the state court, but it remained for the state court to transfer the assets, settle the accounts of its receiver, and close its connection with the matter. Errors, if any, committed in so doing, could be rectified in due course and in the designated way.’ “The rectification of erroi’s in duo course and in the designated way here referred to must mean rectification by the bankruptcy court, for after the assets are turned over to that court all orders relating to the matter must emanate from that court.” We are in accord with the principles enunciated in the case last quoted, and we ihink they are applicable to the facts now before us, even though the receivers here had sold a large amount of securities which they had received as a part of the assets. We think it illogical to say that a court of baukmptcy has a right to review allowances for services made to a receiver by a prior judge when the assets have not been converted into cash; but if they have been converted into cash there is no right of review, and that only the net fund shall be turned over to the bankruptcy court after deducting the expenses incurred in its production, including compensation for its receivers and their counsel. We think the right to review must be based on a more reasonable and rational basis than the mere incident of sale of assets. There is a line of cases, however, holding that one judge will not review the rulings of another in the same court. Appleton v. Smith, 1 Fed. Cas. page 1075, No. 498; Commercial Union of America v. Anglo-South American Bank (C. C. A.) 10 F.(2d) 937; Hardy v. North Butte Mining Company (C. C. A.) 22 F.(2d) 62; Jurgenson v. National Oil & Supply Co. (C. C. A.) 63 F.(2d) 727. With this principle we are in accord, but we think it is not applicable to the case at bar. In each case cited in support of the rule, the question raised related to an action or nonaction of the court which was purely judicial in its character, and not administrative. In the Appleton Case, a. Circuit Justice, sitting in the District Court, declined to consider a motion to quash an attachment on the ground of wrongful issuance, because the regular judge of that district had formerly overruled a like motion in the same case. In the Commercial Union Case, it was held that where a District Judge denied a motion to dismiss a complaint, his decision was the law of the case, and should have been so recognized by another judge subsequently sitting in the same court and in the same case. In the Hardy Case, it was held that where an order appointing receivers is made in a suit within the jurisdiction of the court making the order, and in the exercise of judicial discretion, another judge sitting' in the same court, and on the same record, may not of his .own motion or otherwise vacate the order of appointment because, in his opinion, the order was mistakenly or improvidently made. The same ruling was followed on practically the same facts in the Jurgenson Case. Counsel for appellant have also cited Gross v. Irving Trust Company, supra, in support of the rule. That ease involved the allowance of fees by a state chancery court after bankruptcy bad intervened. A review was permitted and the allowance was set aside because the chancery court had no power to make an allowance after bankruptcy bad intervened. That ruling is not tantamount to holding that the allowances of an equity receiver, made before bankruptcy, may not be reviewed by the bankruptcy court, for that question was not before the court. It seems to us that the rule was intended to apply to orders and rulings of the court which arc purely judicial in their character, that is to say, rulings upon questions of law, or law and fact, upon which the orderly procedure of the case depends. Its object, of course, was to expedite the administration of justice, and to prevent undue controversies between courts of co-ordinate jurisdiction. We think, however, that the rule was never intended to apply, and cannot logically be applied, to purely administrative orders of the court, such as allowances for compensation. So far as we know, those questions have always been considered open ones, for modification and revision, until the final report is approved. This is obviously true where there has been no change of judge; and when the jurisdiction of the original judge ceases by operation of law, or otherwise, before the final report is approved, as in this ease, we think it necessarily follows that his successor in jurisdiction of the subject matter must have the same powers as the original judge. This was evidently the view of the judge of the equity court, for after bankruptcy had intervened and while he was sitting in bankruptcy, he allowed $5000 to each petitioner, for their work in the equity ease, and in each order, he expressly reserved the matter of final determination of compensation until further order. That the petitioners considered the matter an open one is evidenced by the fact that their elaims whieh were allowed were stated by them to be “on account.” We hold that the court had the power to review the allowances made by his predecessor in the bankruptcy case, and also those made in the equity court. The remaining question is as to the amount of the allowances and these we are not inclined to disturb. The amount that should be allowed as compensation for such seryices as were performed here is a matter concerning whieh ’ men might honestly disagree. There is no hard and fast rule whieh can accurately guide the arbiter and safely protect all parties against every contingency. The trial court’s judgment in such matters is quite as likely to be right as ours, and we are not permitted to disturb his judgment in this respect unless there is clear error, or such abuse of discretion as would amount to error. We have no doubt that the compensation sought was excessive. It may be truthfully said that the claims were no larger than others whieh have been allowed for similar services, in fact there have been many whieh were much larger. Past custom might well be considered as a matter of justification in filing the claims, but it does not fully answer the merits of the question before us. We think that quite generally allowances to receivers and their counsel have been greatly exorbitant, and that the office of receiver has been made entirely too attractive in this respect. Of course first class men should be paid first class compensation, and the courts should seek no others for their receivers. It would be most unfortunate for the courts and the people generally if compensation for such officers were reduced to such an extent as to render the services of capable men inaccessible. If that condition arises it will be corrected, but until it becomes more imminent than it is at present, we feel there is no cause for alarm. It is true that there is no testimony as to values in the record which would precisely support the court’s finding, but we think that was not necessary. The court cannot be bound by agreements of counsel on questions of this kind, and especially is this true when all parties-interested in the amount of the allowance are not represented by counsel. The court may and should exercise its own judgment as to values, and unless there is an abuse of discretion in this respect we are not permitted to interfere. We can not say from the evidence or the lack of evidence in this record that the court abused its discretion. Order affirmed. Findings of Fact. “1. That the sum of $12,500 heretofore paid said Galvin Fentress is adequate compensation for all of the services which were necessarily rendered by him as receiver in the equity suit in the Northern District of Illinois and in the ancillary receivership matter in the Southern District of New York and in the bankruptcy receivership matters. “2. That the sum of $12,500 heretofore paid to attorneys Allen and Dalbey is fair and reasonable compensation for all of the legal services which said firm necessarily rendered to their client, Galvin Fentress, receiver in equity and as receiver of the estate of Insull Utility Investments, Inc., a bankrupt. “3. That the sum of $12,500 heretofore paid to attorneys Gassels, Potter and Bentley is fair and reasonable compensation for all of the legal services which said firm necessarily rendered to .their client, Calvin Fentress, receiver in equity and as receiver of the estate of Insull Utility Investments. Ine., a bankrupt.” As Conclusions of Law. “The court finds that no further compensation should be allowed out of the bankrupt estate of Insull Utility Investments, Ine. either to Galvin Fentress for services by him rendered as equity receiver or as receiver of the estate of Insull Utility Investments, Inc., a bankrupt, or to Allen and Dalbey, as attorneys for said Calvin Fentress, receiver, or to Gassels, Potter and Bentley, as attorneys for said Calvin Fentress, receiver.” Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_casesourcestate	16	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. IDAHO DEPARTMENT OF EMPLOYMENT v. SMITH No. 76-1291. Decided December 5, 1977 Per Curiam. Petitioner challenges a ruling of the Idaho Supreme Court that the denial of unemployment benefits to otherwise eligible persons who attend school during the day violates the Equal Protection Clause of the Fourteenth Amendment. Idaho Code § 72-1312 (a) (1973) states that “no person shall be deemed to be unemployed while he is attending a regular established school excluding night school . . . The Idaho Supreme Court held that this provision impermissibly discriminates between those unemployed persons who attend night school and those who attend school during the day and that petitioner could not constitutionally deny unemployment benefits to an otherwise eligible person such as respondent whose attendance at daytime classes would not interfere with employment in her usual occupation and did not affect her availability for full-time work. We grant the petition for certiorari and reverse the judgment of the Idaho Supreme Court. The holding below misconstrues the requirements of the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits. “If the classification has some 'reasonable basis/ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U. S. 471, 485 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). See also Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 (1976); Mathews v. De Castro, 429 U. S. 181 (1976); Jefferson v. Hackney, 406 U. S. 535 (1972). The legislative classification at issue here passes this test. It was surely rational for the Idaho Legislature to conclude that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a State may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school. Moreover, the classification serves as a predictable and convenient means for distinguishing between those who are likely to be students primarily and part-time workers only secondarily and thus ineligible for unemployment compensation and those who are primarily full-time workers and students only secondarily without the necessity of making costly individual eligibility determinations which would deplete available resources. The fact that the classification is imperfect and that the availability of some students desiring full-time employment may not be substantially impaired by their attendance at daytime classes does not, under the cases cited supra, render the statute invalid under the United States Constitution. Reversed. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_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 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. In re ADOPTION OF A MINOR. No. 10940. United States Court of Appeals District of Columbia Circuit. Argued Dec. 13, 1951. Decided Jan. 3, 1952. Mr. Arthur L. Willcher, Washington, D. C. , with whom Messrs. W. Edwin Cumberland and Donald Cefaratti, Jr., Washington, D. C., were on the brief, for appellant. Mr. Richard H. Love, Washington, D. C., for appellee. Before EDGERTON, BAZELON and FAHY, Circuit Judges. FAHY, Circuit Judge. After a hearing participated in by all parties entitled to do so, and after considering the reports of the Board of Public Welfare and of the guardian ad litem, the District Court granted a petition for the adoption of an infant girl born in 1941. The adopting petitioner is now the husband of the natural mother of the child, who was born to her and her former husband. The mother consents to the adoption but her former husband, the child’s natural father, does not, and appeals from the adoption decree. Where the natural father of a child born in wedlock, as in the present case, does not consent, the situation is governed by § 16-202, D.C.Code (1940), reading in pertinent part ds follows: “If adoptee is under twenty-one years of age, no decree of adoption shall be made unless the court shall find that the following persons have consented to the adoption: * * * the natural parents * * * if living. * * * “The consent of a natural parent, or parents * * * may be dispensed with (1) where after such notice as the court shall direct it shall appear to the court that such person or persons can not be located; (2) where they have been permanently deprived of custody of the adoptee by court order; (3) where it shall appear to the court that they have abandoned the adoptee and voluntarily failed to contribute to his or her support for a period of at least one year next preceding the date of the filing of the petition; or (4) where investigation has shown to the satisfaction of the court extraordinary oause why such consent should be dispensed with.” § 16-202, D.C.Code (1940). The district judge, deeming the protection and best interest of the adoptee to be the dominant purposes of the statute, in a memorandum opinion said he felt the petition should be granted. Neither this opinion, nor any separate finding or conclusion, nor the adoption decree, deals with any one of the four conditions which permit the consent of the natural father to be dispensed with. It is true the court, in denying a motion to dismiss prior to conclusion of the testimony, remarked that there might be “extraordinary cause,” one of the statutory grounds, why such consent should be dispensed with, and said he wished to hear the testimony of the natural father and consider all the circumstances. Additional evidence was introduced thereafter, but, as we have said, no finding or ruling was made as to extraordinary cause or as to any other of the stautory grounds for dispensing with the father’s consent. Accordingly the decree is not in a form or in a context of finding or ruling which gives it a requisite legal basis. We may not infer the existence of ground for dispensing with the father’s consent from the fact that the court granted the adoption petition. “The existence of consents, facts 'which justify failure to secure them, and circumstances which permit their being dispensed with are part of the procedure of reaching a just judgment.” In re Adoption of a Minor, 1946, 81 U.S.App.D.C. 138, 143, 155 F.2d 870, 875. Such procedure requires that the facts which justify failure to secure consent be considered and initially decided by the hearing judge. The best interest of the child, the stated basis for the decree, must be determined, in such a case as this, in relation to the statutory recognition of the natural interest of the child’s father. His consent, must be given, unless one of the specified reasons for dispensing therewith appears. If the reason is that “investigation has shown to the satisfaction of the court extraordinary cause why such consent should be dispensed with,” the decree should so state. The basis for this conclusion, though not necessary to be recited in the decree itself, should appear in the findings or in some other manner, such as in an opinion of the court, with adequate evidentiary support in the record. We may not make the determination in the first instance. The situation is analogous to the “familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury.” Securities and Exchange Comm. v. Chenery Corp., 1943, 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626. See, also, Catlett v. Chestnut, 1923, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212, per curiam opinion on rehearing. It is pointed out that consent of the natural father may be dispensed with where he has been “permanently deprived of custody of the adoptee by court order,” § 16-202, D.C.Code (1940), cl. 2, 3rd para. The report of the Board of Public Welfare states that in court proceedings in Maryland in which the mother obtained a divorce from the father such deprivation occurred, with a right of visitation given to the father. But here again the problem is first to be dealt with by the district judge, and his solution must appear in the record. Dispensing with the father’s consent is permissive only. It is not possible for us to say that the court used its discretion to do so on the theory that the father had been deprived by court order of the permanent custody of his child. Assuming this to have occurred, a matter we do not decide, the record gives no indication that it was for this reason the district judge, in authorizing the adoption, did not require the father to consent. We accordingly remand the causé to the District Court for further proceedings consistent with this opinion. If the court decides in the exercise of a sound discretion that the record previously made need not be opened for further evidence, it may re-decide the matter, making the necessary-findings and including appropriate recitals in its decree; or the court, in the exercise of a like discretion, may rehear the case or reopen the record. Remanded for proceedings consistent with this opinion. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. NELSON-WIGGEN PIANO CO. v. UNITED STATES. No. 5523. Circuit Court of Appeals, Seventh Circuit. June 2, 1936. J. S. Seidman, of New York City, for appellant. Frank J. Wideman, • Asst. Atty. Gen., Sewall Key, Andrew D. Sharpe, and E. F. McMahon, Sp. Assts. to Atty. Gen., and Michael L. Igoe, U. S. Atty., of Chicago, 111., for the United States. Before EVANS and SPARKS,' Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. Appellant sued to recover a payment of $10,384.37 for manufacturer’s excise taxes -imposed by the Revenue Act of 1924 on sales of coin-operated devices, alleged to have been wrongfully assessed and collected on automatic pianos. The Commissioner of Internal Revenue found that automatic pianos manufactured and sold by appellant were coin-operated devices within section 600 (8) of the Revenue Act of 1924, 43 Stat. 322, which levies a tax upon “coin-operated devices, coin-operated machines, and devices and machines operated by any substitute for a coin.” The District Court held for appellee, and this appeal followed. The tax complained of was imposed by the collector upon sales of pianos between June 2, 1924, and February 25, 1926. It included penalties and interest. The tax itself was $8,629.84, and was paid in full on January 21, 1929. A claim for refund was denied by the Commissioner. On. January 24, 1929, after payment of the tax in full, appellant submitted its offer of $1,754.53 in compromise of a 25 per cent, penalty and 5 per cent, penalty and interest assessed, all aggregating $3,827.82, plus unassessed accrued interest. On April 4, 1929, the Commissioner, with the consent of the Secretary of the Treasury, accepted this offer and abated the unpaid balance. The assessment of interest had been levied under section 603 of the Revenue Act of 1924, 43 Stat. 324 (26 U.S.C.A. §§ 1121, 1122, 1126 and note), and the penalties under section 3176 of the Revised Statutes, as amended by Revenue Act 1924, § 1003 (26 U.S.C.A. § 1512 and note), which provide that penalties and interest shall be added to the tax and collected as a part thereof. Appellee insists that the judgment should be affirmed because, as it says, a voluntary compromise of penalties and interest, including a release from liability to pay tax, plus penalties and interest, constitutes full settlement of a single tax liability by the parties and precludes recovery of any amount paid. Under the .acts of Congress mentioned, the interest and penalties are added to and become a part of the tax. They are constituent parts of one assessment, effecting a single liability, and are not merely an aggregation of separate items of indebtedness. Ely & Walker Dry Goods Co. v. United States, 34 F.(2d) 429 (C.C.A.8); Zemurray v. United States, 64 Ct.Cl. 657; California Wine Ass’n of N. Y. v. United States, 65 Ct.Cl. 7; Big Diamond Mills Co. v. United States, 51 F.(2d) 721 (C.C.A.8); Rasmussen v. Brownfield-Canty Carpet Co., 31 F.(2d) 89 (C.C.A.9); Walker v. Alamo Foods Co. (C.C.A.) 16 F.(2d) 694, 696, certiorari denied 274 U.S. 741, 47 S.Ct. 587, 71 L.Ed. 1320. In Ely & Walker Dry Goods Co. v. United States, supra, the court held that a compromise of both principal and penalty was a bar to recovery of the tax paid. In Walker v. Alamo Foods Co., supra, the additional tax consisted of $342,000 plus penalty. The taxpayer offered and. the government received $318,000 in “payment of all income and excess profits taxes and in compromise of all penalties and all civil and criminal liabilities.” It was held that the taxpayer could not recover. In Big Diamond Mills Co. v. United States, supra, upon which appellant relies, the court held the tax and interest to be one liability, and remarked that there was no authority to compromise the interest independently of the tax. The court held further, however, that if there were no tax due the compromise as to the interest falls. It is because of this holding that appellant insists the present compromise is not a bar. Here there was a bona fide dispute as to the validity of the assessment. This was paid, and appellant thereafter compromised the penalties and interest, a constituent part of the’ tax. Since tax, penalties, and interest are one co-ordinated liability, and there can be no penalty or interest unless there is a valid tax, a compromise of such penalty and interest is an admission of valid tax assessment and, under the rules governing compromises, must be a settlement of the entire single liability. Compromises are contracts of settlement, and the compromise of one aliquot part of a single disputed liability 'and payment of the balance in full is a settlement of all parts of such single liability. It binds both parties and precludes suit to recover. In view of our conclusions it is unnecessary to notice other assignments of error. 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. Billy Glenn ELLIS, James Kenneth Ellis, Dowling Z. Jackson, a/k/a D.Z. Jackson, Donald Timothy Jackson, a/k/a Donnie Jackson, John Dwight Jackson, a/k/a Dwight Jackson, Defendants-Appellants. No. 90-7800. United States Court of Appeals, Eleventh Circuit. Sept. 10, 1992. Matthew C. McDonald, Mobile, Ala., for Billy G. Ellis. Barre C. Dumas, Mobile, Ala., for James K. Ellis. Barry Hess, Mobile, Ala., for Dowling Z. Jackson. Richard R. Williams, Mobile, Ala., for Donald Timothy Jackson. Neil L. Hanley, Mobile, Ala., for John Dwight Jackson. J.B. Sessions, III, U.S. Atty., Richard H. Loftin, Asst. U.S. Atty., Mobile, Ala., for U.S. Before ANDERSON, Circuit Judge, HILL, and ESCHBACH, Senior Circuit Judges. Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation. ESCHBACH, Senior Circuit Judge: The issue in this case is what steps law enforcement officers must take once they recognize that a search warrant has directed them to an erroneous address. In the present case, an inhabitant of the erroneous address told the officers where to go, and the officers went there without attempting to confirm this information. Billy Glenn Ellis, who resided at the second address and was subsequently convicted for two offenses relating to distribution of the drug dilaudid, argues that his conviction should be set aside because his residence was searched, and three and one-half dilau-did pills were seized, in violation of his rights under the Fourth Amendment to the United States Constitution. On the facts of this case, we believe that the officers’ actions presented an excessive risk that the officers would engage in a “general search.” As a result, we reverse Billy Ellis’ convictions and remand this case to the district court. Facts On May 6, 1988, Deputy Nick LaManna prepared an affidavit for a search warrant. Based on his observations, LaManna requested a warrant to search “the third mobile home on the north side of Christian Acres Road” in Grand Bay, Alabama. R4-13 at 2; Exh. 2. The warrant and accompanying affidavit did not give any other information to narrow the search, and La-Manna (at that time) did not know who inhabited the home. The documents did not indicate that the mobile home was owned or inhabited by Billy Ellis, but in fact indicated that the “[o]ccupant [was] unknown to affiant.” Moreover, the documents did not describe the physical appearance of Ellis’ mobile home in any way. In fact, the affidavit added nothing to the warrant. Officers other than LaManna executed the search. Although by this time the officers knew that they were looking for Billy Ellis' mobile home, they had no knowledge of what the mobile home looked like or where it was, apart from the information in the warrant and affidavit. As a result, the officers relied on the warrant and went to the third mobile home. Its inhabitant informed them that Billy Ellis actually lived at the fifth mobile home on the north side of the road. At this point, the officers did not call the station to corroborate this information, nor did they bother to procure a corrected warrant. Furthermore, the officers did not contact LaManna; although he was apparently nearby, he did not arrive at the fifth mobile home until after the officers had already begun the search. R6 at 12. Rather, the officers accepted the neighbor’s word at face value and went directly to the fifth mobile home. After the officers had begun to search it, Deputy LaManna arrived and confirmed that this was the home he had observed, i.e., Billy Ellis’ residence. Based on these facts, Ellis argues that the warrant did not specify the place to be searched with sufficient particularity to satisfy the Fourth Amendment. The district court ruled against Ellis in a pre-trial suppression hearing, see R4-13, holding that even if the warrant was invalid, the’ officers had relied on it in good faith, so that the exclusionary rule should not apply; United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (setting forth good-faith exception); Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (applying good-faith exception to technical deficiency in warrant). At the subsequent trial, Ellis was convicted of the charged offenses, and he now appeals. Analysis The “manifest purpose” of the “particularity requirement of the Fourth Amendment” is “to prevent general searches.” Leon, 468 U.S. at 963, 104 S.Ct. at 3447 (Stevens, J., concurring). “By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 83, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). This policy has undergirded the past cases in which courts have considered the admissibility of evidence seized pursuant to a warrant that specified an erroneous address. See, e.g., United States v. Burke, 784 F.2d 1090, 1092-93 (11th Cir.), cert. den., 476 U.S. 1174, 106 S.Ct. 2901, 90 L.Ed.2d 987 (1986); United States v. Collins, 830 F.2d 145, 146 (9th Cir.1987). Many of those courts have upheld the admission of the evidence, either by holding that the warrant was sufficient or by holding that the officers relied on the warrant in good faith. In all of those cases, how-.. ever, the potential for a general search was minimal. See infra slip opinion at 3923-3924, 3925, 3925 n. 6. 1. The Facial Validity of the Warrant When evaluating a warrant, “[i]t is enough if the description is such that the officer with a search warrant can, with reasonable effort[,] ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). More specifically, “[a] warrant’s description of the place to be searched is not required to meet technical requirements or have the specificity sought by conveyancers. The warrant need only describe the place to be searched with sufficient particularity to direct the searcher, to confine his examination to the place described, and to advise those being searched of his authority.” Burke, 784 F.2d at 1093. As noted above, the only description of the place to be searched in the present case was the words: “third mobile home on the north side” of the road. The warrant did not describe the mobile home physically, unlike numerous warrants that have previously been upheld despite a mistaken address. See Burke, 784 F.2d at 1093; United States v. Weinstein, 762 F.2d 1522, 1532 (11th Cir.1985), cert. den., 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986); United States v. Figueroa, 720 F.2d 1239, 1243 n. 5 (11th Cir.1983); United States v. Avarello, 592 F.2d 1339 (5th Cir.), cert. den., 444 U.S. 844, 100 S.Ct. 87, 88, 62 L.Ed.2d 57 (1979); United States v. Melancon, 462 F.2d 82 (5th Cir.), cert. den., 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972); United States v. Bonner, 808 F.2d 864 (1st Cir.1986), cert. den., 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987). Similarly, the name “Billy Ellis” did not appear anywhere on the warrant or the affidavit. As a result, the officers could not use their personal knowledge that Ellis was the target of the search to cure the warrant’s deficiency. Cf Burke, 784 F.2d at 1093; Weinstein, 762 F.2d at 1532; United States v. Darensbourg, 520 F.2d 985 (5th Cir.1975); Bonner, 808 F.2d at 867; United States v. Turner, 770 F.2d 1508 (9th Cir.1985), cert. den., 475 U.S. 1026, 106 S.Ct. 1224, 89 L.Ed.2d 334 (1986). Finally, the officers who executed the search were not the officers who had observed the mobile home previously, so they did not have any other knowledge that would have narrowed the search. Considering that the only information in the warrant was erroneous, we believe that the warrant did not describe the place to be searched with sufficient particularity. 2. The Good-Faith Exception Even though the warrant was invalid, it is possible that the purposes of the exclusionary rule would not be served by suppressing the evidence. In Leon, 468 U.S. at 900, 104 S.Ct. at 3409, the Supreme Court held that the exclusionary rule does not bar the use of evidence “obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” The exception is justified because “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916,104 S.Ct. at 3417. In Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), the Court considered whether the Leon exception permitted evidence to be introduced at trial even though the judge who issued the warrant had made a technical error in filling out the warrant. In that case, the judge had failed to incorporate the substance of the supporting affidavit, which indicated the things to be seized. The Supreme Court held that the exclusionary rule did not apply despite the error, because the officer who executed the search limited its scope to the items named in the affidavit, and the officer was entitled to rely on the judge’s word that the warrant was correct. In sum, “it was the judge, not the police officers, who made the critical mistake.” Id. at 990, 104 S.Ct. at 3429. At least two circuit courts have applied Sheppard to warrants that failed to specify the proper address of the place to be searched. See Bonner, 808 F.2d at 867 (good-faith exception covers warrant despite omission of address because mistake was by magistrate and officers reasonably relied on warrant); United States v. Curry, 911 F.2d 72, 77-78 (8th Cir.1990) (when warrant failed to specify address but affidavit did, good-faith exception covered search because executing officer knew where to search and failure of warrant to incorporate affidavit was merely technical error), cert. den., — U.S.-, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Sheppard, Bonner, and Curry are all similar. In all of these decisions, the court noted that the officer who executed the search knew the items to be seized or the locale to be searched because he had prepared the affidavit supporting the warrant. Sheppard, 468 U.S. at 984, 104 S.Ct. at 3426; Bonner, 808 F.2d at 867; Curry, 911 F.2d at 78. The courts further noted that any error in the warrant was due to the magistrate or judge’s technical failure to insure that the warrant reflected the information in the affidavit. Sheppard, 468 U.S. at 990, 104 S.Ct. at 3429; Bonner, 808 F.2d at 867; Curry, 911 F.2d at 78. Because the executing officers in all three cases knew where to search despite the technical error in the warrant, they seized the proper items or searched the proper location. Sheppard, 468 U.S. at 987, 104 S.Ct. at 3427; Bonner, 808 F.2d at 867; Curry, 911 F.2d at 77-78 (implying but not stating that search was executed properly based on detective’s personal knowledge). Thus, in all three cases, there was no danger of the officers undertaking a general search of an entire neighborhood. This case is different. As mentioned above, the officer who knew which mobile home belonged to Billy Ellis did not join the search until later. Moreover, the error in the address derived from a mistake in observation by Deputy LaManna, R6 at 10, so it cannot be attributed to a clerical error on the part of the issuing magistrate. Because of these two factors, the officers initially attempted to search the wrong mobile home. As a result, the officers did not reasonably rely on the warrant in searching Billy Ellis’ mobile home. In fact, the officers did not rely on the warrant at all; when the officers went to the third mobile home and discovered that the warrant was faulty, they relied on the word of the occupant of that mobile home that Ellis lived in the fifth mobile home. And even if the officers can be said to have relied on the warrant, that reliance surely was not reasonable once the officers discovered that the only information in the warrant was erroneous. Leon, 468 U.S. at 923, 104 5.Ct. at 3421 (“a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.”). The procedure employed in this case risked a general search. Had the neighbor given the officers the wrong address, they. might have gone from home to home and attempted to search numerous mistaken residences. See Collins, 830 F.2d at 146 (excluding fruits of search when wrong address in warrant was officers’ fault and caused them to attempt to search at least two mistaken premises). Moreover, the facial deficiency of the warrant indicated that the information supplied to the magistrate was suspect. See Wayne R. LaFave, Search and Seizure § 4.5(a), at 210 (West 2d ed. 1987). Thus, the officers may not have been entitled to presume that they could search Billy Ellis’ residence at all. These possibilities indicate that an erroneous search was averted in this case by pure serendipity: the inhabitant of the third mobile home just happened to be home to stop the officers from searching that residence, and that inhabitant just happened to direct the officers to the correct mobile home. This is not a case where the officers “took every step that could reasonably be expected of them.” Sheppard, 468 U.S. at 989, 104 S.Ct. at 3428. Once the officers recognized that the warrant specified the wrong address, they could have attempted to contact Detective LaManna, who could have insured that the officers’ next stab was a correct one. Alternatively, the officers could have used the information from the inhabitant of the third mobile home to obtain a new, corrected warrant. Or perhaps there was some other means of confirming the location other than merely relying on the neighbor’s word. Because the officers had better means of correcting their own error, the exclusionary rule must be applied in this case. See Leon, 468 U.S. at 918, 104 S.Ct. at 3418 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, ... it must alter the behavior of individual law enforcement officers or the policies of their departments.”). 3. Harmless Error Analysis We could still uphold Billy Ellis’ convictions if the introduction of the dilaudid pills into evidence were harmless error. The United States has not pursued this argument in its brief. And based on our review of the record, we cannot say that the evidence was harmless beyond a reasonable doubt. The prosecution presented strong evidence against most of Ellis’ co-defendants, including the testimony of two witnesses, Nora Jackson and Roxanne Miller, as well as corroborative physical evidence, such as large amounts of cash found on the defendants’ persons, guns seized during a separate search, and notebooks identified as drug records. R7-408-409, 414, 421-26. The prosecution also had tapes of undercover buys from some of the defendants. R6-170, R7-454. None of this physical or tape-recorded evidence implicated Billy Ellis, however; his conviction rested entirely on the testimony of Jackson and Miller. Jackson was a drug dealer who had cut a favorable deal with the prosecution; Miller, a drug dealer and addict who was also testifying pursuant to a deal. Moreover, neither testified extensively regarding Billy Ellis; they both had more information regarding the other defendants in this case. See R6 at 126-131; R7 at 374-76. As a result, the jury could have believed that the three and one-half dilaudid pills provided essential corroboration for these arguably unreliable and biased witnesses. The introduction of the evidence was not harmless beyond a reasonable doubt. Conclusion Accordingly, we REVERSE the order of the district court, GRANT the defendant’s motion to suppress, and REMAND to the district court. . Ellis was convicted of conspiracy to distribute and possess with the intent to distribute hydro-morphone hydrochloride, also known as dilau-did, and for possession with intent to distribute dilaudid. . A firearm, for which Ellis’ sentence was enhanced, was also found in this search. . In this opinion, we deal only with Billy Ellis’ argument that the evidence introduced against him at trial was obtained in violation of his rights under the Fourth Amendment to the United States Constitution. We need not reach Billy Ellis’ other contentions, and we affirm the convictions of the other appellants pursuant to Circuit Rule 36.1. .The warrant and affidavit described the place to be searched in identical terms: “A Mobile Home located on Christian Acres Rd. in Grand Bay, Alabama. It will be the third mobile home on the north side of Christian Acres Road. Christian Acres Road is the first road no[r]th of the Interstate traveling north on Hall Road. Occupant is unknown to affiant at this time. Search is to include all outbuildings and vehicles on the property.” Exh. 2 at 1, 3. In a separate portion of the affidavit titled “The FACTS establishing probable cause for search are,” the mobile home was not described in any greater detail. Exh. 2 at 3. . Indeed, the cases which have admitted evidence despite an erroneous address in the warrant, whether by holding that the warrant was not fatally defective or by holding that the officers were entitled to the benefit of the good-faith exception, have apparently shared one factor: other information in the warrant led the officers to the correct address. Sometimes, as in Sheppard, Bonner, and Curry, the Court noted this fact explicitly. In the other cases noted above, the court did not mention that any wrong premises were searched. Moreover, at least one court has considered the fact that the wrong premises were searched integral to its conclusion that the search was unconstitutional. See United States v. Collins, 830 F.2d 145 (9th Cir.1987). . For the sake of clarity, we note that if the officers had discovered some incriminating evidence against the inhabitant of the third mobile home, and that individual was now appealing from a conviction, the Leon rule would perhaps be applicable. Under those circumstances, the officers would have been relying on the warrant. That is basically what occurred in Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). . We note that in circumstances not presenting the potential for a general search, it might be reasonable for officers to continue a search despite a deficiency in a warrant. In United States v. Bentley, 825 F.2d 1104, 1109 (7th Cir.), cert. den., 484 U.S. 901, 108 S.Ct. 240, 98 L.Ed.2d 198 (1987), the officers commenced a search of a corporation’s office. At one point, the officers . realized that the warrant erroneously authorized them to search Room 203, when Room 201 was in fact intended. The officers searched the proper room without securing a corrected warrant. The court held that "the officers did just what they should" because “the right number was readily ascertainable." That case did not involve the potential for a general search, however. First, the officers were apparently choosing between separate rooms in an office occupied by a corporation, rather than separate houses occupied by separate individuals. Thus, there was no danger of invading the privacy of a person under no suspicion at all, or of searching an entire neighborhood. Second, the right office number was "readily ascertainable," so the risk of an erroneous search was low. And third, there is no suggestion in Bentley that the mistake in the warrant was anything other than a technical error attributable to the issuing magistrate. See also Maryland v. Garrison, 480 U.S. 79, 98, 107 S.Ct. 1013, 1024, 94 L.Ed.2d 72 (1987) (dissent suggested that officer should have tried to cure ambiguity in warrant by questioning a neighbor, but there was no danger of a general search because the officer was simply choosing between two apartments on a specified floor of an apartment building). Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. ROCHIN v. CALIFORNIA. No. 83. Argued October 16, 1951. Decided January 2, 1952. Dolly Lee Butler and A. L. Wirin argued the cause and filed a brief for petitioner. Howard S. Goldin, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Edmund. G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Frank W. Richards, Deputy Attorney General. Fred Okrand, A. L. Wirin, Edward J.. Ennis, Morris L. Ernst, Osmond K. Fr.aenkel, Arthur Garfield Hays, Herbért M. Levy and Clore Warne filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. Mr. Justice Frankfurter delivered the opinion of the Court. - Having “some information that [the petitioner here] was selling narcotics,” three deputy sheriffs of the County of Los Angeles, on the morning of July 1, 1949, made for the two-story dwelling house in which Rochin lived with his mother, commonrlaw wife, brothers and sisters. Finding,the outside door open, they entered and then forced open the door to Rochin’s room, on the second floor. Inside they found petitioner sitting partly dressed on the side of the bed, upon which his wife was lying. On a “night stand” beside the bed the deputies spied two capsules. When asked “Whose stuff is this?” Rochin seized the capsules and put them in his mouth. A struggle ensued, in the course of which the three officers “jumped upon him” and attempted to extract, the capsules. The force they applied proved unavailing against Rochin’s resistance. He was handcuffed and taken to a hospital.' At the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This “stomach pumping” produced vomiting. In the vomited matter were found two capsules which proved to contain morphine. Rochin was brought to trial before a California Superior Court, sitting without a jury, on the charge of possessing “a preparation of morphine” in violation of the California Health and Safety Code, 1947, § 11,500. Rochin was convicted and sentenced to sixty days’ imprisonment. The chief evidence against him was the two capsules. They were admitted over petitioner’s objection, although the means of obtaining them was frankly set forth in the testimony by one of,the deputies, substantially as here narrated. On appeal, the District Court of Appeal affirmed the Conviction, despite the finding that the officers “were guilty of unlawfully breaking into and entering defendant’s room and were guilty of unlawfully assaulting and battering defendant while in the room,” and “were guilty of unlawfully assaulting, battering, torturing and falsely imprisoning the defendant at the alleged hospital.” 101 Cal. App. 2d 140, 143, 225 P. 2d 1, 3. One of the three judges, while finding that “the record in this case reveals a shocking series of violations of constitutional rights,” concurred only because he felt bound by decisions of his Supreme Court. These, he asserted, “have been looked upon by law enforcement officers as an encouragement, if not an invitation, to the commission of such lawless acts.” Ibid. The Supreme Court of California denied without opinion Rochin’s petition for a hearing. Two justices dissented from this denial, and in doing so expressed themselves thus: “. . . a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. . . . Had the- evidence forced from the defendant’s lips consisted of an oral confession that he illegally possessed a drug ... he would have the protection of the rule of law which excludes coerced confessions from evidence. But because the evidence forced from his lips consisted of real objects the People of this state are permitted to base a conviction upon it. [We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant’s body by physical abuse.” 101 Cal. App. 2d 143, 149-150, 225 P. 2d 913, 917-918. This Court granted certiorari, 341 U. S. 939, because a serious question is raised as to the limitations which the Due Process Clause of the Fourteenth Amendment imposes on the conduct of criminal proceedings by the States. In our federal system the administration of criminal justice is predominantly committed to the care of the States. The power to define crimes belongs to Congress only as an appropriate means of carrying into execution its limited grant of legislative powers. U. S. Const., Art. I, § 8, cl. 18. Broadly speaking, crimes in the United States are what the laws of the individual States, make them, subject to the limitations of Art. I, § 10, cl. 1, in the original Constitution, prohibiting bills of attainder and ex post jacto laws, and of the Thirteenth and Fourteenth Amendments. These limitations, in the main, concern not restrictions upon the powers of the States to define crime, except in the restricted area where federal authority has pre-empted the field, but restrictions upon the manner in which the States may enforce their penal codes. Accordingly, in reviewing a State criminal conviction under a claim of right guaranteed by the Due Process Clause of the Fourteenth Amendment, from which is derived the most far-reaching and most frequent federal basis of challenging State criminal justice, “we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes.” Malinski v. New York, 324 U. S. 401, 412, 418. Due process of law, “itself a historical product,” Jackman v. Rosenbaum Co., 260 U. S. 22, 31, is not to be turned into a destructive dogma against the States in the .administration of their systems of criminal justice. However, this Court too has its responsibility. Regard for the requirements of the Due Process Clause “inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Malinski v. New York, supra, at 416-417. These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U. S. 97, 105, or are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325. The Court’s function in the observance of this settled conception of the Due Process Clause does, not leave us without adequate guides in subjecting State criminal procedures to constitutional judgment. In dealing not with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of meaning, is not an unusual or even regrettable attribute of constitutional provisions. Words being symbols do not speak without a gloss. On the one hand the gloss may be the deposit of history, whereby a term gains technical content. Thus the requirements of the Sixth and Seventh Amendments for trial by jury in the federal courts have a rigid meaning. No changes or chances can alter the content of the verbal symbol of “jury” — a body of twelve men who must reach a unanimous conclusion if the verdict is to go against the defendant. On the other hand, the gloss of some of the verbal symbols of the Constitution does not give them a fixed technical content. It exacts a continuing process of application. When the gloss has thus not been fixed but is a function of the process of judgment, the judgment is bound to fall differently at different times and differently at the same time through different judges. Even more specific provisions, such as the guaranty of freedom of speech and the detailed protection against unreasonable searches and seizures, have inevitably evoked as sharp divisions in this Court as the least specific and most comprehensive protection of liberties, the Due Process Clause. The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in' the whole nature of our judicial process. See Cardozo, The Nature of the Judicial Process; The Growth of the Law; The Paradoxes of Legal Science. These are considerations deeply rooted in reason and in the compelling traditions of .the legal profession. The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions. Due process of law thus conceived is not to be derided as resort to a revival of “natural law.” To believe that this judicial exercise of judgment could be avoided by freezing “due process of law” at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges, for whom the independence safeguarded by Article III of the Constitution was designed and who are presumably guided by established standards of judicial behavior. Even cybernetics has not yet made that haughty claim. To practice the requisite detachment and to achieve sufficient objectivity no doubt demands of judges the habit of self-discipline and self-criticism, incertitude that one’s own views are incontestable and alert tolerance toward views-not shared. But these are precisely the presuppositions of our judicial process.. They are precisely the qualities society has a right to expect from those entrusted with ultimate judicial power. Restraints on our jurisdiction are self-imposed only in the sense that there is from our decisions no immediate appeal short of impeachment or constitutional amendment. But that does not make due process of law a matter of judicial caprice. The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case “due process of law” requires an evaluation based on a. disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, see Hudson County Water Co. v. McCarter, 209 U. S. 349, 355, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society. Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. It has long since ceased to be true that due process of law is heedless of the means by which otherwise'relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by ®0®r« cion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisély than to say that convictions cannot be brought about by methods that offend “a sense of justice.” See Mr. Chief Justice Hughes, speaking for a unanimous Court in Brown v. Mississippi, 297 U. S. 278, 285-286. It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach. To attempt in this case to distinguish what lawyers call “real evidence” from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society. In deciding this case we do not heedlessly bring into question decisions in many States dealing with essentially different, even if related, problems. We therefore put to one side cases which have arisen in the State courts through use of modern methods and devices for discovering wrongdoers and bringing them to book. It does not fairly represent these decisions to suggest that they legalize force so brutal and so offensive to human dignity in securing evidence from a suspect as is revealed by this record. Indeed the California Supreme Court has not sanctioned this mode of securing a conviction. It merely exercised its discretion to decline a review of the conviction. All the California judges who have expressed themselves in this case have condemned the conduct in the strongest language. We are not unmindful that hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions. But the Constitution is “intended to preserve practical and substantial rights, not to maintain theories.” Davis v. Mills, 194 U. S. 451, 457. On the facts of this case the’ conviction of the petitioner has been obtained by methods that offend the Due Process Clause. The judgment below must be Reversed. Mr. Justice Minton took no part in the consideration or decision of this case. The petition for a hearing is addressed to the discretion of the California Supreme Court and a denial has apparently the same significance as the denial of certiorari in this Court. Cal. Const., Art. VI, §§ 4, 4c; “Rules on Appeal,” Rules 28, 29, 36 Cal. 2d 24-25 (1951). See 3 Stan. L. Rev. 243-269 (1951). What is here summarized was deemed by a majority of the Court, in Malinski v. New York, 324 U. S. 401, 412 and 438, to be “the controlling principles upon which' this Court reviews on constitutional grounds a.state court conviction for crime.” They have been applied by this Court many times, long before and since the Malinski case. This is the federal jury required constitutionally although England and at least half of the States have in some civil cases juries which are composed of less than 12 or whose verdict may be less than unanimous. See County Courts Act, 1934, 24 & 25 Geo. V, c. 53, § 93; Arizona State Legislative Bureau, Legislative Briefs No. 4, Grand and Petit Juries in the United States, v-vi (Feb. 15, 1940); The Council of State Governments, The Book of the States, 1950-1951, 515. Burke’s observations' on the method of ascertaining law by judges are pertinent: “Your committee do not find any positive law which binds the judges of the courts in Westminster-hall publicly to give a reasoned opinion from the bench, in support of their judgment upon matters that are stated before them. But the course- hath prevailed from the oldest times. It hath been so general and so uniform, that it must be considered as the law of the land.” Report of the Committee of Managers on the Causes of the Duration of Mr. Hastings’s Trial, 4 Speeches of Edmund Burke (1816) 200-201. And Burke had an answer for those who argue that the liberty of the citizen cannot be- adequately protected by the flexible conception of due process of law: "... the English jurisprudence has not any other sure foundation, nor consequently the lives and properties of the subject any sure hold, but in the maxims, rules, and principles, and juridical traditionary line of decisions . . . .” Id., at 201. Morris R. Cohen, “Jus Naturale Redivivum,” 25 Philosophical Review 761 (1916), and “Natural Rights and Positive Law,” Reason and Nature (1931), 401-426; F. Pollock, “The History of the Law of Nature,” Essays in the Law (1922), 31-79. As to the difference between the privilege against self-crimination protected, in federal prosecutions, under the. Fifth Amendment, and the limitations which the Due Process Clause of the Fourteenth Amendment imposes upon the States against the use of coerced confessions, see Brown v. Mississippi, supra, at 285. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_stpolicy	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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America; South Carolina Department of Health and Environmental Control, Plaintiffs-Appellees, v. MONSANTO COMPANY; Allied Corporation; E.M. Industries, Inc.; Defendants-Appellants, American Insurance Association; Chemical Manufacturers Association Amici Curiae. and SOUTH CAROLINA RECYCLING AND DISPOSAL, INC.; Columbia Organic Chemical Company; Oscar Seidenberg; Harvey Hutchinson; Eaton Corporation; Rad Services, Inc.; Aquair Corporation; Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. UNITED STATES of America; South Carolina Department of Health and Environmental Control, Plaintiffs-Appellees, v. Oscar SEIDENBERG; Harvey Hutchinson; Defendants-Appellants, American Insurance Association; Chemical Manufacturers Association, Amici Curiae. and MONSANTO COMPANY; Allied Corporation; Aquair Corporation; E.M. Industries, Inc.; South Carolina Recycling and Disposal, Inc.; Columbia Organic Chemical Company; Eaton Corporation; Rad Services, Inc., Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. UNITED STATES of America Plaintiff-Appellant, and South Carolina Department of Health and Environmental Control, Plaintiff, v. MONSANTO COMPANY; Allied Corporation; E.M. Industries Inc.; South Carolina Recycling and Disposal, Inc.; Oscar Seidenberg; Harvey Hutchinson; Defendants-Appellees, American Insurance Association; Chemical Manufacturers Association, Amici Curiae. and COLUMBIA ORGANIC CHEMICAL COMPANY; Eaton Corporation; Rad Services, Inc.; Aquair Corporation, Defendants, v. G.D. SEARLE & COMPANY; Will Ross, Inc., Third Party Defendants. Nos. 86-1261, 86-1263 and 86-1265. United States Court of Appeals, Fourth Circuit. Argued Oct. 8, 1987. Decided Sept. 7, 1988. George Clemon Freeman, Jr. (William F. Kennedy, Alfred R. Light, Thomas E. Knauer, Hunton & Williams, Richmond, Va., on brief), Isadore S. Bernstein (Hammer & Bernstein, Columbia, S.C. on brief), for defendants-appellants. David Carlisle Shilton, Dept, of Justice (F. Henry Habicht, II, Asst. Atty. Gen., Myles E. Flint, Deputy Asst. Atty. Gen., Washington, D.C., Vinton D. Lide, U.S. Atty., Mary G. Slocum, Asst. U.S. Atty., Columbia, S.C., Jacques B. Gelin, Dept, of Justice, Washington, D.C., Walton J. McLeod, III, Gen. Counsel, Walterboro, S.C., William T. Lavender, Jr., Dennis N. Cannon, Jr., Staff Counsel, South Carolina Dept, of Health & Environmental Control, Columbia, S.C., Charles De Saillan, Dov Weitman, E.P.A., Washington, D.C., on brief), for plaintiffs-appellees. (Edward W. Warren, David G. Norrell, Amy R. Sabrin, Kirkland & Ellis, David F. Zoll, Washington, D.C., Barbara A. Hindin, Los Angeles, Cal., on brief), for amicus curiae Chemical Mfrs. Ass’n. (Thomas W. Brunner, Laura A. Foggan, Piper & Marbury, Washington, D.C., on brief) for amicus curiae American Ins. Ass’n. Before WIDENER, SPROUSE and ERVIN, Circuit Judges. SPROUSE, Circuit Judge: Oscar Seidenberg and Harvey Hutchinson (the site-owners) and Allied Corporation, Monsanto Company, and EM Industries, Inc. (the generator defendants), appeal from the district court’s entry of summary judgment holding them liable to the United States and the State of South Carolina (the governments) under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). 42 U.S.C.A. § 9607(a) (West Supp.1987). The court determined that the defendants were liable jointly and severally for $1,813,624 in response costs accrued from the partial removal of hazardous waste from a disposal facility located near Columbia, South Carolina. The court declined, however, to assess prejudgment interest against the defendants. We affirm the district court’s liability holdings, but we vacate and remand for reconsideration its denial of prejudgment interest. I. In 1972, Seidenberg and Hutchinson leased a four-acre tract of land they owned to the Columbia Organic Chemical Company (COCC), a South Carolina chemical manufacturing corporation. The property, located along Bluff Road near Columbia, South Carolina, consisted of a small warehouse and surrounding areas. The lease was verbal, on a month-to-month basis, and according to the site-owners’ deposition testimony, was executed for the sole purpose of allowing COCC to store raw materials and finished products in the warehouse. Seidenberg and Hutchinson received monthly lease payments of $200, which increased to $350 by 1980. In the mid-1970s, COCC expanded its business to include the brokering and recycling of chemical waste generated by third parties. It used the Bluff Road site as a waste storage and disposal facility for its new operations. In 1976, COCC’s principals incorporated South Carolina Recycling and Disposal Inc. (SCRDI), for the purpose of assuming COCC’s waste-handling business, and the site-owners began accepting lease payments from SCRDI. SCRDI contracted with numerous off-site waste producers for the transport, recycling, and disposal of chemical and other waste. Among these producers were agencies of the federal government and South Carolina, and various private entities including the three generator defendants in this litigation. Although SCRDI operated other disposal sites, it deposited much of the waste it received at the Bluff Road facility. The waste stored at Bluff Road contained many chemical substances that federal law defines as “hazardous.” Between 1976 and 1980, SCRDI haphazardly deposited more than 7,000 fifty-five gallon drums of chemical waste on the four-acre Bluff Road site. It placed waste laden drums and containers wherever there was space, often without pallets to protect them from the damp ground. It stacked drums on top of one another without regard to the chemical compatibility of their contents. It maintained no documented safety procedures and kept no inventory of the stored chemicals. Over time many of the drums rusted, rotted, and otherwise deteriorated. Hazardous substances leaked from the decaying drums and oozed into the ground. The substances commingled with incompatible chemicals that had escaped from other containers, generating noxious fumes, fires, and explosions. On October 26, 1977, a toxic cloud formed when chemicals leaking from rusted drums reacted with rainwater. Twelve responding firemen were hospitalized. Again, on July 24, 1979, an explosion and fire resulted when chemicals stored in glass jars leaked onto drums containing incompatible substances. SCRDI’S site manager could not identify the substances that caused the explosion, making the fire difficult to extinguish. In 1980, the Environmental Protection Agency (EPA) inspected the Bluff Road site. Its investigation revealed that the facility was filled well beyond its capacity with chemical waste. The number of drums and the reckless manner in which they were stacked precluded access to various areas in the site. Many of the drums observed were unlabeled, or their labels had become unreadable from exposure, rendering it impossible to identify their contents. The EPA concluded that the site posed “a major fire hazard.” Later that year, the United States filed suit under section 7008 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6973, against SCRDI, COCC, and Oscar Seidenberg. The complaint was filed before the December 11, 1980, effective date of CERCLA, and it sought only injunctive relief. Thereafter, the State of South Carolina intervened as a plaintiff in the pending action. In the course of discovery, the governments identified a number of waste generators, including the generator defendants in this appeal, that had contracted with SCRDI for waste disposal. The governments notified fhe generators that they were potentially responsible for the costs of cleanup at Bluff Road under section 107(a) of the newly-enacted CERCLA. As a result of these contacts, the governments executed individual settlement agreements with twelve of the identified off-site producers. The generator defendants, however, declined to settle. Using funds received from the settlements, the governments contracted with Triangle Resource Industries (TRI) to conduct a partial surface cleanup at the site. The contract required RAD Services, Inc., a subsidiary of TRI, to remove 75% of the drums found there and to keep a log of the removed drums. RAD completed its partial cleanup operation in October 1982. The log it prepared documented that it had removed containers and drums bearing the labels or markings of each of the three generator defendants. The EPA reinspected the site after the first phase of the cleanup had been completed. The inspection revealed that closed drums and containers labeled with the insignia of each of the three generator defendants remained at the site. The EPA also collected samples of surface water, soil, and sediment from the site. Laboratory tests of the samples disclosed that several hazardous substances contained in the waste the generator defendants had shipped to the site remained present at the site. Thereafter, South Carolina completed the remaining 25% of the surface cleanup. It used federal funds from the Hazardous Substances Response Trust Fund (Superfund), 42 U.S.C. § 9631, as well as state money from the South Carolina Hazardous Waste Contingency Fund, S.C.Code Ann. § 44-56-160, and in-kind contribution of other state funds to match the federal contribution. In 1982, the governments filed an amended complaint, adding the three generator defendants and site-owner Harvey Hutchinson, and including claims under section 107(a) of CERCLA against all of the non-settling defendants. The governments alleged that the generator defendants and site-owners were jointly and severally liable under section 107(a) for the costs expended completing the surface cleanup at Bluff Road. In response, the site-owners contended that they were innocent absentee landlords unaware of and unconnected to the waste disposal activities that took place on their land. They maintained that their lease with COCC did not allow COCC (or SCRDI) to store chemical waste on the premises, but they admitted that they became aware of waste storage in 1977 and accepted lease payments until 1980. The generator defendants likewise denied liability for the governments’ response costs. Among other defenses, they claimed that none of their specific waste materials contributed to the hazardous conditions at Bluff Road, and that retroactive imposition of CERCLA liability on them was unconstitutional. They also asserted that they could establish an affirmative defense to CERCLA liability under section 107(b)(3), 42 U.S.C. § 9607(b)(3), by showing that the harm at the site was caused solely through the conduct of unrelated third parties. All parties thereafter moved for summary judgment. After an evidentiary hearing, the district court granted the governments’ summary judgment motion on CERCLA liability. The court found that all of the defendants were responsible parties under section 107(a), and that none of them had presented sufficient evidence to support an affirmative defense under section 107(b). The court further concluded that the environmental harm at Bluff Road was “indivisible,” and it held all of the defendants jointly and severally liable for the governments’ response costs. United States v. South Carolina Recycling & Disposal, Inc., 653 F.Supp. 984 (D.S.C.1984) (SCRDI). As to the site-owners’ liability, the court found it sufficient that they owned the Bluff Road site at the time hazardous substances were deposited there. Id. at 993 (interpreting 42 U.S.C.A. § 9607(a)(2) (West Supp.1987)). It rejected their contentions that Congress did not intend to subject “innocent” landowners to CERCLA liability. The court similarly found summary judgment appropriate against the generator defendants because it was undisputed that (1) they shipped hazardous substances to the Bluff Road facility; (2) hazardous substances “like” those present in the generator defendants’ waste were found at the facility; and (3) there had been a release of hazardous substances at the site. SCRDI, 653 F.Supp. at 991-93 (interpreting 42 U.S. C.A. § 9607(a)(3) (West Supp.1987)). In this context, the court rejected the generator defendants’ arguments that the governments had to prove that their specific waste contributed to the harm at the site, and it found their constitutional contentions to be “without force.” SCRDI, 653 F.Supp. at 992-93, 995-98. Finally, since none of the defendants challenged the governments’ itemized accounting of response costs, the court ordered them to pay the full $1,813,624 that had been requested. Id. at 1009, 1014. It refused, however, to add prejudgment interest to the amount owed. Id. at 1009. This appeal followed. II. The site-owners and the generator defendants first contest the imposition of CERCLA liability vel non, and they challenge the propriety of summary judgment in light of the evidence presented to the trial court. The site-owners also reassert the “innocent landowner” defense that the district court rejected, and claim that the court erroneously precluded them from presenting evidence of a valid affirmative defense under section 107(b)(3), 42 U.S.C. § 9607(b)(3). The generator defendants likewise repeat their arguments based on the governments’ failure to establish a nexus between their specific waste and the harm at the site. They also claim that the trial court ignored material factual issues relevant to affirmative defenses to liability. We address these contentions sequentially, but pause briefly to review the structure of CERCLA’s liability scheme. In CERCLA, Congress established “an array of mechanisms to combat the increasingly serious problem of hazardous substance releases.” Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1078 (1st Cir.1986). Section 107(a) of the statute sets forth the principal mechanism for recovery of costs expended in the cleanup of waste disposal facilities. At the time the district court entered judgment, section 107(a) provided in pertinent part: (a) Covered persons; scope Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (2)any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, [and] (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and (4)... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for— (A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan. 42 U.S.C.A. § 9607(a) (West Supp.1987). In our view, the plain language of section 107(a) clearly defines the scope of intended liability under the statute and the elements of proof necessary to establish it. We agree with the overwhelming body of precedent that has interpreted section 107(a) as establishing a strict liability scheme. Further, in light of the evidence presented here, we are persuaded that the district court correctly held that the governments satisfied all the elements of section 107(a) liability as to both the site-owners and the generator defendants. A. Site-Owners’ Liability In light of the strict liability imposed by section 107(a), we cannot agree with the site-owners contention that they are not within the class of owners Congress intended to hold liable. The traditional elements of tort culpability on which the site-owners rely simply are absent from the statute. The plain language of section 107(a)(2) extends liability to owners of waste facilities regardless of their degree of participation in the subsequent disposal of hazardous waste. Under section 107(a)(2), any person who owned a facility at a time when hazardous substances were deposited there may be held liable for all costs of removal or remedial action if a release or threatened release of a hazardous substance occurs. The site-owners do not dispute their ownership of the Bluff Road facility, or the fact that releases occurred there during their period of ownership. Under these circumstances, all the prerequisites to section 107(a) liability have been satisfied. See Shore Realty, 759 F.2d at 1043-44 (site-owner held liable under CERCLA section 107(a)(1) even though he did not contribute to the presence or cause the release of hazardous substances at the facility). The site-owners nonetheless contend that the district court’s grant of summary judgment improperly denied them the opportunity to present an affirmative defense under section 107(b)(3). Section 107(b)(3) sets forth a limited affirmative defense based on the complete absence of causation. See Shore Realty, 759 F.2d at 1044. It requires proof that the release or threatened release of hazardous substances and resulting damages were caused solely by “a third party other than... one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant....” 42 U.S.C. § 9607(b)(3). A second element of the defense requires proof that the defendant “took precautions against foreseeable acts or omissions of any such third party and the consequences that could foresee-ably result from such acts or omissions.” Id. We agree with the district court that under no view of the evidence could the site-owners satisfy either of these proof requirements. First, the site-owners could not establish the absence of a direct or indirect contractual relationship necessary to maintain the affirmative defense. They concede they entered into a lease agreement with COCC. They accepted rent from COCC, and after SCRDI was incorporated, they accepted rent from SCRDI. See United States v. Northernaire Plating Co., 670 F.Supp. 742, 747-48 (W.D.Mich.1987) (owner who leased facility to disposing party could not assert affirmative defense). Second, the site-owners presented no evidence that they took precautionary action against the foreseeable conduct of COCC or SCRDI. They argued to the trial court that, although they were aware COCC was a chemical manufacturing company, they were completely ignorant of all waste disposal activities at Bluff Road before 1977. They maintained that they never inspected the site prior to that time. In our view, the statute does not sanction such willful or negligent blindness on the part of absentee owners. The district court committed no error in entering summary judgment against the site-owners. B. Generator Defendants’ Liability The generator defendants first contend that the district court misinterpreted section 107(a)(3) because it failed to read into the statute a requirement that the governments prove a nexus between the waste they sent to the site and the resulting environmental harm. They maintain that the statutory phrase “containing such hazardous substances” requires proof that the specific substances they generated and sent to the site were present at the facility at the time of release. The district court held, however, that the statute was satisfied by proof that hazardous substances “like” those contained in the generator defendants’ waste were found at the site. SCRDI, 653 F.Supp. at 991-92. We agree with the district court’s interpretation. Reduced of surplus language, sections 107(a)(3) and (4) impose liability on off-site waste generators who: “arranged for disposal... of hazardous substances... at any facility... containing such hazardous substances... from which there is a release... of a hazardous substance.” 42 U.S.C.A. §§ 9607(a)(3), (4) (West Supp. 1987) (emphasis supplied). In our view, the plain meaning of the adjective “such” in the phrase “containing such hazardous substances” is “[ajlike, similar, of the like kind.” Black’s Law Dictionary 1284 (5th ed. 1979). As used in the statute, the phrase “such hazardous substances” denotes hazardous substances alike, similar, or of a like kind to those that were present in a generator defendant’s waste or that could have been produced by the mixture of the defendant’s waste with other waste present at the site. It does not mean that the plaintiff must trace the ownership of each generic chemical compound found at a site. Absent proof that a generator defendant’s specific waste remained at a facility at the time of release, a showing of chemical similarity between hazardous substances is sufficient. The overall structure of CERCLA’S liability provisions also militates against the generator defendants’ “proof of ownership” argument. In Shore Realty, the Second Circuit held with respect to site-owners that requiring proof of ownership at any time later than the time of disposal would go far toward rendering the section 107(b) defenses superfluous. Shore Realty, 759 F.2d at 1044. We agree with the court’s reading of the statute and conclude that its reasoning applies equally to the generator defendants’ contentions. As the statute provides — “[notwithstanding any other provision or rule of law” — liability under section 107(a) is “subject only to the defenses set forth” in section 107(b). 42 U.S. C.A. § 9607(a) (West Supp.1987) (emphasis added). Each of the three defenses established in section 107(b) “carves out from liability an exception based on causation.” Shore Realty, 759 F.2d at 1044. Congress has, therefore, allocated the burden of disproving causation to the defendant who profited from the generation and inexpensive disposal of hazardous waste. We decline to interpret the statute in a way that would neutralize the force of Congress’ intent. Finally, the purpose underlying CERC-LA’s liability provisions counsels against the generator defendants’ argument. Throughout the statute’s legislative history, there appears the recurring theme of facilitating prompt action to remedy the environmental blight of unscrupulous waste disposal. In deleting causation language from section 107(a), we assume as have many other courts, that Congress knew of the synergistic and migratory capacities of leaking chemical waste, and the technological infeasibility of tracing improperly disposed waste to its source. In view of this, we will not frustrate the statute’s salutary goals by engrafting a “proof of ownership” requirement, which in practice, would be as onerous as the language Congress saw fit to delete. See United States v. Wade, 577 F.Supp. 1326, 1332 (E.D.Pa.1983) (“To require a plaintiff under CERCLA to ‘fingerprint’ wastes is to eviscerate the statute.”). The generator defendants next argue that the trial court ignored evidence that established genuine factual issues as to the existence of an affirmative defense to liability. They maintain that summary judgment was inappropriate because they presented some evidence that all of their waste had been removed from Bluff Road prior to cleanup. We agree with the trial court, however, that the materials on which the generator defendants rely were insufficient to create a genuine issue of material fact. The generator defendants offered only conclusory allegations, principally based “on information and belief,” that their waste, originally deposited at Bluff Road, was at some time prior to 1979 transported from that facility to other sites operated by SCRDI. To withstand summary judgment under section 107(b)(3), however, the generator defendants had to produce specific evidence creating a genuine issue that all of their waste was removed from the site prior to the release of hazardous substances there. See 42 U.S.C. § 9607(b)(3). In light of the uncontroverted proof that containers bearing each of the defendants’ markings remained present at the site at the time of cleanup and the fact that hazardous substances chemically similar to those contained in the generators’ waste were found, the generator defendants’ affidavits and deposition testimony simply failed to establish complete removal as a genuine issue. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment appropriately granted against nonmoving party who failed to produce evidence supporting an element essential to its case on which it bore burden of proof at trial). III. The appellants next challenge the district court’s imposition of joint and several liability for the governments’ response costs. The court concluded that joint and several liability was appropriate because the environmental harm at Bluff Road was “indivisible” and the appellants had “failed to meet their burden of proving otherwise.” SCRDI, 653 F.Supp. at 994. We agree with its conclusion. While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of indivisible harm. See Shore Realty, 759 F.2d at 1042 n. 13; United States v. ChemDyne, 572 F.Supp. 802, 810-11 (S.D.Ohio 1983). In each case, the court must consider traditional and evolving principles of federal common law, which Congress has left to the courts to supply interstitially. Under common law rules, when two or more persons act independently to cause a single harm for which there is a reasonable basis of apportionment according to the contribution of each, each is held liable only for the portion of harm that he causes. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260 n. 8, 99 S.Ct. 2753, 2756 n. 8, 61 L.Ed.2d 521 (1979). When such persons cause a single and indivisible harm, however, they are held liable jointly and severally for the entire harm. Id. (citing Restatement (Second) of Torts § 433A (1965)). We think these principles, as reflected in the Restatement (Second) of Torts, represent the correct and uniform federal rules applicable to CERCLA cases. Section 433A of the Restatement provides: (1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes. Restatement (Second) of Torts § 433A (1965). Placing their argument into the Restatement framework, the generator defendants concede that the environmental damage at Bluff Road constituted a “single harm,” but contend that there was a reasonable basis for apportioning the harm. They observe that each of the off-site generators with whom SCRDI contracted sent a potentially identifiable volume of waste to the Bluff Road site, and they maintain that liability should have been apportioned according to the volume they deposited as compared to the total volume disposed of there by all parties. In light of the conditions at Bluff Road, we cannot accept this method as a basis for apportionment. The generator defendants bore the burden of establishing a reasonable basis for apportioning liability among responsible parties. Chem-Dyne, 572 F.Supp. at 810; Restatement (Second) of Torts § 433B (1965). To meet this burden, the generator defendants had to establish that the environmental harm at Bluff Road was divisible among responsible parties. They presented no evidence, however, showing a relationship between waste volume, the release of hazardous substances, and the harm at the site. Further, in light of the commingling of hazardous substances, the district court could not have reasonably apportioned liability without some evidence disclosing the individual and interactive qualities of the substances deposited there. Common sense counsels that a million gallons of certain substances could be mixed together without significant consequences, whereas a few pints of others improperly mixed could result in disastrous consequences. Under other circumstances proportionate volumes of hazardous substances may well be probative of contributory harm. In this case, however, volume could not establish the effective contribution of each waste generator to the harm at the Bluff Road site. Although we find no error in the trial court’s imposition of joint and several liability, we share the appellants’ concern that they not be ultimately responsible for reimbursing more than their just portion of the governments’ response costs. In its refusal to apportion liability, the district court likewise recognized the validity of their demand that they not be required to shoulder a disproportionate amount of the costs. It ruled, however, that making the governments whole for response costs was the primary consideration and that cost allocation was a matter “more appropriately considered in an action for contribution between responsible parties after plaintiff has been made whole.” SCRDI, 653 F.Supp. at 995 & n. 8. Had we sat in place of the district court, we would have ruled as it did on the apportionment issue, but may well have retained the action to dispose of the contribution questions. See 42 U.S.C.A. § 9613(f) (West Supp.1987). That procedural course, however, was committed to the trial court’s discretion and we find no abuse of it. As we have stated, the defendants still have the right to sue responsible parties for contribution, and in that action they may assert both legal and equitable theories of cost allocation. IV. The generator defendants raise numerous constitutional challenges to the district court’s interpretation and application of CERCLA. They contend that the imposition of “disproportionate” liability without proof of causation violated constitutional limitations on retroactive statutory application and that it converted CERCLA into a bill of attainder and an ex post facto law. They further assert, along with the site-owners, that the trial court’s construction of CERCLA infringed their substantive due process rights. The district court held that CERCLA does not create retroactive liability, but imposes a prospective obligation for the post-enactment environmental consequences of the defendants’ past acts. SCRDI, 653 F.Supp. at 996. Alternatively, the court held that even if CERCLA is understood to operate retroactively, it nonetheless satisfies the dictates of due process because its liability scheme is rationally related to a valid legislative purpose. Id. at 997-98. We agree with the court’s latter holding, and we find no merit to the generator defendants’ bill of attainder and ex post facto arguments. Many courts have concluded that Congress intended CERCLA’s liability provisions to apply retroactively to pre-enactment disposal activities of off-site waste generators. They have held uniformly that retroactive operation survives the Supreme Court’s tests for due process validity. We agree with their analyses. In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), the Supreme Court, in a different context, rejected a due process challenge to the retroactive operation of the liability provisions in the Black Lung Benefits Act of 1972. The Court stated that “a presumption of constitutionality” attaches to “legislative Acts adjusting the burdens and benefits of economic life,” and that “the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Id. at 15, 96 S.Ct. at 2892. It reasoned that although the Act imposed new liability for disabilities developed prior to its enactment, its operation was “justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor.” Id. at 18, 96 S.Ct. at 2893. The reasoning of Turner Elkhorn applies with great force to the retroactivity contentions advanced here. While the generator defendants profited from inexpensive waste disposal methods that may have been technically “legal” prior to CERCLA’s enactment, it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment. CERCLA operates remedially to spread the costs of responding to improper waste disposal among all parties that played a role in creating the hazardous conditions. Where those conditions are indivisible, joint and several liability is logical, and it works to ensure complete cost recovery. We do not think these consequences are “particularly harsh and oppressive,” United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 13, 97 S.Ct. 1505, 1515 n. 13, 52 L.Ed.2d 92 (1977) (retrospective civil liability not unconstitutional unless it is particularly harsh and oppressive), and we agree with the Eighth Circuit that retroactive application of CERCLA does not violate due process. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 734 (8th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). Nor does the imposition of strict, joint and several liability convert CERCLA into a bill of attainder or an ex post facto law. United States v. Conservation Chemical Co., 619 F.Supp. 162, 214 (W.D.Mo.1985); United States v. Tyson, 25 Env’t.Rep.Cas. (BNA) 1897 (E.D.Pa.1986) [available on WESTLAW, 1986 WL 9250]. The infliction of punishment, either legislatively or retrospectively, is a sine qua non of legislation that runs afoul of these constitutional prohibitions. See Nixon v. Administrator of General Services, 433 U.S. 425, 473-84, 97 S.Ct. 2777, 2805-11, 53 L.Ed.2d 867 (1977) (bill of attainder analysis); Weaver v. Graham, 450 U.S. 24, 28-30, 101 S.Ct. 960, 963-65, 67 L.Ed.2d 17 (1981) (ex post facto law analysis). CERCLA does not exact punishment. Rather it creates a reimbursement obligation on any person judicially determined responsible for the costs of remedying hazardous conditions at a waste disposal facility. The restitution of cleanup costs was not intended to operate, nor does it operate in fact, as a criminal penalty or a punitive deterrent. Cf. Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 1838, 95 L.Ed.2d 365 (1987) (distinguishing civil penalties under Clean Water Act from equitable remedy of restitution). Moreover, as this case amply demonstrates, Congress did not impose that obligation automatically on a legislatively defined class of persons. V. The United States contends on cross-appeal that the district court erred in denying its request for prejudgment interest on its response costs. At the time the court issued its decision, CERCLA contained no explicit provision for the award of prejudgment interest. Since then, however, Congress has added the following language to section 107(a): The amounts recoverable in an action under this section shall include interest on the amounts recoverable under sub-paragraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26. For purposes of applying such amendments to interest under this subsection, the term “comparable maturity” shall be determined with reference to the date on which interest accruing under this subsection commences. 42 U.S.C.A. 9607(a) (West Supp.1987). Because of this addition to the law, we look to the Supreme Court’s decision in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), for Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
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 GOULD v. RUEFENACHT et al. No. 84-165. Argued March 26, 1985 Decided May 28, 1985 Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. Stevens, J., filed a dissenting opinion, ante, p. 697. Robert C. Epstein argued the cause for petitioner. With him on the brief were Dean A. Gaver and Joseph J. Fleisch-man. Robert J. Kelly filed a brief for O’Halloran, as respondent under this Court’s Rule 19.6, urging reversal. Peter S. Pearlman argued the cause for respondent Ruefe-nacht. With him on the brief was Jeffrey W. Herrmann. Daniel L. Goelzer argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Deputy Solicitor General Claiborne, Paul Gonson, Jacob H. Still-man, and Rosalind C. Cohen. Justice Powell delivered the opinion of the Court. This case presents the question whether the sale of 50% of the stock of a company is a securities transaction subject to the antifraud provisions of the federal securities laws (the Acts). I In 1980, respondent Ruefenacht (hereafter respondent) purchased 2,500 shares of the stock of Continental Import & Export, Inc., an importer of wine and spirits, from Joachim Birkle. Birkle was Continental’s president and had owned 100% of the company’s stock prior to the time of the sale. The 2,500 shares, for which respondent paid $250,000, represented 50% of Continental’s outstanding stock. According to respondent, he purchased the stock in reliance on financial documents and oral representations made by Birkle; Christopher O’Halloran, a certified public accountant; and petitioner Gould, Continental’s corporate counsel. Part of the consideration for the deal was a promise by respondent that he would participate in the firm’s management. The record reveals that he helped solicit contracts for the firm, participated in some hiring decisions, signed a banking resolution so that he could endorse corporate checks in Birkle’s absence, and engaged in other more minor pursuits. All the while, however, respondent remained a full-time employee of another corporation, and his actions on behalf of Continental were at all times subject to Birkle’s veto. After respondent paid $120,000 of the stock’s purchase price, he began to doubt the accuracy of some of the representations made to him by Birkle and others. Respondent subsequently filed this suit, alleging violations of §§ 12(2) and 17(a) of the Securities Act of 1933 (1933 Act), 15 U. S. C. §§77£(2), 77q. He also alleged violations of § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 15 U. S. C. §78j(b), and Rule 10b-5, 17 CFR §240.10b-5 (1984). The District Court granted summary judgment for the defendants, concluding that the stock respondent purchased was not a “security” within the meaning of § 3(a)(10) of the 1934 Act, 15 U. S. C. § 78c(a)(10), and §2(1) of the 1933 Act, 15 U. S. C. §77b(1). Finding that respondent intended to manage Continental jointly with Birkle, the court concluded that the sale of business doctrine prevented application of the Acts. The United States Court of Appeals for the Third Circuit reversed. Ruefenacht v. O’Halloran, 737 F. 2d 320 (1984). It ruled that the plain language of the Acts’ definitions of “security” included the stock at issue here, and it disagreed with the District Court’s conclusion that the sale of business doctrine must be applied in every case to determine whether an instrument is a “security” within the meaning of the Acts. Because the Courts of Appeals are divided over the applicability of the sale of business doctrine to sales of stock arguably transferring control of a closely held business, we granted certiorari. 469 U. S. 1016 (1984). For the reasons stated in our decision announced today in Landreth Timber Co. v. Landreth, ante, p. 681, we now affirm. HH HH In Landreth, we held that where an instrument bears the label “stock” and possesses all of the characteristics typically associated with stock, see United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 851 (1975), a court will not be required to look beyond the character of the instrument to the economic substance of the transaction to determine whether the stock is a “security” within the meaning of the Acts. The instruments respondent purchased were called “stock,” and the District Court ruled that they possessed all of the characteristics listed by Forman that are usually associated with traditional stock. App. 50a. As we noted in Landreth, ante, at 687, the sale of stock in a corporation is typical of the kind of transaction to which the Acts by their terms apply. We conclude that the stock purchased by respondent is a “security” within the meaning of the Acts, and that the sale of business doctrine does not apply. I — I HH HH Aside from the language of the Acts and the characteristics of the instruments, there are sound policy reasons for rejecting the sale of business doctrine as a rule of decision in cases involving the sale of traditional stock in a closely held corporation. As petitioner acknowledges, see Brief for Petitioner 27, application of the doctrine depends primarily in each case on whether control has passed to the purchaser. See, e. g., Sutter v. Groen, 687 F. 2d 197, 203 (CA7 1982); King v. Winkler, 673 F. 2d 342, 345 (CA11 1982); Frederiksen v. Poloway, 637 F. 2d 1147, 1148 (CA7), cert. denied, 451 U. S. 1017 (1981). Control, in turn, may not be determined simply by ascertaining what percentage of the company’s stock has been purchased. To be sure, in many cases, acquisition of more than 50% of the voting stock of a corporation effects a transfer of operational control. In other cases, however, even the ownership of more than 50% may not result in effective control. In still other cases, defacto operational control may be obtained by the acquisition of less than 50%. These seemingly inconsistent results stem from the fact that actual control may also depend on such variables as voting rights, veto rights, or requirements for a super-majority vote on issues pertinent to company management, such as may be required by state law or the company’s certificate of incorporation or its bylaws. See Golden v. Garafalo, 678 F. 2d 1139, 1146 (CA2 1982) (“In ‘economic reality,’ considerably less than 100%, and often less than 50%, of outstanding shares may be a controlling block which, when sold to a single holder, effectively transfers the power to manage the business”); King v. Winkler, supra, at 346 (application of the sale of business doctrine “is not [merely] a function of numbers”). Whether control has passed with the stock may also depend on how involved in management the purchaser intends to be, see Landreth, ante, at 695-696. Therefore, under respondent’s theory, the Acts’ applicability to a sale of stock such as that involved here would rarely be certain at the time of the transaction. Accord, Hazen, Taking Stock of Stock and the Sale of Closely Held Corporations, 61 N. C. L. Rev. 393, 406 (1983). Rather, it would depend on findings of fact made by a court — often only after extensive discovery and litigation. Application of the sale of business doctrine also would lead to arbitrary distinctions between transactions covered by the Acts and those that are not. Because applicability of the Acts would depend on factors other than the type and characteristics of the instrument involved, a corporation’s stock could be determined to be a security as to the seller, but not as to the purchaser, or as to some purchasers but not others. Likewise, if the same purchaser bought small amounts of stock through several different transactions, it is possible that the Acts would apply as to some of the transactions, but not as to the one that gave him “control.” See Ruefenacht v. O’Halloran, 737 F. 2d, at 335. Such distinctions make little sense in view of the Acts’ purpose to protect investors. Moreover, the parties’ inability to determine at the time of the transaction whether the Acts apply neither serves the Acts’ protective purpose nor permits the purchaser to compensate for the added risk of no protection when negotiating the transaction. IV We conclude that the stock at issue here is a “security,” and that the sale of business doctrine does not apply. The judgment of the United States Court of Appeals for the Third Circuit is therefore Affirmed. [For dissenting opinion of Justice Stevens, see ante, p. 697.] The complaint named as defendants O’Halloran, Birkle, and Continental, as well as petitioner Gould. Birkle and Continental defaulted for failure to appear. O’Halloran is a respondent under this Court’s Rule 19.6 and filed a brief urging that the decision of the Court of Appeals be reversed. For example, although the sale of all of a corporation’s stock to a single buyer by a single seller would likely not constitute the sale of a security under the sale of business doctrine as to either party, the same sale to a single buyer by several sellers, none of whom exercised control, would probably be considered to be a securities transaction as to the sellers, but not as to the buyer. See Ruefenacht v. O’Halloran, 737 F. 2d 320, 335, and n. 36 (CA3 1984); McGrath v. Zenith Radio Corp., 651 F. 2d 458, 467-468, n. 5 (CA7), cert. denied, 454 U. S. 835 (1981); Seldin, When Stock is Not a Security, 37 Bus. Law. 637, 679 (1982). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable 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". Abdulaziz A. ALFADDA, Abdullah Abbar, Abdulla Kanoo, Abdulaziz Kanoo, Yusif Bin Ahmed Kanoo (a partnership company), and Ahmed A. Zainy, Plaintiffs-Appellants, v. Richard A. FENN, Jamal Radwan, Saudi European Investment Corporation N.V., Saudi European Bank, S.A., Alef Investment Corporation N.V., and Alef Bank, S.A., Defendants-Appellees. No. 1291, Docket 90-9129. United States Court of Appeals, Second Circuit. Argued April 18, 1991. Decided June 5, 1991. Geoffry D.C. Best, New York City (Le-Boeuf, Lamb, Leiby & MacRae, New York City, Gwenellen P. Janov, Elena M. Naugh-ton, Anthony M. Sabino, of counsel), Craig B. Glidden, Houston, Tex. (Beirne, Maynard & Parsons, Houston, Tex., Jeffrey R. Parsons, of counsel), for plaintiffs-appellants. George A. Davidson, New York City (Hughes Hubbard & Reed, New York City, Daniel H. Weiner, of counsel), for defendant-appellees Jamal Radwan, Saudi European Inv. Corp. N.V., Alef Inv. Corp. N.V., and Alef Bank, S.A. Thomas J. Kavaler, New York City (Ca-hill Gordon & Reindel, New York City, Patrick L. Rocco, of counsel), for defendant-appellee Richard A. Fenn. Joseph F. Haggerty, New York City (Shearman & Sterling, New York City, Danforth Newcomb, Peter L. Lindseth, of counsel), for defendant-appellee Societe de Banque Privee, S.A., formerly Saudi European Bank, S.A. Before LUMBARD, FEINBERG, and McLAUGHLIN, Circuit Judges. LUMBARD, Circuit Judge: Plaintiffs appeal from the November 26, 1990 order of the Southern District of New York, Lawrence M. McKenna, Judge, dismissing their amended complaint for lack of subject matter jurisdiction. Plaintiffs, investors in defendant, Saudi European Investment Corporation N.V. (SEIC) allege that they were defrauded when their stake in SEIC was diluted by sales in contravention of an offering prospectus, and that defendants diverted the proceeds from the sales for their personal benefit and the benefit of certain favored SEIC shareholders. The district court held that it had no jurisdiction as it found that the alleged fraud was perpetrated outside the United States. We reverse and remand for further proceedings because of plaintiffs’ largely uncontested allegations that fraudulent conduct occurred in the United States. Plaintiffs, Abdulaziz Alfadda, Abdullah Abbar, Ahmed Zainy, and Abdulla Kanoo, Abdulaziz Kanoo and Yusif Bin Ahmed Ka-noo (the latter three plaintiffs referred to as “the Kanoos”), all residents and nationals of Saudi Arabia or Bahrain, filed their complaint in September 1989 naming SEIC, a closely held Netherlands Antilles company ; Saudi European Bank, S.A. and Alef Bank, S.A., both French banks; Alef Investment Corporation N.V., a Netherlands Antilles corporation; Jamal Radwan, chairman of SEIC, and Richard Fenn, former vice-chairman of SEIC, both United States citizens, as defendants. The Amended Complaint alleges that on or about February 4, 1979, Radwan invited Alfadda to become a shareholder in a proposed company, SEIC. The original stock offering consisted of 20,000 shares at a price of $1,000 per share. In July 1979, Alfadda purchased 1,000 shares of SEIC for $1,000,000. Pursuant to the terms of the 1979 offering, Alfadda and the other holders of the original 20,000 shares distributed were to be given a preference in the offering of new shares, in proportion to the number of original shares held by them. Around October 1983, Radwan and Fenn planned a second offering of SEIC stock. The original shares were to be subject to a thirty to one split, creating 600,000 shares. The prospectus for the second offering stated that another 600,000 shares (which represented the 20,000 shares which were not issued in the original offering split thirty to one) were to be sold at $100 per share. In the event of an oversubscription, up to 1,800,000 non-voting shares were to be issued. The Kanoos purchased 10,000 shares of SEIC for $1,000,000 on April 9, 1984. On April 2 and 10, 1984, Zainy and Abbar each paid $1,000,000 for 10,000 shares of SEIC, respectively. Plaintiffs allege that despite representations made in the 1984 offering prospectus upon which they relied, 1,200,000 voting shares were sold, thereby diluting their voting interests in SEIC. In addition, Al-fadda claims that, despite his reliance upon the representations made to him when he purchased the shares in the original 1979 offering, defendants never informed him of the second offering, thus depriving him of his preferential right to purchase new shares. Plaintiffs contend, and the defendants do not dispute, that sales to a subsidiary of American Continental Corp. and Abdulrah-man Al-Turki, which resulted in the alleged dilution of plaintiffs’ voting interests, occurred almost entirely in the United States. In his deposition, Fenn admitted to meeting Charles Keating, chairman of Phoenix-based American Continental, in New York City where Keating informed Fenn that “he would like to take a stake in [SEIC’s] capital offering.” On May 2, American Continental notified SEIC that its savings and loan subsidiary, Lincoln Savings and Loan Association, wanted to purchase 15% of SEIC’s voting shares. Six days after the offer, SEIC telexed American Continental in Phoenix directing it to deposit payment for the shares in a New York bank account. Toward the end of May 1984, Fenn, Radwan and Ronald Reilly, president of Capital International, Inc., met with Keating and other representatives of American Continental in Phoenix. Although it is not known what was discussed at the meeting, approximately one week later, Fenn telexed Reilly that the $18,000,000 “from American Continental has finally arrived.” Because the prospectus had stated that the shares of SEIC would “not be offered or sold directly or indirectly in the United States,” American Continental created a subsidiary off-shore shell company, Lincoln American Investments N.Y., to purchase the SEIC shares. Plaintiffs also allege that on or around June 20, 1984, Radwan telephoned Al-Turki in Houston to advise him that American Continental agreed to purchase 15% of SEIC’s outstanding stock and that if Al-Turki agreed to a large subscription, he, along with Radwan, Keating and another original SEIC investor would control SEIC. On June 22, Reilly telexed Al-Turki to inquire if SEIC could expect an “agreement” on the SEIC offering. Al-Turki sent a return telex to Reilly in which he accepted SEIC’s offer to purchase 150,000 voting shares for $15,000,000. On June 26, SEIC telexed Al-Turki in Houston accepting his offer and directing him to deposit his payment in a New York bank account. In dismissing plaintiffs’ securities law claims for lack of subject matter jurisdiction, the district court held that “the fraud was perpetrated by placing the misleading prospectus into the plaintiffs’ hands outside the United States.” 