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sc_casedisposition	D	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. SEDIMA, S. P. R. L. v. IMREX CO., INC., et al. No. 84-648. Argued April 17, 1985 Decided July 1, 1985 White, J., delivered the opinion of the Court, in which BURGER, C. J., and Rehnquist, Stevens, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Powell, JJ., joined, post, p. 500. Powell, J., filed a dissenting opinion, post, p. 523. Franklyn H. Snitow argued the cause for petitioner. With him on the brief was William H. Pauley III. Richard Eisenberg argued the cause for respondents. With him on the brief were Alfred Weintraub and Joel I. Klein. Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Norman C. Gorsuch of Alaska, John Van de Kamp of California, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael Lilly of Hawaii, Jim Jones of Idaho, Neil Hartigan of Illinios, Linley E. Pearson of Indiana, David L. Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Edward L. Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Brian McKay of Nevada, Irwin L. Kimmelman of New Jersey, Paul Bardacke of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, Anthony Celebrezze of Ohio, Michael Turpén of Oklahoma, David Fronmayer of Oregon, Dennis J. Roberts II of Rhode Island, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, W. J. Michael Cody of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Kenneth O. Eikenberry of Washington, Charlie Brown of West Virginia, Bronson C. La Follette of Wisconsin, Archie G. McClintock of Wyoming; for the State of New York by Robert Abrams, Attorney General, and Robert Hermann, Solicitor General; for the City of New York et al. by Frederick A. O. Schwarz, Jr., James D. Montgomery, and Barbara W. Mather; and for the County of Suffolk, New York, by Mark D. Cohen. Briefs of amici curiae urging affirmance were filed for the Alliance of American Insurers et al. by James F. Fitzpatrick and John M. Quinn; for the American Institute of Certified Public Accountants by Philip A. Lacovara, Jay Kelly Wright, Kenneth J. Bialkin, and Louis A. Craco; and for the Securities Industry Association by Joel W. Stemman, Eugene A. Gaer, and William J. Fitzpatrick. Justice White delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968, provides a private civil action to recover treble damages for injury “by reason of a violation of” its substantive provisions. 18 U. S. C. § 1964(c). The initial dormancy of this provision and its recent greatly increased utilization are now familiar history. In response to what it perceived to be misuse of civil RICO by private plaintiffs, the court below construed § 1964(c) to permit private actions only against defendants who had been convicted on criminal charges, and only where there had occurred a “racketeering injury.” While we understand the court’s concern over the consequences of an unbridled reading of the statute, we reject both of its holdings. I-H RICO takes aim at “racketeering activity,” which it defines as any act “chargeable” under several generically described state criminal laws, any act “indictable” under numerous specific federal criminal provisions, including mail and wire fraud, and any “offense” involving bankruptcy or securities fraud or drug-related activities that is “punishable” under federal law. § 1961(1). Section 1962, entitled “Prohibited Activities,” outlaws the use of income derived from a “pattern of racketeering activity” to acquire an interest in or establish an enterprise engaged in or affecting interstate commerce; the acquisition or maintenance of any interest in an enterprise “through” a pattern of racketeering activity; conducting or participating in the conduct of an enterprise through a pattern of racketeering activity; and conspiring to violate any of these provisions. Congress provided criminal penalties of imprisonment, fines, and forfeiture for violation of these provisions. § 1963. In addition, it set out a far-reaching civil enforcement scheme, § 1964, including the following provision for private suits: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” § 1964(c). In 1979, petitioner Sedima, a Belgian corporation, entered into a joint venture with respondent Imrex Co. to provide electronic components to a Belgian firm. The buyer was to order parts through Sedima; Imrex was to obtain the parts in this country and ship them to Europe. The agreement called for Sedima and Imrex to split the net proceeds. Imrex filled roughly $8 million in orders placed with it through Sedima. Sedima became convinced, however, that Imrex was presenting inflated bills, cheating Sedima out of a portion of its proceeds by collecting for nonexistent expenses. In 1982, Sedima filed this action in the Federal District Court for the Eastern District of New York. The complaint set out common-law claims of unjust enrichment, conversion, and breach of contract, fiduciary duty, and a constructive trust. In addition, it asserted RICO claims under § 1964(c) against Imrex and two of its officers. Two counts alleged violations of § 1962(c), based on predicate acts of mail and wire fraud. See 18 U. S. C. §§ 1341, 1343, 1961(1)(B). A third count alleged a conspiracy to violate § 1962(c). Claiming injury of at least $175,000, the amount of the alleged over-billing, Sedima sought treble damages and attorney’s fees. The District Court held that for an injury to be “by reason of a violation of section 1962,” as required, by § 1964(c), it must be somehow different in kind from the direct injury resulting from the predicate acts of racketeering activity. 574 F. Supp. 963 (1983). While not choosing a precise formulation, the District Court held that a complaint must allege a “RICO-type injury,” which was either some sort of distinct “racketeering injury,” or a “competitive injury.” It found “no allegation here of any injury apart from that which would result directly from the alleged predicate acts of'mail fraud and wire fraud,” id., at 965, and accordingly dismissed the RICO counts for failure to state a claim. A divided panel of the Court of Appeals for the Second Circuit affirmed. 741 F. 2d 482 (1984). After a lengthy review of the legislative history, it held that Sedima’s complaint was defective in two ways. First, it failed to allege an injury “by reason of a violation of section 1962.” In the court’s view, this language was a limitation on standing, reflecting Congress’ intent to compensate victims of “certain specific kinds of organized criminality,” not to provide additional remedies for already compensable injuries. Id., at 494. Analogizing to the Clayton Act, which had been the model for § 1964(c), the court concluded that just as an antitrust plaintiff must allege an “antitrust injury,” so a RICO plaintiff must allege a “racketeering injury” — an injury “different in kind from that occurring as a result of the predicate acts themselves, or not simply caused by the predicate acts, but also caused by an activity which RICO was designed to deter.” Id., at 496. Sedima had failed to allege such an injury. The Court of Appeals also found the complaint defective for not alleging that the defendants had already been criminally convicted of the predicate acts of mail and wire fraud, or of a RICO violation. This element of the civil cause of action was inferred from §1964(c)’s reference to a “violation” of § 1962, the court also observing that its prior-conviction requirement would avoid serious constitutional difficulties, the danger of unfair stigmatization, and problems regarding the standard by which the predicate acts were to be proved. The decision below was one episode in a recent proliferation of civil RICO litigation within the Second Circuit and in other Courts of Appeals. In light of the variety of approaches taken by the lower courts and the importance of the issues, we granted certiorari. 469 U. S. 1157 (1984). We now reverse. II As a preliminary matter, it is worth briefly reviewing the legislative history of the private treble-damages action. RICO formed Title IX of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922. The civil remedies in the bill passed by the Senate, S. 30, were limited to injunctive actions by the United States and became §§ 1964(a), (b), and (d). Previous versions of the legislation, however, had provided for a private treble-damages action in exactly the terms ultimately adopted in § 1964(c). See S. 1623, 91st Cong., 1st Sess., §4(a) (1969); S. 2048 and S. 2049, 90th Cong., 1st Sess. (1967). During hearings on S. 30 before the House Judiciary Committee, Representative Steiger proposed the addition of a private treble-damages action “similar to the private damage remedy found in the anti-trust laws.... [T]hose who have been wronged by organized crime should at least be given access to a legal remedy. In addition, the availability of such a remedy would enhance the effectiveness of title IX’s prohibitions.” Hearings on S. 30, and Related Proposals, before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 520 (1970) (hereinafter House Hearings). The American Bar Association also proposed an amendment “based upon the concept of Section 4 of the Clayton Act.” Id., at 543-544, 548, 559; see 116 Cong. Rec. 25190-25191 (1970). See also H. R. 9327, 91st Cong., 1st Sess. (1969) (House counterpart to S. 1623). Over the dissent of three members, who feared the treble-damages provision would be used for malicious harassment of business competitors, the Committee approved the amendment. H. R. Rep. No. 91-1549, pp. 58, 187 (1970). In summarizing the bill on the House floor, its sponsor described the treble-damages provision as “another example of the antitrust remedy being adapted for use against organized criminality.” 