751 F.Supp. 1114, 1118 (S.D.N.Y.1990). Apparently considering plaintiffs’ allegations of SEIC stock sales to Lincoln American Investments and Al-Turki as irrelevant to the question of jurisdiction, the district court did not consider the import of this alleged conduct in the United States. Accepting plaintiffs’ largely uncontested allegations of conduct consummating the fraud in the United States as true, see Wright and Miller, Federal Practice and Procedure § 1350 at 220 (2d ed. 1990) (uncontroverted factual allegations in the body of the complaint taken as true on disposition of motion to dismiss for lack of subject matter jurisdiction), we reverse and remand for further proceedings. The Securities Exchange Act is silent as to its extraterritorial application. Cf. 15 U.S.C. § 78aa (1988) (vesting federal district courts with exclusive original jurisdiction for violations of the Act). Thus, in addressing transnational frauds, courts must ascertain “whether Congress would have wished the precious resources of the United States courts” to be devoted to such transactions. Psimenos v. E.F. Hutton & Co., 722 F.2d 1041, 1045 (2d Cir.1983) (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir.), cert. denied, 423 U.S. 1018, 96 S.Ct. 453, 46 L.Ed.2d 389 (1975)). Under our decisions, two tests have emerged for determining whether a federal court has subject matter jurisdiction over a foreign plaintiff’s claim under the antifraud provisions of the securities laws. Under the “conduct” test, a federal court has subject matter jurisdiction if the defendant’s conduct in the United States was more than merely preparatory to the fraud, and particular acts or culpable failures to act within the United States directly caused losses to foreign investors abroad. See Psimenos, 722 F.2d at 1046 (citing Bersch, 519 F.2d at 993). A federal court also has jurisdiction under the “effects” test where illegal activity abroad causes a “substantial effect” within the United States. See Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261-62 (2d Cir.1989). As we find that the allegations are sufficient to show that there is jurisdiction under the conduct test, we reverse. In employing the conduct test, Judge Friendly wrote that subject matter jurisdiction could be based upon the “perpetration of fraudulent acts themselves [but] does not extend to mere preparatory activities or the failure to prevent fraudulent acts where the bulk of the activity was performed in foreign countries, such as in Bersch.” ITT v. Vencap, Ltd., 519 F.2d 1001, 1018 (2d Cir.1975). In Psimenos, we held that lawsuits by aliens alleging securities fraud should be entertained in American courts “only where conduct material to the completion of the fraud occurred in the United States.” 722 F.2d at 1046. In this case, we find that the negotiations with and sales to American Continental and AlTurki constituted conduct resulting in the consummation of the securities law fraud. We disagree with the district court’s finding that “nothing further had to be done to complete the fraud after plaintiffs paid for their SEIC shares in reliance upon the prospectus.” 751 F.Supp. at 1118. Plaintiffs, except Alfadda, purchased their shares in April 1984. The sales to Lincoln and Al-Turki were not finalized until June. Thus, the prospectuses did not become fraudulent until additional voting shares were sold to Lincoln and Al-Turki. At the very least, the negotiations and communications of Radwan, Fenn and Reilly with American Continental officers and Al-Turki constituted “conduct material to the completion of the fraud ... ”, Psimenos, 722 F.2d at 1046, and hence are a basis for subject matter jurisdiction. The fact that American Continental’s investment was structured so that its subsidiary, Lincoln American Investments, a Netherlands Antilles shell company created for the purpose of holding the SEIC shares, was the nominal purchaser does not detract from the import of the United States meetings and negotiations which preceded the sale. See Restatement (Second) of Foreign Relations Law of the United States § 416(d) (1987) (“The United States may generally exercise jurisdiction to prescribe with respect to conduct occurring predominantly in the United States that is related to a transaction in securities, even if the transaction takes place outside the United States.”). Defendants also argue that Al-Turki negotiated for and decided to purchase SEIC stock while in several non-United States locations prior to the June telexes Al-Turki received in Houston. However, in the district court, Al-Turki averred that “[a]s of June 22, 1984, I had not agreed to participate in the SEIC Stock Offering.” The district court did not resolve this factual dispute. Viewing the evidence in the light most favorable to the plaintiffs, as we must on appeal of the dismissal of a complaint for lack of subject matter jurisdiction, we find that negotiations for the sale of SEIC stock to Al-Turki transpired in Houston in late June. The district court also dismissed plaintiffs’ RICO claims for lack of subject matter jurisdiction. Like the Securities Exchange Act, the RICO statute is silent as to its extraterritorial application. Thus, we must ascertain whether Congress would have intended that federal courts should be concerned with specific international controversies. See Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 Law & Contemp. Probs. 11, 14 nn. 18-21 (Summer 1987) (collecting cases). Relative to subject matter jurisdiction for international securities transactions, there is a dearth of Second Circuit precedent regarding the extraterritorial application of RICO. However, in United States v. Parness, 503 F.2d 430 (2d Cir.1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975), we rejected arguments circumscribing RICO’s extraterritorial application to foreign enterprises: On its face the proscription [against acquiring an “enterprise”] is all inclusive. It permits no inference that the [RICO] Act was intended to have a parochial application. The legislative history, moreover, indicates the intent of Congress that this provision be broadly con-strued_ In short, we find no indication that Congress intended to limit Title IX [RICO] to infiltration of domestic enterprises. On the contrary, the salutary purposes of the Act would be frustrated by such construction. Id. at 439. The mere fact that the corporate defendants are foreign entities does not immunize them from the reach of RICO. As the Supreme Court has stated, “the heart of any RICO complaint is the allegation of a pattern of racketeering activity.” Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 154, 107 S.Ct. 2759, 2766, 97 L.Ed.2d 121 (1987) (emphasis in original). Among the predicate acts alleged by plaintiffs are the securities fraud violations consummated by the sales of SEIC shares to Lincoln American Investments and Al-Turki. Reilly and defendants Radwan and Fenn, all American citizens, participated in many of the United States communications and negotiations preceding the sales. Nevertheless, the district court dismissed the RICO claims because it considered these predicate acts to “constitute the after-the-event working out of an already completed fraud....” 751 F.Supp. at 1121. As discussed supra, we disagree with the district court’s holding that the alleged fraud was complete upon delivery of the misrepresentations contained in the prospectuses and the subsequent purchases of SEIC stock by plaintiffs Abbar, Zainy and the Kanoos in April 1984. The sales to Lincoln American Investments and Al-Turki were predicate acts which occurred primarily in the United States, and hence, serve as a basis of subject matter jurisdiction for the RICO claims. Reversed and remanded for further proceedings. . The Amended Complaint sets forth causes of action for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(d) (1988), violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988), and Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5 (1990) (plaintiff Alfadda does not join in this count), common law fraud, breach of fiduciary duty and recision of contract. . SEIC operated as a holding and/or controlling company of the other corporate defendants. . Although SEIC had authorized 40,000 shares of its stock, only 20,000 shares were distributed in the 1979 offering. . Although the defendants disputed the legal significance of the events transpiring in the United States during argument before us, they did not contest their occurrence. .Capital International was hired by SEIC to market its private offering. . Fenn averred that while the meeting concerned topics unrelated to the SEIC offering, he did not remember what those topics were. . Al-Turki, a foreign national and resident of Saudi Arabia, owned a Saudi enterprise with offices in Houston. . Both Al-Turki and Lincoln’s successor in interest, the Resolution Trust Corp., have filed separate lawsuits against these defendants in the Southern District making allegations similar to those in the present case. In the Resolution Trust lawsuit, Gadsby & Hannah, Ronald Reilly and Mario Diaz-Cruz III were named as defendants in addition to the defendants in this case. 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:
sc_respondent	004	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. SARNO et al. V. ILLINOIS CRIME INVESTIGATING COMMISSION No. 70-7. Argued January 11, 1972 Decided May 22, 1972 Frank G. Whalen argued the cause and filed a brief for petitioners. Joel M. Flaum, First Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Soott, Attorney General, and Jayne A. Carr, Assistant Attorney General. Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Per Curiam. Petitioners were ordered to testify before the Illinois Crime Investigating Commission under a grant of immunity conferred pursuant to Ill. Rev. Stat., c. 38, § 203— 14 (1969). The occasion for granting the writ in this case was to consider whether Illinois must demonstrate to petitioners, prior to an adjudication for contempt for refusal to answer the Commission’s questions, that immunity as broad in scope as the protection of the privilege against self-incrimination is available and applicable to them. 401 U. S. 935 (1971). The writ was granted in light of petitioners’ claim that the statute did not provide complete transactional immunity. On the same day that the writ was granted, probable jurisdiction was noted in Zicarelli v. New Jersey State Commission of Investigation, 401 U. S. 933 (1971), to resolve the question whether a State can compel testimony from an unwilling witness, who invokes the privilege against self-incrimination, by granting immunity from use and derivative use of the compelled testimony, or whether transactional immunity is required. We held today in Kastigar- v. United States, ante, p. 441, and in Zicarelli v. New Jersey State Commission of Investigation, ante, p. 472, that testimony may be compelled from an unwilling witness over a claim of the privilege against self-incrimination by a grant of use and derivative use immunity. The premise of petitioners’ arguments is that transactional immunity is required. They say that Illinois failed to demonstrate satisfactorily that transactional immunity was provided, but they do not contend that the Illinois immunity statute affords pro-téetion less comprehensive than use and derivative use immunity. Respondent asserts that the statute affords complete transactional immunity, reflecting a long-standing Illinois policy of providing immunity greater than that required by the United States Constitution. Since neither party contends that the scope of the immunity provided by the Illinois statute falls below the constitutional requirement set forth in Kastigar, we conclude that any uncertainty regarding the scope of protection in excess of the constitutional requirement should best be left to the courts of Illinois. Accordingly, the writ of certiorari is dismissed as improvidently granted. It is so ordered. Mr. Justice Brennan and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Mr. Justice Douglas dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 462. Mr. Justice Marshall dissents for the reasons stated in his dissenting opinion in Kastigar v. United States, ante, p. 467. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Appellee, v. Riddick BROWN, Appellant. No. 8205. United States Court of Appeals Fourth Circuit. Argued Jan. 6, 1961. Decided Jan. 9, 1961. Len Holt, Norfolk, Va. (Joe Jordan and Ed Dawley, Norfolk, Va., on the brief), for appellant. Shanley Keeter, Asst. U. S. Atty., Richmond, Va. (Joseph S. Bambacus, U. S. Atty., Richmond, Va., on the brief), for appellee. Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HUTCHESON, District Judge. PER CURIAM. The defendant, convicted of theft of government property, complains of the court’s charge. He says that the court emphasized -the elements of the offense, particularly by defining the element of asportation. The District Judge was required to do so, and his definition of asportation was extremely pertinent in light of the emphasis by the defense upon the fact that the property had not been removed from the Navy Yard. There is no contention that the charge was in any way incorrect. We have reviewed the entire charge and find it to be fair, balanced and unobjectionable. Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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). McLARRY v. COMMISSIONER OF INTERNAL REVENUE. Circuit Court of Appeals, Fifth Circuit. February 11, 1929. No. 5374. Walter M. Van Nort, of Dallas, Tex., for petitioner. Mabel Walker Willebrandt, Asst. Atty. Gen., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue and V. J. Heffeman, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., and Sewall Key and J. H. McEvers, Sp. Asst. Attys. Gen., for respondent. Before WALKER, BRYAN, and FOSTER, Circuit Judges. WALKER, Circuit Judge. Petitioner and her husband, both residents of Texas, filed separate income tax returns for the year 1924, the petitioner reporting as income $9,-188, which was one-half of the earnings of her husband for personal services performed by him, and in computing her tax in her return she claimed credit on the basis of the entire sum of $9,188 being earned income, under the provision of section 209 of the Revenue Act of 1924. 43 Stat. 263. The Commissioner determined a deficiency of tax, as a result of holding that petitioner’s earned income was $5,000, instead of $9,188. The Board of Tax Appeals sustained that ruling. It was not questioned, and was not fairly open to question, that tho amount received in the year 1924 as compensation for personal services rendered by petitioner’s husband was income of a Texas marital community, in the income of which petitioner had a vested interest, as distinguished from an expectancy, and that one-half of that amount was properly returnable as income by the petitioner. Revenue Act of 1926, § 1212, 44 Stat. pt. 2, p. 130 (26 USCA § 964a); Vernon’s Sayles’ Arm. Civ. St. Tex. 1914, art. 4622. The Revenue Act of 1924 contains the following: “Sec. 209(a). Por the purposes of this section — (1) The term ‘earned income’ means wages, salaries, professional fees, and other amounts received as compensation for personal services actually rendered, but,” etc. “(3) * * * If the taxpayer’s net income is not more than $5,000, his entire net income shall be considered to be earned net income, and if his net income is more than $5,000, his earned net ineome shall not be considered to be less than $5,000. In no ease shall the earned net ineome be considered to be more than $10,000. (b) In the ease o£ an individual the tax shall, in addition to the credits provided in section 222, be credited with 25 pereentum of the amount of tax which would be payable if his earned net ineome constituted his entire net income; but in no ease shall the credit allowed under this subdivision exceed 25 pereentum of his tax under section 210.”. Under the ruling complained of, only that part of petitioner’s net ineome, $5,000, was treated as earned ineome which the statute requires shall be considered as earned net income; the remainder being treated as other than earned income, though the amount of it was received as compensation for personal services actually rendered. An effect of the statute is to create a discrimination in favor of earned ineome — the rate of tax on earned income being made lower than the rate on other ineome subject to normal tax. The discrimination is between income received as compensation for personal services actually rendered and ineome received from property or investments or a source other than personal services actually rendered. There is ground for inferring that the basis of discrimination is differences between means whereby ineome is acquired. Certainly it is not plain, from the language of the statute, that for an amount received as com-’ pensation for personal services actually rendered to be included in earned income' such services must have been actually rendered by the taxpayer, who was entitled to that amount upon the receipt of it. As the amount returned by the petitioner as earned ineome was received as compensation for personal services actually rendered, it was within the language of the provision of the statute stating what “earned ineome” means, though such services were rendered by petitioner’s husband, and not by herself. In ease of doubt as, to the meaning of statutes levying taxes, they are construed most strongly against the government, and in favor of the citizen. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. A result of the change in the law effected by the above-quoted statute being that earned ineome is taxed at one rate and other ineome at a higher rate, and the language used in defining earned income not being inconsistent with the existence of an intention to include in earned income an amount received as compensation for personal services actually rendered, though not by the taxpayer, the intention to apply the higher rate to such income is not clearly disclosed. Though the meaning of the provision as applicable to the amount in question is not free from doubt, we are’ of opinion that the doubt should be resolved in favor of the taxpayer, with the result of treating such amount as earned ineome subject to the lower tax rate. The petition is granted, and the order complained of is reversed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_issue_1	16	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. WOOD, SUPERINTENDENT, WASHINGTON STATE PENITENTIARY v. BARTHOLOMEW No. 94-1419. Decided October 10, 1995 Per Curiam. The Court of Appeals for the Ninth Circuit reversed the District Court’s denial of habeas relief based on its speculation that the prosecution’s failure to turn over the results of a polygraph examination of a key witness might have had an adverse effect on pretrial preparation by the defense. The Court of Appeals assumed, and the parties do not dispute, that the results were inadmissible under state law both for substantive purposes as well as for impeachment. The decision below is a misapplication of our Brady jurisprudence, see Brady v. Maryland, 373 U. S. 83 (1963), and we accordingly reverse the judgment of the Court of Appeals and remand for further proceedings. I On August 1, 1981, respondent Dwayne Bartholomew robbed a laundromat in Tacoma, Washington. In the course of the robbery, the laundromat attendant was shot and killed. Two shots were fired: One hit the attendant in the head; the second lodged in a counter near the victim’s body. From the beginning, respondent admitted that he committed the robbery and that the shots came from his gun. The only issue at trial was whether respondent was guilty of aggravated first-degree murder, which requires proof of premeditation; or of first-degree (felony) murder, which does not. Respondent’s defense was that the gun, a single action revolver (one that must be cocked manually before each shot), discharged by accident — twice. In addition to the physical evidence concerning the operation of the gun, the prosecution’s evidence consisted of the testimony of respondent’s brother, Rodney Bartholomew, and of Rodney’s girlfriend, Tracy Dormady. Both Rodney and Tracy testified that on the day of the crime they had gone to the laundromat in question to do their laundry, and that respondent was sitting in his car in the parking lot when they arrived. While waiting for their laundry, Rodney sat with his brother in the car. Rodney testified that respondent told him that he intended to rob the laundromat and “leave no witnesses.” According to their testimony, Rodney and Tracy left the laundromat soon after the conversation and went to Tracy’s house. Respondent arrived at the house a short time later, and when Tracy asked respondent if he had killed the attendant respondent said “he had put two bullets in the kid’s head.” Tracy also testified that she had heard respondent say that he intended to leave no witnesses. Both Rodney and Tracy’s testimony was consistent with their pretrial statements to the police. State v. Bartholomew, 98 Wash. 2d 173, 176-178, 654 P. 2d 1170, 1173-1174 (1982). Respondent testified in his own defense. He admitted threatening the victim with his gun and forcing him to lie down on the floor. Respondent said, however, that while he was removing money from the cash drawer his gun acci-dently fired, discharging a bullet into the victim’s head. Respondent further claimed that the gun went off a second time while he was running away. Respondent denied telling Rodney or Tracy that he intended to leave no witnesses. According to his testimony, moreover, Rodney had assisted in the robbery by convincing the attendant to open the laundromat’s door after it had closed for the night, although Rodney left before the crime was committed. Ibid. In closing argument the defense sought to discredit Rodney and Tracy’s testimony by suggesting that they were lying about the extent of Rodney’s participation in the crime. 34 F. 3d 870, 872 (CA9 1994). At the sentencing phase of the trial (respondent was sentenced to death but his sentence was overturned on appeal and he was resentenced to life imprisonment without the possibility of parole), the prosecution’s first witness was respondent’s cellmate, Stanley Bell. Bell testified that respondent told him that he made the victim lie on the floor, asked him his age, found out it was 17, replied “[t]oo bad,” and shot him. See State v. Bartholomew, supra, at 178, 654 P. 2d, at 1174. Before trial, the prosecution requested that Rodney and Tracy submit to polygraph examinations. The answers of both witnesses to the questions asked by the polygraph examiner were consistent with their testimony at trial. As part of the polygraph examination, the examiner asked Tracy whether she had helped respondent commit the robbery and whether she had ever handled the murder weapon. Tracy answered in the negative to both questions. The results of the testing as to these questions were inconclusive, but the examiner noted his personal opinion that her responses were truthful. The examiner also asked Rodney whether he had assisted his brother in the robbery and whether at any time he and his brother were in the laundromat together. Rodney responded in the negative to both questions, and the examiner concluded that the responses to the questions indicated deception. Neither examination was disclosed to the defense. After exhausting his state remedies, respondent filed a ha-beas action in the District Court for the Western District of Washington, raising, inter alia, a Brady claim based on the prosecution’s failure to produce the polygraph examinations. The District Court denied the writ, concluding that respondent “fails ... to show that evidence was withheld. The information withheld only possibly could have led to some admissible evidence. He fails to show that disclosure of the results of the polygraph to defense counsel would have had a reasonable likelihood of affecting the verdict.” App. to Pet. for Cert. B5 (emphasis in original). On appeal, the Ninth Circuit reversed. 34 F. 3d 870 (1994). The Court of Appeals noted that under Washington law polygraphic examinations are inadmissible in evidence, even for impeachment purposes. See id., at 875 (citing State v. Ellison, 36 Wash. App. 564, 676 P. 2d 531 (1984)). The court nevertheless reversed the District Court’s denial of the writ, concluding that although the results would have been inadmissible at trial, the information was material under Brady. The court reasoned that “[h]ad [respondent’s] counsel known of the polygraph results, he would have had a stronger reason to pursue an investigation of Rodney’s story”; that he “likely would have taken Rodney’s deposition” and that in that deposition “might well have succeeded in obtaining an admission that he was lying about his participation in the crime” and “would likely have Uncovered a variety of conflicting statements which could have been used quite effectively in cross-examination at trial.” 34 F. 3d, at 875-876. II If the prosecution’s initial denial that polygraph examinations of the two witnesses existed were an intentional misstatement, we would not hesitate to condemn that misrepresentation in the strongest terms. But as we reiterated just last Term, evidence is “material” under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a “reasonable probability” that had the evidence been disclosed the result at trial would have been different. Kyles v. Whitley, 514 U. S. 419, 433-434 (1995); United States v. Bagley, 473 U. S. 667, 682 (1985) (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment). To begin with, on the Court of Appeals’ own assumption, the polygraph results were inadmissible under state law, even for impeachment purposes, absent a stipulation by the parties, see 34 F. 3d, at 875 (citing State v. Ellison, supra), and the parties do not contend otherwise. The information at issue here, then — the results of a polygraph examination of one of the witnesses — is not “evidence” at all. Disclosure of the polygraph results, then, could have had no direct effect on the outcome of trial, because respondent could have made no mention of them either during argument or while questioning witnesses. To get around this problem, the Ninth Circuit reasoned that the information, had it been disclosed to the defense, might have led respondent’s counsel to conduct additional discovery that might have led to some additional evidence that could have been utilized. See 34 F. 3d, at 875. Other than expressing a belief that in a deposition Rodney might have confessed to his involvement in the initial stages of the crime — a confession that itself would have been in no way inconsistent with respondent’s guilt — the Court of Appeals did not specify what particular evidence it had in mind. Its judgment is based on mere speculation, in violation of the standards we have established. At trial, respondent’s strategy was to discredit Rodney’s damaging testimony by suggesting that Rodney was lying in order to downplay his own involvement in the crime. Id., at 872. That strategy did not involve deposing Rodney. It is difficult to see, then, on what basis the Ninth Circuit concluded that respondent’s counsel would have prepared in a different manner, or (more important) would have discovered some unspecified additional evidence, merely by disclosure of polygraph results that, as to two questions, were consistent with respondent’s preestablished defense. In speculating that the undisclosed polygraph results might have affected trial counsel’s preparation, and hence the result at trial, the Ninth Circuit disagreed with, or disregarded, the view of respondent’s own trial counsel. At the evidentiary hearing held in the Federal District Court in this habeas action, respondent’s habeas counsel questioned trial counsel on the importance of the polygraph results: “Q: And you indicated that your cross-examination of Rodney was, I think, somewhat limited because of concern that— “A: It was limited in my own respect. Nobody tried to limit me. In my opinion, as a trial lawyer, that was a very dangerous witness to me, and I wanted to get as much as I could out of him without recalling the crystal words again. Leave no prisoners. “Q: Do you think it would have been any help to you in doing that, if you had known of specific questions regarding the offense on which Mr. Rodney Bartholomew had failed a polygraph examination? Would that have perhaps affected the shape of your cross-examination of him? “A: I think in retrospect they’re almost parallel. The questions that he failed were his contribution or implication in the offense, the holdup, with Mr. Dwayne Bartholomew. I believe they were in gloves, so in retrospect they wouldn’t have affected it. I would have liked to have known it, Mr. Ford, but I don’t think it would have affected the outcome of the case.” Tr. 55-56. Trial counsel’s strategic decision to limit his questioning of Rodney undermines the suggestion by the Court of Appeals that counsel might have chosen to depose Rodney had the polygraph results been disclosed. But of even greater importance was counsel’s candid acknowledgment that disclosure would not have affected the scope of his cross-examination. That assessment is borne out by the best possible proof: The Federal District Court below went so far as to permit respondent’s habeas counsel, armed with the. information about the polygraph examinations, to question Rodney under oath. Even though respondent’s counsel was permitted to refer to the polygraph results themselves — reference to which would not be permissible on retrial — counsel obtained no contradictions or admissions out of Rodney. See id., at 84-87. In short, it is not “reasonably likely” that disclosure of the polygraph results — inadmissible under state law — would have resulted in a different outcome at trial. Even without Rodney’s testimony, the case against respondent was overwhelming. To acquit of aggravated murder, the jury would have had to believe that respondent’s single action revolver discharged accidently, not once but twice, by tragic coincidence depositing a bullet to the back of the victim’s head, execution style, as the victim lay face down on the floor. In the face of this physical evidence, as well as Rodney and Tracy’s testimony — to say nothing of the testimony by Bell that the State likely could introduce on retrial — it should take more than supposition on the weak premises offered by respondent to undermine a court’s confidence in the outcome. Whenever a federal court grants habeas relief to a state prisoner the issuance of the writ exacts great costs to the-State’s legitimate interest in finality. And where, as here, retrial would occur 13 years later, those costs and burdens are compounded many times. Those costs may be justified where serious doubts about the reliability of a trial infested with constitutional error exist. But where, as in this case, a federal appellate court, second-guessing a convict’s own trial counsel, grants habeas relief on the basis of little more than speculation with slight support, the proper delicate balance between the federal courts and the States is upset to a degree that requires correction. * * * The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. The respondent’s motion to proceed in forma pauperis is granted. It is so ordered. Justice Stevens, Justice Souter, Justice Ginsburg, and Justice Breyer dissent from summary disposition of this case. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:
songer_appfiduc	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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ROBINSON v. DICKEY. Circuit Court of Appeals, Third Circuit. October 3, 1929. Rehearing Denied January 10, 1930. No. 4064. See, also, 18 F.(2d) 682. Arthur O. Fording, of Pittsburgh, Pa., and John G. Davis, of Norfolk Va., for appellant. Philip N. Shettig, of Ebensburg, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. This is a controversy between the trustee under a mortgage representing bondholders and the trustee in bankruptcy representing general creditors, as to whether the mortgaged property should be liable for the expenses of maintaining it pending the trial of several disputed matters in bankruptcy. The property in question was a coal mine belonging to the Conemaugh Coal Mining Corporation. A bond issue of $250,000, against the property was secured by a mortgage dated March 31, 1917, and George T. Robinson was trustee thereunder. On March 5, 1926, a stockholders’ bill against the property was filed -praying for the appointment of a receiver on the ground of the inability of the corporation to meet its obligations. The corporation appeared and upon its consent a receiver was appointed. On April 29, 1926, the cotut of common pleas of Cambria county, Pa., granted permission to George T. Robinson, trustee, for the mortgage bondholders, to foreclose the mortgage, and a bill for foreclosure was filed that day. While the state receivership was going on, an involuntary petition in bankruptcy was filed against the corporation. On April 29, 1926, notwithstanding the bankruptcy proceedings, Mr. Robinson filed a bill in the common pleas court of Cambria county praying for a decree of foreclosure of the mortgage. The receiver appointed by the state court filed an answer to the bill on -May 5, 1926, wherein it alleged that there was no equity for the general creditors in the mortgaged property; that it would be for their best interest to foreclose the mortgage, and so joined in the prayer for the same. On the next day, May 6,1926, the corporation was adjudicated a bankrupt, and the following day a receiver in bankruptcy was appointed. On September 8, 1926, the referee on petition of the trustees in bankruptcy, who had in the meantime been elected, signed an order authorizing them to disclaim any interest in the mortgaged premises, and on October 11, 1926, the trustees in bankruptcy surrendered the mortgaged property to the trustee for the bondholders. On November 5, 1926, some of the creditors petitioned the District Court to restrain the foreclosure of the mortgage on the grounds that the bonds had been issued without consideration; that there was a substantial value for general creditors in the mortgaged property; that the disclaimer by the trustees in bankruptcy should not have been made; that the property would -bring a better price if kept as a going concern— and prayed for (a) a review of the referee’s, order permitting the disclaimer; (b) an injunction against the sale which was to .take place within a few days; (e) removal of the trustees in bankruptcy and the appointment of a temporary receiver with instructions to operate; and (d) directions to the receiver to petition the state court to open the decree of foreclosure and inquire into the validity of the bonds. The District Court heard the petition, reversed the order allowing the disclaimer, removed the trustees in bankruptcy, chiefly on account of the “hopeless discord” among them, enjoined the sale, appointed a temporary receiver and instructed him to apply to the state court to open its decree of foreclosure and consider the validity of the bonds. The receiver did as directed and thereafter reported to the District Court that the state court had heard and considered the question of the validity of the bonds and refused to reopen the case. Thereupon the District Judge dissolved the injunction, affirmed the disclaimer, and directed the receiver to redeliver possession of the property to the trustee for the bondholders, but required him to give bond conditioned for the payment of all expenses up to $15,000 for the maintenance of the mortgaged property while it was in the custody of the state and federal courts if it should find such a charge equitable. The property was sold on (January 15, 1927, to the bondholders for $90,000, and the question at issue here is, who should bear the expenses of the maintenance of the mortgaged property while it was in the custody of the state and federal courts, the bankruptcy estate or the mortgaged property, the general creditors or the bondholders. The various court receivers and trustees spent under the direction of the courts $16,-002.43, and. the trustee for the bondholders spent $1,800 while it was in his custody. The District Court held that the expenses should be borne by the trustee for the bondholders to the extent of the bond given by him upon the surrender of the property to him. The general rule of law, as stated by the learned District Judge is that property of the bankrupt subject to a mortgage lien is liable for cost and bankruptcy administration expenses only when there is a surplus realized at the sale of more than enough to pay the mortgage debt and interest. Spencer v. Taylor Creek Ditch Co. (C. C. A. 9) 194 F. 635; American Engineering Co. v. Metropolitan By-Products Co. (C. C. A. 2) 280 F. 677; MacGregor v. Johnson-Cowdin-Emmerich (C. C. A. 2) 31 F.(2d) 270. The reason for the rule as stated by this court in the ease of In re Vulcan Foundry & Machine Co., 180 F. 671, is that the receiver and the trustee in bankruptcy are acting, not on the authority of the lien-holders and for their interest, but on the authority of the court and for the interest of the general creditors. When acting in their behalf and spending money for their benefit, it is only just that they should pay the bill. But, when lienholders do not object and expressly or impliedly consent to the expenditure of money by the trustee in bankruptcy for the maintenance of the mortgaged property, an exception to the general rule prevails, and the expenses thus incurred must be paid by the lienholders. In this case the property did not sell for enough to pay the mortgage debt. There was no objection on the part of the lien-holders to the expenditure of the money in question. It was necessary to keep the water pumped out of the mines in order to protect them from serious injury and ruin. The money in question was expended for this purpose, and the lienholders were glad enough to have it done during the time the foreclosure was stayed. The District Judge felt that, upon the facts alleged in the petition, he was justified in restraining the foreclosure until the validity of the bonds could be considered, and we do not think that he acted unwisely or erred in so doing. Consequently the facts in this case constitute an exception to the rule, and the bondholders should pay the expenses incurred to save their property, for they would have been compelled to expend the money here in question in their own interest had the foreclosure not been stayed. In re New York v. Philadelphia Package Co. (D. C.) 225 F. 219; In re Torchia (C. C. A. 3) 188 F. 207; MacGregor v. Johnson-Gowdin-Emmerich (C. C. A. 2) 31 F.(2d) 270. The question remains as to whether the bondholders should pay all or only a portion of the expenditures incurred. The learned District Judge found that the various receivers and trustees expended by authority of the bankruptcy court and state court $16,002.43 for the care and maintenance of the property subject to the lien of the mortgage. This amount was stated in the facts submitted to the court to be correct. However, these figures were upon re-examination found to be incorrect, and $14,690.81 is now admitted to be the correct amount which is made up as follows: Amount expended or incurred by receivers appointed by tbe state court prior to filing petition in bankruptcy................$ 2,939 TO Amount expended or incurred by receivers appointed by tbe state court subsequent to filing petition in bankruptcy and prior to adjudication in bankruptcy and appointment of a receiver by tbe United States District Court....................... 810 15 Amount expended or incurred by tbe receiver appointed by tbe United States District Court and by tbe trustees who succeeded him prior to surrender of possession to bondholders........................ 8,330 T7 Amount expended or incurred by receiver substituted for trustees by United States District Court subsequent to repossessing and prior to surrender of possession to bondholders ................................. 2,610 19 $14,690 81 The appellant contends that none of these expenses should be borne by the bond holders. Appellee says that all should be borne by them except the $2,610.19 spent by the receiver substituted for the trustees by the United States District Court subsequent to repossessing and prior to the surrender of possession to the bondholders; that this amount should not be paid by the bondholders, for their trustee could have sold the property under foreclosure in November, 1926, when the property was in his possession and they would not have been compelled to incur this expense. But the District Court found that, on the evidence presented 'to it, there was justification in staying the foreclosure proceedings pending the decision of the validity of the bonds secured by the mortgage which made it necessary to spend the money for the preservation of the mortgaged property and “the sums expended under the authority of the courts for the care and maintenance of the mortgaged property in question, would have been disbursed in whatever custody the property might have been.” In view of the fact that a committee for the bondholders purchased the property for their protection for $90,000 and the amount due on outstanding bonds was more than $200,000, this sum of $2,610.19 would necessarily have been incurred by them if the sale had taken place in November, 1926. But counsel for the trustee in bankruptcy stated at the argument that he felt that the estate in bankruptcy should bear this expense, and, as representing this estate, expressed his 'willingness to have it do so. While the bondholders think that they should not be called upon to bear any of the expenses, yet they, of course, agree that the trustee in bankruptcy should pay at least this amount of $2,610.19: Accordingly, upon this agreement of all parties, the decree should he modified by subtracting the $2,610.19 from $14,690.81, admittedly the amount spent, which leaves a balance of $12,080.62 to he paid by the bondholders for the maintenance of their property, and, as thus modified, the decree is affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_r_bus	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. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CALIFORNIA MOTOR TRANSPORT CO., Ltd., et al. v. FIDELITY & CASUALTY CO. OF NEW YORK et al. No. 12722. United States Court of Appeals Ninth Circuit. Oct. 30, 1951. Rehearing Denied Dec. 3, 1951. Norman A. Eisner, San Francisco, Cal., for appellant. Hadsell, Murman & Bishop and Sydney P. Murman, all of San Francisco, Cal., for appellee Fidelity & Casualty Co. of N. Y. Orla St. Clair, Arthur H. Connolly, Jr., and St. Clair, Connolly & Cerini, all of San Francisco, Cal., for appellee Bayly, Martin & Fay, Inc. Before MATHEWS, ORR and POPE, Circuit Judges. MATHEWS, Circuit Judge. The Fidelity & Casualty Company of New York, a New York corporation, hereafter called Fidelity, brought an action against appellants to recover of them $7,841.99, with interest and costs. Appellants, as third-party plaintiffs, served a complaint on Bayly, Martin & Fay, a California corporation, hereafter called Bayly, as third-party defendant. Appellants answered Fidelity’s complaint, Bayly answered appellants’ complaint, a trial was had, an opinion was filed, findings of fact and conclusions of law were stated, and a judgment was entered ordering, adjudging and decreeing that Fidelity recover of appellants $7,841.99, with interest and costs, .that appellants recover nothing of Bayly, and that Bayly recover costs of appellants. This appeal is from that judgment. At all pertinent times Fidelity, Bayly and appellants were doing business in California — Fidelity as an insurer, Bayly as an insurance broker and appellants as motor carriers — and Bayly was appellants’ agent and broker for the purpose of procuring liability insurance for appellants. On August 25, 1945, Bayly procured from Fidelity for appellants a liability policy (No. SPL 1457), whereby Fidelity insured appellants, for the year commencing September 1, 1945, against liability for damages, within specified limits, because of bodily injury or property damage arising out of the ownership, maintenance or use of any automobile. As premiums thereon, appellants were required by policy No. SPL 1457 to pay Fidelity $1,223 per $100 of appellants’ gross earnings. On or before August 27, 1946, Bayly requested Fidelity to issue to appellants and deliver to Bayly for appellants a new policy covering, for the year commencing September 1, 1946, the risk theretofore covered by policy No. SPL 1457. Fidelity did not immediately comply with Bayly’s request, but did, on August 27, 1946, issue to appellants and deliver to Bayly for appellants a binder reading, in part, as follows : “[Fidelity] hereby binds insurance, on the risk described below, for the period of sixty days from [September 1, 1946] * * * pending renewal of policy No. SPL 1457. “If [Fidelity] accepts the risk, the policy issued shall supersede this binder, and the policy term shall begin on [September 1, 1946], If the risk is not accepted, this binder may run to expiration, or [Fidelity] may cancel by mailing notice to [appellants and Bayly]. A premium charge at the rates and in compliance with the rules of the manual of rates in use by [Fidelity] when this hinder becomes effective will be made for the time this hinder is in effect if no’ policy of insurance in place hereof is issued and accepted by' [appellants], * * *” On or about October 1, 1946, Fidelity issued to appellants and delivered to Bayly for appellants two new policies (Nos. SPL 20950 and SPL 20968), which, if effective, superseded the binder and covered, for the year commencing September 1, 1946, the risk theretofore covered by policy No. SPL 1457, subject, however, to cancellation as provided in the new policies. The new policies provided that, as premiums thereon, appellants should pay Fidelity $2.20 per $100 of appellants’ gross earnings. Immediately after the new policies were delivered to Bayly, appellants were informed of such delivery. Appellants could have obtained the new policies from Bayly at any time thereafter. Instead, appellants permitted Bayly to retain the new policies, and Bayly did retain them for appellants, until after January 21, 1947. While so retained, the new policies were accessible to appellants and could have been read by appellants at any time. Bayly complained to Fidelity about the premium rates specified in the new policies and tried, without success, to persuade Fidelity to agree to a reduction thereof,, but Bayly did not, nor did appellants, reject or refuse to accept the new policies. Fidelity delivered to Bayly, with the new policies, a proposed agreement, which Fidelity had executed, and which, if appellants had executed it, would have modified the provisions of policy No. SPL 20968 so that the premium rate therein specified would have been subject to adjustment, upward or downward, to conform to appellants’ loss experience — an adjustment which could have raised or lowered the rate by as much as 50%. However, appellants never executed the proposed agreement. Consequently it never became effective. Although the new policies and the proposed agreement, were delivered to Bayly at the same time, Fidelity, so far as the record shows, did not then or at any time state that the new policies were not to be effective unless and until appellants executed the proposed agreement. Neither of the new policies contained any such statement or provision. The proposed agreement was not mentioned in either of the new policies. Appellants’ failure to execute the proposed agreement cannot, therefore, be regarded as a rejection of or refusal to accept the new policies. Each of the new policies provided: “This policy may be canceled by [Fidelity] by mailing to [appellants] at the address shown in this policy written notice stating when, not less than five days thereafter, such cancellation shall be effective.” On December 19, 1946, Fidelity mailed to appellants at the address shown in the new policies written notices stating that the new policies were thereby canceled, and that such cancellation would be effective on January 21, 1947. Consequently the new policies, if effective, were in effect only for the period from September 1, 1946, to January 21, 1947. For that period, if the new policies were effective, premiums thereon, computed as therein provided, amounted to $16,973.12. Appellants paid Fidelity, as premiums for that period, sums aggregating $9,131,13. To recover the balance, $7,841.99, with interest and costs, this action was brought on May 5, 1948. The evidence showed the facts to be as we have stated them. The trial court held that the new policies became effective and were in effect for the period from September 1, 1946, to January 21, 1947. Appellants here contend that tlhe new policies did not become effective. We reject this contention for the following reasons: If not effective, the new policies did not supersede the binder. If not superseded, the binder expired on October 31, 1946. For the period from October 31, 194-6, to January 21, 1947, appellants had no liability insurance except that provided by the new policies. Without such insurance, appellants could not lawfully do business as motor carriers in California. However, appellants and Fidelity treated the new policies as being effective. Accordingly, appellants did business as motor carriers in California for -and during the entire period from September 1, 1946, to January 21, 1947, reported to Fidelity their gross earnings for that period, as required by the new policies, and paid Fidelity, as premiums for that period, sums aggregating $9,131.13. Also, under and pursuant to the new policies, appellants reported to Fidelity all automobile accidents occurring within that period which resulted or were claimed to have resulted in bodily injury or property damage for which appellants were liable or were claimed to be liable and reported to Fidelity all such liability claims and all actions brought thereon. As required by the new policies, Fidelity paid or settled all such claims or defended the actions brought thereon and, if unsuccessful, paid the judgments obtained in such actions. In view of these facts, appellants cannot be heard to say that the new policies did not become effective. In their answer, appellants alleged, in substance, that the earnings reports and premium payments made by appellants to Fidelity for the period from September 1, 1946, to January 21, 1947, were based on the premium rate specified in policy No. SPL 1457; that such reports and the checks whereby appellants made such payments showed this; that such reports and checks were received and accepted by Fidelity; that appellants were thereby led and induced to believe that the premium rate specified in Policy No. SPL 1457 was in effect for the period from September 1, 1946, to January 21, 1947; and that Fidelity was thereby estopped from asserting that any other premium rate was in effect for that period. Appellants here contend that Fidelity was, and should have been held to be, so estopped. We reject this contention for the following reasons: The trial court did not find that appellants were led or induced to believe, or did believe, that the premium rate specified in policy No. SPL 1457 was in effect for the period from September 1, 1946, to January 21, 1947, nor did the evidence warrant such a finding. Instead, the evidence showed that appellants, at all times during that period, were well aware that the premium rate specified in policy No. SPL 1457 was not in effect at any time after September 1, 1946. Obviously, there was no estoppel. We conclude, as did the trial court, that Fidelity was entitled to recover of appellants $7,841.99, with interest and costs. In their complaint, appellants alleged, in substance, that Bayly made certain misrepresentations to them and failed and neglected to disclose to them certain facts which it should have disclosed, and that their liability, if any, to Fidelity resulted from such misrepresentations, failure and neglect. They therefore prayed that, if adjudged liable to Fidelity in any sum, they be awarded judgment against Bayly in a like sum. They here contend that their prayer should have been granted. We reject this contention for the following reasons: The above mentioned allegations of appellants’ complaint were found by the court to be untrue. The finding was not clearly erroneous. . We therefore accept it as correct. Judgment affirmed. . There are ten appellants — five California of corporations and five individual citizens California. . In procuring insurance for appellants and in all matters relating thereto Bayly acted by and through its agent and vice president, Henry R. Cantlen, also known as Harry R. Cantlen. In Fidelity’s complaint and in the trial court’s opinion, Cantlen was referred to as appellants’ agent. Actually Cantlen was appellants’ agent only in the sense that he was the agent and vice president of appellants’ agent and broker, Bayly. . The limits of liability specified in policy No. SPL 1457 ’were, for bodily injury, §100,000 for each person and §300,000 for each accident; for property damage, §5,000 for each accident. . The risk described was that covered by policy No. SPL 1457. . The binder became effective on September 1, 1946. . Policy No. SPL 20950 was dated September 24, 1946, and policy No. SPL 20968 was dated October 1, 1946, but both were delivered to Bayly at the same time — on or about October 1, 1946. . Policy No. SPL 20968 covered a part of the risk, and policy No. SPL 20950 covered all of the risk except that covered by policy No. SPL 20968. . Policy No. SPL 20950 provided for the payment of 20 cents per §100 of appellants’ gross earnings, and policy No. SPL 20988 provided for the payment of §2 per §100 of appellants’ gross earnings. . The proposed agreement was sometimes referred to by Fidelity, Bayly and appellants as a retrospective agreement. . See footnote 8. . See footnote 8. . Appellants did not allege, nor did the trial court find, nor was there any evidence from which it could have found, that the binder was extended. . Many of the accidents so reported occurred after October 31, 1946. . In making reports and paying premiums for the period from September 1, 1946, to January 21, 1947, appellants referred to the new policies, giving their numbers (SPL 20950 and SPL 20968). Policy No. SPL 1457 was not, nor was the binder, mentioned or referred to. . See, however, footnote 14. . See Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_r_natpr	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. F & S CONSTRUCTION COMPANY, Inc., an Arizona corporation, Appellant, v. Oliver Andrew JENSEN and Neldo M. Jensen, Appellees. F & S CONSTRUCTION COMPANY, Inc., an Arizona corporation, Appellant, v. Orval Eldan WINTERS and Ruth W. Winters, Appellees. Nos. 7470, 7473. United States Court of Appeals Tenth Circuit. Sept. 1, 1964. Rehearing Denied Nov. 5, 1964. William E. Kenworthy, of Fugate, Mitchem & Hoffman, Denver, Colo., for appellant. Robert G. Mcllhenny, Denver, Colo. (George Castillo, Denver, Colo., on the brief), for appellees. Before PICKETT, LEWIS and HILL, Circuit Judges. PICKETT, Circuit Judge. These consolidated appeals present the question of the sufficiency of the amount in controversy to give the district court jurisdiction under the provisions of 28 U.S.C. § 1332(a). In each ease the complaint alleges that the plaintiff purchased a home in Adams County, Colorado from the defendant for a consideration of $10,-500; that the value of the property was increased to approximately $13,000 through improvements; that because of defects in the houses the properties were rendered valueless and the damages sustained by the plaintiffs was approximately $14,000. The allegations as to the value of the properties were denied, and in its answers, the defendant did not admit that the amount in controversy exceeded $10,000, but put the plaintiffs “to strict proof thereon.” Thereafter defendant moved to dismiss the actions upon the grounds that the plaintiffs could not in good faith assert that their damages exceeded the sum of $10,000. This motion was denied. The cases were tried to the court without a jury, and damages in the sum of $5,000 was awarded to each. Upon the trial, plaintiffs established their damages as the difference between the value of the properties in an undamaged condition and the value after the defects occurred. The evidence was without conflict that plaintiffs’ properties as improved, without the defects and damages which occurred after the properties were purchased, would have a value of from $12,000 to $13,000. The highest cost for necessary repairs to the houses was given as $7,000, and as low as $5,000. The plaintiffs’ evidence was that the present fair market value of the houses at the time of trial was between $6,500 and $7,000. The Winters’ house sold for $7,500 at about the time the action was brought. It appears that the Jensens were living in their home at the time of trial. The record clearly shows that the plaintiffs never had a claim which would exceed $10,000, and that the allegation with reference thereto was inflated for jurisdictional purposes. In each case, the court found that the plaintiff’s claim for damages in excess of $10,000 could not have been made in good faith. Plaintiffs were denied their costs and judgment for the defendant for its costs was entered. Prior to 1958 the amount in controversy necessary to give federal district courts jurisdiction in diversity cases was $3,000. To relieve the congestion caused by the rapidly increasing number of civil cases brought in federal courts, 28 U.S.C. § 1332(a) was amended to raise the jurisdictional amount to $10,000. Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890, rehearing denied 368 U.S. 870, 82 S.Ct. 24, 7 L.Ed.2d 70; U.S.Code Cong. & Adm. News 1958, Vol. 2, p. 3099. Section 1332 was also amended to authorize the district court to deny costs to the plaintiff and to impose defendant’s costs upon the plaintiff in any case where the plaintiff’s recovery was less than the sum or value of $10,000. It is now settled that when there is an issue as to the sufficiency of the jurisdictional amount, the burden of proving jurisdiction is on the party asserting it. City of Lawton, Okl. v. Chapman, 10 Cir., 257 F.2d 601; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135. Furthermore, statutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction. Aetna Ins. Co. v. Chicago, R. I. & P. R. R., 10 Cir., 229 F.2d 584; Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248. Ordinarily the amount claimed by the plaintiff in pleadings controls if the claim is apparently in good faith, even though the recovery is less than the jurisdictional amount. But if it is established, as a matter of law, before trial or during the trial, that the plaintiff was not entitled to recover an amount equal to the jurisdictional requirement, the court does not have jurisdiction. The test enunciated in St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 is: “But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” Similar language was used by this court in Wyoming Ry. Co. v. Herrington, 10 Cir., 163 F.2d 1004, 1006, where it was said: “It is only where it appears to a legal certainty from the face of the complaint that the plaintiff cannot recover an amount within the jurisdiction of the court, or where it appears from the proof that the plaintiff never was entitled to recover that amount, and that the claim is merely colorable for the purpose-of conferring jurisdiction, that a suit of this kind will be dismissed for want of the requisite amount in controversy.” See, also McAleer v. McNally Pittsburg Mfg. Corp., 3 Cir., 307 F.2d 220; Panama Transport Co. v. Greenberg, 1 Cir., 290 F.2d 125, cert. denied 368 U.S. 891, 82 S.Ct. 143, 7 L.Ed.2d 88; Matthiesen v. Northwestern Mut’l Ins. Co., 5 Cir., 286 F.2d 775; Fireman’s Fund Ins. Co. v. Railway Express Agcy., 6 Cir., 253 F.2d 780; Branding Iron Club v. Riggs, 10 Cir., 207 F.2d 720; Berger v. Austin, Nichols & Co., 7 Cir., 170 F.2d 330; National Surety Corp. v. City of Excelsior Springs, 8 Cir., 123 F.2d 573, 156 A.L.R. 422; 1 Barron & Holtzoff, Federal Practice and Procedure, § 24, p. 105, et seq. Here the court, from substantial evidence, found in each case that the-allegation of the amount in controversy was not made in good faith. The theory of the plaintiffs’ damages in each case-establishes to a legal certainty that they were not and could not be damaged in an amount in excess of $10,000. We find no decision which has sustained federal jurisdiction in a diversity case where it was found that the allegation as to the amount in controversy was not made in good faith. Reversed and remanded with instructions to dismiss the actions. . The facts in these cases as to the cause of the damage to the same kind of houses are essentially the same as those in F & S Construction Co. v. Berube, 10 Cir., 322 F.2d 782. The attorneys for the plaintiffs here represented the plaintiffs in the Berube case and knew that the recovery did not approach the sum of $10,-000. . These values were established by the testimony of a real estate dealer who had “handled a considerable number of houses in the Thornton area which have had damage similar to that of plaintiffs’ house.” . The problem of the trial courts when the jurisdiction is challenged for insufficiency of amount in controversy is well expressed by Judge Kaufman in Brown v. Bodak, D.C.S.D.N.Y., 188 F.Supp. 532, 533-534, where it is said: “The question is, then, whether the plaintiff is legitimately and honestly claiming that the amount of his damages exceeded the jurisdictional amount, or whether his claim is solely for the purpose of attaining federal jurisdiction. It is clear that this inquiry is not foreclosed merely because the plaintiff bases a portion of his claim for damages upon an allegation of pain and suffering; the court must still determine the good faith of these allegations. See Turner v. Wilson Line of Massachusetts, 1 Cir., 1957, 242 F.2d 414, 419; Leehans v. American Employers Ins. Co., 5 Cir., 1959, 273 F.2d 72. The inquiry should be a careful one, in light of the clear Congressional policy, expressed at the time of the recent amendment raising the requisite jurisdictional amount requirements. It was the intention of Congress to remove from the federal courts claims insubstantial in character, which contributed to the mounting backlogs of these courts. See 1958 U.S.Code Congressional and Administrative News pp. 2594-95. If plaintiffs could avoid the jurisdictional amount requirements merely by alleging damages in excess of the jurisdictional amount, the purpose of this amendment would be largely negated.” Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_trialpro	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Nanez HUERTA, Defendant-Appellant. No. 76-1530. United States Court of Appeals, Tenth Circuit. Argued and Submitted Nov. 9, 1976. Decided Jan. 11, 1977. David L. Russell, U. S. Atty., and Charles Lee Waters, Asst. U. S. Atty., Oklahoma City, Okl., on briefs, for plaintiff-appellee. Joseph P. Constantine, Denver, Colo., on briefs, for defendant-appellant. Before LEWIS, Chief Judge, and PICKETT and SETH, Circuit Judges. PICKETT, Circuit Judge. Appellant Huerta was convicted of distributing heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). On appeal he contends that the evidence is insufficient to sustain the conviction and that the statutory schedules defining controlled substances as set forth in 21 U.S.C. § 812 are ineffective because of the failure of the Attorney General of the United States to republish the schedules as required by that section. A study of the record convinces us that the evidence and inferences to be drawn therefrom are sufficient to sustain the verdict, and that the claim that the schedules are invalid is without merit. The evidence shows that on January 6,1976, correctional officers at the El Reno, Oklahoma Federal Reformatory received a tip from a confidential source that there was a quantity of heroin in one of the dormitories of the institution which would be distributed that evening. The dormitory was divided into small rooms with walls about five feet high. These were referred to as “cubicles” and were occupied by individual inmates who were confined in the institution. After receipt of the information, a correctional officer secreted himself in an attic above the dormitory where he had full view of the cubicles. He observed three inmates, including Huerta, enter the cubicle occupied by inmate Hernandez. Later, two other inmates arrived. Huerta then placed a pane of glass on a shelf in the cubicle and emptied the contents of a small red package onto the glass. The substance was divided into five portions, one of which was dissolved in a small metal container where it was heated and extracted through a needle into a plastic syringe. Huerta proceeded to inject the contents of the syringe into the arm of one of the other inmates. This procedure was followed until the five portions were disposed of. The gathering then dispersed, with Huerta and inmate Sierra moving to the cubicle occupied by Huerta. There Huerta was observed placing a small red package into a slit in the fly of his trousers. Other officers were notified, and as Huerta and Sierra left the dormitory, they were detained, taken to the supervisor’s office and searched. Two small red packages were found enclosed in the fly of Huerta’s trousers. The packages contained heroin. A hypodermic syringe and two needles were located in the same area of Sierra’s trousers. Traces of heroin were found in the syringe. No other syringe was found. This uncontradicted evidence, direct and circumstantial, is ample to sustain the jury’s verdict. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975); United States v. Downen, 496 F.2d 314 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Addington, 471 F.2d 560 (10th Cir. 1973). The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., established five schedules of drugs and controlled substances known as Schedules I, II, III, IV and V. In these schedules were listed the initial substances to be controlled. Section 812(c) of the Act provided that the five schedules “shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated. . . ” Section 811 of the Act provides a procedure by which the Attorney General of the United States may by rule add to or remove from a schedule a controlled substance, or may rearrange them within the schedules. Section 812(a) states: . The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter. Apparently, the schedules have not been published strictly as required by statute. It is contended by appellant that since the schedules were not updated and republished within the time required by the statute, they lapsed and thereafter were ineffective. In other words, the contention is that the failure to republish the schedules resulted in a decontrol of all the substances initially specified in the statutory schedules. The obvious purpose of Section 812 was to include in the five schedules all of the substances which were then to be controlled. That section of the Act states that “[sjuch schedules shall initially consist of the substances listed in this section.” We are convinced that the clear intent of Congress was that the schedules should remain as initially adopted until changed by action of the Attorney General. The required republication of the schedules was to keep the public advised of any changes that had been made in the schedules. We cannot attribute to Congress an intention to create a situation whereby the failure of the Attorney General to republish the schedules would, in effect, nullify the Act. We hold that the failure to publish the “updated” schedules as required by Section 812(a) had no effect upon the validity of those substances initially listed in the five schedules. Those substances, unless removed by action of the Attorney General, continued to be controlled substances regardless of publication. After full discussion, this conclusion was reached in United States v. Monroe, 408 F.Supp. 270 (N.D.Cal. 1976), and United States v. Andrews, 408 F.Supp. 1007 (N.D.Cal.1976). We do not decide whether control of a substance added to the initial schedules becomes effective before publication. AFFIRMED. . The rule as to the sufficiency of the evidence to sustain a jury verdict in a criminal case is stated in United States v. Addington, supra at 563, as follows: In determining whether the evidence is sufficient to support a jury verdict of guilty we must view the proof in the light most favorable to the Government to ascertain if there is sufficient substantial evidence, direct and circumstantial, together with the reasonable inferences therefrom, from which the jury might find the defendant guilty beyond a reasonable doubt. . Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Carl SCHNELL and The Griffith Laboratories, Inc., an Illinois corporation, Plaintiífs-Appellants, v. PETER ECKRICH & SONS, INC., an Indiana Corporation, and The Allbright-Nell Company, an Illinois corporation, Defendants-Appellees. Nos. 12901, 12902. United States Court of Appeals Seventh Circuit. June 20, 1960. Platt, District Judge, dissented. Charles J. Merriam, Chicago, 111., Eugene C. Knoblock, South Bend, Ind., Norman M. Shapiro, Chicago, 111., Merriam, Smith & Marshall, Chicago, 111., Oltsch & Knoblock, South Bend, Ind., of counsel, for appellants. Clemens Hufmann, Chicago, 111., Richard D. Mason, M. Hudson Rathburn, Chicago, 111., Mason, Kolehmainen, Rathburn & Wyss, Chicago, 111., Torborg & Miller, Fort Wayne, Ind., of counsel, for appellees. Before SCHNACKENBERG and CASTLE, Circuit Judges, and PLATT, District Judge. CASTLE, Circuit Judge. These appeals are in two actions brought in the District Court for the Northern District of Indiana by Carl Schnell and The Griffith Laboratories, Inc., plaintiffs-appellants for the infringement of certain patents. The first case involved two patents and was originally brought only against defendant-appellee, Peter Eckrich & Sons, Inc. Defendant-appellee, Allbright-Nell Company, was joined as a defendant by an amended complaint. The second suit involved a third patent and from its commencement both Eckrich and Allbright-Nell were named as defendants. The District Court granted the motion of Allbright-Nell, filed in each case, to quash a summons served on it in Illinois and to dismiss it from the action on the ground that it was not subject to suit in the Northern District of Indiana. All-bright-Nell was dismissed and we granted petitions of plaintiffs to appeal pursuant to 28 U.S.C.A. § 1292(b), the District Court having certified in each case that the order at issue involves a controlling question of law as to which there is substantial grounds for difference of opinion and an immediate appeal may materially advance the ultimate determination of the litigation. The sole contested issue is whether as a matter of law Allbright-Nell, a named defendant, by its open assumption and control of the defense of Eckrich submitted to the jurisdiction of the District Court? None of the facts is in dispute. All-bright-Nell is the manufacturer of the accused devices. Eckrich is its customer. By contract Allbright-Nell is obligated to indemnify Eckrich and to defend it in any suit based on a claim that the accused devices or their use in accordance with Allbright-Nell’s specifications constitute an infringement of any U. S. patent. It is conceded for the purpose of the record that Allbright-Nell does not have a place of business in Indiana. No claim to jurisdiction is based on the service made in Illinois, which was quashed. The sole basis asserted as conferring jurisdiction over Allbright-Nell is that by controlling the defense it was in fact protecting its own interests as well as those of Eckrich and that such action constituted a general appearance submitting to the jurisdiction of the District Court. It is not disputed that Allbright-Nell was and is defending the two actions for Eckrich and has assumed full control of the defense. In our opinion the decision of this Court in Freeman-Sweet Co. v. Luminous Unit Co., 7 Cir., 264 F. 107 is controlling in the instant case. It was there held that a manufacturer who assumed control of the defense of a patent infringement suit brought against one of its customers in a jurisdiction of which the manufacturer was not an inhabitant could not, over its objection, be made a party defendant. This Court there said (at pages 109,110): “At the trial, counsel of record for the sole defendant Freeman-Sweet Company, stated, in answer to an inquiry, that he had been employed and was compensated by the appellant, the Reflectolyte Company to defend this suit brought against its vendee; he conceded that it was privy to the case and that the decision to be rendered would be res adjudicata as to it as well as to the Freeman-Sweet Company, on the questions of validity and infringement but he objected to having his employer appellant the Reflectolyte Company, made a party defendant to this suit, claiming for it the privilege of not being sued in a jurisdiction of which it was not an inhabitant and in which it had no regular and established place of business. Specifically counsel urged that damages claimed for unfair competition could not be adjudicated against it, a citizen of the same statq as plaintiff. Thereupon plaintiff specifically disclaimed any recovery against either appellant on this ground, limiting the suit to injunction, damages, and accounting of profit for infringement. “But counsel did not thereupon consent to the jurisdiction of the court over this appellant; his objection to its being made a party defendant, as distinguished from a privy remained and the objection, in our judgment, was valid. Without its consent, the court was powerless to compel this appellant to submit to an accounting in Illinois, for all infringements committed in the course of its business in Missouri. While as privy it was bound by the decision as to validity and infringement, it had the right to insist that it be not held to account in Illinois as decreed by the court.” The opinion of the district court in Esquire, Inc. v. Varga Enterprises, Inc., 81 F.Supp. 306, affirmed 7 Cir., 185 F.2d 14, cited by plaintiffs, does not set forth the facts nor the legal principle upon which Vargas’ submission to jurisdiction was predicated but merely asserts (81 F.Supp. at page 307) that “The evidence appears to be sufficiently clear that he has submitted to the jurisdiction of the Court * * *» In The University of Illinois Foundation v. Block Drug Co., D.C., 133 F.Supp. 580, affirmed 7 Cir., 241 F.2d 6, also cited by plaintiffs, it is not shown that an objection to jurisdiction was made. In neither case was the point considered on appeal in this Court. We do not regard these eases as adjudicating the point here in issue. In Ocean Accident & Guarantee Corp. v. Felgemaker, 6 Cir., 143 F.2d 950, 952, relied upon by plaintiffs, the service was quashed because the district court had “no jurisdiction to issue process in this case beyond the limits of the district”. Although the court assumed jurisdiction on the ground of “control of the defense” it does not appear a specific objection was interposed that the venue was inappropriate and the insurance carrier not subject to suit therein. In the instant case such an objection was timely made by Allbright-Nell’s motion for dismissal on the ground that it was not subject to suit in the district. Nor is Allbright-Nell by its contract liable to plaintiffs by virtue of any judgment they may recover from Eckrich as was the case under the insurance contract involved in Ocean Accident. And in Ocean Accident the effect of the privy’s conduct as authorizing entry of judgment against it was not determined until, as a past and completed occurrence, it was subject to judicial appraisal in the light of all factors involved. In the instant case we are importuned to accept a contractual obligation to defend and mere entrance thereupon as conclusive not only of one’s ultimately being bound by the judgment entered but also of being, in the interim, subject to all of the incidents of being a formal party to the action. If, as plaintiffs contend, Ocean-Accident appears to chart such a course we are not disposed to follow it. Under our holding in the Freeman-Sweet Co. case recognition of a contractual obligation to defend does not have an irrevocable effect which fails to consider or protect against changes which may occur in the course of the litigation between the privy and the defendant, such as possible termination of the defense agreement by consent, its renunciation by the defendant or its breach by defendant’s failure to cooperate. In our view statutory requirements of venue should not be nullified or dispensed with by an extension of the doctrine by which a person may in some situations become bound by a judgment although not a formal party to the action subject to the jurisdiction of the court which entered it The orders of the District Court are affirmed. Affirmed. . Herein referred to as plaintiffs. . Herein referred to as Eckrich. . Herein referred to as Allbright-Nell. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. PARKER v. COMMISSIONER OF INTERNAL REVENUE. No. 9792. Circuit Court of Appeals, Ninth Circuit. Aug. 20, 1941. Adolphus E. Graupner and Louis Janin, both of San Francisco, Cal., for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, S. Dee Hanson, and Carl Marold, Sp. Assts. to Atty. Gen., for respondent. Before WILBUR, MATHEWS, and HEALY, Circuit Judges. HEALY, Circuit Judge. The proceeding is for a review of a decision of the Board of Tax Appeals. It involves an asserted transferee liability on the part of the petitioner, Parker, under the provisions of § 311(a) (1) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev. Acts, page 569. The case is a companion case to Tooley v. Commissioner, 9 Cir., 121 F.2d 350, decided June 10, 1941. The essential facts as found by the Board are as follows: For many years prior to March 1, 1934, James M. Botts was president of the American Marine Paint Company. Parker was vice-president. In 1922 Botts made a will containing a bequest to Parker, “as a mark of appreciation for his loyal and faithful service and friendship”, of 20 percent of the stock of the company “which shall stand in my name upon the books of said corporation at the time of my death.” On July 12, 1933, there were 1,980 shares of the capital stock of the company outstanding, of which 1,749 shares stood in the name of Botts and 204 shares in the name of C. M. Botts, his wife.' Botts and his wife had contemplated placing their stock in a joint tenancy with right of survivor-ship. On the date last mentioned the two surrendered their certificates, and certificates bearing that date were issued for 1,958 shares to J. M. Botts and C. M. Botts “as joint tenants with right of survivor-ship”. On March 1, 1934, Botts died testate. Within a few days after his death his widow placed the certificates in the stock book marked “cancelled” and caused the 1958 shares to be issued to herself. On March 15, 1934, Mrs. Botts filed a joint income return of herself and husband for the year 1933. The Commissioner later assessed against the estate of Botts deficiencies in income taxes for that year. One of these assessments in an amount exceeding $16,000 remains unpaid. Notice of the deficiency was given to Parker and others as transferees of the estate of James M. Botts, asserting transferee liability. The Board found Parker liable as a transferee on the basis of the following circumstances: In April, 1934, the will of James M. Botts, containing the bequest aforesaid, was filed for probate in the superior court of California and an executor was appointed. In the original inventory of the estate property in the hands of the executor was appraised at less than $2,-000, the stock in the Paint Company not being included. In 1936 an amended inventory was filed which included 1,749 shares which had been issued to Botts and his wife as joint tenants. The shares were appraised at a valuation in excess of $100 each. In the final account these shares were charged to the executor, and thereafter, on August 4, 1936, the superior court ordered final distribution of the estate, the decree providing for distribution to Parker of 390.5 shares and to the widow 1,358.5 shares. Parker formally acknowledged receipt of these shares. Two days after the entry of the decree of distribution the shares were divided in this manner: The certificates theretofore held by the widow were surrendered and new certificates issued to her and to Parker for the respective amounts specified in the decree. On the stub of the certificates which Mrs. Botts had caused to be issued to herself upon the death of her husband appears the notation “cancelled — issued by mistake”. Long prior to Botts’ death Parker had been informed that he would receive 20 percent of the company’s stock when Botts died. At the time the shares were issued to Botts and his wife as joint tenants the two informed-Parker that he would still receive his 20 percent. After Botts died his widow told Parker that her husband’s wish would be carried out. In Tooley v. Commissioner, supra, we determined that Mrs. Botts was not liable as a transferee of the stock, holding that under the California law she took as survivor of the joint tenancy, not as a transferee of her deceased co-tenant; and that since the California court, acting in probate, had authority to distribute only such title as existed in the decedent, its decree purporting to distribute the stock was not, as the Board of Tax Appeals supposed, an adjudication of the title. Further, that the distributees might show in a collateral proceeding that in fact the estate had no title. The ground covered in that decision need not be gone over again. The burden was on the Commissioner to show transferee liability “at law or in equity”; and in respect of Parker such liability must be, found, if at all, in his status as a distributee of the estate of the taxpayer, James M. Botts. It is not contended that there was any liability otherwise. Parker was not an heir of Botts and there was no showing that he received the stock in compromise of any claim under the latter’s will. Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410, upon which the Commissioner relies, is not in point. Nor could he have taken pursuant to the will, for, as was held in the Tooley case, supra, Mrs. Botts’ title to the whole number of shares had become vested as of the time of the creation of the joint tenancy, and no shares stood in the name of Botts at the time of his death. It necessarily follows that Parker received his stock as a gift from Mrs. Botts, not as a transferee of property of the taxpayer. Notwithstanding the formality of the decree of distribution, Parker was free to show the true source of the title. Reversed. The statute provides a summary method of enforcing “the liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax * * * imposed upon the taxpayer by this title”. Subdivision (f) defines the term transferee as including “heir, legatee, devisee, and distributee.” Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_casesourcestate	27	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. De MEERLEER v. MICHIGAN. No. 140. Argued January 6, 1947. Decided February 3, 1947. David W. Louisell argued the cause and filed a brief for petitioner. Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Eugene F. Black, Attorney General, and Daniel J. O’Hara, Assistant Attorney General. Per Curiam. In conformity with Michigan procedure, petitioner moved for leave to file a delayed motion for new trial in the court in which he had been convicted of first-degree murder. Serious impairment of his constitutional rights at the arraignment and trial were asserted as grounds for the motion. The trial court denied the motion, and the Supreme Court of Michigan on appeal affirmed that ruling. 313 Mich. 548, 21 N. W. 2d 849. We granted certi-orari because of the importance of the constitutional issues presented. The facts are not in dispute. On May 16, 1932, an information was filed in the Circuit Court of Lenawee County, Michigan, charging petitioner, then seventeen years of age, and one Virgil Scott with the crime of murder. On the same day, petitioner was arraigned, tried, convicted of first-degree murder and sentenced to life imprisonment. The record indicates that petitioner was without legal assistance throughout all these proceedings and was never advised of his right to counsel. The court did not explain the consequences of the plea of guilty, and the record indicates considerable confusion in petitioner’s mind at the time of the arraignment as to the effect of such a plea. No evidence in petitioner’s behalf was introduced at the trial and none of the State’s witnesses were subjected to cross-examination. After reviewing the foregoing facts, the Supreme Court of Michigan determined that the record revealed no deprivation of petitioner’s constitutional rights. The court indicated that it had given consideration to the case of Hawk v. Olson, 326 U. S. 271 (1945), and the authorities cited therein, but concluded that the rule of the Michigan cases was determinative. See People v. Williams, 225 Mich. 133, 195 N. W. 818 (1923). In this there was error. Here a seventeen-year-old defendant, confronted by a serious and complicated criminal charge, was hurried through unfamiliar legal proceedings without a word being said in his defense. At no time was assistance of counsel offered or mentioned to him, nor was he apprised of the consequences of his plea. Under the holdings of this Court, petitioner was deprived of rights essential to a fair hearing under the Federal Constitution. Powell v. Alabama, 287 U. S. 45 (1932); Williams v. Kaiser, 323 U. S. 471 (1945); Tomkins v. Missouri, 323 U. S. 485 (1945); White v. Ragen, 324 U. S. 760 (1945); Hawk v. Olson, supra. See Betts v. Brady, 316 U. S. 455 (1942). Reversed. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_r_bus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Johnnie FULLILOVE, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and The Pennsylvania Railroad Company, Defendants-Appellees. No. 13050. United States Court of Appeals Seventh Circuit. Jan. 27, 1961. Rehearing March 13, 1961. Edward Levett, Chicago, Ill., Arthur F. Penway, of Chicago, Ill., of counsel, for appellant. Donald J. O’Brien, O. L. Houts, Max E. Wildman, for Chicago, R. I. & P. Ry. Co. Robert H. Bierma, A. L. Foster, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for defendant-appellee, Pennsylvania R. Co., Frederick W. Temple, Chicago, Ill., of counsel. Before SCHNACKENBERG, ENOCH and CASTLE, Circuit Judges. ENOCH, Circuit Judge, Plaintiff sued to recover damages for personal injuries, charging common law negligence. Both defendants moved for a directed verdict of not guilty at the conclusion of the plaintiff’s case on the issue of liability only. The Trial Court instructed the jury to find for the defendants. Plaintiff appealed from judgment entered on that finding. Plaintiff’s employer, Continental Grain Company, hereinafter called “Continental”, ordered 30 box cars from defendant Chicago, Rock Island & Pacific Railroad Company, hereinafter called “Rock Island”, the only railroad that had tracks leading into Continental’s yards, with instructions to place the order with defendant Pennsylvania Railroad Company, hereinafter called “Pennsylvania”, each railroad to be paid a fee for its services in moving the cars. Pennsylvania delivered the cars to Rock Island, which received them on July 1, 1956. William H. Davies, an assistant agent for Rock Island, testified that the cars were inspected and no defects recorded. Nothing was done to the cars until July 3, 1956, when Rock Island pulled them into Continental’s yards, where the Western Weighing and Inspection Bureau coopered them for grain loading by nailing wooden grain doors on the inside to prevent the grain, with which they would be loaded, from pouring out of the car. Continental’s foreman, Ray Fox, testified that about 3:30 P.M. on July 3, 1956, his attention was drawn to the fact that the door next to the loading platform on car No. 22976, which had been coopered, would not open. The door on the other side was open, but loading had to be done from the platform side. The loader had tried to open the closed door with a special prying bar. Mr. Fox testified that he looked for an obstruction at the locked portion of the door. Finding none there, he looked at the back. Two rails, a bottom and a top rail, held the door in place when closed. Each rail extended approximately a door’s width to the right in order to accommodate the opening of the door and to hold it in place when opened. The weight of the door rested largely on the lower rail, and the upper rail served the purpose of keeping the door in place and of aiding-its opening movement. Mr. Fox, facing the closed door, saw a dip or a bend in the bottom rail on which the door was set. The dip or bend began about two-inches to the right of the closed door on the lower rail. It was about 1 to 1% inches deep and extended along the lower-rail for about twelve to fourteen inches. Mr. Fox then testified about his efforts to open the door. First he endeavored to do so by hand. That failing, he-tried to open the door with a six-sided bar, 40 to 44 inches long, about l-l^ inches thick, flattened out on one end, and pointed on the other, something like-a crowbar without a hook but with a slight bend. Facing the door, he tried to push it to the right. Then he tried to-put the sharp end of the bar through on the left side of the door, alongside the-lock, to open a crack into the grain door to get leverage. He put pressure on the-bar by pulling to the left, hoping to push the door to the right. This attempt to-open the door also failed. He testified that the door is constructed so that a top 1 or 1% inch flange on the door fits-up into the top rail. Next he used the-bar at the right side of the door to pry the door up from the bottom rail on-, which it rested, putting the bar near the place of the bend in the rail. He was-able to raise the door slightly and he-saw no obstruction. Then he tried the-bar at the left side of the door again.. This procedure brought about no results. He testified further that after these-efforts failed, he used a car puller to open the door. This car puller, which is about one foot high and which is operated, by a motor, is used to pull loaded box cars weighing about 42,000 to 50,000-pounds. Mr. Fox then examined the-bottom rail and found a metal piece about % of an inch high, % to 1 inch wide, and 4 to 6 inches long, welded to the rail, at the right side of the bend, which helped, to hold the door to the side of the car. When the door was open, the front part of the door was setting on the edge of the dip. There was rust on the weld.Weather reports showed that there had. been little moisture in the air during the period from June 23, to July 3, 1956. When the door was forced open, it traveled behind the weld. At this time Mr. Fox also noticed that only about % or 3Ae inch of the top flange of the door was fitting inside the top rail, to hold the door to the car at the top. He testified that the door condition appeared to him to be dangerous. He stated that he had mentioned this to someone, whom he couldn’t name, but not to plaintiff nor to the men who would have to close the door. The door at this point was standing open. It remained in this position while the car was being loaded and moved. The danger would arise in closing the door. After the car had been loaded and had been moved to another part of the yard, some twenty to twenty-five minutes later, plaintiff came along and performed his duties as a grain sampler. He had got out of the car and was standing alongside the car, marking the car number on a ticket and putting the ticket in his sampling bag. Other employees began to push the door shut. Mr. Fox saw them doing this as he walked toward the car. He saw the door fall off the car and strike plaintiff. Plaintiff contends that defendants were negligent in delivering a defective car; that the jammed door and the defect in the bent rail were the proximate causes of the accident; that the forcible means used to open the door constituted a foreseeable intervening cause which did not break the causal connection between defendants’ alleged negligence and plaintiff’s injuries; and that, in any case, the question of proximate cause was a matter to be decided by the jury. The Trial Judge found that the sole, efficient cause of the injury was the action of the foreman who created the dangerous situation by applying the great force of the car mover and then going off and leaving this known dangerous situation without warning to plaintiff or to the employees who would have to close the door. Viewing the evidence in the light most favorable to the plaintiff [Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720] we can only conclude that the negligence charged to defendants did no more than furnish a condition whereby injury was made possible through the subsequent, independent act of the foreman in applying the tremendous force of the car puller which pulled the door downward as well as sideways. This action was an efficient unforeseeable intervening cause which did break any causal connection which might have existed between the negligence which plaintiff imputes to the defendants and the injury, making any such negligence a remote and not a proximate cause of the injury. Merlo v. Public Service Co., 1943, 381 Ill. 300, 316, 45 N.E.2d 665, 675, and cases cited therein. There was no evidence to show that the car door was built to withstand the force of the powerful car puller. We have weighed all other arguments advanced by plaintiff and find them without merit. The judgment of the Trial Court is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. 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 NO. 76-3 (MIA) SUBPOENA DUCES TECUM. The SECOND NATIONAL BANK OF NORTH MIAMI, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. No. 76-3757. United States Court of Appeals, Fifth Circuit. July 18, 1977. Robert W. Rust, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Gilbert E. Andrews, Chief, Appellate Sect., Myron C. Baum, Acting Asst. Atty. Gen., Tax Div., Dept, of Justice, Robert E. Lindsay, Jeffrey S. Blum, Attys., Washington, D. C., for respondent-appellant. Michael Colodny, Glenn Thomas Harris, North Miami, Fla., for petitioner-appellee. Before TUTTLE, MORGAN and HILL, Circuit Judges. PER CURIAM: As part of a criminal tax investigation, the Government desired to obtain bank records concerning two natural persons and two corporations over a four-year period from the Second National Bank of North Miami. The vast majority if not all of the records were stored on microfilm tapes. The district court granted the Bank’s motion to quash a subpoena for the records. We reverse. The apparent basis for the district court’s action was a belief that “if the government has subpoenaed these records the government is obligated to pay for [them].” According to the district court, it was “absurd” for the Bank to “have to bear the cost of the Government’s investigation” or “to in essence finance the grand jury’s investigation.” These remarks, which concerned the cost to the Bank of copying the records and transmitting the copies to the Government, overlook a fundamental distinction. In determining whether a subpoena is unreasonable or oppressive, a court must first determine what it would cost to produce the documents requested for the Government’s inspection or use. The cost of reproduction of documents — so that the holder may retain the originals and the Government have the copies — is a cost that, in all but the most exceptional of cases, is undertaken by the holder for his own convenience. Only after a court has determined that production of the original documents is a practical impossibility may it consider the convenience cost of reproduction as a necessary consequence of compliance with the subpoena. Rule 17(c) of the Federal Rules of Criminal Procedure provides that “a subpoena may . . . command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.” The Advisory Committee Note states that Rule 17(c) is “substantially the same as rule 45(b) of the Federal Rules of Civil Procedure”. Civil Rule 45 specifies that the court may quash or modify a subpoena duces tecum “if it is unreasonable or oppressive”, or “condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.” We hold that a court in exercising its power under Rule 17(c) of the Federal Rules of Criminal Procedure may, in appropriate circumstances, “modify” the subpoena to require that the costs of compliance be borne by the Government. The question is whether that authority was properly exercised in the instant case. As a general rule, a witness or the recipient of a subpoena duces tecum is required to bear the costs of compliance. Since some costs can be anticipated in complying with any subpoena duces tecum, Rule 17(c)’s provision that the court may quash a subpoena “if compliance would be unreasonable or oppressive” must be read to mean that in the main run of cases the cost of compliance will be assumed as part of the public duty of providing evidence. Supreme Court precedent traces a similar course. In Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), the petitioners had illegally entered the United States. To assure their presence as material witnesses at the trials of the persons accused of illegally bringing the petitioners into the country, they were required to post bond. Unable to make bail, they were incarcerated. A federal statute required that during the period before trial the petitioners be paid $1 per day in addition to having their subsistence needs provided for by the jailer. The petitioners contended that by incarcerating them the Government had “taken” their property and that the provision for $1 a day in compensation was a denial of due process. The Supreme Court disagreed: “But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. . . . It is beyond dispute that there is in fact a public obligation to provide evidence . . . and that this obligation persists no matter how financially burdensome it may be. The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. ‘[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.’ ” Hurtado v. United States, 410 U.S. 578, 589, 93 S.Ct. 1157, 1164, 35 L.Ed.2d 508 (1973), quoting Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 63 L.Ed. 979 (1919). As the Supreme Court’s quotation from the Blair case indicates, the duty to provide evidence has long been considered to be almost absolute, although Blair of course recognized the self-incrimination exception. Hurtado’s lesson in the instant case is that it rejects any assertion that a potential witness has some sort of “right” to be reimbursed for his expenses in testifying. The same must be true for the production of documents. This is particularly significant when we recall that the majority if not all of the records sought by the Government from the Second National Bank of North Miami are records that the Bank is required to keep by law under the Bank Secrecy Act of 1970, 12 U.S.C. §§ 1730d, 1829b, 1951-1959, and 31 U.S.C. §§ 1051-1062, 1081-1083, 1101-1105, 1121-1122. In California Bankers Association v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974), the Supreme Court upheld the Bank Secrecy Act, which requires banks to establish microfilm records at their own expense, against a due process attack. The purpose of the Bank Secrecy Act was to prevent the use of bank accounts to conceal tax fraud, gambling operations, and other activities typical of organized crime. If the banks can constitutionally be put to the expense of originating and maintaining the records, we see little reason to believe that they may not be required to make them available to the Government. The trial court’s action in the instant case was an abuse of discretion. The record clearly shows that at the hearing on the motion to quash, no evidence whatsoever was presented by the Bank to show the cost of compliance. There was therefore no basis for a finding by the trial judge that compliance would have been “unreasonable or oppressive.” Furthermore, the trial court mistakenly assumed that the cost of compliance is to be measured by the cost of reproduction of documents, rather than the cost of production of the originals. REVERSED and REMANDED. Question: This question concerns the first listed appellant. 