116 Cong. Rec. 35295 (1970). The full House then rejected a proposal to create a complementary treble-damages remedy for those injured by being named as defendants in malicious private suits. Id., at 35342. Representative Steiger also offered an amendment that would have allowed private injunctive actions, fixed a statute of limitations, and clarified venue and process requirements. Id., at 35346; see id., at 35226-35227. The proposal was greeted with some hostility because it had not been reviewed in Committee, and Steiger withdrew it without a vote being taken. Id., at 35346-35347. The House then passed the bill, with the treble-damages provision in the form recommended by the Committee. Id., at 35363-35364. The Senate did not seek a conference and adopted the bill as amended in the House. Id., at 36296. The treble-damages provision had been drawn to its attention while the legislation was still in the House, and had received the endorsement of Senator McClellan, the sponsor of S. 30, who was of the view that the provision would be “a major new tool in extirpating the baneful influence of organized crime in our economic life.” Id., at 25190. r — I I — I HH The language of RICO gives no obvious indication that a civil action can proceed only after a criminal conviction. The word “conviction” does not appear in any relevant portion of the statute. See §§1961, 1962, 1964(c). To the contrary, the predicate acts involve conduct that is “chargeable” or “indictable,” and “offense[s]” that are “punishable,” under various criminal statutes. § 1961(1). As defined in the statute, racketeering activity consists not of acts for which the defendant has been convicted, but of acts for which he could be. See also S. Rep. No. 91-617, p. 158 (1969): “a racketeering activity... must be an act in itself subject to criminal sanction” (emphasis added). Thus, a prior-conviction requirement cannot be found in the definition of “racketeering activity.” Nor can it be found in § 1962, which sets out the statute’s substantive provisions. Indeed, if either § 1961 or §1962 did contain such a requirement, a prior conviction would also be a prerequisite, nonsensically, for a criminal prosecution, or for a civil action by the Government to enjoin violations that had not yet occurred. The Court of Appeals purported to discover its prior-conviction requirement in the term “violation” in § 1964(c). 741 F. 2d, at 498-499. However, even if that term were read to refer to a criminal conviction, it would require a conviction under RICO, not of the predicate offenses. That aside, the term “violation” does not imply a criminal conviction. See United States v. Ward, 448 U. S. 242, 249-250 (1980). It refers only to a failure to adhere to legal requirements. This is its indisputable meaning elsewhere in the statute. Section 1962 renders certain conduct “unlawful”; § 1963 and § 1964 impose consequences, criminal and civil, for “violations” of § 1962. We should not lightly infer that Congress intended the term to have wholly different meanings in neighboring subsections. The legislative history also undercuts the reading of the court below. The clearest current in that history is the reliance on the Clayton Act model, under which private and governmental actions are entirely distinct. E. g., United States v. Borden Co., 347 U. S. 514, 518-519 (1954). The only specific reference in the legislative history to prior convictions of which we are aware is an objection that the treble-damages provision is too broad precisely because “there need not be a conviction under any of these laws for it to be racketeering.” 116 Cong. Rec. 35342 (1970) (emphasis added). The history is otherwise silent on this point and contains nothing to contradict the import of the language appearing in the statute. Had Congress intended to impose this novel requirement, there would have been at least some mention of it in the legislative history, even if not in the statute. The Court of Appeals was of the view that its narrow construction of the statute was essential to avoid intolerable practical consequences. First, without a prior conviction to rely on, the plaintiff would have to prove commission of the predicate acts beyond a reasonable doubt. This would require instructing the jury as to different standards of proof for different aspects of the case. To avoid this awkwardness, the court inferred that the criminality must already be established, so that the civil action could proceed smoothly under the usual preponderance standard. We are not at all convinced that the predicate acts must be established beyond a reasonable doubt in a proceeding under § 1964(c). In a number of settings, conduct that can be punished as criminal only upon proof beyond a reasonable doubt will support civil sanctions under a preponderance standard. See, e. g., United States v. One Assortment of 89 Firearms, 465 U. S. 354 (1984); One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235 (1972); Helvering v. Mitchell, 303 U. S. 391, 397 (1938); United States v. Regan, 232 U. S. 37, 47-49 (1914). There is no indication that Congress sought to depart from this general principle here. See Measures Relating to Organized Crime, Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 388 (1969) (statement