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_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. Jesse FREEMAN et al., Appellants, v. The GOULD SPECIAL SCHOOL DISTRICT OF LINCOLN COUNTY, ARKANSAS, et al., Appellees. No. 19016. United States Court of Appeals Eighth Circuit. Jan. 15, 1969. Conrad K. Harper, New York City, for appellants, Jack Greenberg and Michael Meltsner, New York City, and John W. Walker and Norman J. Chachkin, Little Rock, Ark., and George Howard, Pine Bluff, Ark., on the brief. G. Ross Smith and Robert V. Light, Little Rock, Ark., for appellees, Herschel H. Friday, Little Rock, Ark., on the brief. Before BLACKMUN, GIBSON and LAY, Circuit Judges. FLOYD R. GIBSON, Circuit Judge. Plaintiffs, six Negro school teachers, with the support of the Arkansas Teachers Association, Inc., seek to compel the defendant Gould Special School District to renew their annual teaching contracts and in addition request damages and attorneys’ fees against all the defendants. In May 1967, the individual plaintiffs received notice from the defendant Gould Special School District that their teaching contracts would not be renewed for the 1967-1968 school term for teaching in the district’s all-Negro Field School. The notification was in accordance with requirements of Ark.Stat.Ann., § 80-1304 (b), whereby teachers’ annual contracts are automatically renewed unless notification in writing is made within a prescribed time to the contrary. The Board’s decision not to renew the teaching contracts was based upon a recommendation of defendant Horace Itty Dalton, the Negro principal of the Field School. Dalton was in charge of employment and re-employment at the Field School. His recommendation that the teaching contracts not be renewed was based generally upon his contention that the teaching plaintiffs were incompetent, failed to co-operate with his administration, did not adhere to the chain of command in processing complaints, and some varied personal objections. His views were stated in an informal memorandum set forth on a typewritten sheet to Superintendent Sage and the Board. Mrs. Nichols and Mrs. Freeman had taught 24 years and 35 years respectively in the Gould District; Mrs. Woods 2 years; Mrs. Walker 4 months; and Mrs. Calloway and Mrs. Wilhite 4 years. There is no procedure or machinery set up under Arkansas law for school boards to conduct a hearing on complaints or on the hiring or rehiring of teachers. The Board at the request of the dismissed teachers did, however, hold a hearing on Monday, June 5, 1967, and another hearing in July 1967, giving the dismissed teachers the opportunity to appear and state their side of the dispute with Dalton. The Board, however, refused to rescind its position. The complaint filed June 8, 1967, alleged that the Board’s refusal to rehire the teachers was “solely because of their race or color and the punitive motivation of defendant Dalton.” An allegation was also made that “plaintiffs were discharged because of the impending necessity for defendant district to fully desegregate its faculty by assigning Negro teachers to white schools and white teachers to Negro schools.” The District Court, the Honorable Oren Harris, Chief Judge of the Western District of Arkansas, held that there was no evidence that the teachers were terminated because of their race or color or because of any civil rights issue. He viewed the evidence as presenting no federal question but as an internal dispute between the teachers and their principal, which dispute should remain in the jurisdiction of the School District and the state courts and not brought into federal court. The complaint was dismissed at the close of plaintiffs’ case. The District Court specifically found: (1) that the employment of the individual plaintiffs was terminated by defendants for reasons wholly unrelated to any improper racial consideration; (2) that the defendant School Board acted within the discretion vested in it by law in electing not to employ the individual plaintiffs for the 1967-1968 school year; and (3) concluded as a matter of law “the proof fails to establish that defendants have deprived plaintiffs of any rights, privileges or immunities secured by the Constitution and laws of the United States.” While the findings might be more detailed, we believe Judge Harris’ findings comply with Rule 52(a), Fed.R.Civ.P. As articulated by Judge Mehaffy in Manning v. Jones, 349 F.2d 992, 996 (8 Cir. 1965): “ * * * [A] district court’s findings of fact must be liberally construed and found to be in consonance with the judgment if the judgment has support in the record evidence. * * * This is so even if the findings are not as specific or detailed as might be desired.” Plaintiffs assert jurisdiction in the United States District Court under 28 U.S.C. § 1343(3) and (4) and denominate their suit as an action in equity authorized by 42 U.S.C. § 1981 and § 1983. Plaintiffs assert their rights, privileges and immunities sought to be secured in this action are guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States. We agree with the District Court that the evidence fails to sustain a cause of action under § 1343(3) as there has been no “deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution” or laws; or under sub-section (4) authorizing relief “for the protection of civil rights, including the right to vote”; or under § 1981, the old civil rights section placing all persons on a par with “white citizens”; or under § 1983, another old civil rights section, referring to deprivation of rights, privileges or immunities under color of any statute, ordinance, regulation, custom or usage. The plaintiffs’ complaint cast as a civil rights action fails to show any deprivation of rights or privileges (immunity is not claimed) under color of any State law, statute, ordinance, regulation or custom. No racial discrimination is shown at all. On appeal the plaintiffs have dropped their initial request for enjoining the defendant School District from employing or assigning teachers on the basis of their race or color and are not pressing their charge that the teaching plaintiffs did not have their contracts renewed because of their race or color. There was no evidence introduced on the first issue, and the finding of the trial court on the latter issue is clearly supported by the evidence. Plaintiffs now contend that the Board acted arbitrarily, capriciously, and unreasonably in its attempt to resolve the conflict between the six teachers and Principal Dalton. The Board did indicate to the plaintiffs that it would rehire them if they could resolve their differences with Dalton and secure his recommendation for their rehire. The plaintiffs view the Board’s position in sustaining Dalton’s recommendation for not renewing their contracts and placing upon them the burden of securing Dalton’s approval as arbitrary and capricious and a denial of federal due process under the Fourteenth Amendment. Stripped of the racial issue this case presents no federal question. Teachers in the Arkansas schools are not covered by any type of civil service or tenure law. By Ark.Stat.Ann. § 80-1304 (b), they shall be employed by written contract annually. Their status is set forth in Shelton v. Tucker, 364 U.S. 479, 482, 486, 81 S.Ct. 247, 249, 251, 5 L.Ed.2d 231 (1960): “Teachers there are hired on a year-to-year basis. They are not covered by a civil service system, and they have no job security beyond the end of each school year. The closest approach to tenure is a statutory provision for the automatic renewal of a teacher’s contract if he is not notified within ten days after the end of a school year that the contract has not been renewed. ****** “ * * * [T]he teacher serves at the absolute will of those to whom the disclosure [lists of organizations belonged to within the last five years] must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain.” The Arkansas Supreme Court also specifically observed in Johnson v. Wert, 225 Ark. 91, 279 S.W.2d 274, 276 (1955): “Ordinarily the board has the absolute right to decline to employ or re-employ any applicant for any reason whatever or for no reason at all.” This holding is in line with the general law on the employment or re-employment of school teachers. “* * * [T]eachers are normally subject to selection at the hands of school boards, since among the general powers usually reposed in such boards is included the power to enter into contracts with teachers and to fix their compensation and terms of employment. The discretion of a school board in this respect is very broad, and when such discretion is exercised in good faith and is not contrary to law, the courts will not interfere to aid one whom the board does not choose to employ. The refusal of the board to employ one as a teacher is in no sense an infringement of any constitutional right of that person. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all.” 47 Am.Jur., Schools § 114 (1943). While the school boards in Arkansas have the right to decide whom they are going to employ or re-employ, the basis for failing to re-employ must not be on impermissible constitutional grounds. Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8 Cir. 1966) (racial discrimination); Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966), cert denied 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (racial discrimination); Shelton v. Tucker, supra, (a disclosure statute violative of the right of associational freedom, closely allied to freedom of speech). In Arkansas the board’s right not to rehire a teacher in the school district appears to be absolute, except that the decision must not rest on grounds that are violative of constitutional or legal rights. The plaintiffs in the District Court, after presenting all of their evidence, argued that as a matter of federal due process they had a right to have their contracts renewed and to receive damages for the failure to renew. They predicated their claim on Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) and Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). In Slochower the Court in a 5-to-4 decision held unconstitutional a New York City charter provision that provided for automatic dismissal from public employment of one asserting a Fifth Amendment privilege against self-incrimination before any court or public hearing or inquiry. The Court viewed the charter section as violative of the Due Process Clause of the Fourteenth Amendment for the asserted reason that the mere claim of the privilege does not provide a reasonable basis for the termination of employment. 555 of 350 U.S., 76 S.Ct. 637. Under the New York education law, teachers have tenure and can only be discharged for cause after notice, hearing, and appeal. We do not think Slochower is applicable as it applied to a tenure situation and an unconstitutional city charter provision. In Schware, the Court in a unanimous decision, with Justice Whittaker abstaining held a person otherwise qualified could not be denied the opportunity to take the New Mexico state bar examination on a discriminatory basis of qualification. The Court held 353 U.S. at 238-239, 77 S.Ct. at 756: “A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.” and further held at 239, 77 S.Ct. at 756: “[A]ny qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” We do not deem Schware as applicable as that case dealt with the general right to practice a profession and did not deal with the narrower question of a right to specific employment. Almost all of the cases cited in support of plaintiffs’ position are concerned with either racial discrimination or an invasion of a constitutionally protected right or privilege by way of a statute or regulation. We agree that the teachers are protected under the Equal Protection Clause from discrimination on account of race or religion or in their assertion of constitutionally protected rights, but no case cited by plaintiffs has gone so far as to say that all actions of any governmental board or agency in employment cases must accord the individual due process under the Fourteenth Amendment so as to provide tenure and a right to retain the position, except for cause. And “for cause” presupposes a right to hearing, notice, and appeal. Many government employees are under civil service and some under tenure. Absent these security provisions a public employee has no right to continued public employment, except insofar as he may not be dismissed or failed to be rehired for impermissible constitutional reasons, such as race, religion, or the assertion of rights guaranteed by law or the Constitution. Without detailing all of the cases cited, a review of the principal cases relied on is illuminating. In Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952), the Court struck down a so-called loyalty oath holding the “* * * constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” (Emphasis supplied). Greene v. McElroy, 360 U.S. 474, 79 S.Cf. 1400, 3 L.Ed.2d 1377 (1959) dealt with security clearance procedures not authorized by the President or by the Congress; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), a denaturalization proceeding; Spriggs v. Altheimer, Arkansas School District No. 22, 385 F.2d 254 (8 Cir. 1967), civil rights case concerned with a discriminatory practice in charging tuition; Cramp v. Board of Public Instruction of Orange County, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), Florida statutory loyalty oath; Franklin v. County School Board of Giles County, 360 F.2d 325 (4 Cir. 1966), discriminatory racial discharge; Torcaso v. Watkins, Clerk, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), Maryland religious oath violative of First Amendment; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), Washington statutory loyalty oath. Plaintiffs rely on Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962) for their assertion that the Board must meet due process requirements in all of its actions. That ease held a school board had not abused its discretion in transfering students from a white elementary school and converting that school into a Negro school. This again is a case dealing with racial discrimination and the related problems of desegregation. The Court there, after recognizing the broad discretion vested in the school board, said at 4: “* * * the matter addresses itself to the question as to whether or not the action taken in this ease was arbitrary, unreasonable, capricious, wrongful, discriminatory or oppressive.” On the basis of this holding, plaintiffs then project that the Board must accord due process, both substantive and procedural, in all of its operative procedures. If this were so, we would have little need of tenure or merit laws as there could only be, as argued by the plaintiffs, a discharge for cause, with the school board carrying the burden of showing that the discharge was for a permissible reason. We do not believe this to be the law,' as there are many public employees who are separated from their employment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appointments are not protected by civil service or some type of tenure, statutory or contractual. Plaintiffs also assert they were denied procedural due process in that they were afforded no opportunity to confront and cross-examine Principal Dalton. They cite Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), which held that a person who had passed a state bar examination had a right to a hearing when his character was put in issue by the adverse report of a bar committee. In discussing the matter the Court stated at 103, 83 S.Ct. at 1180: “* * * [T]hat procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.” This case again relates to the right of a person otherwise qualified to be licensed in a profession and does not present the same type of situation as the case at bar, which is a right to specific employment. When a particular statutory procedure is set up for the dismissal of a teacher it must be followed, but absent statutory procedures the Board may adopt its own method. 47 Am.Jur., Schools § 125 (1943). Although not legally required to do so, the Board did accord the teachers a hearing to air their grievances,—one hearing before this suit was filed and the other one shortly after. Plaintiffs also took Dalton’s deposition. This, of course, would not be dispositive of their right of confrontation at the first Board hearing if it were incumbent upon the Board to produce Dalton. Actually, the plaintiffs never requested an opportunity to confront and cross-examine Principal Dalton at a Board hearing. However, we do not think the Board was obligated under these circumstances to produce Dalton at a hearing. Principal Dalton’s function in the hierarchy of the school administration was to make recommendations for the employment and reemployment of the teachers. He was serving as an arm of the Board in this respect and, of course, was available for conferences with the Board. From the evidence, it appears the Board acted in good faith, and members of the Board also made their own investigation of the controversy. The cases cited by plaintiffs deal with procedural due process in criminal proceedings and in proceedings concerned with technically qualified applicants for licensure in a profession, where character is also a vital issue. These cases are not germane to the precise issue here of whether the Due Process Clause of the Fourteenth Amendment requires an administrative hearing on the refusal to reemploy a teacher, with subsequent judicial review on a claim of arbitrariness. See, Studemeyer v. Macy, 116 U.S.App.D.C. 120, 321 F.2d 386 (1963), cert. denied 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265. Absent statutory or contractual requirements, persons discharged for inefficiency, incompetency, or insubordination have no constitutional right to a hearing with rights of cross-examination and confrontation of witnesses. We do not think it within the province of the federal court to pass upon and decide the merits of all of the internal operative decisions of a school district. However, even if we were to pass upon the merits of this issue, we do not think that we could say that the Board was capricious or arbitrary in its attempt to resolve this internal dispute between the teachers and the principal of the school. There must be some degree of harmonious cooperation in school administration to insure an efficient use of public funds and a reasonably satisfactory school program. School boards are representatives of the people, and should have wide latitude and discretion in the operation of the school district, including employment and rehiring practices. Local autonomy must be maintained to allow continued democratic control of education as a primas^ state function, subject only to clearly enunciated legal and constitutional restrictions. We, therefore, conclude with the District Judge that there is no civil rights issue presented in this case and that the disagreement between the plaintiff teachers and the principal is an internal matter to be handled by the School Board. Further, there is no federal due process issue presented. J udgment affirmed. . In addition to the School District, the plaintiffs joined T. Raymond Sage, the superintendent of the District, and Horace Itty Dalton, the Negro principal of the Field School, as defendants. . The memorandum in pertinent part reads as follows: “Dear Members and Superintendent: “Mr. Matlock and myself have worked this program out together all year, and we have come to the conclusion that these people do not meet the requirements of a good' school system. I have recommended these people for no contract. “Mrs. Inez Nichols: ‘bullheaded, goes to Pine Bluff without permission, old trends of teaching, don’t adhere change of command’ “Mrs. Jesse Freeman: ‘incompetent, old fashion teaching methods, keep children afraid of her, disregard modern trends of teaching, insubordination’ $ !{! Sfc í{S >¡« * # “Mrs. Earlene Woods: ‘lazy, out of class everytime I visit elementary department, incompetent and neglect night activities’ “Mrs. Walker: ‘after each payday she stays at home, no co-operation, insubordination, don’t believe in change of command’ “Mrs. Essie Calloway: ‘lazy, incompetent and non-co-operative’ “Mrs. T. N. Wilhite: ‘non-co-operative, don’t attend night activities, every year skin sickness, in the wrong field— Home Economics major.’ ” (The letter also recommended that the contracts of 15 other teachers be renewed.) . Section 1343 in pertinent part reads as follows: “1343. Civil rights and elective franchise. “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * * * * # * * “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; “(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” . Sections 1981 and 19S3 (enacted in 1870 and 1871 respectively) read as follows: “§ 1981. Equal rights under the law. “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.” “§ 1983. Civil action for deprivation of rights. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . All of the teaching plaintiffs testified to the effect that they did not attribute their dismissal to their race or color nor did they have any complaints or evidence concerning the assignment of teachers on the basis of their race or color. All of them denied the charges of incompetency and insubordination. They made counter-charges alleging that Dalton was incompetent, that his motive for singling out the plaintiffs was punitive in nature and resulted from Dalton’s lack of administrative ability and competency. They also complained of some personal actions of Dalton. Two of the teachers testified that Dalton made improper advances or proposals to them, which Dalton denied in his deposition and testimony. . Under Arkansas law the teachers are not entitled to a hearing as a matter of right. The Attorney General of Arkansas in an opinion dated May 10, 1967 construed the Arkansas law as follows: “Ark.Stat.Ann., § 80-1304 provides for the renewal of teacher’s contracts in writing by the directors of the school district. No reason need be given for the termination of a teacher’s contract as this is left to the discretion of the board. “No statutory authority is found for the granting of a hearing on the matter and consequently a hearing, if granted by the board, may be conducted in whatever manner the board determines most desirable. The teacher may be represented by an attorney at the hearing if the board so desires, but no authority is found for such representation.” 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_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. CENTRAL HUDSON GAS & ELECTRIC CORP. v. PUBLIC SERVICE COMMISSION OF NEW YORK No. 79-565. Argued March 17, 1980 Decided June 20, 1980 Powell, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, and Marshall, JJ., joined. BreNNAN, J., filed an opinion concurring in the judgment, post, p. 572. Blackmutst, J., post, p. 573, and SteveNS, J., post, p. 579, filed opinions concurring in the judgment, in which BreNNAN, J., joined. Rehnquist, J., filed a dissenting opinion, post, p. 583. Telford Taylor argued the cause for appellant. With him on the briefs were Walter A. Bossert, Jr., and Davison W. Grant. Peter H. Schiff argued the cause for appellee. With him on the brief was Howard J. Read. Briefs of amici curiae urging reversal were filed by Cameron F. Mac-Bae and Robert L. Baum for the Edison Electric Institute; by Burt Nen-horne for Long Island Lighting Co.; by Edward H. Dowd and Myrna P. Field for the Mid-Atlantic Legal Foundation et ah; and by Edwin P. Rome and William H. Roberts for Mobil Corp. Me. Justice Powell delivered the opinion of the Court. This case presents the question whether a regulation of the Public Service Commission of the State of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility. I In December 1973, the Commission, appellee here, ordered electric utilities in New York State to cease all advertising that “promot[es] the use of electricity.” App. to Juris. Statement 31a. The order was based on the Commission’s finding that “the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter.” Id., at 26a. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses “into two broad categories: promotional — advertising intended to stimulate the purchase of utility services — and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales.” App. to Juris. Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commission’s order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in “off-peak” consumption, the ban limits the “beneficial side effects” of such growth in terms of more efficient use of existing powerplants. Id., at 37a. And since oil dealers are not under the Commission’s jurisdiction and thus remain free to advertise, it was recognized that the ban can achieve only “piecemeal conservationism” Still, the Commission adopted the restriction because it was deemed likely to “result in some dampening of unnecessary growth” in energy consumption. Ibid. The Commission’s order explicitly permitted “informational” advertising designed to encourage “shifts of consumption” from peak demand times to periods of low electricity demand. Ibid, (emphasis in orginal). Informational advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review “specific proposals by the companies for specifically described [advertising] programs that meet these criteria.” Id., at 38a. When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost, the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. Id., at 57a-58a. The state agency also thought that promotional advertising would give “misleading signals” to the public by appearing to encourage energy consumption at a time when conservation is needed. Id., at 59a. Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments. The Commission’s order was upheld by the trial court and at the intermediate appellate level. The New York Court of Appeals affirmed. It found little value to advertising in “the noncompetitive market in which electric corporations operate.” Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94, 110, 390 N. E. 2d 749, 757 (1979). Since consumers “have no choice regarding the source of their electric power,” the court denied that “promotional advertising of electricity might contribute to society’s interest in ‘informed and reliable’ economic decisionmaking.” Ibid. The court also observed that by encouraging consumption, promotional advertising would only exacerbate the current energy situation. Id., at 110, 390 N. E. 2d, at 758. The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, 444 U. S. 962 (1979), and now reverse. The Commission’s order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U. S. 350, 363-364 (1977); Friedman v. Rogers, 440 U. S. 1, 11 (1979). The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U. S., at 761-762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the “highly paternalistic” view that government has complete power to suppress or regulate commercial speech. “[P]eople will perceive their own best interests if only they are well enough informed, and... the best means to that end is to open the channels of communication, rather than to close them....” Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374. Nevertheless, our decisions have recognized "the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978); see Bates v. State Bar of Arizona, supra, at 381; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Ya. L. Rev. 1, 38-39 (1979). The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U. S., at 456, 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. The First Amendment’s concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 46A-465, or commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 388 (1973). If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive. Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy Board that “[t]he advertising ban does not directly affect professional standards one way or the other.” 425 U. S., at 769. In Bates, the Court overturned an advertising prohibition that was designed to protect the “quality” of a lawyer’s work. “Restraints on advertising... are an ineffective way of deterring shoddy work.” 433 U. S., at 378. The second criterion recognizes that the First Amendment mandates that speech restrictions be “narrowly drawn.” In re Primus, 436 U. S. 412, 438 (1978). The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra, at 794-795, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not “foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required” in promotional materials. 433 U. S., at 384. See Virginia Pharmacy Board, supra, at 773. And in Carey v. Population Services International, 431 U. S. 678, 701-702 (1977), we held that the State’s “arguments... do not justify the total suppression of advertising concerning contraceptives.” This holding left open the possibility that the State could implement more carefully drawn restrictions. See id., at 712 (Powell, J., concurring in part and in judgment) ; id., at 716-717 (Stevens, J., concurring in part and in judgment). In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Ill We now apply this four-step analysis for commercial speech to the Commission’s arguments in support of its ban on promotional advertising. A The Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York Court of Appeals questioned whether Central Hudson’s advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission’s order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market” could not improve the decisionmaking of consumers. 47 N. Y. 2d, at 110, 390 N. E. 2d, at 757. The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information. This reasoning falls short of establishing that appellant’s advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil and natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 63, 72 (1935). Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms. Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions and thereby defeats the purpose of the First Amendment. The New York court’s argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses— even regulated monopolies — are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly service at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising. Since no such extraordinary conditions have been identified in this case, appellant’s monopoly position does not alter the First Amendment’s protection for its commercial speech. B The Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity— during peak or off-peak periods — means greater consumption of energy. The Commission argues, and the New York, court agreed, that the State’s interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country’s dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial. The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities’ rates on marginal cost. The utilities argued to the Commission that if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would be borne by all consumers through higher overall rates. Withqut promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness. The State’s concern that rates be fair and efficient represents a clear and substantial governmental interest. C Next, we focus on the relationship between the State’s interests and the advertising ban. Under this criterion, the Commission’s laudable concern over the equity and efficiency of appellant’s rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant’s rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant’s rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant’s rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant’s promotional advertising. In contrast, the State’s interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission’s order. D We come finally to the critical inquiry in this case: whether the Commission’s complete suppression of speech ordinarily protected by the First Amendment is no more extensive than necessary to further the State’s interest in energy conservation. The Commission’s order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State’s interests. Appellant insists that but for the ban, it would advertise products and services that use energy efficiently. These include the “heat pump,” which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a “backup” to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission’s Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances. The Commission’s order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility’s advertising endanger conservation or mislead the public. To. the extent that the Commission’s order suppresses speech that in no way impairs the State’s interest in energy conservation, the Commission’s order violates the First and Fourteenth Amendments and must be invalidated. See First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978). The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant’s commercial expression. To further its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson’s advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. Banzhaf v. FCC, 132 U. S. App. D. C. 14, 405 F. 2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U. S. 842 (1969). In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson’s advertising. IV Our decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority — and indeed the duty — -to take appropriate action to further this goal. When, however, such action involves the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement. Accordingly, the judgment of the New York Court of Appeals is Reversed. The dissenting opinion attempts to construe the Policy Statement to authorize advertising that would result “in a net energy savings” even if the advertising encouraged consumption of additional electricity. Post, at 604-605. The attempted construction fails, however, since the Policy Statement is phrased only in terms of advertising that promotes “the purchase of utility services” and “sales” of electricity. Plainly, the Commission did not intend to permit advertising that would enhance net energy efficiency by increasing consumption of electrical services. “Marginal cost” has been defined as the “extra or incremental cost of producing an extra unit of output.” P. Samuelson, Economics 463 (19th ed. 1976) (emphasis in original). Central Hudson also alleged that the Commission’s order reaches beyond the agency’s statutory powers. This argument was rejected by the New York Court of Appeals, Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94, 102-104, 390 N. E. 2d 749, 752-754 (1979), and was not argued to this Court. Consolidated Edison Co. v. Public Service Comm’n, 63 App. Div. 2d 364, 407 N. Y. S. 2d 735 (1978); App. to Juris. Statement 22a (N. Y. Sup. Ct., Feb. 17, 1978). In an opinion concurring in the judgment, Mr. Justice SteveNS suggests that the Commission's order reaches beyond commercial speech to suppress expression that is entitled to the full protection of the First Amendment. See post, at 580-581. We find no support for this claim in the record of this case. The Commission’s Policy Statement excluded “institutional and informational” messages from the advertising ban, which was restricted to all advertising “clearly intended to promote sales.” App. to Juris. Statement 35a. The complaint alleged only that the “prohibition of promotional advertising by Petitioner is not reasonable regulation of Petitioner’s commercial speech....” Id., at 70a. Moreover, the state-court opinions and the arguments of the parties before this Court also viewed this litigation as involving only commercial speech. Nevertheless, the concurring opinion of Me. Justice SteveNS views the Commission’s order as suppressing more than commercial speech because it would outlaw, for example, advertising that promoted electricity consumption by touting the environmental benefits of such uses. See post, at 581. Apparently the opinion would accord full First Amendment protection to all promotional advertising that includes claims “relating to... questions frequently discussed and debated by our political leaders.” Ibid. Although this approach responds to the serious issues surrounding our national energy policy as raised in this case, we think it would blur further the line the Court has sought to draw in commercial speech cases. It would grant broad constitutional protection to any advertising that links a product to a current public debate. But many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety. We rule today in Consolidated Edison Co. v. Public Service Comm’n, ante, p. 530, that utilities enjoy the full panoply of First Amendment protections for their direct comments on public issues. There is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions. In that context, for example, the State retains the power to “insur[e] that the stream of commercial information flow[s] cleanly as well as freely.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 772 (1975). This Court’s decisions on commercial expression have rested on the premise that such speech, although meriting some protection, is of less constitutional moment than other forms of speech. As we stated in Ohralik, the failure to distinguish between commercial and noncommercial speech “could invite dilution, simply by a leveling process, of the force of the [First] Amendment’s guarantee with respect to the latter kind of speech.” 436 U. S., at 456. In most other contexts, the First Amendment prohibits regulation based on the content of the message. Consolidated Edison Co. v. Public Service Comm’n, ante, at 537-540. Two features of commercial speech permit regulation of its content. First, commercial speakers have extensive knowledge of both the market and their products. Thus, they are well situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity. Bates v. State Bar of Arizona, 433 U. S. 350, 381 (1977). In addition, commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not “particularly susceptible to being crushed by overbroad regulation.” Ibid. In Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 95-96 (1977), we observed that there was no definite connection between the township’s goal of integrated housing and its ban on the use of “For Sale” signs in front of houses. This analysis is not an application of the “overbreadth” doctrine. The latter theory permits the invalidation of regulations on First Amendment grounds even when the litigant challenging the regulation has engaged in no constitutionally protected activity. E. g., Kunz v. New York, 340 U. S. 290 (1951). The overbreadth doctrine derives from the recognition that unconstitutional restriction of expression may deter protected speech by parties not before the court and thereby escape judicial review. Broadrick v. Oklahoma, 413 U. S. 601, 612-613 (1973); see Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 853-858 (1970). This restraint is less likely where the expression is linked to “commercial well-being” and therefore is not easily deterred by “over-broad regulation.” Bates v. State Bar of Arizona, supra, at 381. In this case, the Commission’s prohibition acts directly against the promotional activities of Central Hudson, and to the extent the limitations are unnecessary to serve the State’s interest, they are invalid. We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy. See Virginia Pharmacy Board, 425 U. S., at 780, n. 8 (Stewart, J., concurring). Indeed, in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity. Several commercial speech decisions have involved enterprises subject to extensive state regulation. E. g., Friedman v. Rogers, Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
sc_lcdisagreement	A	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. WHEELER et al. v. BARRERA et al. No. 73-62. Argued January 16, 1974 Decided June 10, 1974 BlackmuN, J., delivered the opinion of the Court, in which Burgee, C. J., and BrenNAN, Stewart, Powell, and RehNQUIST, JJ., joined. Powell, J., filed a concurring opinion, post, p. 428. White, J., filed an opinion concurring in the judgment, post, p. 428. Marshall, J., concurred in the result. Douglas, J., filed a dissenting opinion, post, p. 429. Leo Pfeffer argued the cause for petitioners. With him on the briefs were Harry D. Dingman and James B. Lowe. Thomas M. Sullivan argued the cause for respondents. With him on the brief were Edward L. Fitzgerald and Louis C. DeFeo, Jr. Deputy Solicitor General Friedman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Jaffe, Danny J. Boggs, Morton Hollander, John B. Rhinelander, Harry J. Cher-nock, and William A. Kaplin. Kenneth W. Greenawalt, Melvin L. Wvlf, and Walter Wright filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance‘were filed by William B. Consedine, George E. Reed, Charles M. Whelan, and Alfred L. Scan-lan for the United States Catholic Conference; by William B. Ball and Joseph G. Shelly for the Catholic League for Religious and Civil Rights et al.; by Nathan Lewin for the National Jewish Commission on Law and Public Affairs; and by James P. Finnegan, Jr., for Parents Rights, Inc., et al. Briefs of amici curiae were filed by Paul S. Berger, Theodore R. Mann, Larry M. Lavinshy, Henry N. Rapaport, and Joseph B. Robison of the American Jewish Congress et al., and by G. Dennis Sullivan for the Missouri Coalition for Public Education and Religious Liberty. Mr. Justice Blackmun delivered the opinion of the Court. Title I of the Elementary and Secondary Education Act of 1965, as amended, 20 U. S. C. § 241a et seq., provides for federal funding of special programs for educationally deprived children in both public and private schools. This suit was instituted on behalf of parochial school students who were eligible for Title I benefits and who claimed that the public school authorities in their area, in violation of the Act, failed to provide adequate Title I programs for private school children as compared with those programs provided for public school children. The defendants answered that the extensive aid sought by the plaintiffs exceeded the requirements of Title I and contravened the State's Constitution and state law and public policy. First Amendment rights were also raised by the parties. The District Court, concluding that the State had fulfilled its Title I obligations, denied relief. The United States Court of Appeals for the Eighth Circuit, by a divided vote, reversed. 475 F. 2d 1338 (1973). We granted certiorari to examine serious questions that appeared to be present as to the scope and constitutionality of Title I. 414 U. S. 908 (1973). I Title I is the first federal-aid-to-education program authorizing assistance for private school children as well as for public school children. The Congress, by its statutory declaration of policy, and otherwise, recognized that all children from educationally deprived areas do not necessarily attend the public schools, and that, since the legislative aim was to provide needed assistance to educationally deprived children rather than to specific schools, it was necessary to include eligible private school children among the beneficiaries of the Act. Since the Act was designed to be administered by local public education officials, a number of problems naturally arise in the delivery of services to eligible private school pupils. Under the administrative structure envisioned by the Act, the priihary responsibility for designing and effectuating a Title I program rests with what the Act and the implementing regulations describe as the “local educational agency.” This local agency submits to the “State educational agency” a proposed program designed to meet the special educational needs of educationally deprived children in school attendance areas with high concentrations of children from low-income families. The state agency then must approve the local plan and, in turn, forward the approved proposal to the United States Commissioner of Education, who has the ultimate responsibility for' administering the program and dispensing the appropriated and allocated funds. In order to receive state approval, the proposed plan, among other requirements, must be designed to provide the eligible private school students services that are “comparable in quality, scope, and opportunity for participation to those provided for public school children with needs of equally high priority.” United States Office of Education (USOE) Program Guide No. 44, ¶4.5 (1968), reproduced in Title I ESEA, Participation of Private School Children — A Handbook for State and Local School Officials, U. S. Dept, of Health, Education, and Welfare, Publication No. (OE) 72-62, p.. 41 (1971) (hereinafter referred to as the Handbook). The questions that arise in this case concern the scope of the State’s duty to insure that a program submitted by a local agency under Title I provides “comparable” services for eligible private school children. II Plaintiff-respondents are parents of minor children attending elementary and secondary nonpublic schools in the inner city area of Kansas City, Missouri. They instituted this class action in the United States District Court for the Western District of Missouri on behalf of themselves and their children, and others similarly situated, alleging that the defendant-petitioners, the then State Commissioner of Education and the members of the Missouri Board of Education, arbitrarily and illegally were approving Title I programs that deprived eligible nonpublic school children of services comparable to those offered eligible public school children. The complaint sought an injunction restraining continued violations of the Act and an accounting and restoration of some $13,000,000 in Title I funds allegedly misapplied from 1966 to 1969. The District Court initially dismissed the complaint on the alternative grounds of failure to exhaust state remedies and abstention. The Court of Appeals reversed this dismissal and remanded the case for trial. 441 F. 2d 795 (CA8 1971). It observed: “[W]e indicate no opinion on the merits of the alleged noncompliance by the state officials.” Id., at 801. On remand, the District Court found that while most of the Title I funds allocated to public schools in Missouri were used “to employ teachers to instruct in remedial subjects,” the petitioners had refused “to approve any applications allocating money for teachers in parochial schools during regular school hours.” Pet. for Cert. A40. The court did find that petitioners in some instances had approved the use of Title I money “to provide mobile educational services and equipment, visual aids, and educational radio and television in parochial schools. Teachers for after-school classes, weekend classes, and summer school classes, all open to parochial school pupils, have all been approved.” Id., at A40-A41. In what perhaps may be described as something less than full cooperation by both sides, the possibility of providing “comparable” services was apparently frustrated by the fact that many parochial schools would accept only services in the form of assignment of federally funded Title I teachers to teach in those schools during regular school hours. At the same time, the petitioners refused to approve any program providing for on-the-premises instruction on the grounds that it was forbidden under both Missouri law and the First Amendment and, furthermore, that Title I did not require it. Since the larger portion (over 65%) of Title! funds allocated to Missouri has been used to provide personnel for remedial instruction, the effect of this stalemate is that substantially less money per pupil has been expended for eligible students in private schools, and that the services provided in those schools in no sense can be considered “comparable.” Faced with this situation, the District Court recognized that “[t]his head-on conflict... has resulted in an undoubtedly inequitable expenditure of Title I funds between educationally deprived children in public and nonpublic schools in some local school districts in the state.” Id., at A41. Nonetheless, the District Court denied relief. It reasoned that since the petitioners were under no statutory obligation to provide on-the-premises nonpublic school instruction, the failure to provide that instruction could not violate the Act. The court further reasoned that since the petitioners apparently had approved all programs “except those requesting salaried teachers in the nonpublic schools,” id., at A43, they had fulfilled their commitment. The court did not directly consider whether programs in effect without on-the-premises private school instruction complied with the comparability requirement despite gross disparity in the services delivered. The Court of Appeals reversed. It traced the legislative history of Title I, examined the language of the statute and the regulations, and noted “that the Act and the regulations require a program for educationally deprived non-public school children that is comparable in quality, scope and opportunity, which may or may not necessarily be equal in dollar expenditures to that provided in the public schools.” 