of Assistant Attorney General Wilson); House Hearings, at 520 (statement of Rep. Steiger); id., at 664 (statement of Rep. Poff); 116 Cong. Rec. 35313 (1970) (statement of Rep. Minish). That the offending conduct is described by reference to criminal statutes does not mean that its occurrence must be established by criminal standards or that the consequences of a finding of liability in a private civil action are identical to the consequences of a criminal conviction. Cf. United States v. Ward, supra, at 248-251. But we need not decide the standard of proof issue today. For even if the stricter standard is applicable to a portion of the plaintiff’s proof, the resulting logistical difficulties, which are accepted in other contexts, would not be so great as to require invention of a requirement that cannot be found in the statute and that Congress, as even the Court of Appeals had to concede, 741 F. 2d, at 501, did not envision. The court below also feared that any other construction would raise severe constitutional questions, as it “would provide civil remedies for offenses criminal in nature, stigmatize defendants with the appellation ‘racketeer,’ authorize the award of damages which are clearly punitive, including attorney’s fees, and constitute a civil remedy aimed in part to avoid the constitutional protections of the criminal law.” Id., at 500, n. 49. We do not view the statute as being so close to the constitutional edge. As noted above, the fact that conduct can result in both criminal liability and treble damages does not mean that there is not a bona fide civil action. The familiar provisions for both criminal liability and treble damages under the antitrust laws indicate as much. Nor are attorney’s fees “clearly punitive.” Cf. 42 U. S. C. § 1988. As for stigma, a civil RICO proceeding leaves no greater stain than do a number of other civil proceedings. Furthermore, requiring conviction of the predicate acts would not protect against an unfair imposition of the “racketeer” label. If there is a problem with thus stigmatizing a garden variety defrauder by means of a civil action, it is not reduced by making certain that the defendant is guilty of fraud beyond a reasonable doubt. Finally, to the extent an action under § 1964(c) might be considered quasi-criminal, requiring protections normally applicable only to criminal proceedings, cf. One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), the solution is to provide those protections, not to ensure that they were previously afforded by requiring prior convictions. Finally, we note that a prior-conviction requirement would be inconsistent with Congress’ underlying policy concerns. Such a rule would severely handicap potential plaintiffs. A guilty party may escape conviction for any number of reasons — not least among them the possibility that the Government itself may choose to pursue only civil remedies. Private attorney general provisions such as § 1964(c) are in part designed to fill prosecutorial gaps. Cf. Reiter v. Sonotone Corp., 442 U. S. 330, 344 (1979). This purpose would be largely defeated, and the need for treble damages as an incentive to litigate unjustified, if private suits could be maintained only against those already brought to justice. See also n. 9, supra. In sum, we can find no support in the statute’s history, its language, or considerations of policy for a requirement that a private treble-damages action under § 1964(c) can proceed only against a defendant who has already been criminally convicted. To the contrary, every indication is that no such requirement exists. Accordingly, the fact that Imrex and the individual defendants have not been convicted under RICO or the federal mail and wire fraud statutes does not bar Sedima’s action. > l — l In considering the Court of Appeals’ second prerequisite for a private civil RICO action — “injury... caused by an activity which RICO was designed to deter” — we are somewhat hampered by the vagueness of that concept. Apart from reliance on the general purposes of RICO and a reference to “mobsters,” the court provided scant indication of what the requirement of racketeering injury means. It emphasized Congress’ undeniable desire to strike at organized crime, but acknowledged and did not purport to overrule Second Circuit precedent rejecting a requirement of an organized crime nexus. 741 F. 2d, at 492; see Moss v. Morgan Stanley, Inc., 719 F. 2d 5, 21 (CA2 1983), cert. denied sub nom. Moss v. Newman, 465 U. S. 1025 (1984). The court also stopped short of adopting a “competitive injury” requirement; while insisting that the plaintiff show “the kind of economic injury which has an effect on competition,” it did not require “actual anticompetitive effect.” 741 F. 2d, at 496; see also id., at 495, n. 40. The court’s statement that the plaintiff must seek redress for an injury caused by conduct that RICO was designed to deter is unhelpfully tautological. Nor is clarity furnished by a negative statement of its rule: standing is not provided by the injury resulting from the predicate acts themselves. That statement is itself apparently inaccurate when applied to those predicate acts that unmistakably constitute the kind of conduct Congress sought to deter. See id., at 496, n. 41. The opinion does not explain how to distinguish such crimes from the other predicate acts Congress has lumped together in § 1961(1). The court below is not alone in struggling to define “racketeering injury,” and the difficulty of that task itself cautions against imposing such a requirement. We need not pinpoint the Second Circuit’s precise holding, for we perceive no distinct “racketeering injury” requirement. Given that “racketeering activity” consists of no more and no less than commission of a predicate act, § 1961(1), we are initially doubtful about a requirement of a “racketeering injury” separate from the harm from the predicate acts. A reading of the statute belies any such requirement. Section 1964(c) authorizes a private suit by “[a]ny person injured in his business or property by reason of a violation of § 1962.” Section 1962 in turn makes it unlawful for “any person” — not just mobsters — to use money derived from a pattern of racketeering activity to invest in an enterprise, to acquire control of an enterprise through a pattern of racketeering activity, or to conduct an enterprise through a pattern of racketeering activity. §§ 1962(a)-(c). If the defendant engages in a pattern of racketeering activity in a manner forbidden by these provisions, and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under § 1964(c). There is no room in the statutory language for an additional, amorphous “racketeering injury” requirement. A violation of § 1962(c), the section on which Sedima relies, requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. The plaintiff must, of course, allege each of these elements to state a claim. Conducting an enterprise that affects interstate commerce is obviously not in itself a violation of § 1962, nor is mere commission of the predicate offenses. In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation. As the Seventh Circuit has stated, “[a] defendant who violates section 1962 is not liable for treble damages to everyone he might have injured by other conduct, nor is the defendant liable to those who have not been injured.” Haroco, Inc. v. American National Bank & Trust Co. of Chicago, 747 F. 2d 384, 398 (1984), aff’d, post, p. 606. But the statute requires no more than this. Where the plaintiff alleges each element of the violation, the compensa-ble injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission of those acts in connection with the conduct of an enterprise. Those acts are, when committed in the circumstances delineated in § 1962(c), “an activity which RICO was designed to deter.” Any recoverable damages occurring by reason of a violation of § 1962(c) will flow from the commission of the predicate acts. This less restrictive reading is amply supported by our prior cases and the general principles surrounding this statute. RICO is to be read broadly. This is the lesson not only of Congress’ self-consciously expansive language and overall approach, see United States v. Turkette, 452 U. S. 576, 586-587 (1981), but also of its express admonition that RICO is to “be liberally construed to effectuate its remedial purposes,” Pub. L. 91-452, § 904(a), 84 Stat. 947. The statute’s “remedial purposes” are nowhere more evident than in the provision of a private action for those injured by racketeering activity. See also n. 10, supra. Far from effectuating these purposes, the narrow readings offered by the dissenters and the court below would in effect eliminate § 1964(c) from the statute. RICO was an aggressive initiative to supplement old remedies and develop new methods for fighting crime. See generally Russello v. United States, 464 U. S. 16, 26-29 (1983). While few of the legislative statements about novel remedies and attacking crime on all fronts, see ibid., were made with direct reference to § 1964(c), it is in this spirit that all of the Act’s provisions should be read. The specific references to § 1964(c) are consistent with this overall approach. Those supporting § 1964(c) hoped it would “enhance the effectiveness of title IX’s prohibitions,” House Hearings, at 520, and provide “a major new tool,” 116 Cong. Rec. 35227 (1970). See also id., at 25190; 115 Cong. Rec. 6993-6994 (1969). Its opponents, also recognizing the provision’s scope, complained that it provided too easy a weapon against “innocent businessmen,” H. R. Rep. No. 91-1549, p. 187 (1970), and would be prone to abuse, 116 Cong. Rec. 35342 (1970). It is also significant that a previous proposal to add RICO-like provisions to the Sherman Act had come to grief in part precisély because it “could create inappropriate and unnecessary obstacles in the way of... a private litigant [who] would have to contend with a body of precedent — appropriate in a purely antitrust context — setting strict requirements on questions such as ‘standing to sue’ and ‘proximate cause.’” 