475 F. 2d, at 1344. The court then observed that the Act does not mandate that services take any particular form and that, within the confines of the comparability requirement, the Act left to the state and local agencies the task of designing a program best suited to meet the particularized needs of both the public school children and the nonpublic school children in the area. After reviewing the unique situation existing in Missouri, where funds were grossly malapportioned due to the refusal to employ either dual enrollment or Title I teachers on private school premises, the court concluded that the petitioners were in violation of the comparability requirement: “Thus, we find that when the need of educationally disadvantaged children requires it, Title I authorizes special teaching services, as contemplated within the Act and regulations, to be furnished by the public agency on private as well as public school premises. In other words, we think it clear that the Act demands that if such special services are furnished public school children, then comparable programs, if needed, must be provided the disadvantaged private school child.” Id., at 1353. In response to petitioners’ argument that Missouri law forbids sending public school teachers into private schools, the court held that the state constitutional provision barring use of “public” school funds in private schools had no application to Title I funds. The court reasoned that although the Act was generally to be accommodated to state law, the question whether Title I funds were “public,” within the meaning of the Missouri Constitution, must necessarily be decided by federal law. Id., at 1351— 1353. Finally, the court refused to pass on petitioners’ claim that the Establishment Clause of the First Amendment would be violated if Title I, in fact, does require or permit service by public school teachers on private school premises. The reason stated for the court’s refusal was that since no plan had yet been implemented, the court “must refrain from passing upon important constitutional questions on an abstract or hypothetical basis.” Id., at 1354. The dissent argued that although Title I permits the assignment of Title I teachers to nonpublic schools, it does not mandate that assignment, and that if the Act is to be read as embracing such a mandate, it would present substantial First Amendment problems that could not be avoided. Id., at 1358-1359. III In this Court the parties are at odds over two issues: First, whether on this record Title I requires the assignment of publicly employed teachers to provide remedial instruction during regular school hours on the premises of private schools attended by Title I eligible students, and, second, whether that requirement, if it exists, contravenes the First Amendment. We conclude that we cannot reach and decide either issue at this stage of the proceedings. A. Title I requirements. As the case was presented to the District Court, petitioners clearly had failed to meet their statutory commitment to provide comparable services to children in nonpublic schools. The services provided to the class of children represented by respondents were plainly inferior, both qualitatively and quantitatively, and the Court of Appeals was correct in ruling that the District Court erred in refusing to order relief. But the opinion of the Court of Appeals is not to be read to the effect that petitioners must submit and approve plans that employ the use of Title I teachers on private school premises during regular school hours. The legislative history, the language of the Act, and the regulations clearly reveal the intent of Congress to place plenary responsibility in local and state agencies for the formulation of suitable programs under the Act. There was a pronounced aversion in Congress to “federalization” of local educational decisions. “It is the intention of the proposed legislation not to prescribe the specific types of programs or projects that will be required in school districts. Rather, such matters are left to the discretion and judgment of the local public educational agencies since educational needs and requirements for strengthening educational opportunities for educationally deprived elementary and secondary school pupils will vary from State to State and district to district.” H. R. Rep. No. 143, 89th Cong., 1st Sess., 5 (1965); S. Rep. No. 146, 89th Cong., 1st Sess., 9 (1965). And 20 U. S. C. § 1232a provides, inter alia: “No provision of... the Elementary and Secondary Education Act of 1965... shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system....” Although this concern was directed primarily at the possibility of HEW’s assuming the role of a national school board, it has equal application to the possibility of a federal court’s playing an overly active role in supervising the manner of Title I expenditures. At the outset, we believe that the Court of Appeals erred in holding that federal law governed the question whether on-the-premises private school instruction is permissible under Missouri law. Whatever the case might be if there were no expression of specific congressional intent, Title I evinces a clear intention that state constitutional spending proscriptions not be pre-empted as a condition of accepting federal funds. The key issue, namely, whether federal aid is money “donated to any state fund for public school purposes,” within the meaning of the Missouri Constitution, Art. 9, § 5, is purely a question of state and not federal law. By characterizing the problem as one involving “federal” and not “state” funds, and then concluding that federal law governs, the Court of Appeals, we feel, in effect nullified the Act’s policy of accommodating state law. The correct rule is that the “federal law” under Title I is to the effect that state law should not be disturbed. If it is determined, ultimately, that the petitioners’ position is a correct exposition of Missouri law, Title I requires, not that that law be preempted, but, rather, that it be accommodated by the use of services not proscribed under state law. The question whether Missouri law prohibits the use of Title I funds for on-the-premises private school instruction is still unresolved. See n. 9, supra. Furthermore, in the present posture of this case, it was unnecessary for the federal court even to reach the issue whether on-the-premises parochial school instruction is permissible under state law. The state-law question appeared in the case by way of petitioners’ defense that it could not provide on-the-premises services because it was prohibited by the State’s Constitution. But, as is discussed more fully below, the State is not obligated by Title I to provide on-the-premises instruction. The mandate is to provide “comparable” services. Assuming, arguendo, that state law does prohibit on-the-premises instruction, this would not provide a defense to respondents’ complaint that comparable services are not being provided. The choice of programs is left to the State with the proviso that comparable (not identical) programs are also made available to eligible private school children. If one form of services to parochial school children is rendered unavailable because of state constitutional proscriptions, the solution is to employ an acceptable alternative form. In short, since the illegality under state law of on-the-premises instruction would not provide a defense to respondents’ charge of noncompliance with Title I, there was no reason for the Court of Appeals to reach this issue. By deciding that on-the-premises instruction was not barred by state law, the court in effect issued an advisory opinion. Even apart from traditional policies of abstention and comity, it was unnecessary to decide this question in the current posture of the case. The Court of Appeals properly recognized, as we have noted, that petitioners failed to meet their broad obligation and commitment under the Act to provide comparable programs. “Comparable,” however, does not mean “identical,” and, contrary to the assertions of both sides, we do not read the Court of Appeals’ opinion or, for that matter, the Act itself, as ever requiring that identical services be provided in nonpublic schools. Congress recognized that the needs of educationally deprived children attending nonpublic schools might be different from those of similar children in public schools; it was also recognized that in some States certain programs for private and parochial schools would be legally impossible because of state constitutional restrictions, most notably in the church-state area. See n. 9, supra. Title I was not intended to override these individualized state restrictions. Rather, there was a clear intention that the assistance programs be designed on local levels so as to accommodate the restrictions. Inasmuch as comparable, and not identical, services are required, the mere fact that public school children are provided on-the-premises Title I instruction does not necessarily create an obligation to make identical provision for private school children. Congress expressly-recognized that different and unique problems and needs might make it appropriate to utilize different programs in the private schools. A requirement of identity would run directly counter to this recognition. It was anticipated, to be sure, that one of the options open to the local agency in designing a suitable program for private school children was the provision of on-the-premises instruction, and on remand this is an option open to these petitioners and the local agency. If, however, petitioners choose not to pursue this method, or if it turns out that state law prevents its use, three broad options still remain: First, the State may approve plans that do not utilize on-the-premises private school Title I instruction but, nonetheless, still measure up to the requirement of comparability. Respondents appear to be arguing here that it is impossible to provide “comparable” services if the public schools receive on-the-premises Title I instruction while private school children are reached in an alternative method. In support of their position, respondents argue: “The most effective type of services is that provided by a teacher or other specialist during regular school hours. There is nothing comparable to the services of personnel except the services of personnel.” Brief for Respondents 49. In essence, respondents are asking this Court to hold, as a matter of federal law, that one mode of delivering remedial Title I services is superior to others. To place on this Court, or on any federal court, the responsibility of ruling on the relative merits of various possible Title I programs seriously misreads the clear intent of Congress to leave decisions of that kind to the local and state agencies. It is unthinkable, both in terms of the legislative history and the basic structure of the federal judiciary, that the courts be given the function of measuring the comparative desirability of various pedagogical methods contemplated by the Act. In light of the uncontested statutory proscription in Missouri against dual enrollment, it may well be a significant challenge to these petitioners and the local agencies in their State to devise plans that utilize on-the-premises public school instruction and, at the same time, forgo on-the-premises private school instruction. We cannot say, however, that this is an impossibility; by relying upon “the initiative of school administrators to develop a program that would meet the Federal [comparability] requirements,” Handbook 20, it may well be possible to develop and submit an acceptable plan under Title I. Of course, the cooperation and assistance of the officials of the private school are obviously expected and required in order to design a program that is suitable for the private school. It is clear, however, that the Act places ultimate responsibility and control with the public agency, and the overall program is not to be defeated simply because the private school refuses to participate unless the aid is offered in the particular form it requests. The private school may refuse to participate if the local program does not meet with its approval. But the result of this would then be that the private school’s eligible children, the direct and intended beneficiaries of the Act, would lose. The Act, however, does not give the private school a veto power over the program selected by the local agency. In sum, although it may be difficult, it is not impossible under the Act to devise and implement a legal local Title I program with comparable services despite the use of on-the-premises instruction in the public schools but not in the private schools. On the facts of this case, petitioners have been approving plans that do not meet this requirement, and certainly, if public school children continue to receive on-the-premises Title I instruction, petitioners should not approve plans that fail to make a genuine effort to employ comparable alternative programs that make up for the lack of on-the-premises instruction for the nonpublic school children. A program which provides instruction and equipment to the public school children and the same equipment but no instruction to the private school children cannot, on its face, be comparable. In order to equalize the level and quality of services offered, something must be substituted for the private school children. The alternatives are numerous. Providing nothing to fill the gap, however, is not among the acceptable alternatives. Second, if the State is unwilling or unable to develop a plan which is comparable, while using Title I teachers in public but not in private schools, it may develop and submit an acceptable plan which eliminates the use of on-the-premises instruction in the public schools and, instead, resorts to other means, such as neutral sites or summer programs that are less likely to give rise to the gross disparity present in this case. Third, and undoubtedly least attractive for the educationally deprived children, is nonparticipation in the program. Indeed, under the Act, the Commissioner, subject to judicial review, 20 U. S. C. § 241k, may refuse to provide funds if the State does not make a bona fide effort to formulate programs with comparable services. 20 U. S. C. § 241 j. B. First Amendment. The second major issue is whether the Establishment Clause of the Pirst Amendment prohibits Missouri from sending public school teachers paid with Title I funds into parochial schools to teach remedial courses. The Court of Appeals declined to pass on this significant issue, noting that since no order had been entered requiring on-the-premises parochial school instruction, the matter was not ripe for review. We agree. As has been pointed out above, it is possible for the petitioners to comply with Title I without utilizing on-the-premises parochial school instruction. Moreover, even if, on remand, the state and local agencies do exercise their discretion in favor of such instruction, the range of possibilities is a broad one and the First Amendment implications -may vary according to the precise contours of the plan that is formulated. For example, a program whereby a former parochial school teacher is paid with Title I funds to teach full time in a parochial school undoubtedly would present quite different problems than if a public school teacher, solely under public control, is sent into a parochial school to teach special remedial courses a few hours a week. At this time we intimate no view as to the Establishment Clause effect of any particular program. The task of deciding when the Establishment Clause is implicated in the context of parochial school aid has proved to be a delicate one for the Court. Usually it requires a careful evaluation of the facts of the particular case. See, e. g., Lemon v. Kurtzman, 403 U. S. 602 (1971), and Tilton v. Richardson, 403 U. S. 672 (1971). It would be wholly inappropriate for us to attempt to render an opinion on the First Amendment issue when no specific plan is before us. A federal court does not sit to render a decision on hypothetical facts, and the Court of Appeals was correct in so concluding. The Court of Appeals disposed of the case as follows: “The case is remanded to the district court with directions to enjoin the defendants from further violation of Title I of ESEA, and it is further ordered that the court retain continuing jurisdiction of the litigation for the purpose of requiring, within reasonable time limits, the imposition and application of guidelines which will comport with Title I and its regulations. Such guidelines must provide the lawful means and machinery for effectively assuring educationally disadvantaged non-public school children in Missouri participation in a meaningful program as contemplated within the Act which is comparable in size, scope and opportunity to that provided eligible public school children. Such guidelines shall be incorporated into an appropriate injunctive decree by the district court.” 475 F. 2d, at 1355-1356 (footnotes omitted). We affirm this disposition with the understanding that petitioners will be given the opportunity to submit guidelines insuring that only those projects that comply with the Act’s requirements and this opinion will be approved and submitted to the Commission. It is also to be understood that the District Court’s function is not to decide which method is best, or to order that a specific form of service be provided. Rather, the District Court is simply to assure that the state and local agencies fulfill their part of the Title I contract if they choose to accept Title I funds. Cf. Lau v. Nichols, 414 U. S. 563 (1974). The comparability mandate is a broad one, and in order to implement the overriding concern with localized control of Title I programs, the District Court should make every effort to defer to the judgment of the petitioners and of the local agency. Under the Act, respondents are entitled to comparable services, and they are, therefore, entitled to relief. As we have stated repeatedly herein, they are not entitled to any particular form of service, and it is the role of the state and local agencies, and not of the federal courts, at least at this stage, to formulate a suitable plan. On this basis, the judgment of the Court of Appeals is affirmed. T..,, It is so ordered. Mr. Justice Marshall concurs in the result. "In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means (including preschool programs) which contribute particularly to meeting the special educational needs of educationally deprived children.” 20 U. S. C. §241a. The implementing regulations, 45 CFR § 116.1, set forth a number of definitions, some in common with, and others in addition to, the definitions contained in the Act itself, 20 U. S. C. § 244. They draw no distinction between public and nonpublic school children. Specifically: “ ‘Educationally deprived children’ means those children who have need for special educational assistance in order that their level of educational attainment may be raised to that appropriate for children of their age. The term includes children who are handicapped or whose needs for such special educational assistance result from poverty, neglect, delinquency, or cultural or linguistic isolation from the community at large.” 45 CFR § 116.1 (i). In order for a local Title I proposal to be approved and a grant received, the local agency must give “satisfactory assurance that the control of funds provided under this subchapter, and title to property derived therefrom, shall be in a public agency for the uses and purposes provided in this subchapter, and that a public agency will administer such funds and property.” 20 U. S. C. § 241e (a)(3). “[T]he term 'local educational agency’ means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. Such term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school....” 20 U. S. C. § 244 (6) (B). See also 45 CFR § 116.1 (r). “The term ‘State educational agency’ means the officer or agency primarily responsible for the State supervision of public elementary and secondary schools.” 20 U. S. C. § 244 (7). See also 45 CFR §116.1 (aa). The regulations state: “Each local education agency shall provide special educational services designed to meet the special educational needs of educationally deprived children residing in its district who are enrolled in private schools. Such educationally deprived children shall be provided genuine opportunities to participate therein consistent with the number of such educationally deprived children and the nature and extent of their educational deprivation.” 45 CFR § 116.19 (a). “The needs of educationally deprived children enrolled in private schools, the number of such children who will participate in the program and the types of special educational services to be provided for them, shall be determined, after consultation with persons knowledgeable of the needs of these private school children, on a basis comparable to that used in providing for the participation in the program by educationally deprived children enrolled in public schools.” 45 CFR § 116.19 (b). The Court of Appeals noted: "The practice in Missouri as a whole in prior years has been to give comparable equipment, materials and supplies to eligible private school children, but to exclude any sharing whatsoever of personnel services. Most Title I public school programs in Missouri involve remedial reading, speech therapy and special mathematics classes, thus the largest proportion of the cost of these projects involves salaries for teachers and teacher aids. After the first two years of Title I, expenditures in Missouri for instructional personnel have run from 65 per cent to 70 per cent of the total grant. The remaining funds are used for equipment and materials, health and counseling services, transportation, and plant maintenance. One difficulty with providing only equipment and materials is that even minimal sharing of expenses for equipment and materials soon reaches a saturation point; in fact, the state guidelines permit only 15 per cent of any appropriation to be spent on equipment and instructional materials. The result of this plan for the deprived private school child has been to create a disparity in expenditures in many school districts ranging from approximately $10 to $85 approved for the educationally disadvantaged private school child to approximately $210 to $275 allocated for the deprived public school child.” 475 F. 2d 1338, 1345. An informal survey conducted by the United States Office of Education revealed that Missouri was the only State which did not use either dual enrollment or on-the-premises private school instruction as a means of providing Title I services. Brief for Respondents 93-95. The Missouri Constitution, Art. 9, § 5, provides: “The proceeds of all certificates of indebtedness due the state school fund, and all moneys, bonds, lands, and other property belonging to or donated to any state fund for public school purposes, and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat, shall be paid into the state treasury, and securely invested under the supervision of the state board of education, and sacredly preserved as a public school fund the annual income of which shall he faithfully appropriated for establishing and maintaining free public schools, and for no other uses or purposes whatsoever." (Emphasis supplied.) The Constitution, Art. 9, §8, also provides: “Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.” Finally, the Constitution's Bill of Rights, Art. 1, §7, provides: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” In Special District v. Wheeler, 408 S. W. 2d 60, 63 (1966), the Supreme Court of Missouri held that “the use of public school moneys to send speech teachers... into the parochial schools for speech therapy” was not a use “for the purpose of maintaining free public schools,” within the meaning of Art. 9, § 5, of the State’s Constitution, and therefore was a practice “unlawful and invalid.” That case did not involve federal funds. The question in the present ease is whether Title I grants to the State are “donated... for public school purposes” and therefore subject to the proscription held to exist in Special District. After' that case was decided by the Missouri court, the State Board of Education promulgated a regulation governing the use of Title I funds in Missouri. It provides: “ 'Special educational services and arrangements, including broadened instructional offerings made available to children in private schools, shall be provided at public facilities. Public school personnel shall not be made available in private facilities. This does not prevent the inclusion in a project of special educational arrangements to provide educational radio and television to students at private schools.’ ” See 475 F. 2d, at 1350. In a formal opinion the Attorney General of Missouri has taken the opposing view, stating: “We do not believe that an appropriation of this type [Title I] converts federal aid into state aid, thereby making it subject to the Missouri constitutional provisions.” The opinion concludes: “It is the opinion of this office that the Elementary and Secondary Education Act of 1965 provides that, under certain circumstances and to the extent necessary, public school personnel, paid with federal funds pursuant to this program, may be made available on the premises of private schools to provide certain special services to eligible children and that Missouri law would not prevent public school personnel, paid with federal funds, from providing these services on the premises of a private school.” Op. Atty. Gen. No. 26 (1970). This rather fundamental intrastate legal rift apparently has resulted in the Missouri Attorney General’s nonappearance for the petitioners in the present litigation. There is no Missouri case in point. Cf. State ex rel. School District of Hartington v. Nebraska State Board of Education, 188 Neb. 1, 195 N. W. 2d 161, cert. denied, 409 U. S. 921 (1972). On remand from the Court of Appeals the District Court on May 9, 1973, entered an “Injunction and Judgment Issued in Compliance with Mandate” requiring use of Title I personnel on private school premises during regular school hours if such personnel are also used in public schools during regular school hours. Pet. for Cert. A45-A47. Petitioners appealed from that judgment, but the Court of Appeals dismissed the appeal as moot after we granted certiorari. Our grant of certiorari was to review the judgment of the Court of Appeals entered pursuant to the opinion reported at 475 F. 2d 1338. The judgment of the District Court on remand is not presently before us. The Act itself does not mention “comparability.” It requires only that the state agency, in approving a plan, must determine “that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate.” 20 U. S. C. § 241e (a) (2). The regulations, 45 CFR §§116.19 (a) and (b), are the source of the comparability requirement. See n. 6, supra. The ease from this Court primarily cited by the Court of Appeals for the proposition that federal, not state, law should govern, is United States v. 93.970 Acres of Land, 360 U. S. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_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 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. Mary Katherine WALDEN, etc., Plaintiff-Appellee, v. UNITED STATES STEEL CORPORATION, a corporation, et al., Defendants, United States Steel Corporation, a corporation, Defendant-Appellant. No. 83-7472. United States Court of Appeals, Eleventh Circuit. May 6, 1985. William C. Knight, Birmingham, William F. Murray, Jr., J. Ross Forman, Birmingham, Ala., for defendant-appellant. Cabaniss, Johnston, Gardner, Dumas & O’Neal, Tony G. Miller, Birmingham, Ala., for amicus Ala., et al. G. Stephen Parker, Atlanta, Ga., for amicus, Southeastern Legal Foundation, Inc. John T. Roach, Jr., Birmingham, Ala., for plaintiff-appellee. Thomas J. Whyte, Thomas A. Smock, David J. Laurent, Pittsburgh, Pa., for American Mining-amicus. Before VANCE and ANDERSON, Circuit Judges, and PITTMAN , District Judge. . Honorable R. Lanier Anderson had disqualified himself in this case. The decision is entered by a quorum of the court. Honorable Virgil Pittman, U.S. District Judge for the Southern District of Alabama, sitting by designation. PER CURIAM: United States Steel Corporation (U.S. Steel) appeals from an adverse jury verdict in a suit by Mary Katherine Walden for the wrongful death of her husband Harold. At the time of his death, Harold Walden was employed by Cowin & Co. (Cowin), an independent contractor hired by U.S. Steel to do construction and excavation work at U.S. Steel’s Oak Grove coal mine. The district court submitted the case to the jury on three separate negligence theories and they returned a general verdict in Mrs. Walden’s favor. U.S. Steel filed a motion for judgment n.o.v. asserting that it was entitled to a directed verdict on each of the negligence theories. The district court denied the motion. 567 F.Supp. 1443. We affirm the district court’s denial of the motion as to two of the theories and certify the third to the Supreme Court of Alabama for clarification of the duty owed by U.S. Steel to employees of this independent contractor. Harold Walden was killed in 1974 in an accident during the construction of U.S. Steel’s Oak Grove coal mine. Walden was employed by Cowin, which had been hired by U.S. Steel to sink a fan shaft and an elevator-ventilation shaft for the mine. U.S. Steel provided plans and specifications for the shafts to Cowin and the other contractors that bid on the job. The “bid package” given the contractors bidding on the elevator-ventilation shaft included a geologic survey and a construction drawing showing the desired dimensions and shape of the finished shaft, but no other construction specifications. Cowin’s contract with U.S. Steel specifically delegated all responsibility for safety at the construction site to Cowin. Cowin prepared the construction plans, including the method for sinking the shaft, which were submitted by U.S. Steel to the Mining Enforcement and Safety Administration (MESA) for approval. The plans identified both U.S. Steel Safety Director Walter Fleming and Cowin Safety Director Richard Gallentine as the principal officers in charge of health and safety. Cowin sank the shaft by drilling holes into the ground and inserting and discharging dynamite charges to fragment the rock. The resulting debris, called “muck,” was loaded into a bucket attached to a hoist for removal at the top of the shaft. Cowin used the two-bucket hoist method. Workmen loaded one bucket on the floor of the shaft while another bucket was being hoisted to the top. Once the elevator shaft reached the coal seam (approximately 1100 feet down) Cowin began constructing horizontal headings (tunnels). As required, Cowin submitted a new plan to MESA detailing the method for removing coal and muck from the headings. Although the plan stated that a conveyor feeder would be used to load the buckets at the bottom of the shaft, Cowin chose to load the buckets with an EIMCO 630 loader instead. Because Cowin’s EIMCO 630 loader was too tall to permit loading in the horizontal headings, workers were forced to remain in the shaft underneath the bucket being hoisted while loading the other bucket. The hoist did not have an automatic brake or any other safety mechanisms and Cowin did not install a safety trap door or any other safety device in the shaft. John Allen, U.S. Steel’s Project Engineer, was at the site continuously from March 1973, monitoring the contractors’ progress and their compliance with the plans. When Cowin began constructing the headings, he was involved in day-to-day planning to determine the best method for extracting the coal and connecting the shafts. He was in the shaft almost daily to check the work. Allen had an intimate knowledge of the federal and state regulations for mining and mine construction. He was aware of the safety requirements for the hoist being used by Cowin and he had checked all the equipment on the site at one time or another. He made suggestions to contractors from time to time for improving the operation and safety at the site. At one point he asked Cowin to tighten the ventilation curtain in the bottom of the mine shaft to prevent the build-up of noxious gases, and Cowin did so. Cowin always promptly complied with Allen’s suggestions. On May 23, 1973, Herbert Wilson was killed at the Oak Grove site when the brakes on a hoisting mechanism failed and a three-ton bucket of muck fell back down the fan shaft on top of him. Walter Fleming of U.S. Steel reported the accident to MESA. MESA investigated the accident and in the requirements section of its report directed that “[wjorkmen shall not work directly beneath a bucket being hoisted or lowered.” No changes were made in the plans or construction method after Wilson’s death. Allen knew of the citations issued by MESA after the accident and was aware that Cowin nevertheless continued its excavation efforts without complying with the plan that had been submitted to and approved by MESA. On April 8, 1974, less than a year after Wilson’s death, Harold Walden was killed at the bottom of the elevator-ventilation shaft. The bucket of coal being hoisted came up too high out of the shaft and hit the hoist frame at high speed. The steel hoist cable broke and the bucket fell back down the shaft, crushing Walden. Walden’s wife brought a wrongful death action against U.S. Steel based on several theories of liability. The district court submitted the case to the jury on the following three negligence theories: (1) that U.S. Steel was allegedly negligent in its design, plans, and specifications for the Oak Grove mine; (2) that U.S. Steel was allegedly negligent in its inspection of the equipment used where Walden was killed, after voluntarily undertaking safety inspections; and (3) that U.S. Steel was allegedly negligent in failing to warn of dangers at the site and in providing a safe work place for Walden as the employee of an independent contractor on U.S. Steel’s property who was engaged in intrinsically dangerous activity. The jury returned a general verdict in favor of the plaintiff. U.S. Steel appeals, assigning error to the trial court’s refusal to grant a directed verdict or judgment n.o.v. on each claim. We will address each-theory in turn. In reviewing the denial of a motion for judgment n.o.v., this court is obligated to consider all the evidence, not just the evidence supporting the non-moving party’s case, in the light most favorable to the non-moving party. The question should be left to the jury’s judgment if there is substantial evidence that would allow reasonable people to reach different conclusions. See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). Under this standard, the verdict on the negligent plans and negligent voluntary inspections theories must be affirmed. It was not unreasonable for the jury to conclude that U.S. Steel’s submission of the original plans and specifications, coupled with its day-to-day participation in planning the extraction of coal from the headings, constituted sufficient involvement to give rise to a duty. It was also well within the jury’s province to decide that the failure to provide for any safety devices on the hoist or in the shaft constituted negligence. Under Alabama law, once a person voluntarily undertakes safety inspections, he must act as a reasonably prudent person regardless of whether he originally intended to assure the safety of anyone other than himself. See Beasley v. MacDonald Engineering Co., 287 Ala. 189, 192-94, 249 So.2d 844, 846-48 (1971). The jury would be justified in concluding that U.S. Steel’s employees at Oak Grove voluntarily undertook inspections. Project Engineer Allen was always at the site and in the shaft nearly every day. He had made suggestions for improvements to Cowin and he had ample opportunity to observe the hoisting operation and equipment. Although U.S. Steel presented contrary evidence on both issues, this court cannot substitute its judgment for the jury’s decision unless it is clear that no reasonable people could have come to such a verdict. In this case substantial evidence supports the jury’s conclusions, and they should not be disturbed. The third theory, based on U.S. Steel’s duty as owner/operator of a mine to employees of its independent contractor, is less readily resolved. The trial court charged the jury that the general rule in Alabama is that a landowner owes no duty to the employees of an independent contractor. The court further explained that an exception to the rule existed “where the work is of such kind or class that the doing of it, however carefully or skillfully performed, is necessarily and intrinsically dangerous.” Beck v. Olin, 437 So.2d 1236 (Ala.1983), seems to indicate, however, that even if there is an exception to the rule for intrinsically or inherently dangerous activities, the landowner can delegate that duty by contract to the independent contractor. Several factors combine in this case to complicate the interpretation of Alabama law. U.S. Steel employees were at the site constantly and were continuously involved in planning during the final stages of construction. Cowin was mining coal for U.S. Steel during the construction of the headings. Both federal and state law place a burden on mine owners and operators to comply with specific safety standards. The minimum safety precautions for hoisting operations were not used in the shaft at Oak Grove. The jury was also allowed to consider whether or not the mine shaft excavation was a “necessarily and inherently dangerous” activity. U.S. Steel argues that, as a matter of Alabama law, neither mining nor mine construction is an intrinsically or inherently dangerous activity. We have found no cases which deal with this type of excavation. We find that the issue of U.S. Steel’s duty is controlled by Alabama law and that there are no clear precedents governing the circumstances of this case. Because the jury returned a general verdict, this court must affirm that all three theories were properly submitted to the jury to sustain the court below. Failure of any one mandates a new trial in the district court. See King v. Ford Motor Co., 597 F.2d 436, 439 (5th Cir.1979). This question thus controls the outcome of this appeal. Because there are no clear controlling precedents in the decisions of the Alabama Supreme Court, we certify this question to the Alabama Supreme Court under Rule 18 of the Alabama Rules of Appellate Procedure. AFFIRMED IN PART. REMAINING QUESTION CERTIFIED TO THE ALABAMA SUPREME COURT. CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA, PURSUANT TO RULE 18, ALABAMA RULES OF APPELLATE PROCEDURE. (1) Style of the Case The style of the case in which this certificate is made is Mary Katherine Walden, etc. Plaintiff-Appellee, versus United States Steel Corporation, a corporation, et al., Defendants, United States Steel Corporation, a corporation, Defendant-Appellant, Case No. 83-7472, United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Northern District of Alabama. (2) Statement of Facts The pertinent facts are discussed above in the opinion. (3) Questions to be Certified A. Assuming that mine construction is an intrinsically or inherently dangerous activity, does the owner/operator of a coal mine owe a duty to employees of an independent contractor hired to excavate the mine shafts to warn of dangers on the premises and provide a safe work place? B. Is a jury finding that this mining and mine excavation were intrinsically or inherently dangerous precluded by Alabama law? The particular phrasing used in the certified questions is not to restrict the Supreme Court’s consideration of the issues in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are given. See Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968). The clerk of this court is directed to transmit this certificate, as well as the briefs and record filed with the court, to the Supreme Court of Alabama, and simultaneously to transmit copies of the certificate to the attorneys for the parties. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "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). John L. McMAIN, Appellant, v. Celine C. TWOMEY, Appellee. No. 8452. United States Court of Appeals Tenth Circuit. Oct. 26, 1966. Arturo G. Ortega, Albuquerque, N. M. (Willard F. Kitts and William E. Snead, Albuquerque, N. M., on the brief), for appellant. Quincy Adams, Albuquerque, N. M. (Adams & Pongetti, Albuquerque, N. M., on the brief), for appellee. Before PHILLIPS and HICKEY, Circuit Judges, and CHRISTENSEN, District Judge. ORIE L. PHILLIPS, Circuit Judge. McMain brought this action against Twomey to recover damages for personal injuries. The trial of the action resulted in a jury verdict in favor of McMain for $300. McMain moved for a new trial on the grounds that the verdict was grossly inadequate, the verdict was contrary to the evidence, the jury failed to follow the court’s instructions, and the court erred in refusing to admit certain deposition evidence. On the night of June 28, 1961, McMain had stopped his automobile at a traffie light and was waiting for a green light, at a street intersection in Albuquerque, New Mexico. While he was so waiting, Twomey drove her automobile into the rear of McMain’s automobile. On November 11; 1961, McMain was; on a hunting trip for deer with certain friends. He was sitting in his automobile while it was parked off the main highway, about eight miles south of Corona, New Mexico. It was the same automobile that was involved in the first accident. While such automobile was so parked, one Pepper drove a 1950 Chevrolet half-ton pickup truck against the rear of McMain’s automobile. The impact of the second collision was greater than the first. The damage to McMain’s automobile, caused by the first collision, was $93.73, while the damage thereto, caused by the second collision was $408.53. A claim made by McMain for damages caused by the second accident was settled for a substantial amount. In a deposition, McMain testified that the amount of the settlement was $11,000. However, the court ruled that the defendant could not introduce that part of the deposition showing the specific amount paid in the settlement. Following the first accident, McMain took his wife to the Presbyterian Hospital emergency room in Albuquerque, New Mexico. McMain testified that after they left the emergency room, he experienced intense headaches and pain in his neck and lower back. He did not go to a physician until July 5, 1961. On that day, he consulted Dr. Overton of the Lovelace Clinic in Albuquerque. X-rays were taken and he was placed on physiotherapy treatments several times a week and also was given traction at times. He testified that the condition in his neck improved, but that the pain in his lower back increased after the second accident. Dr. Overton examined McMain again on August 7, 1961. McMain then complained of pain in his right leg. Dr. Overton found tenderness in McMain’s lower back. When he stretched the sciatic nerve, McMain said it increased the pain. Additional X-rays of McMain’s spine were taken on July 11, 1961. They showed a normal disc space at L 4-5, but a narrowing disc space at L 5-S-l. Dr. Overton testified that he saw McMain on August 7, 1961, and then concluded from his subjective symptoms and the X-rays that McMain probably had a small ruptured disc at L 5-S-l, and that there was a causal relationship between the accident and the ruptured disc. On September 17, 1962, additional X-rays were taken of McMain’s spine. They showed no essential difference in the condition of the space at L 4-5, but the X-rays of the L 5-S-l space showed it was narrower in 1962 than it was in 1961. On January 22, 1963, Dr. Miller performed a surgical operation on McMain’s lower spine. He found a herniated or ruptured disc at L 4-5 and a narrowing of the space at L 5-S-l, but no herniation or protrusion at that point. There was considerable degeneration at L 5-S-l. Pathology following the surgery in 1963 showed that the disc material removed from the herniated disc L 4-5 was only slightly degenerated. Dr. Minear, a medical witness for Twomey, testified that he would have expected marked degeneration if that disc had extruded for a year and one-half. Dr. Overton testified that there was degeneration at L 5-S-l for some time prior to the accident of June 28, 1961. Dr. Minear further testified that among the causes for pain in the lower back was a degenerated disc. McMain testified that while on the November 1961 deer hunt and before the second accident, he walked a distance of four or fives miles and helped to dress out a deer. Hunting for deer and dressing out a deer carcass are strenuous exercises. After denying that he played golf, McMain admitted that he had played golf on August 3, 1962. He further testified that he had ridden a horse many times. The evidence established that on August 17, 1961, he opened a heavy door, rotating his body completely and holding the door open with his right hand; that he performed the usual chores about his home, such as carrying a bale of hay, repairing the roof on his house, carrying a metal pipe, and engaged in other like activities. Undisputed medical evidence established that the lifting of heavy objects can cause a ruptured disc. William Haas testified that on June 7, 1962, while he was investigating McMain’s claim for Twomey, McMain told him that he (Haas) “was to relay on to other persons that he (McMain) was capable of an effective and efficient medical build-up,” apparently using the word “persons” to refer to persons against whom McMain was claiming damages caused by the first accident. From the foregoing, the jury was warranted in concluding that the ruptured or herniated disc at L 4-5 occurred subsequent to the second accident and subsequent to Dr. Overton’s diagnosis of a herniated disc, made on August 7, 1961, and was not caused by the first accident, and that the pain suffered by McMain between the time of the first and second accident was largely due to the degenerated disc at L 5-S-l, and that the amount of such pain was greatly exaggerated by McMain. McMain paid out for medical services, X-rays and therapy, between July 5, 1961, and November 7, 1961, $280.93. McMain testified that he lost no wages or earnings on account of his asserted in» juries. He made no claim in the instant case for damage to his car. It is apparent that the court was of the opinion that the damages awarded by the jury were adequate. At the trial, counsel for McMain introduced certain portions of the direct testimony of the orthopedic specialist referred to above, taken by deposition. Counsel for Twomey then offered certain portions of the cross-examination of such specialist, which related to the matters brought out in the direct examination, introduced by counsel for McMain. Counsel for McMain then undertook to introduce additional portions of the deposition, which related to new matters not covered by the direct and cross-examination theretofore offered. The court sustained an objection to such offer on the ground that it was improper redirect examination. The record does not contain the additional evidence which counsel for McMain undertook to introduce. It is obvious, therefore, that we cannot say on the instant record that the court abused its discretion in sustaining the objection to such evidence. We conclude that the court did not abuse its discretion in denying the motion for a new trial. 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_usc2	26	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. Herman GLASER, Jr., as Administrator of the Estate of Herman Glaser, Sr., deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 13654. United States Court of Appeals Seventh Circuit. July 23, 1962. Louis F. Oberdorfer, Asst. Atty. Gen., Stephen J. Poliak, Atty., U. S. Dept, of Justice, Washington, D. C., Philip Carlton Potts, U. S. Atty., South Bend, Ind., Lee A. Jackson, Harry Baum, L. W. Post, Dept, of Justice, Washington, D. C., Alfred W. Mqellering, U. S. Atty., for appellant. James E. Keating, Voor, Jackson & McMichael, William O. Jackson, South Bend, Ind., for appellee. Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges. SWYGERT, Circuit Judge. Taxpayer, Herman Glaser, Jr., administrator of his deceased father’s estate, brought this action for refund of federal estate taxes allegedly overpaid. The facts were stipulated. The District Court granted the refund and the government appeals. Prior to 1943 decedent purchased several parcels of real estate in South Bend, Indiana, for which he furnished the consideration. Decedent and his wife, Pauline, took title to parcels I through V and a seventh parcel as tenants by the entire-ties. They took title to parcel VI along with their daughter, Elsa Glaser, as joint tenants. From 1943 to 1946 decedent and his wife made certain conveyances of these parcels. They conveyed parcels I to VI each to a different child, reserving a life estate to themselves and to the survivor of them. Elsa Glaser, the joint owner of parcel VI, did not join in the conveyance of that parcel. Decedent and his wife conveyed the seventh parcel in fee to their daughter and her husband, Anna F. Van Dien and Roseoe Van Dien. As full consideration for the conveyance, the Van Diens conveyed real estate in South Bend, designated parcel VII, to decedent and his wife for their joint lives with remainder over to another of decedent’s sons. Decedent died in 1955, and his wife in 1958. The gross estate shown in decedent’s federal estate tax return included one-half the purported value of each parcel at the date of his death. The District Director included the full value in the gross estate less the commuted value of the widow’s life estate in her one-half interest in each parcel, and issued a deficiency assessment. Taxpayer paid the deficiency under protest and, after a denial of his claim for refund, filed the instant suit, contending that only one-half the value of parcels I through VI and none of the value of parcel VII should be included in the gross estate. The District Court ruled that one-half the value of parcels I through V, one-third the value of parcel VI, and none of the value of parcel VII should be included in the gross estate. Judgment was entered for taxpayer for $11,387.33, with interest. In this Court the government abandoned its appeal with regard to parcel VI, but contends that the deficiency assessment should otherwise be sustained. Parcels I to V. Taxpayer concedes that because decedent and his wife retained a life estate in the conveyed parcels, 26 U.S.C. § 2036 requires that the value of the real estate to the extent of his interest therein be included in his gross estate. The crucial question is what was the extent of decedent’s interest in the parcels when he and his wife conveyed them. The District Court held that the ownership of the properties by decedent and his wife as tenants by the entireties gave each “an equal interest, under Indiana law, in the properties, and neither tenant could convey or make a transfer of a greater interest than he or she owned or had a right to transfer, namely, a one-half interest.” Consequently, the court concluded that the extent of decedent’s interest in the parcels at the time of their conveyance was a one-half interest, citing Sullivan’s Estate v. Commissioner, 9 Cir., 175 F.2d 657; Estate of Brockway v. Commissioner, 18 T.C. 488, and Estate of Borner v. Commissioner, 25 T.C. 584. Before the District Court and in its main brief here, the government contended that 26 U.S.C. §§ 2036 and 2040 are to be read together under the facts of this case, and that when so read, the entire value of the parcels is includable in decedent’s gross estate. The government argues that since decedent furnished the consideration for the parcels, if he had died before the conveyances to his children, their full value would have been includable in his gross estate under Section '2040; that although in form the convey-anees destroyed the tenancies by the en-tireties, leaving decedent with a joint life interest and a contingent life interest if he survived his wife, in substance decedent retained the same interest for federal estate tax purposes that he had before the conveyances; and therefore the full value of the parcels should be included in his gross estate. We agree with the District Court that since the properties had been transferred before decedent’s death, Section 2040 has no application. Under this section it is only “the value of property held jointly at the time of decedent’s death” that is includable. (Emphasis supplied). Treas.Reg., Section 20.2040-1. It has been held that when two joint owners have transferred property Within the meaning of Section 2036, each is held to have transferred only a one-half interest in the property. Sullivan’s Estate v. Commissioner, supra; Estate of Brockway v. Commissioner, supra. And this is so even though, as here, one of the joint owners furnishes the full consideration for the acquisition of the joint property. Estate of Borner v. Commissioner, supra. In the instant case decedent’s wife owned an equal interest with her husband in the parcels by reason of the tenancy by the entireties, and neither she nor decedent could dispose of the properties without the other’s consent. The conveyances to their children destroyed the tenancies by the entireties; therefore, at the time of decedent’s death there existed no joint interest to which Section 2040 could apply. In its reply brief the government for the first time presented a different theory for reversal. The government now contends that the instant case is controlled by this Court’s decision in Commissioner v. Nathan’s Estate, 7 Cir., 159 F.2d 546. In Nathan the decedent created a trust which provided that the net income from the trust funds was to be paid to his sister for her life; if he survived her, the income was to be paid to him for life; and after the death of the survivor, the corpus was to go to third parties. This Court held that the value of the entire trust corpus was includable in his gross estate under Section 811(c) of the 1939 Code (the predecessor of Section 2036) even though the decedent predeceased his sister, because the transfer of the corpus was with a retained contingent life estate held by the decedent for a period not ascertainable without reference to his death or which did not in fact end before his death. In so holding, Judge Evans said at 549: “The decedent * * * retained only a contingent estate which became effective in case he survived his sister. Nothwithstanding this rather important fact so far as enjoyment is concerned, it did not take the transfer out of the reach of the language of Section 811(c) which controls our decision.” The government maintains that in accordance with Nathan the retention of a contingent life interest by decedent in the instant case requires inclusion of the full value of the properties in his gross estate. It contends that by telescoping the transactions whereby decedent originally acquired the properties with the transactions in which he and his wife conveyed the parcels to their children, what in substance happened insofar as his interest in the properties is concerned was this: Decedent purchased the properties, furnishing all the consideration; all subsequent transfers were without consideration; in the conveyances from the vendor, decedent took title jointly with his wife for their lives, gave a remainder in fee to his wife if she survived him, and reserved to himself a life estate if he survived her, with a remainder over to certain of his children. Thus, the government concludes decedent retained for his life a joint life estate with his wife plus a contingent life estate if he survived her. The defect in the government’s contention is that in telescoping the transactions whereby decedent acquired' the properties with the transactions in which he conveyed the parcels to his children, the government has left out the decisive fact which distinguishes this case from Nathan, namely, that decedent in purchasing the properties took title with his wife as tenants by the entireties. By reason of this fact, when he and his wife conveyed the properties to their children, he had only a one-half interest. It is this interest to which Section 2036 applies. In Nathan the decedent was the sole owner of the transferred property at the time the trust was created. Therefore, the full value of the trust funds was correctly included in his estate. In the instant case, however, decedent at the time of the conveyances to his children owned only a one-half interest in the properties. The District Court was correct in relying upon Sullivan’s Estate, which in our view states the applicable law. Parcel VII. We believe that the District Court erred in excluding the full value of parcel VII from decedent’s gross estate. It is true that decedent and his wife gave full consideration for parcel VII in which they received joint life estates with the remainder to their son. The consideration was a parcel of real estate equal in value with parcel VII and owned by decedent and his wife as tenants by the entireties. The conveyance by them to the Van Diens and the conveyance by the Van Diens to decedent and his wife occurred on the same day. The District Court ruled that the transaction constituted a purchase by decedent and his wife of joint life estates for themselves and of the remainder interest for their son as a gift. Looking through form to substance, however, decedent and his wife merely substituted one piece of property for another of equal value. The effect of the exchange of properties was a transfer of parcel VII which cannot be distinguished in substance from the transfer of parcels I through V. The transaction, therefore, should be treated for federal tax purposes as if the transfer of parcel VII had emanated from decedent and his wife and as if they had retained joint life interests therein. See Lehman v. Commissioner, 2 Cir., 109 F.2d 99, and Estate of Moreno v. Commissioner, 8 Cir., 260 F.2d 389. The judgment of the District Court is affirmed in part and reversed in part. The case is remanded for entry of a modified judgment consistent with this opinion. . The parcels are numbered I through.VII to correspond with the descriptions of the real estate included in the stipulation and in the estate tax return. . Section 2036 provides in part: “(a) General rule. — The value of the gross estate shall include the value of all property * * * to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), 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 possesion 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.” . Section 2040 provides in part: “The value of the gross estate shall include the value of all property * * * to the extent of the interest therein held as joint tenants by the decedent and any other person, or as tenants by the entirety by the decedent and spouse, * * * Provided, That where such property or any part thereof, or part of the consideration with which such property was acquired, is shown to have been at any time acquired by such other person from the decedent for less than an adequate and full consideration in money or money’s worth, there shall be excepted only such part of the value of such property as is proportionate to the consideration furnished by such other person: * * Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_usc1	21	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. Joseph C. GALLO; Frederick Graewe; Hartmut Graewe, Kevin Joseph McTaggart; Angelo A. Lonardo, Defendants-Appellants. Nos. 83-3288 to 83-3290, 83-3292, 83-3339, 83-3803 and 83-3804. United States Court of Appeals, Sixth Circuit. Argued Nov. 8, 1984. Decided May 29, 1985. Alan P. Caplan (argued), Cleveland, Ohio, for Joseph C. Gallo and Kevin Joseph McTaggart. Donna M. Congini, Cleveland, Ohio, William C. Bryson (argued), Washington, D.C., Steven R. Olah, Donna M. Congeni, Gregory B. English, Asst. U.S. Attys., Cleveland, Ohio, for the U.S. Edward F. Marek (argued), Public Defender, Cleveland, Ohio, for Frederick Graewe. Paul Mancino, Jr. (argued), Cleveland, Ohio, for Hartmut Graewe. Leonard W. Yelsky (argued), Cleveland, Ohio, for Angelo Lonardo. Before MERRITT, WELLFORD and MILBURN, Circuit Judges. WELLFORD, Circuit Judge. On appeal from their convictions on Racketeer Influenced and Corrupt Organization Act (“RICO”), Continuing Criminal Enterprise (“CCE”), and related counts, Joseph Gallo, Frederick (“Fritz”) Graewe, Hartmut (“Hans”) Graewe, Kevin McTaggart, and Angelo Lonardo, raise a total of thirty-five issues in the four appellant briefs filed. There are overlapping issues, however, and we will address how the issues relate to each of the appellants. Following a jury trial in the United States District Court for the Northern District of Ohio (Manos, J.), the five appellants were convicted on a variety of charges relating to their participation in murder, narcotics distribution, and gambling in the Cleveland, Ohio area. The jury found appellants Gallo, Hans Graewe, and McTaggart guilty of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (count 1). The jury also found those three appellants and Lonardo guilty of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (count 2). The jury further found all of the appellants, including Fritz Graewe, guilty of aiding racketeering through interstate travel, in violation of 18 U.S.C. § 1952 (counts 3 through 21), possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (count 35), and using the telephone to facilitate a narcotics offense, in violation of 21 U.S.C. § 843(b) (counts 40 through 48, 50 through 51, 53 through 55, and 57 through 58).I. Gallo, Hans Graewe, McTaggart, and Lonardo all were sentenced to life imprisonment on the continuing criminal enterprise count. In addition, Gallo, Hans Graewe, and McTaggart received concurrent sentences of 20 years’ imprisonment on the racketeering conspiracy count. On each of the Travel Act counts, the district court sentenced each appellant to consecutive terms of five years’ imprisonment. On the cocaine possession count, the court imposed a consecutive sentence of 15 years’ imprisonment on appellants Gallo, Hans Graewe, and McTaggart, and 10 years’ imprisonment on appellant Fritz Graewe. For the unlawful use of the telephone counts, the court imposed consecutive four year terms on Gallo, Hans Graewe, McTaggart, and Lonardo; two years’ imprisonment on Fritz Graewe. All five defendants appeal their convictions and the denial of their motions for new trial, which they filed while the appeal was pending. I. FACTUAL BACKGROUND We set out the facts in the light offered by the government and as apparently believed by the jury in reaching its verdicts. Between 1978 and 1982, appellants and others conspired to control the businesses of gambling and narcotics distribution in the city of Cleveland, Ohio. During that period, they fashioned an agreement between rival criminal factions on the east and west sides of the city, whereby they would jointly control and profit from their control of criminal activities. The evidence indicates that Lonardo was one of the leading directors and investors in the profitable but illicit joint enterprise, that Gallo was a high-level supervisor, and that Hans Graewe, McTaggart, and Fritz Graewe were regular participants in various criminal activities of the enterprise. The chief witness for the government was Carmen Zagaria, a co-conspirator and coordinator of the enterprise’s business activities. He testified in detail about the roles played by defendants and others in narcotics and gambling activities, as well as in violence and intimidation on behalf of the enterprise, which included at least seven murders during the four-year period covered by the indictment. The government called other co-conspirators as witnesses who testified about the criminal activities of the enterprise. The government introduced surveillance evidence and physical and wiretap evidence, which corroborate these witnesses’ testimony concerning murders and defendants' roles in gambling and narcotics activities. In January, 1978, Zagaria started dealing in marijuana. He began with small quantities, buying marijuana in one pound lots and selling it by the ounce, utilizing his tropical fish store on Lorain Avenue in Cleveland as a base of operations. Early in 1978, Zagaria met with Keith Ritson, another marijuana dealer; Zagaria and Ritson agreed to cooperate by supplying each other with marijuana as needed. Ritson told Zagaria that McTaggart was selling cocaine and marijuana for him. In May 1978, Zagaria sought to expand his marijuana business by finding investors for the business and by purchasing large quantities of marijuana in Florida. He agreed with Ritson to obtain marijuana in large lots, from which he would supply a portion of each shipment to Ritson for local distribution. At about the same time, Hans Graewe told another co-conspirator, James Coppola, that he was looking for a place to invest some money to make a quick profit. Graewe told Coppola that he had succeeded in “ripping off” one Orville Keith for $20,-000 in a narcotics transaction. When Keith realized that he had been “ripped off,” he began trying to force Graewe to return his money. Graewe told Coppola that he intended not only to keep the money but also to kill Keith to prevent any further bother about it. At Coppola’s suggestion, Graewe then invested $14,000 of the stolen funds in Zagaria’s marijuana business, and Zagaria agreed to pay him $1500 per week on this investment. In addition, Graewe’s brother, Fritz Graewe, agreed to sell marijuana for Zagaria. For the next four years, Fritz regularly purchased marijuana from Zagaria’s operation for resale; Hans also sold some of Zagaria’s marijuana, and he found other drug salesmen for Zagaria’s expanding marijuana business. Several months later, Zagaria repaid $8000 to Hans who said that he was going to buy a farm with the money; in fact, he subsequently acquired a nearby farm. Several months later, Zagaria made another repayment on Graewe’s investment by supplying him an ounce of cocaine and an amount of cash. In addition to these payments, Zagaria paid regular installments to Hans as originally agreed. Between 1974 and 1978, James Coppola worked as the overseer of a Barboot game located on Broadview Road in Cleveland. In that capacity, Coppola testified, he was working for the “west side” group, which included Ritson, Brian O’Donnell, McTaggart, and Danny Greene. The game came to an end in 1978 shortly after Danny Greene was killed in a bombing incident. In the summer of 1978, Thomas Sinito aproached Coppola and proposed to start a Barboot game that would be jointly sponsored by the rival groups of the east and west sides of Cleveland. Sinito proposed to “split the money and try to stop all this fighting between the east side and the west side.” Sinito was a member of the “east side” group, which controlled gambling on the east side of Cleveland. The representatives of the west side group, including Zagaria, Ritson, and Hans Graewe, agreed to go along with Sinito’s proposal to “end all the fighting and have a mutual gambling.operation which would benefit both sides of town, keep everybody happy, and split [sic] the profits.” Accordingly, Zagaria, Coppola, Hans Graewe, Ritson, and three other men arranged one night to close down the two competing games. They closed the first game without difficulty, and they took over a second game, which was then being run in downtown Cleveland. Zagaria and Ritson had sledge hammers with them when the group went to close the competing games, but Coppola told them, “We don’t need no sledge hammers. These are all old guys.” Coppola let the operator of the second game continue to run the game for the next week in order to try to recoup some of his expenses. He told the man, however, that “next week it is ours.” After Coppola’s group took over the downtown Barboot game, the two groups split the profits from the game evenly; in addition, Sinito directed Coppola to give 10 percent of the proceeds to Carmen Basile, the owner of a bar on Cleveland’s west side. When Coppola questioned that decision, Sinito replied, “Don’t ask questions; just out of respect for the old man, we will give him 10 percent.” In compliance with Sinito’s instructions, Coppola began giving Basile 10 percent of the receipts from the Barboot game. Basile, however, regularly charged that he was being cheated, and he and Coppola constantly bickered over the amount of Basile’s share. Ultimately, Sinito arranged a meeting to resolve the dispute. Appellant Gallo attended the meeting and told Coppola that Basile was going to supervise Coppola, and that Coppola would be Basile’s “underboss.” Basile subsequently referred to Gallo and Sinito as “two of my close associates from the east side.” After Coppola, Zagaria, Hans, and their associates took over the Barboot game, Coppola met with Sinito each week to divide up the proceeds from the game. Soon, McTaggart began delivering the “east side’s” share of the Barboot money to Sinito. Although McTaggart was not a full partner in the Barboot game, he was regularly given a share of the Barboot receipts. In August of 1978, Sinito asked Coppola if he knew someone who could handle a “contract” to kill one Harvey Rieger. Sinito said, “We have to get rid of this guy because he knows too much and he is getting ready to go to trial.” Coppola then checked with Keith Ritson, who said that he could handle the contract. Coppola reported Ritson’s willingness to perform the contract, and Sinito gave Coppola a $2500 advance to give to Ritson for the job. Ritson, however, made no effort to kill Rieger, and as a result, Coppola had to pay back the $2500 advance that Sinito had given him. Sinito then told Coppola that Ritson had defaulted on the contract, and that Coppola “ought to take care of that situation.” During the same period, Ritson told Zagaria that he wanted to attend a clam bake that was being held by members of the east side group, so that he could “kill a few of his old enemies.” In particular, Ritson said he wanted to kill James Licavoli and Angelo Lonardo. At about the same time, Ritson suggested that Hans and Zagaria should kill Sinito, but Zagaria refused. Zagaria, Coppola, and Hans met on a number of occasions to discuss their problems with Ritson. They suspected that Ritson was an informant and feared retaliation if he tried to kill Sinito. In addition, Hans wanted to eliminate Ritson because he wanted to take over Ritson’s share in the Barboot game, and because Ritson had “beat him” in a cocaine deal the previous spring. Ultimately, the three men decided to kill Ritson, and they made plans accordingly. On November 16, 1978, Ritson was invited to Zagaria’s pet store on a pretext. Hans and Zagaria were waiting for him there, and Hans shot and killed Ritson after his arrival. After shooting Ritson, Hans commented, “It looks like I’m back in the Barboot game.” Hans then called his brother Fritz to borrow a truck to move Ritson’s body. Hans and Zagaria dumped Ritson’s body in a local quarry. Hans later told Zagaria that he and his brother Fritz had run a file through the handgun that Hans had used to kill Ritson to avoid identification of the gun as the murder weapon. Coppola assured Sinito that the murder of Ritson had been carried out. Sinito subsequently told Zagaria that he had informed Lonardo that Zagaria was responsible for Ritson’s killing. When Zagaria later met Lonardo at a party, Lonardo told him, “I heard a lot of good things about you,” and advised him to “be careful.” In 1979, the conspirators arranged to open a craps game on the west side of town. As in the case of the Barboot game, they agreed to split the proceeds between the west side and east side groups. Zagaria, Hans, McTaggart, and Coppola agreed to take one-half of the game proceeds on behalf of the west side, while Sinito and Gallo agreed to sponsor the game on behalf of the east side. This new gambling operation was run out of a house in Linndale, Ohio, as arranged by Fritz and others. Gallo arranged for parking in the area with an associate. This game, however, was closed by the police shortly after it began operations. One of the operators of the game was Billy Bostic, a west side gambler. Bostic made $2500 on the game while it was in operation, but he claimed to have spent a large sum on the improvements to the house. He therefore refused to share the proceeds with the partners in the game. Zagaria subsequently discussed Bostic's actions with Gallo and Sinito, who also recounted problems with Bostic and several of his associates; Gallo commented that “maybe they are getting their little organization bigger than we thought.” Several of Bostic’s associates from the east side, they said, were making accusations about Licavoli and Lonardo and causing trouble. Sinito and Gallo then told Zagaria that Bostic was “a west side problem” and that Zagaria should “take care of your west side problems... contact your people and take care of this problem.” When Zagaria asked about Bostic’s three associates from the east side, Gallo and Sinito said that they would take care of their part of the problem, which was an east side problem. Gallo then said that he would offer $50,000 to anyone on the west side who would kill the three men associated with Bostic. Zagaria later discussed Bostic with Hans, and in June of 1980, Hans and McTaggart lured Bostic into the basement of Zagaria’s pet fish store, where they shot and killed him. At Hans’ direction, Fritz then brought Hans his “surgical tools” — a meat cleaver and a large knife — which were used to dismember Bostic’s body before disposal of his remains. Following the failure of' the Linndale gambling effort, Zagaria began to suspect that the operators of the Barboot game were cheating him and his partners. With the blessing of Gallo and Sinito, and with the assistance of Hans and McTaggart, Zagaria reorganized and directed the operation of the game. From June 1980 to early 1981, Zagaria ran the game, meeting with McTaggart, Hans, and Coppola on a daily basis, during which period the game was highly profitable.. Out of these gambling proceeds, Zagaria paid operating expenses and 10 percent of the gross receipts to Carmen Basile. Remaining profits were divided with representatives of the east side, Gallo and Sinito. In addition, Zagaria regularly gave McTaggart $50 to $100 per week from the Barboot receipts. In the fall of 1980, Sinito and Gallo asked Zagaria to let an east side representative, Phil Bonadonna, work at the Barboot game. Zagaria and Hans agreed to put Bonadonna to work at the game, if Bonadonna could bring in customers. Basile opposed it, and complained to Lonardo about Bonadonna. Zagaria spoke with Sinito and Lonardo about the matter, and Sinito told Zagaria to “respect Carmen Basile,” even though Basile was giving them “a headache over the Barboot game.” Lonardo later reiterated this instruction, directing Zagaria to “just respect Carmen Basile and don’t pay him no attention and at this time just respect him,” but told Zagaria to “keep the kid [Bonadonna] working.” Prior to his death, Ritson told Zagaria that McTaggart was one of his marijuana and cocaine “customers.” After Ritson’s murder, McTaggart obtained his cocaine and marijuana from Coppola, supplied by Zagaria. Ultimately, McTaggart arranged to obtain his supply of drugs directly from Zagaria, for distribution to his own customers. Zagaria then regularly delivered substantial quantities of marijuana and cocaine to McTaggart. As the drug business expanded, Zagaria began to use a crew of assistants to obtain drugs in Florida and to deliver them to Cleveland. One of Zagaria’s assistants testified that he began working for Zagaria in the fall of 1978, and that he soon became a regular “runner” for Zagaria, obtaining marijuana and cocaine in Florida and driving the loads back to Cleveland. In November 1978, Zagaria agreed to buy 100,-000 Quaalude (methaqualone) tablets from Sinito, paying $175,000 for them upon resale. Sinito subsequently arranged to sell bottles of illegally obtained prescription pills to Zagaria for $100 per bottle. The pills included Quaalude and Dilaudid tablets as well as a variety of barbiturates. Zagaria continued purchasing the pills on a regular basis for the next two years. He met with Sinito each week to make satisfactory arrangements. In February of 1979, Sinito asked Zagaria whether he was interested in purchasing a large amount of marijuana. Sinito then arranged a meeting between Zagaria and appellant Gallo. Following the meeting, Zagaria had one of his assistants pick up the marijuana and deliver it to a “stash house” he operated on the west side of Cleveland. About a week later, Zagaria paid Gallo and Sinito approximately $60,000 for the marijuana thus supplied. Shortly thereafter, Gallo and Sinito offered to sell a larger quantity of marijuana to Zagaria. Zagaria purchased the marijuana for approximately $225,000. At that time, Gallo and Sinito proposed to Zagaria that they had some “connections” in Florida from who Zagaria could obtain marijuana. Following that discussion, Sinito and Zagaria, together with several of Zagaria’s associates, traveled to Florida to buy marijuana, but were unable to consummate a deal. In May of 1979, Gallo and Sinito agreed to invest $25,000 in Zagaria’s marijuana business; they agreed that in exchange for their investment, Gallo and Sinito would share in the profits from the venture. That night or the next day, Zagaria sent one of his runners to Florida to purchase marijuana with $35,000 of his own money and the $25,000 Gallo investment. That transaction was followed by a series of marijuana purchases by Zagaria and his associates, using funds provided by Gallo and Sinito. Every week for the next two years, Zagaria met with Gallo and Sinito to discuss their marijuana operations and to divide the profits from this ongoing venture. By August of 1979, Zagaria was paying Sinito and Gallo between $2000 and $2500 per week on their investment. Gallo and Sinito then invested another $25,000 in the venture with Zagaria. In September 1979, Zagaria sent his assistant, Donn Newman, to Florida on three or four occasions to acquire marijuana. Zagaria would have a runner assistant pick up the marijuana and deliver it to one of his “stash houses.” Zagaria would then break the marijuana down into one-pound bags for delivery to his dealers. In October, Newman took $100,000 to Florida to buy marijuana, but $85,000 of the money was stolen by a drug supplier there. When told, Gallo suggested sending McTaggart to Florida to find and to kill the thief. The stolen money, however, was never recovered, and Zagaria looked to Gallo and Sinito for refinancing the narcotics business. Gallo and Sinito agreed to invest more money in the business, but they explained that while the first $25,000 investment had belonged to them personally, the second $25,000 investment had belonged to “the old timers,” indicating (to Zagaria) Lonardo. Since Zagaria was responsible for the loss of the $25,000 investment, he was required to pay interest of five percent per week on that money. For their further investment in his marijuana business, they required collateral. The new funds were stolen in a Florida rip-off as well. Zagaria reported the loss to Gallo and Sinito and told them, “We’re out of business.” The next month, Zagaria went to a Cleveland restaurant frequented by Lonardo. Inside, Zagaria encountered Sinito and Lonardo, and spoke with Sinito, who indicated that with collateral, Lonardo would lend him $50,000. When Zagaria offered diamonds as collateral, Sinito returned to and consulted Lonardo; by a nod to Zagaria, Lonardo indicated agreement. Zagaria then was directed to Gallo’s office; Gallo told him that Sinito was “next door picking up the money.” Shortly thereafter, Sinito arrived carrying $50,000 in a paper bag. Gallo and Sinito explained that a condition of the loan was that a representative of the “east side” would travel to Florida with Zagaria’s agent for the marijuana, and would handle the money. Zagaria paid interest of five percent per week on this new loan, in addition to that due on the prior loans, totalling about $5,000 in interest each week, and in addition to a share of the profits earned. Zagaria began making interest payments to Gallo and Sinito shortly after the new infusion of funds. Between November 1979 and May 1981, he paid them approximately $340,000 in interest alone, and more than $1,000,000 as their share of the profits from the drug distribution operation, all in periodic cash payments. Often Zagaria would be. accompanied by his associates, McTaggart and Hans when he made these payments. Zagaria was responsible for buying and selling the marijuana, but Gallo and Sinito provided him with marijuana suppliers in Florida and dealers in the Cleveland area. Zagaria followed the procedure of sending a “runner” to Florida to purchase the marijuana, accompanied by an “east side” representative on the trip. Zagaria would arrange to pick up the marijuana and place it in a “stash house,” where it would be weighed and packaged for distribution to the local dealers. Zagaria had as many as 30 runners working for him on various marijuana trips, each paid about $1,000 per trip. Gallo was monitored in a phone conversation in December, 1980 with an associate. Gallo discussed selling 1,000 pounds of high-quality marijuana, which “we can pick up in Miami.” In the same conversation, Gallo commented that “We need a landing strip of about 6500 feet to import a load of about 12,000 pounds.” Zagaria, Gallo, and Sinito did not limit themselves to marijuana dealing; in addition, Zagaria paid Sinito between $90,000 and $100,000 for prescription items. He also paid Sinito and Gallo some $200,000 for Quaalude tablets and over $150,000 for cocaine. In January of 1980, Zagaria traveled to Florida to try to reclaim some of the money that had been stolen from his drug runners. Gallo and Sinito donated Ronnie Anselmo, one of their associates, to serve as “muscle” for Zagaria’s efforts. Although Zagaria failed to get the money back, he was able to arrange additional large shipments of marijuana, both from Florida and from Atlanta, Georgia. Early in 1980, Zagaria, Gallo, and Sinito flew to Jamaica and contacted a pilot who could fly marijuana into the United States. In addition, they arranged for access to an airstrip at which both marijuana and cocaine could be imported. Zagaria arranged to use an airstrip in Tennessee, where he said the local sheriff “was on our side,” adding “we could pay him and land a plane there just about any time we wanted: September of 1980, one of Zagaria’s runners had possession of a rental car used on one of the drug supply trips. Because the car had not been returned to the rental agency, the police seized the car and discovered that it contained narcotics, paraphernalia, and cocaine. In McTaggart, who continued to obtain large amounts of marijuana and cocaine from Zagaria, had a number of dealers who worked under him, and whom he contacted on an almost daily basis. A McTaggart associate testified at trial that McTaggart regularly supplied cocaine and barbiturates to members of the Hell’s Angeles motorcycle group. Timothy Lindow, a McTaggart dealer, testified that he was looking for work when he got out of prison in early 1979, and that he had asked Coppola about any prospects. Coppola referred him to McTaggart, who agreed to let Lindow sell cocaine and Quaaludes for him. Lindow obtained cocaine and Quaaludes from McTaggart regularly until January 1980, when he was jailed for burglary. During the summer of 1979, however, McTaggart and Hans complained to Zagaria that Lindow owed money for drugs purchased and advised Zagaria they had to “put a little pressure” on Lindow. After Lindow’s release from jail in 1980, Hans and McTaggart met with him, not knowing that Lindow had agreed to cooperate with the FBI. Although Lindow did not tell them about his FBI relationship, McTaggart nonetheless searched Lindow for a hidden recording device when they met, and threatened him by a reminder about “what would happen to people like Keith Ritson.” Hans added to those threats by reference to Lindow’s wife and children. Allan Wysocki, involved with William Laszlo, one of Zagaria’s dealers in cocaine, was arrested without having paid Laszlo. When released in December 1980, Wyoscki was visited by Laszlo along with Hans. Laszlo demanded that Wysocki pay the cocaine debt. When Wysocki said he did not have the money, Hans informed Wysocki that he “definitely wouldn’t be walking around the next day” if he failed to find it. In addition to his services as an “enforcer,” Hans also recruited drug dealers for Zagaria’s operation, including in 1978, Larry Turner operator of a Zagaria “drug house.” Hans introduced Zagaria to Gary Young, who became a substantial marijuana dealer for Zagaria. Like McTaggart, Hans also had frequent conversations with Zagaria concerning drug customers. For instance, Hans and McTaggart spoke to Zagaria about allowing a barmaid named “Utah” to purchase marijuana; Hans subsequently advised Zagaria about another customer who would purchase small amounts of marijuana and LSD. Gallo and Sinito asked Zagaria in late 1979 if he were interested in joining “the Mafia.” Gallo and Sinito then described the organization of the group; that the head of the local Mafia had admitted no new members for 15 years, except themselves. Zagaria said that he had learned Basile was a “made member” of the Mafia, and that other members in Cleveland were Licavoli, the “boss”; Lonardo the under-boss; Gallo and Sinito; Anthony Liberatore; and a sixth member then living in Florida. JJasile had said he was the controller of the west side Mafia family, sponsored by Lonardo with respect to his 10 percent interest in the Barboot gambling. When Zagaria mentioned Lonardo’s name, Sinito and Gallo warned against ever using the name, but rather suggested that he refer to Lonardo and Licavoli as “the old-timers, the other guys, the old men, anything but their names.” In the fall of 1980, Gallo and Sinito spoke with Zagaria once again about joining the Mafia; Sinito intended to take Lonardo’s place, and they promised Zagaria that he would be put in charge of all the “soldiers.” Curtís Conley was a competing cocaine distributor, resisting McTaggart’s and Hans’ pressures to join them. In April 1980, Ronnie Starks, a cocaine dealer for McTaggart and Zagaria reported that Conley wanted to kill them both. In June, Gallo told McTaggart about a contract on his life; at that point Zagaria and McTaggart decided to confront this serious threat. They pretended to purchase cocaine from Conley, but instead shot him to death and stole a pound of cocaine Conley then possessed. Zagaria advised Hans and Gallo about Conley’s elimination. Zagaria also learned that another competitor, David Hardwicke, was trying to sell a kilogram of cocaine in the Cleveland area. Zagaria had dealt previously with Hardwicke. Zagaria and his associates decided to steal the kilogram. At a meeting with the Graewes and McTaggart, Fritz suggested choking Hardwicke with a coathanger. Zagaria agreed to share the proceeds from the sale of the stolen cocaine. The conspirators, under the pretext of purchasing the cocaine, lured Hardwicke into a car where Fritz strangled him with a coathanger, and the Graewes and McTaggart shot him. Zagaria took Hardwicke’s cocaine and sold it; he later shared the proceeds with each of the murder participants, as agreed. One of Hardwicke’s former partners subsequently gave Zagaria a $5,000 discount on a kilogram of cocaine for his service in disposing of Hardwicke. In November of 1980, one of Zagaria’s associates suggested stealing two kilograms of cocaine from Kenny Odom, suspected of a previous substantial theft from Zagaria’s organization. Zagaria talked with Hans and McTaggart about this proposal, and they agreed. Fritz and Robert Dumas, another of their associates, would pose as narcotics officers, and would then steal the cocaine in the course of a pretended arrest. McTaggart, Zagaria, and Hans supported Fritz and Dumas at the scene of the subsequent theft. Zagaria paid each of the participants a substantial sum for their efforts in eliminating Odom. In September 1980, Sinito and Gallo discussed with Zagaria another proposal to steal drugs from a principal supplier, Joseph Giaimo. Zagaria did not initially agree to go along with the plan since Giaimo was supplying large amounts of marijuana, cocaine and Quaaludes for him. Later Gallo and Sinito again discussed with Zagaria “ripping off” Giaimo. They finally agreed to steal a huge quantity of drugs from Giaimo and to kill him in the process. Accordingly, they arranged a marijuana purchase from Giaimo to occur at about the end of the year. They then sent a number of people to Florida to pick up a load of Giaimo’s marijuana. On the first trip, the runners returned from Florida with almost 800 pounds of marijuana. Gallo and Sinito told Zagaria that from the proceeds of the sale of Giaimo’s drugs, Zagaria would be able to pay the entire $124,500 that he still owed to the two “old timers” and would be able to make an additional profit on the transaction. Zagaria contacted Hans and explained the plan to him. On the night of January 17, 1981, Zagaria and Hans lured Giaimo into Zagaria’s pet fish store and killed him, bricking the body into a basement wall. The Giaimo theft enabled the conspirators to obtain marijuana worth more than $500,000, which was shared by the principal participants, including Zagaria, Sinito, Gallo, McTaggart, and the Graewes. Zagaria stored some of the marijuana at Fritz’s home until it could be distributed. In December 1980, Sinito asked Zagaria if he “had room in the pond to put someone,” referring to one of Zagaria’s drug dealers, David Perrier, who was challenging Lonardo and Licavoli. According to Sinito, Perrier was claiming that he had “buried a lot of people for Lonardo and Licavoli” and wanted payment. Later the same month, Zagaria saw Sinito and Lonardo together at the same restaurant. Sinito approached Zagaria, recounted the problems with Perrier, and asked if Zagaria would help. Sinito told Zagaria that Lonardo was so angry at Perrier that he wanted to kill him personally. In response, Zagaria replied that he would help. Sinito returned to Lonardo, who then nodded to Zagaria. Sinito later reported to Zagaria that with the assistance of an east side “muscle” man, he had killed Perrier. In February 1981, Zagaria met with Basile, who indicated he would tell Lonardo what good work Zagaria had been doing; “you should become a member, and Angelo would be proud.” Lonardo later congratulated Zagaria personally for his services; he told Zagaria, “I heard a lot of good things about you. You are doing a good job, and be careful.” Later that spring, Gallo again talked with Zagaria about joining the Mafia. If Gallo and Sinito were to be “bosses”, when Zagaria joined, he would be an “underboss.” Zagaria later told Hans about this conversation; Hans replied that Zagaria should join the group to learn “where everything is coming from.” On May 12, 1981, law enforcement authorities conducted warrant-authorized searches of Zagaria’s premises and those of several of his associates. Narcotics, drug paraphernalia, and firearms were discovered at several of the locations, including the residences of Zagaria and the Graewes. Subsequently, Zagaria transferred the day-to-day responsibility for running the drug business to Donn Newman. In August of 1981, Zagaria attended a party for Basile, at which Lonardo was present. Lonardo asked Zagaria how McTaggart was doing. In addition, he informed Zagaria to be careful, and not to wear so much jewelry in public. Sinito later told Zagaria that Lonardo had complained about his wearing too much jewelry. In late 1981, during the course of the FBI investigation of the defendants, Hans told one of his associates about his plan to kill two investigating FBI agents. The FBI was also informed that Zagaria was threatening the agents’ lives. FBI agents subsequently interviewed Lonardo concerning those reported threats, and Lonardo told them “we wouldn’t want that kind of headache.” Cleveland police officers conducted regular surveillance of several defendants for over two years during the pertinent period. Surveillance indicated that Lonardo met with Sinito on a daily basis at regular meeting places. Sinito and Gallo also met regularly, and Gallo joined Lonardo and Sinito at their meetings approximately once each week. Telephone records showed a huge volume of calls between telephones listed to Sinito and those listed to Zagaria, Gallo, and McTaggart. There were also large numbers of calls reflected between Zagaria and McTaggart, and between Hans and Zagaria, Fritz, and McTaggart. (The records indicated calls made to and from numbers attributed to the defendants above indicated). Only Gallo, among appellants, testified and he admitted being aware of Zagaria’s narcotics operation, but denied participation in it. He claimed that his dealings with Zagaria involved gems and jewelry. Gallo explained that the comments about marijuana in the tape-recorded conversations referred to his effort to obtain marijuana for a friend who needed it for medicinal purposes. Fritz offered evidence of witnesses that he held several jobs during the indictment period, and that he had no appreciable sum in his savings account during the time. Hans produced witnesses to discredit the Coast Guard reports regarding the Orville Keith incident. Lonardo called several witnesses who testified that Lonardo ate five days a week at a local restaurant that was the scene of the meetings about which Zagaria testified. They claimed they had never heard Lonardo discuss drugs, loansharking, or gambling while he was in the restaurant, and said that Lonardo was not present on several of the occasions to which Zagaria referred. McTaggart’s father testified that he was visiting with his son in the hospital on the day Conley was killed. II. DISCUSSION The five appellants herein raise over thirty issues, which they claim require reversal of their convictions. There is considerable overlap among appellants’ claims, and for clarity’s sake we will discuss the issues topically making reference as necessary to the facts pertaining individually to appellants’ arguments. A. SUFFICIENCY OF THE EVIDENCE Each appellant raises the issue of whether the government adduced sufficient evidence to support his conviction. In addressing the sufficiency of the evidence, this Court does not sit as a tri 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_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Elsie Mae Strother TURNER, Individually, and as Administratrix of the Estate of Her Minor Son, Jerry Jerome Turner, Plaintiff-Appellant, v. RAY GEOPHYSICAL DIVISION OF MANDREL INDUSTRIES, INC., Defendant-Appellee, and Humble Oil & Refining Company & Union Oil Company of California, Defendants. No. 71-2501 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 18, 1971. Max Zelden, Zelden & Zelden, New Orleans, La., for plaintiff-appellant. Peter G. Burke, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Ray Geophysical & Union Oil Co. E. Burt Harris, New Orleans, La., for Humble Oil. Before THORNBERRY, MORGAN and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc., v. Citizens Casualty Co. of New York, 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: Summary judgment was properly entered in favor of Ray Geophysical Division of Mandrel Industries, Inc. on the issue of tort immunity under the North Dakota Workmen’s Compensation Act, based upon the unopposed affidavits and the certificate of compensation premium payment in evidence before the district court. Therefore, we do not reach the issue of prescription. Affirmed. See Local Rule 21. . See NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5th Cir. 1970) Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_geniss	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. Michael Henry WARD, Defendant-Appellant. No. 26375. United States Court of Appeals, Ninth Circuit. June 28, 1971. Volney V. Brown, Jr. (argued), Beverly Hills, Cal., for defendant-appellant. Eric Nobles, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee. Before CHAMBERS, CARTER and WRIGHT, Circuit Judges. JAMES M. CARTER, Circuit Judge: Ward was convicted for violation of 50 U.S.C. App. § 462, refusal to submit to induction. We reverse. On March 18, 1968, Ward was ordered to report for induction. That same day, the induction was “postponed until further notice”, and Ward was reclassified I-S(C) [student deferment] “until October 1968.” On March 29, 1968, Ward completed and returned Selective Service Form 150, in which he described his conscientious objection to war. The board then classified Ward I-A-0 [eligible for non-combatant military training] on April 17, 1968. Within the 30-day appeal period, Ward visited the local board offices and, in response to his inquiries, a board secretary allegedly informed him that he could not appeal his I-A-0 classification without “new evidence.” In mid-June of 1968, Ward withdrew from his college courses with the intention of enrolling in a “bible school” to become a minister. On August 16, 1968, Ward received a new induction order and, after one postponement, reported on January 9, 1969, but refused induction. The question presented on appeal is whether the local board erred on April 17 by classifying Ward I-A-0 at a time when he was a college student and legally entitled to a I-S(C) deferment. The Government asserts that Ward requested a I-A-0 classification by filing his Form 150 on March 20, and the board merely granted his request on April 17. It is correct that a Form 150 incorporates a request for exemption. It might also be considered “informational”, however, in view of a registrant’s duty to report to the board the occurrence of any fact that might bear upon his classification [32 C.F.R. § 1625.1]. Thus, it is possible that Ward filed the Form 150 to announce the crystallization of his C.O. beliefs as groundwork for establishing “sincerity” for future I-A-0 classification when his I-S(C) deferment expired. Such a conclusion would seem more plausible than that insisted upon by the Government, to wit —a professed C.O. requested immediate reclassification from a I-S(C) deferred status to a I-A-0 draft-eligible status. The Form 150 in use at that time [2-10-66 version] also provided that if a C.O. claim was made, “the local board shall proceed in the prescribed manner to determine [registrant’s] proper classification.” The “prescribed manner” referred to is specifically set forth in 32 C.F.R. § 1623.2, to wit: “Consideration of Classes. Every registrant shall be placed in Class I-A under the provisions of section 1622.-10 of this chapter except that when grounds are established to place a registrant in one or more of the classes listed in the following table, the registrant shall be classified in the lowest class for which he is determined to be eligible, with Class I-A-0 considered the highest class and Class I-C considered the lowest class according to the following table: I-A-O, I-O, I-S * * [emphasis added]. Thus, the local board violated its own regulation by removing Ward’s I-S(C) deferment and substituting the “higher” I-A-0 classification. This court has held that an induction order based upon an erroneous classification is invalid. United States v. Brandt, (9 Cir. 1970) 435 F.2d 324, 327; Franks v. United States, (9 Cir. 1954) 216 F.2d 266, 270; Goetz v. United States, (9 Cir. 1954) 216 F.2d 270, 272. As to prejudice, if Ward had been retained in Class I-S(C) until he withdrew from college in mid-June, his subsequent reclassification to I-A would have given rise to two consecutive 30-day periods in which Ward could request a personal appearance and, if unsuccessful there, request an appeal to the State Board. Even assuming absolute efficiency in the review process, the board could not have validly issued an induction order until after the date of the order here involved. The prejudice resulting from the premature issuance of an induction order is obvious in view of the severe limitations upon reopening a classification and presenting new evidence provided by 32 C.F.R. § 1625.2. See, United States v. Zablen, (9 Cir. 1971) 436 F.2d 1075. Accordingly, Ward’s conviction based upon refusal to submit to this invalid induction order is reversed. The mandate shall issue forthwith. . The Government did not raise the issue of Ward’s apparent failure to exhaust his administrative remedies within the Selective Service System. Therefore, that issue is not before this court on appeal. . The board was under a mandatory (i. e. not discretionary) duty to place and retain Ward in Class I-S until the end of the academic year or until he ceased to satisfactorily pursue his course of study. 50 U.S.C. App. § 456 (i) (2) ; 32 C.F.R. § 1622.15; United States v. Zablen, (9 Cir. 1971) 436 F.2d 1075, 1076. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES, Appellee, v. Kenneth L. RAUCH, Appellant. No. 83-1546. United States Court of Appeals, Eighth Circuit. Submitted Sept. 9, 1983. Decided Sept. 15, 1983. George W. Proctor, U.S. Atty., E.D. Ark. by Kenneth F. Stoll, First Asst. U.S. Atty., Little Rock, Ark., for appellee. Mark S. Cambiano, Morrilton, Ark., for appellant, Kenneth L. Rauch. Before HEANEY, ROSS and ARNOLD, Circuit Judges. PER CURIAM. Kenneth L. Rauch appeals from the District Court’s order finding him guilty of criminal contempt for violating an injunction prohibiting him from engaging in business as a livestock dealer. Rauch contends that the District Court erred in finding that he was acting as a dealer and in imposing an excessive sentence. I. The charges in this case stem from Rauch’s purchase and sale of livestock during the period April 1, 1982, to June 30, 1982. The government contended that these purchases violated three prior district court orders permanently enjoining Rauch from engaging in the business of a dealer, within the meaning of the Packers and Stockyards Act of 1921, 7 U.S.C. §§ 201 et seq., without registering with the Secretary of Agriculture and obtaining a bond or its equivalent as required by the Act, 7 U.S.C. §§ 203, 204. The court first issued the injunction on April 3, 1964, and reaffirmed it on January 19, 1972, and February 27, 1976. The government charged Rauch with twenty-eight counts of violating the court’s order. Each count represented a purchase or sale of cattle during the three-month period in issue. The court found Rauch guilty of acting as a dealer on twenty-one counts in which the purchase and sale of cattle were tied together. For purposes of sentencing the court merged the counts that represented matched purchase-and-sale transactions. The District Court sentenced Rauch to 120 days in prison and $2,400 in fines.. It also suspended imposition of sentence on several counts and sentenced Rauch to two years’ probation to follow the period of incarceration. II. Rauch’s first contention on appeal is that he was not a “dealer” and consequently was not required to register or give a bond. At trial Rauch did not deny that any of the transactions took place or that he was not registered or bonded, but argued that he was acting as a rancher (Tr. 114) and that the purchases were necessary to augment his herd. Any immediate resales, he said, were the result of incidental culling of the cattle purchases (Tr. 117-122, 129). During the thirteen-week period in issue, Rauch attended livestock auctions four days per week — Mondays, Tuesdays, Thursdays, and Saturdays (Tr. 136). Rauch made 13 purchases from Clark County Livestock, 13 purchases from Cattleman’s Livestock Market, 12 purchases from Lewis Livestock Company, and 13 purchases from Searcy County Auction (Tr. 136). On 46 occasions, Rauch sold cattle to Millsap Packing Company (Tr. 48). The evidence presented by the government traced 60 of the 240 head of cattle Rauch purchased over this time period. The government did not attempt to trace all the cattle purchased and sold during this period, but only those sold through Millsap Packing and the above mentioned auction barns (Tr. 103). Each transaction is described in the Appendix to the District Court’s opinion. A particularly telling and not uncommon example of Rauch’s transactions is presented in Counts X and XI, in which Rauch purchased twelve head of cattle from Lewis Livestock on April 27, 1982, and resold all twelve head, plus one, the following day to Millsap Packing. Rauch had about 400 head of cattle on 500 acres of land (Tr. 132). Rauch testified that to increase his herd he would purchase low-grade cattle which could be examined only after the sale (Tr. 118-120). If they were fit to graze, he would take them to his ranch (Tr. 119). If not, he would immediately sell them to a packing house (Tr. 129). He testified that he made money only off the cattle which he fattened before reselling (Tr. 124), but in fact he did lose money on some immediate sales of low-grade cattle to the packing house (Tr. 130, 149). Rauch also testified that he spoke with a representative of the Packers and Stockyards Administration, a Mr. Tuggle, before beginning his ranching operation in 1976, and was told that his method of operating would come within the definition of farmer or rancher — one who substantially changes the condition of cattle before selling it — and so avoid the licensing and bonding requirements for dealers (Tr. 115-117, 138-139). Rauch was unable to locate Tuggle to testify at trial, as he had retired (Tr. 115-116). The District Court disregarded this testimony as self-serving (Sentencing Tr. 10). The District Court found that Rauch’s intent in purchasing the cattle was not to increase his herd, but to buy cattle for resale to a slaughterhouse, and that he was therefore acting as a dealer within the scope of the Act. The finding is amply supported by the evidence. III. Rauch also asserts that the sentence imposed is excessive. This Court has held that a sentence of six months in prison was excessive for a dealer’s failing to register and furnish a bond under the Act where the defendant had no prior criminal record; his conduct was not shockingly contemptuous; he did not have enough money to obtain a bond; and he complied with the Act after his conviction. In re Van Meter, 413 F.2d 536, 538 (8th Cir.1969). No such mitigating circumstances are present in this case, and the sentence is not so severe. The District Court could properly consider the following relevant factors at Rauch’s sentencing hearing: In imposing a penalty for criminal contempt, “the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.” United States v. United Mine Workers, supra, 330 U.S. [258] at 303, 67 S.Ct. [677] at 701 [91 L.Ed. 884]. In re Van Meter, 413 F.2d at 538. The court determined that Rauch acted willfully and deliberately in defiance of its orders. Rauch admitted in his presentence report that he did not feel livestock violations were serious. He also had a history of violating agricultural laws, as evidenced by the prior injunctions in 1964, 1972, and 1976, and a 1977 conviction for transporting diseased cattle in interstate commerce. His failure to obtain a bond resulted in lawsuits by at least one auction house to recover a debt for cattle sold, a situation the bond would have avoided (Sentencing Tr. 8-10). Rauch had incurred fines of only $1,100 in 1964, $500 in 1972, and $1,000 in 1976, for his prior violations of the Act. The sentence is not excessive. Affirmed. . The Hon. Elsijane Trimble Roy, United States District Judge for the Eastern and Western Districts of Arkansas. 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_two_issues	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean 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. Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellees. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellants, v. Roy A. OAKLEY et al., Appellees. Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States et al., Appellees. Nos. 12918, 12971, 13033. United States Court of Appeals District of Columbia Circuit Argued Jan. 31, 1956. Decided March 29, 1956. Mr. Josiah Lyman, Washington, D. C., for appellants in Nos. 12,918 and 13,023, and appellees in No. 12,971. Mr. William F. Becker, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellees in Nos. 12,918 and 13,023 and appellants in No. 12,971. Mr. Oliver Gasch, Principal Asst. U. S. Atty., also entered an appearance for appellants in No. 12,971. Before EDGERTON, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges. PER CURIAM. This litigation is similar to the Tour-lanes cases (Tourlanes Publishing Co. v. Summerfield), 97 U.S.App.D.C. -, 231 F.2d 773. Oakley is a photographer and not a publisher. However, he sells numerous admittedly innocuous books and publications, in addition to the photographs found by the Post Office Department to be obscene. The judgment of the District Court, which was similar to its order in Tourlanes, will likewise be affirmed (No. 12,971). During oral argument, counsel for Oakley made the same statement concerning his cross-appeal as was made by counsel for Tour-lanes. On a like basis, the appeals by Oakley will be dismissed (Nos. 12,918 and 13,023). So ordered. Question: Are there two issues in the case? A. no B. yes Answer:
songer_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Juanita NICHOLSON, Plaintiff-Appellee, v. GEORGIA DEPARTMENT OF HUMAN RESOURCES, (DHR), James G. Ledbetter, individually and in official capacity as Commissioner, Georgia Dept. of Human Resources, Defendant, Thomas R. Gaines, individually and in his official capacity as Director, DHR Division of Rehabilitative Services, Gene A. Wallace, individually and in his official capacity as Director of Planning Research and Special Projects, DHR Division of Rehabilitative Services, Paula McIntoch, individually and in her official capacity as Director of Management Support Services, DHR Division of Rehabilitative Services, Defendants-Appellants, Jane Shepard, individually and in her official capacity as Director of Quality Assurance and Human Resources Development, DHR Division of Rehabilitation Services, Defendant. No. 89-8435. United States Court of Appeals, Eleventh Circuit. Nov. 27, 1990. Rehearing Denied Jan. 8, 1991. George P. Shingler, Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants. Alice D. Bonner, Oakley & Bonner, Atlanta, Ga., for plaintiff-appellee. Before ANDERSON and EDMONDSON, Circuit Judges, and GODBOLD, Senior Circuit Judge. ANDERSON, Circuit Judge: Appellee Juanita Nicholson, an employee of the Georgia Department of Human Resources (“DHR”), initiated this action against, inter alia, defendants Thomas Gaines, Gene Wallace and Paula McIntosh, several of her superiors at DHR. These defendants raised a defense of qualified immunity. The district court’s denial of that defense is the subject of this appeal. Until July, 1986, Nicholson, along with two male individuals, worked in the planning unit of the Division of Rehabilitation Services of the DHR. As of July 1, 1986, this unit was abolished and all three members of the unit were reassigned by defendants to other work positions. Although Nicholson made other claims below, this appeal involves only Nicholson’s claim that her transfer and treatment constitutes sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution pursuant to 42 U.S.C. § 1983. The district court’s denial of defendants’ motion for summary judgment based on qualified immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Qualified immunity is an affirmative defense that must be pleaded by the government official being sued in his or her individual capacity. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). In evaluating a defendant’s claim to qualified immunity, the following standard is applied: “[Gjovernment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate the clearly established statutory or constitutional rights of which a reasonable person should have known.” Id. at 818, 102 S.Ct. at 2738. As presently formulated, this standard serves as a shield to all government officials except the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990). Application of this standard requires the court to conduct its review through the eyes of an objective, reasonable government official: could a reasonable official have believed his or her actions to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred? See Anderson v. Creighton, 483 U.S. 635, 641-42, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Malley, 475 U.S. at 345, 106 S.Ct. at 1098. Unless it can be said that the state of the law was of such clarity that a reasonable official should have been on notice that his or her challenged conduct was unlawful, that official is entitled to qualified immunity. Clark v. Evans, 840 F.2d 876, 880 (11th Cir.1988). In satisfying this burden, the plaintiff cannot point to sweeping propositions of law and simply posit that those propositions are applicable. See Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987). Instead, the plaintiff must draw the court’s attention toward a more particularized and fact-specific inquiry. Stewart at 1504. Under this inquiry, the plaintiff need not point to one or more cases that resolved the precise factual issues at issue in his or her case. See, e.g., Waldrop v. Evans, 871 F.2d 1030, 1034-36 (11th Cir.1989); Parker v. Williams, 862 F.2d 1471, 1476-77 (11th Cir.1989). “[Although the standard is fact-specific, it is not one of factual rigidity.” Stewart at 1504. Rather, the plaintiff need only show that there existed sufficient case law establishing the contours of his or her constitutional rights such that the unlawfulness of the defendant’s conduct would have been apparent to a reasonable official in the same circumstances and possessing the same knowledge as the defendant. Anderson, 483 U.S. at 638-40, 107 S.Ct. at 3038-39. If no such case law exists, then the defendant is entitled to qualified immunity. This standard presents two distinct questions of law. First, we must determine whether the legal norms allegedly violated by the defendants were clearly established at the time the defendants acted. Second, if the legal norms that defendants allegedly violated were clearly established, then we must determine whether the plaintiff has adduced evidence sufficient to create a genuine issue of fact as to whether the defendants engaged in conduct violative of the clearly established right. Stewart at 1503. Defendants argue in brief that the only evidence which Nicholson has adduced at the summary judgment stage is that the two male colleagues who were transferred at the same time plaintiff was transferred were offered choices relating to their new positions, while plaintiff was not. Defendants argue that plaintiff has adduced no other evidence from which intentional sex discrimination could be inferred. Thus, defendants argue that Nicholson has failed to adduce proof of a constitutional violation, and that a reasonable government official could have believed that such conduct was lawful. The flaw in defendants' argument is that there was other evidence from which intentional sex discrimination could have been inferred. In addition to the disparate treatment noted in defendants’ argument, i.e., that the two male employees were offered options as to their new position while Nicholson was not, there was other evidence. There was evidence from which the fact-finder could find that the new job to which Nicholson was transferred was in effect a demotion. She was assigned an office in a small, windowless storage room that had no ventilation, had an average temperature in excess of 84 degrees, and was without a telephone for over a month. Nicholson’s new office was generally referred to by employees as the “junk room” or “hot box.” It had not served as an office previous to that time, nor was it again used as an office after Nicholson finally obtained a different office. In spite of her complaints concerning the office, Nicholson was unable to secure bona fide office space for over a year. At least two different male employees with less seniority were provided better office space during this period. Nicholson’s job responsibilities were substantially diminished after her transfer. Although she was a member of the professional staff, her new job entailed performance of menial tasks, best characterized as clerical work. Until she filed a charge of discrimination, defendants would not even formulate a work plan detailing her duties in her new job position. Additionally, she was the only employee at her grade level to be supervised by an individual who is not a section or unit chief. Both the State Merit System and the DHR Personnel Department considered her new position to be a downgrade. Because of her diminished responsibilities and duties, her ability to obtain training and experience necessary for future promotions was severely restricted, and her entitlement to certain levels of retirement pay has been compromised. In contrast to Nicholson’s new job, the two comparable male employees who were transferred at the same time were transferred to new assignments in accordance with their wishes. When Nicholson sought out one of the defendants to discuss transfer to her new job, Nicholson was told that it was “not negotiable.” The record reveals no evidence indicating that defendants’ treatment of Nicholson was based upon legitimate, non-discriminatory reasons. Based upon all of the evidence in the summary judgment record, we conclude that Nicholson has adduced evidence sufficient to create a genuine issue of fact as to whether defendants treated her differently from male employees solely because of her sex. We also conclude that such conduct would violate clearly established constitutional rights. For a considerable time now, the law has been quite clear that such government action that discriminates on the basis of sex is unconstitutional, unless that conduct is, at minimum, substantially related to the furtherance of an important government interest. See Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). For the foregoing reasons, the judgment of the district court denying defendants’ motion for summary judgment on the basis of qualified immunity is AFFIRMED. EDMONDSON, Circuit Judge, concurs in the result. . Accompanying the defendants’ motion for summary judgment was a document entitled "Statement of Material Facts As To Which There Is No Issue To Be Tried.” This "Statement” presented the defendants’ version of the facts and was premised almost entirely upon various depositions. The depositions have not been made a part of the record on appeal. Without the depositions to substantiate the factual representations contained within this "Statement,” this court is unable to rely upon those assertions in reviewing the district court’s order. See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980). Similarly, the plaintiff, in opposing the defendants’ motion for summary judgment, filed a rather lengthy document responding to the each "fact” alleged in the defendants' "Statement." As with the defendants’ "Statement," many of these responses contained within the plaintiff's response reference various depositions that have not been included in the record on appeal. Accordingly, this court has not relied upon these unsubstantiated, unsworn statements in this appeal. However, the record on appeal does include substantial evidence supporting the plaintiff's claim. See Rl-22 (Exhibits D through Q filed on May 25, 1988, by the plaintiff accompanying her response to the defendants' "Statement”). The basis for our factual discussion is derived almost exclusively from these unrebut-ted materials. Although the defendants did submit other factual evidence in support of their motion for summary judgment, the majority of this evidence went to rebutting the plaintiff’s claim that the defendants violated the retaliation prohibitions of Title VII, 42 U.S.C. § 2000e-3(a), and did not address the plaintiff's sex discrimination claim. To the extent that the paucity of the record weakens the defendants’ claims concerning the applicability of qualified immunity, we note that the defendants, as appellants, bore the responsibility of providing this court with a factual record sufficiently complete to allow a reasoned assessment of their claims. See Crawford v. Western Electric Co., 614 F.2d 1300, 1304 (5th Cir.1980); Green v. Aetna Ins. Co., 397 F.2d 614, 619 (5th Cir.1968). . Indeed, defendants do not argue on appeal that it would not violate clearly established constitutional norms for defendants to discriminate on the basis of sex. Rather, their argument is that there has been no sex discrimination. 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_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 Thomas A. BEARDSHALL and Annamae Beardshall, his wife v. MINUTEMAN PRESS INTERNATIONAL, INC., Appellant. No. 81-1387. United States Court of Appeals, Third Circuit. Argued Oct. 14, 1981. Decided Nov. 17, 1981. Rehearing and Rehearing In Banc Denied Dec. 22, 1981. Robert L. Potter (argued), Titus Marcus & Shapira, Pittsburgh, Pa., for appellant; Andre Weitzman, Braiterman & Johnson, P. A., Baltimore, Md., of counsel. Maurice A. Nernberg, Jr. (argued), Nernberg & Laffey, Pittsburgh, Pa., for appellees. Before HUNTER, ROSENN, and WEIS, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. The twin issues on appeal in this diversity case stem from the instructions of the trial court to the jury. The plaintiffs, Thomas A. Beardshall. and his wife Annamae, brought suit in the United States District Court for the Western District of Pennsylvania charging the defendant, Minuteman Press International, Inc. (Minuteman), a nationwide franchisor, with having committed common law fraud under Pennsylvania law when it entered into a franchise agreement with the Beardshalls. The jury returned a verdict for plaintiffs in the sum of $70,000. The defendant filed a motion for a new trial and the plaintiffs filed a motion for a new trial on damages. The district court denied both motions and Minuteman has appealed. We reverse. I. In March 1978 Thomas Beardshall attended a start-your-own-business trade show in Pittsburgh where he spoke to a Minuteman representative. Beardshall, a college graduate, testified at trial that the representative gave him promotional literature, told him of the opportunities in the printing business, and showed him a financial statement of a company operated store which the representative described as a “typical mid-range operation.” The company representative further informed Beardshall that a Minuteman franchise would carry its own operating expenses from the start, and should turn a profit in three to six months and provide a reasonable income within six to twelve months. Subsequently, Beards-hall communicated with Minuteman’s offices in Pittsburgh and visited a recently opened franchise in the area with another Minuteman representative who reviewed Beardshall’s projected calculations on volume and profit. The Beardshalls indicated their interest in obtaining a franchise in Pittsburgh, signed a preliminary agreement and made a deposit. Later, they decided to move to Savannah, Georgia. Minuteman officials tried to discourage them because they thought a Pittsburgh location had better potential. The Beardshalls, however, pressed for a location in Savannah and ultimately executed a franchise agreement with Minuteman for a Savannah location. After a two week training period they opened for business on July 31, 1978. Dissatisfied with their first month’s business and their projections as to future earnings, the Beardshalls wrote to Minuteman on September 5,1978, and sought rescission of the agreement. Minuteman refused. The Beardshalls closed the shop on November 23, 1978, and returned to Pittsburgh. They thereupon instituted this lawsuit against Minuteman. H. In his instructions to the jury, the trial judge charged, inter alia, that the plaintiffs bore the burden of proving their case “by a fair preponderance of the evidence.” He defined at length what was meant by this burden of proof and also instructed the jury fully on the common law of fraud. Defense counsel at the time, replaced on this appeal, took no exceptions and stated that he had no objections to the charge. After a full day of deliberation, the jury informed the court that it was “hung.” The court released the jurors for the day with instructions to resume their deliberations the next morning. The following morning the jury sent this message to the court: “Could you repeat the six points of fraud we are supposed to go by? In writing? ” The trial judge thereupon had a statement typed containing the jury’s question and the six elements of fraud, displayed it to counsel for the parties, and advised them that he intended to submit the document to the jury. Defense counsel objected to the submission on the ground that repetition of a section of the charge might emphasize an aspect which could be prejudicial to the defendant, especially if in writing. Despite the objection, the court had the writing delivered to the jury. Shortly thereafter, it returned its verdict for the plaintiffs. On appeal, Minuteman contends that the district court reversibly erred in two aspects of its instructions. First, the court committed plain and fundamental error in instructing the jury that the plaintiffs must prove their case by a preponderance of the evidence when, under the applicable Pennsylvania common law, they were obligated to meet the much higher standard of proving fraud “by clear and convincing evidence.” Second, it erred when, having given entirely oral instructions to the jury, it submitted to them over defendant’s objection a typewritten, highly condensed statement of the substantive law of fraud which necessarily emphasized plaintiffs’ theory of the case. III. In determining whether the instructions on the burden of proof warrant reversal, we must first decide what burden Pennsylvania law places on those attempting to prove fraud. Then, if the charge was erroneous, we must determine whether the defendant can on this record raise the error on appeal and whether the error is so grave as to justify reversal. In a recent decision the Supreme Court of Pennsylvania held that fraud or intent to defraud must be proved by “ ‘evidence that is clear, precise and convincing.’ ” Snell v. Pennsylvania, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980) (citations omitted). In earlier cases the terminology varied. For example, in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 73, 97 A.2d 71, 74 (1953), two formulations for the burden of proof were used, “clear and convincing or ... clear, precise and indubitable.” Whatever the formulation, it is evident that under Pennsylvania law fraud must be proved by a higher standard than the preponderance of the evidence standard charged by the trial judge. The plaintiffs contend that the “clear, precise, and convincing” standard enunciated by the cases is one only to be applied by the trial judge in deciding whether the case should be submitted to the jury. Once it is submitted to the jury, argue the plaintiffs, the jury’s sole function is to determine which evidence is true. Therefore, the trial court having submitted this case to the jury, the plaintiffs conclude it committed no error when it instructed the jury that the plaintiffs had to prove their case by a fair preponderance of the evidence. This argument is implausible and must be rejected. Plaintiffs misread the cases they cite. Those cases stand only for the proposition that the trial judge must decide as a matter of law before he submits a case to the jury whether plaintiffs’ evidence attempting to prove fraud is sufficiently clear, precise and convincing to make out a prima facie case; they do not hold that once that burden is met, the jury may apply a lesser standard of proof in determining which evidence is true. Thus, if the trial judge determines there is sufficient evidence from which the jury could reasonably find that the plaintiffs have proven fraud according to this standard of proof, the judge may then submit the case to the jury. “ ‘Whether the evidence is true is a question of fact ... but whether it meets the required standard which justifies its submission to the jury ... is always a question of law ....’” Aliquippa National Bank ex rel. Woodlawn Trust Co. v. Harvey, 340 Pa. 223, 231, 16 A.2d 409, 414 (1940), quoted in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 68, 97 A.2d 71, 72 (1953); M. H. Davis Estate Oil Co. v. Sure Way Oil Co., 266 Pa.Super. 64, 68, 403 A.2d 95, 97 (1979). The trial judge still has the duty to instruct the jury as to the proper burden of proof which plaintiffs must meet under the applicable law. The elements of fraud were central to this case and the proper standard of proof to be applied was critical. Thus, the district court’s erroneous jury instructions would normally require reversal. The troublesome question posed by the plaintiffs, however, is that counsel for Minuteman did not raise the issue of the erroneous charge during the trial; he took no exceptions and in fact acquiesced in the charge. The plaintiffs, therefore, assert that the defendant is precluded by Federal Rule of Civil Procedure 51 from raising it now. Rule 51 reads in part, “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” There is, however, a judicially created exception to Rule 51, the “plain error” doctrine, which this circuit recognizes. For example, in McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir.1960), this court found that the trial court in its jury instructions had failed to explain the application of the principles of law to the various possible factual conclusions. The court determined that Rule 51 did not preclude the raising of this issue on appeal, though no objection had been made to the trial court’s instructions, because the error was fundamental. This court’s application of the plain error doctrine was explicated in United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978) (footnote omitted), rev’d on other grounds, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979): [W]e have the discretion to review instructions sua sponte if the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice. Plaintiffs’ argument that the error in the charge is not plain or fundamental error is refuted by this court’s ruling in Ratay v. Lincoln National Life Insurance Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). In Ratay, we unequivocally held the trial judge’s charge that under Pennsylvania law the elements of fraud must be proved by a preponderance of the evidence was fundamental error. Although counsel at trial had taken a general exception to the charge, we observed that his failure to object specifically to the erroneous burden of proof would under Rule 51 ordinarily have barred consideration of that error on appeal. But because the error related to a critical issue, as it does here, and because it did not affirmatively appear from the record that the error was not prejudicial, this court determined that a new trial was necessary. Applying this reasoning to the instant case compels us to reach the same result. Plaintiffs, however, assert that because the Pennsylvania Supreme Court in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1976), abandoned the plain error doctrine, this court may no longer apply the doctrine in cases governed by Pennsylvania substantive law. But at least three circuits have indicated that the failure to object to jury instructions and the consequences thereof are procedural and are to be governed by federal law. In Stewart v. Ford Motor Co., 553 F.2d 130, 139-40 n.9 (D.C.Cir.1977), Judge Skelly Wright, in writing for the court, noted: It is well established that, in federal courts, allegations of failure to object to jury instructions and the consequences of such failures are procedural and not substantive issues and, accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 1962). We agree with the characterization of the failure to object to the instruction as procedural and hold that a new trial is necessary because of fundamental error committed in the charge on the burden of proving fraud. IV. Because this case must be remanded to the district court for a new trial, we believe that we should offer some guidelines on the second issue raised by the defendant, the supplemental condensed written instruction. In the oral charge on the elements of common law fraud, the court laid down the six elements and- then carefully explained them. His explanation set forth qualifications to the elements of fraud and these embodied the defendant’s theory of its case. For example, the oral charge carefully explained the distinction between factual misrepresentation, which may be actionable, and statements of opinion or mere “puffery” or salesmanship. The written submission merely set forth a skeletal, abstract outline of the elements of fraud; it made no allusion to qualifications or the defendant’s theory of the case. Minuteman complains that inclusion of the explanatory material would have been necessary to avoid misleading the jury. The defendant further hypothesizes that the written instruction tended to mute the oral instruction in the memory of the jury and thus effectively displaced the explanation of terms of art and the defendant’s theory found in the oral instructions, thereby prejudicing the defendant’s case. Giving supplemental instructions to the jury is usually a delicate and sensitive task requiring the exercise of judgment and skill. The task becomes even more delicate when the principal charge is oral and the supplemental instructions are in writing because of the risk of accentuating a segment of the charge by reducing it to writing. But as the plaintiffs argue, the court has a duty to respond to a jury’s request for specific instructions and the form and extent of supplemental instructions are within the sound discretion of the court. In Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir. 1975), cited by the plaintiffs, the court noted that supplemental instruction, when requested by the jury in whole or in part, “seems to be almost universally upheld in the Courts of Appeals.” The court further held that the failure of the district court to respond to the jury’s question as to the effect of plaintiff’s contributory negligence on defendant’s liability in a personal injury action was reversible error. But in so holding, the court explained some of the precautions to be observed which are of relevance here. An aspect of an overall charge can be amplified and explained, in response to a jury’s inquiry, without prejudicially emphasizing any one aspect of the case. Ordinarily the district judge need not repeat the entire charge. He can remind the jury of the other aspects of the case covered by his charge and he should caution them that the aspect of the charge which he amplifies and explains should not be given undue weight and should be considered in the light of his other instructions. Id. at 1037 (emphasis supplied). In First Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (5th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), the court found no error in a written supplemental outline to the jury of the elements which the plaintiff had to prove in his case. The court, however, noted that it found no reversible error because the district court had “specifically and repeatedly instructed the jury ... that the elements written down were contested and constituted only an outline of those items on which [the plaintiff] bore the burden of proof.” Id. The court thus implied that had the district court failed to qualify and explain the skeletal nature of the instructions, the resulting prejudice to the defendant could have constituted reversible error. In the case at bar, the written statement to the jury listing seriatim the “bare bones” elements of fraud contained no qualifying instructions and lacked the amplification of the original oral charge. As submitted, the writing listed the elements of the Beardshalls’ case and, therefore, emphasized their theory of the case. Furthermore, there is the risk that the jury might have used the writing as a checklist, relying solely on its language for content and ignoring the more elaborate and explanatory oral instructions. Although we do not disapprove a limited supplemental instruction to the jury in writing, especially when the jury requests that it be in writing, the practice has risks. If it is used, trial courts should avoid prejudicial emphasis on part of the case by carefully reminding the jury of other aspects of the original charge and cautioning them that the segment of the charge which is amplified or explained should be considered in the light of the other instructions and is not to be given undue weight. The judgment of the district court will be reversed and the case remanded to the district court with directions to award the defendant a new trial. . The plaintiffs are Pennsylvania citizens residing in Pittsburgh. The defendant is a corporation chartered under the laws of New York which has its principal offices in Farmingdale, New York. . The trial court applied Pennsylvania law. On appeal, the parties agree that Pennsylvania law governs. . The pertinent portion of defense counsel’s objection to the written supplementary instruction was: I’m objecting to the submission of a written answer to the plaintiffs’ questions. I, also, object to a portion of the Court’s charge being singled out and repeated, and repeated in writing. I think it’s possibly prejudicial. It may highlight some particular point or section of the charge that I don’t think is proper to highlight, and I’m objecting to the submission of this written answer by the Court. . The cases cited by plaintiffs are Highmont Music Corp. v. J. M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363, 366 (1959); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71, 72 (1953); Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604, 606 (1976); Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A.2d 658, 661 (1971). . On remand the district court, relying on an intervening state court opinion, again applied the “fair preponderance of the evidence” rule. On subsequent appeal, this court held that the district court had misread the intervening decision of the Supreme Court of Pennsylvania and reaffirmed the principle that fraud in the making of a contract must be established by proof which is “clear, precise and indubitable.” We noted that the Supreme Court of Pennsylvania recognized the basic difference between the two standards of proof and indicated, as we had held, that “in Pennsylvania the difference between the two standards of proof is a matter of substantial significance and not a mere verbal variation.” Ratay v. Lincoln Nat’l Life Ins. Co., 405 F.2d 286, 290 (3d Cir. 1968). . The Fifth Circuit disapproves of the practice of furnishing the jury with a written copy of the court’s instructions. United States v. Perez, 648 F.2d 219 (5th Cir. 1981); United States v. Hooper, 575 F.2d 496 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978). The Seventh Circuit apparently approves of the practice. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979). Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_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. H. HERFURTH, JR., INC., v. UNITED STATES. No. 3881. Circuit Court of Appeals, Fourth Circuit. Oct. 8, 1935. Edmund D. Campbell, of Washington, D. C. (Hugh H. Obear, of Washington, D. C., Gardner L. Boothe, of Alexandria, Va., and Douglas, Obear, Morgan & Campbell, of Washington, D. C., on the brief), for appellant. H. H. Holt, Jr., Asst. U. S. Atty., of Norfolk, Va. (George C. Sweeney, Asst. Atty. Gen., Sterling Hutcheson, U. S. Atty., of Norfolk, Va., and Wm. S. Ward, Attorney, Department of Justice, of Washington, D. C., on the brief), for the United States. Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge. SOPER, Circuit Judge. This suit was brought by H. Herfurth, Jr., Inc., a Virginia corporation, against the United States under the Tucker Act, 28 USCA § 41 (20), to recover the sum of $6,250 for damages for alleged breach of a contract between the plaintiff and the United States. Upon the conclusion of the evidence, the District Court granted a motion of the United States for a directed verdict, and from the judgment based thereon, this appeal was taken. On November 20, 1930, the corporation undertook to demolish the Center Market Building in Washington, D. C., belonging to the United States, under a contract which provided that the contractor should receive as compensation a certain sum of money, and, with certain reservations, all the materials in the building belonging to the United States. A recreation center was located on the second floor of the building at the time the contract was made. It contained twenty-five bowling alleys which had been firmly affixed to the floor. When the alleys were installed, numerous holes were cut in the original flooring, and the space between the flooring and the ceiling of the rooms beneath was packed with sawdust to deaden the noise. It was found, when the alleys were removed, that the flooring could not he used as such on account of the holes cut to admit the sawdust, and on account of the holes left when the bolts, screws, and nails used in affixing the alleys were removed. The government paid the contractor the sum of money agreed upon for the removal of the building: hut the contractor did not receive the bowling alleys themselves, which had an estimated value of $6,250. These were removed by one Harry I. Carroll, a former tenant, with the consent and approval of the Assistant Secretary of the Treasury, who represented the United States in the transaction. The contractor seeks in this action to hold the United States responsible for its failure to get this valuable material. The district judge held that the bowling alleys were trade fixtures, installed by a former tenant, and as such were not the property of the United States, and that the United States had not broken its contract with the plaintiff, and that the plaintiff was not entitled to recover anything. The bowling alleys were installed in the building in September, 1924, by a partnership consisting of Carrie Carroll, Sarah Ornstein, and Edward A. Cafritz, trading as the Colosseum Health Center. Subsequently on June 28, 1930, the United States leased a portion of the second floor, containing the bowling alleys, for a term of six months to Harry I. Carroll for the purpose of conducting a bowling alley business. The record does not show that there was any connection between this tenant and the firm which installed the alleys in 1924. The contractor knew that Carroll was a tenant in possession of the second floor, when the contract was made, and permitted him to remain temporarily in possession during tiie demolition, for the rental of $700 per month; but the contractor did not know that Carroll claimed the bowling alleys as his property. On the contrary, the value of the bowling alleys, as salvage, was taken into consideration by the contractor in entering into the contract to raze the building. When the contractor learned that the tenant claimed the bowling alleys and intended to remove them, it requested the Treasury Department to notify the tenant that he had no right to the fixtures; but the Assistant Secretary of the Treasury replied that the alleys belonged to the tenant, and that the Department was without authority to prevent their removal, and that any action on the part of the contractor to prevent the removal must be taken at its own risk. Notwithstanding the damaged condition in which the building was left by the removal of the bowling alleys, the contention that they were trade fixtures, installed by a tenant and removable by him at or before the conclusion of his lease, is not without support under the evidence in the case. In Hanrahan v. O’Reilly, 102 Mass. 201, the tenant’s right to remove bowling alleys as trade fixtures before the end of his term was upheld against a grantee of the landlord. See, also, Van Ness v. Pacard, 2 Pet. 137, 7 L. Ed. 374; Wiggins Ferry Co. v. Ohio & M. Railway Co., 142 U. S. 396, 12 S. Ct. 188, 35 L. Ed. 1055; In re Montello Brick Works (D. C.) 163 F. 624; In re Lexington Motors Co. (C. C A.) 294 F. 233; Bee Bldg. Co. v. Daniel (C. C. A.) 57 F.(2d) 59. This rule seems to have been in the minds of the parties to the lease from the United States to Harry I. Carroll covering the last six months of 1930, for there was stricken from the printed form of lease used a provision that all fixtures and improvements, whether made at the expense of the lessee or not, should become the property of the United States and should not be removed by the lessee. Nevertheless, we shall assume for the purposes of this decision that the alleys were not the property of the tenant Carroll, and that he had no lawful right to remove them; for the evidence fails to show that he had any title thereto. They were installed in 1924, under a" lease held by a partnership of which he was not a member, and there is nothing whatever in the record to prove that he acquired any right, title, or interest from the earlier tenants. So far as we know, those tenants made no claim to the alleys as trade fixtures when they left the premises upon the expiration of their lease, and made no conveyances of any sort to Carroll. In this view of the situation, Carroll had no more right to remove the alleys than an outsider who had never had any legal interest in the premises. It is true that when the controversy arose, the Secretary of the Treasury expressed the opinion that the bowling alleys were Carroll’s property, but the factual basis for this position is not disclosed, and obviously we may not accept it as decisive of the controversy. We are of the opinion, however, that the judgment of the District Court should be affirmed. The United States did not break its, agreement with the contractor, and whatever wrong the contractor suffered, assuming that the alleys were unlawfully removed by Carroll, was perpetrated by him and not by the federal government. The contractor contends that the government by affirmative action prevented it from receiving the property, but we think that this view cannot be sustained. It is true that the Treasury official in charge for the United States declined to notify Carroll that the alleys belonged to the contractor, and that he should not remove them, and, on the contrary, warned the contractor that it was without authority to prevent the removal by Carroll; but after all, this expression of opinion, doubtless given in perfect good faith, did not amount to a breach of contract. The specifications of the contract made no express reference to the bowling alleys, but provided broadly that all materials removed, with certain reservations, should become the property of the contractor; and the government did nothing to deprive the contractor of the enjoyment of this right. Possession of the structure was given_ to the contractor on January 1, 1931, while the alleys were still in place. The contractor itself extended Carroll’s tenancy, and finally stood by and permitted him to remove the fixtures in dispute. The situation was in its hands, and although it expressed its dissatisfaction, it did nothing to prevent the removal of the property by Carroll or to test the validity of his claim. Its right of action, if any existed, was not against the United States for breach of contract, but against Carroll for the unlawful conversion of the property. Affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JULIAN v. NICHOLSON. No. 9956. Circuit Court of Appeals, Eighth Circuit. July 18, 1934. Halbert II. McCluer, of Kansas City, Mo. (William H. Wilson, of Kansas City, Mo., on the brief), for appellant. Donald E. Lyons, of Kansas City, Mo. (Leslie J. Lyons, of Kansas City, Mo., on the brief), for appellee. Before GARDNER and SANBORN, Circuit Judges, and DEWEY, District Judge. GARDNER, Circuit Judge. In this action at law tried to the court without a jury on stipulation of the parties, appellant, as plaintiff below, sought to recover of the appellee the sum of $4,500 as damages for the wrongful conversion of personal property in the form of a cashier’s cheek issued by the Fidelity National Bank & Trust Company of Kansas City, Mo. We shall refer to the parties as they appeared in the lower court. One George E. Davidson, being threatened with criminal prosecution in Kansas, employed the plaintiff, who was an attorney, to represent him in connection with his defense. Needing funds for payment of a fee to his attorney, and other expenses resulting from the threatened prosecution, Davidson called upon the Uhls Clinic, Inc., whose business seems to have been transacted through I)r. Kenn B. Uhls, its president, and received a cashier’s cheek for $4,500 issued by the Fidelity National Bank & Trust Company, payable to the order of Dr. Uhls, and by him indorsed in blank. Davidson in turn delivered this check to .plaintiff in payment of attorney fees for services thereafter to be rendered, and for expenses. On January 8,1924, a few days subsequent to the time plaintiff procured the cashier’s check, he caused it to be presented to the Fidelity National Bank & Trust Company of Kansas City for payment. Payment was refused on the ground that there was some question as to the title of Uhls, and the hank wrote across the faee of the cheek in red ink, “Presented for payment by Mrs. Kenn B. Uhls this January the 8th, 1924, and payment refused because of a dispute as to the title thereto.” Plaintiff later personally presented the check for payment, and was advised that a writ of garnishment -had been served upon the bank in some proceeding brought by a creditor of the Uhls Clinic, Inc., and the funds against which the check was drawn were therefore impounded. About January 13, 1924, the defendant, Nicholson, was appointed receiver of the Uhls Clinic, Inc., in a suit instituted against it in the United States District Court for the District of Kansas, and ordered to take possession of all the assets of said company. Learning of the outstanding cashier’s cheek in possession of plaintiff, he made demand for it of plaintiff as a part of the assets of said Uhls Clinic, Inc., whereupon, without protest or condition, plaintiff surrendered the cheek to the defendant as such receiver. Defendant then deposited the cheek to his credit as receiver, and thereafter paid out its proceeds in discharge of claims allowed by the United States District Court for the District of Kansas, and pursuant to orders of that court. The receivership was terminated and defendant discharged. At no time during the receivership did plaintiff assert any claim to the check or its proceeds, nor did he make any demand on the defendant with reference thereto until after he had learned that defendant had been discharged and had paid out the proceeds of the cheek in payment of allowed claims against the Uhls Clinic, Inc. The court concluded that the plaintiff Was estopped to maintain this action against the defendant, and entered judgment dismissing his petition. Fiona, the judgment so entered plaintiff has appealed. We think the only substantial question presented by the record is whether or not the court erred in holding that the plaintiff was estopped to maintain his action. The $4,500 cashier’s cheek issued by the Fidelity National Bank & Trust Company, payable to Kenn B. Uhls, was issued against a portion of the proceeds of a $50',000 bond issue to the Uhls Clinic, Inc., of which Kenn 3. Uhls was the president. The Uhls Clinic, Inc., was, at the time it received the remittance of the proceeds of the bond issue, in serious financial embarrassment and apparently was insolvent. As has already been stated, when defendant as receiver made demand upon the plaintiff for the possession of this cashier’s cheek as a part of the assets of the Clinic Company, it was delivered over to him by plaintiff without protest. He then -proceeded to administer the estate, including the proceeds of this cashier’s cheek, and plaintiff asserted no title to this property until after defendant had disbursed it in the payment of claims of the Clinic, and until the estate had been closed up and he had been discharged.- Plaintiff knew the capacity in which defendant was acting when he delivered the cheek to him. He knew that defendant claimed the check as a part of the assets of the Clinic Company, and that the defendant had no other claim upon it. Plaintiff now seeks to hold defendant personally, and, if plaintiff prevails, defendant will be the loser of $4,50». There is no doubt that had plaintiff refused, to deliver this check to the defendant when demand was made upon him, then the relative rights of the parties could have been judicially determined. Whether or not the defendant as receiver could have recovered the check from plaintiff as a preference, a fraudulent transfer, or on other grounds, need not be here considered. The plaintiff elected not to assert his right to the cheek. The defendant relied upon his election, and plaintiff cannot now as against the defendant assert a right inconsistent to the position taken by him when he turned the cheek over. The doctrine of estoppel requires of a party consistency of conduct when inconsistency would work substantial injury to the other party. There is no claim that when plaintiff turned the cheek over to the defendant, he was without knowledge of his rights; nor is there any claim that he was not aware of the fact that the defendant was claiming the cheek as part of the assets of the Clinic Company. It appears conclusively that the defendant acted upon the acquiescence of plaintiff in defendant’s asserted right to the property. Defendant has changed his position in reliance thereon, and he was justified in so doing. Under these circumstances, it seems clear that plaintiff cannot be permitted to assert any right to the check, or the proceeds thereof. California Prune & Apricot Growers v. El Reno Wholesale Gro. Co. (C. C. A. 8) 15 F.(2d) 839; Dustin Grain Co. v. McAllister (C. C. A. 8) 296 F. 611; Baker v. Schofield, 243 U. S. 114, 37 S. Ct. 333, 61 L. Ed. 636; Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187; Dickerson v. Colgrove, 100 U. S. 578, 25 L. Ed. 618; Swain v. Seamens, 9 Wall. 254, 19 L. Ed. 554; Gregg v. Von Phul, 1 Wall. 274, 17 L. Ed. 536; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703; Mayer v. McCracken, 245 Ill. 551, 92 N. E. 355; Pool v. Harrison, 18 Ala. 514. The judgment appealed from is therefore affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

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