115 Cong. Rec. 6995 (1969) (ABA comments on S. 2048); see also id., at 6993 (S. 1623 proposed as an amendment to Title 18 to avoid these problems). In borrowing its “racketeering injury” requirement from antitrust standing principles, the court below created exactly the problems Congress sought to avoid. Underlying the Court of Appeals’ holding was its distress at the “extraordinary, if not outrageous,” uses to which civil RICO has been put. 741 F. 2d, at 487. Instead of being used against mobsters and organized criminals, it has become a tool for everyday fraud cases brought against “respected and legitimate‘enterprises.’” Ibid. Yet Congress wanted to reach both “legitimate” and “illegitimate” enterprises. United States v. Turkette, supra. The former enjoy neither an inherent incapacity for criminal activity nor immunity from its consequences. The fact that § 1964(c) is used against respected businesses allegedly engaged in a pattern of specifically identified criminal conduct is hardly a sufficient reason for assuming that the provision is being misconstrued. Nor does it reveal the “ambiguity” discovered by the court below. “[T]he fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” Haroco, Inc. v. American National Bank & Trust Co. of Chicago, supra, at 398. It is true that private civil actions under the statute are being brought almost solely against such defendants, rather than against the archetypal, intimidating mobster. Yet this defect — if defect it is — is inherent in the statute as written, and its correction must lie with Congress. It is not for the judiciary to eliminate the private action in situations where Congress has provided it simply because plaintiffs are not taking advantage of it in its more difficult applications. We nonetheless recognize that, in its private civil version, RICO is evolving into something quite different from the original conception of its enactors. See generally ABA Report, at 55-69. Though sharing the doubts of the Court of Appeals about this increasing divergence, we cannot agree with either its diagnosis or its remedy. The “extraordinary” uses to which civil RICO has been put appear to be primarily the result of the breadth of the predicate offenses, in particular the inclusion of wire, mail, and securities fraud, and the failure of Congress and the courts to develop a meaningful concept of “pattern.” We do not believe that the amorphous standing requirement imposed by the Second Circuit effectively responds to these problems, or that it is a form of statutory amendment appropriately undertaken by the courts. V Sedima may maintain this action if the defendants conducted the enterprise through a pattern of racketeering activity. The questions whether the defendants committed the requisite predicate acts, and whether the commission of those acts fell into a pattern, are not before us. The complaint is not deficient for failure to allege either an injury separate from the financial loss stemming from the alleged acts of mail and wire fraud, or prior convictions of the defendants. The judgment below is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Of 270 District Court RICO decisions prior to this year, only 3% (nine cases) were decided throughout the 1970’s, 2% were decided in 1980, 7% in 1981, 13% in 1982, 33% in 1983, and 43% in 1984. Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 55 (1985) (hereinafter ABA Report); see also id., at 53a (table). For a thorough bibliography of civil RICO decisions and commentary, see Milner, A Civil RICO Bibliography, 21 C. W. L. R. 409 (1985). RICO defines “racketeering activity” to mean “(A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2320 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-2424 (relating to white slave traffic), (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11, fraud in the sale of securities, or’ the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States, or (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act.” 18 U. S. C. § 1961(1) (1982 ed., Supp. III). In relevant part, 18 U. S. C. § 1962 provides: “(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.... “(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. “(e) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.” The day after the decision in this case, another divided panel of the Second Circuit reached a similar conclusion. Bankers Trust Co. v. Rhoades, 741 F. 2d 511 (1984), cert. pending, No. 84-657. It held that § 1964(c) allowed recovery only for injuries resulting not from the predicate acts, but from the fact that they were part of a pattern. “If a plaintiff’s injury is that caused by the predicate acts themselves, he is injured regardless of whether or not there is a pattern; hence he cannot be said to be injured by the pattern,” and cannot recover. Id., at 517 (emphasis in 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_genresp2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Cathy Yvonne STONE, an Individual, Plaintiff-Appellant, v. Hank WILLIAMS, Jr., Billie Jean Williams Berlin, Chappell Music Company, a Division of Chappell & Co., Inc., a Delaware Corporation, Aberbach Enterprises, Ltd., a New York Corporation, Acuff-Rose Opryland Music, Inc., a Tennessee Corporation, Milene-Opryland Music, Inc., a Tennessee Corporation, Wesley H. Rose and Roy Acuff, Individually and as Trustees in Liquidation for Stockholders of Fred Rose Music, Inc., and Milene Music, Inc., Fred Rose Music, Inc., a Tennessee Corporation, and Milene Music, Inc., a Tennessee Corporation, Defendants-Appellees. No. 732, Docket 88-7860. United States Court of Appeals, Second Circuit. Rehearing Filed Sept. 7, 1989. Decided Dec. 5, 1989. Milton A. Rudin, Beverly Hills, Cal. (Joseph L. Golden, Rudin & Appel, Beverly Hills, Cal., Kenneth E. Warner, Coblence Warner Hamilton & Smith, New York City, of counsel), filed a brief for plaintiff-appellant. Alan L. Shulman, New York City (Robert J. Warner, Richard H. Frank, Jr., W. Michael Milom, Christian A. Horsnell, Silver-man, Shulman & Slotnick, New York City, of counsel), filed a brief for defendants-ap-pellees, Hank Williams, Jr., Wesley H. Rose, Roy Acuff, Fred Rose Music, Inc. and Milene Music, Inc. Thomas R. Levy, New York City, filed a brief for defendants-appellees, Billie Jean Williams Berlin, Chappell Music Company and Aberbach Enterprises, Ltd. Lawrence I. Fox, New York City (Stephen K. Rush, Dianna Baker Shew, Berger & Steingut, of counsel), filed a brief for defendants-appellees, Acuff-Rose Opryland Music, Inc. and Milene-Opryland Music, Inc. Before VAN GRAAFEILAND, CARDAMONE and PIERCE, Circuit Judges. OPINION ON PETITION FOR REHEARING CARDAMONE, Circuit Judge: Pursuant to an order entered August 24, 1989, granting her leave to file a petition for rehearing, Cathy Yvonne Stone petitions this panel under Fed.R.App.P. 40 for a rehearing. She had appealed from a judgment of the United States District Court for the Southern District of New York (Keenan, J.) granting summary judgment to defendants in an action plaintiff brought seeking her purported share of copyright renewal rights to songs composed by Hank Williams, Sr., her natural father. Defendants are the son and common-law wife of the late singer, and several individuals and corporations that are assignees of the copyrights to Hank Williams’ songs. Judge Keenan ruled that plaintiff’s claim was barred by laches. We affirmed the district court in an opinion dated April 21, 1989, Stone v. Williams, 873 F.2d 620 (2d Cir.), cert. denied, - U.S. -, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989). The petition for rehearing of the appeal is granted. The April 21st opinion and judgment of this Court are vacated, and the matter is remanded to the district court for further proceedings. I At the time of plaintiff’s appeal before us, she also had pending an appeal to the Supreme Court of Alabama where she sought to have her father’s estate opened and to obtain her proportionate share of that estate. The defendants on that appeal included Irene Smith (Hank Williams’ sister and the administratrix of his estate at the time plaintiff’s claim to the estate was originally decided) and Robert Stewart (Williams’ attorney). In order to achieve that ultimate relief, Ms. Stone necessarily also petitioned the Alabama Supreme Court to set aside two orders entered in 1967 and 1968 by the Montgomery Circuit Court which, though acknowledging that Hank Williams was her natural father, declared that she was not an heir to his estate. On July 5, 1989, the Supreme Court of Alabama reversed the trial court’s award of summary judgment to defendants finding that they had intentionally, willfully and fraudulently concealed plaintiff’s identity, existence, claim and rights as a natural child of Hank Williams, Sr. The court determined that defendants’ fraud, along with other errors of law, presented sufficient grounds to set aside the 1967 and 1968 decrees that declared that plaintiff was not an heir to Williams’ estate. This fraud, the court continued, excused plaintiff’s delay in asserting her claim, and it held therefore that plaintiff had asserted her rights timely. It further found substantial evidence in the record that could indicate to a factfinder that defendants fraudulently conspired to keep certain facts relating to plaintiff’s existence, identity and potential claim concealed from the courts of Alabama. A. A brief review of some of the factual background is necessary to understand the present posture of the matter now before us. When the famous country and western singer Hank Williams died (a few days before plaintiff was born) his mother, Lillian Stone, legally adopted plaintiff. Hank Williams’ sister, Irene Smith, had promised to care for plaintiff in the event that Lillian Stone was unable to. After Lillian Stone’s death, Smith reneged on her promise, saying she wanted to avoid the “publicity and gossip” associated with the baby, and that it would be in the child’s best interests to be put up anonymously for adoption. But a letter written earlier by Smith to attorney Stewart in 1954 suggests that Smith may have been motivated by more selfish reasons. Pertinent parts of that letter state: The idea you have about making Billy [Hank Williams’ reputed widow] a legal wife isn’t bad at all but I fear that once you accept her as one she will try every trick in the book. I keep thinking about the time when it will be necessary to renew copyrights on Hank’s songs, as his legal wife she will be the one to do that unless of course that is one of the rights she gives up. Somehow I just can’t picture her giving anything up. Thanks for sending the royalties check. It sure came in handy.... I want to thank you again for looking out for me. You know if mother adopts that child there will be a new will. Tee [Smith’s husband] says that if she adopts it and then can’t take care of it, he is not going to let me take it. Keep this under your hat, mabey [sic] it will never be necessary for me to have the child at all. I feel that poor child would have a lot better chance in this life if it were adopted by someone that would never know of its origin at all.... Oh, well I guess I sound like I just don’t want mother to change her will but really that isn’t it at all.... Additional correspondence between attorney Stewart and legal counsel for Wesley Rose, one of the copyright assignees, reveals Stewart’s early knowledge of plaintiff’s claim to the copyright renewals. Relevant language in a letter from Rose’s counsel to Stewart, dated February 28, 1962 stated: There is no way of evaluating now what a share of the renewal copyrights would be worth and no one could predict their valuation. We feel that a nominal payment might forever cut off the right of this child to the renewals.... Stewart’s letter in response, dated July 5, 1962, noted: Since the statutory right of the child comes to it through its father, and since the federal courts have held this right belongs to an illegitimate, we may be faced with a difficult problem, and certainly one we would not want to litigate .... Stewart then listed several alternative ways that plaintiff’s rights to the renewals might be cut off. In 1967 Audrey Williams, Hank Williams’ former wife (now deceased), petitioned for final settlement of the estate on behalf of her son Hank Williams, Jr. Attorney Stewart was called to testify by a guardian ad litem representing plaintiff. Although he produced a child support and custody agreement executed by Williams — which provided that plaintiff would be cared for by Williams — he did not divulge to the court information he had respecting other matters relating to plaintiffs claim to an interest in her father’s estate. In 1967 and 1968 the Montgomery County Circuit Court accordingly ruled that plaintiff was not an heir to Williams’ estate. Despite this ruling, when in 1969 Stewart became administrator of Williams’ estate (succeeding defendant Smith), he began setting aside a share of the estate for plaintiff’s benefit. At one time he wrote to Williams, Jr.’s attorney: “the last two distributions to Randall ... were actually an encroachment on the one-half of the Estate which could conceivably be claimed by the child.” When Williams’ estate was closed in August 1975, the portion set aside for plaintiff was distributed along with the other estate assets. B. Based upon this evidence the Supreme Court of Alabama concluded there was sufficient evidence of fraud perpetrated against Cathy Stone to make disposition of her case by summary judgment on that issue inappropriate. The court also examined whether plaintiff’s claim should be barred by laches, and ruled that plaintiff’s delay was excusable. The Alabama Supreme Court reasoned that she was permanently removed at age three from the city of her birth to another city for the express purpose of making it highly unlikely that she would discover her father’s identity; all public records that might have revealed her paternity were ordered sealed; plaintiff had no idea of her relationship to Williams until 1974, and even then when the matter was first presented to her it was presented as mere speculation; the findings of the Alabama trial court in 1967 and 1968 (declaring that plaintiff was not an heir) were tainted by intentional fraud on the part of the administratrix and attorney of Williams' estate; and finally, plaintiff made prompt demand for her share of her father’s estate as soon as she received the sealed records containing firm evidence of her paternity. II Although not bound by the decision of the Alabama Supreme Court — its decision involved different parties and applicable law — we believe that its finding of fraud requires a reappraisal of our decision made before that court ruled. Cf. Bott v. Four Star Corp., 807 F.2d 1567, 1576 (Fed.Cir.1986) (defendant’s egregious conduct may defeat its laches defense); Johanna Farms, Inc. v. Citrus Bowl, Inc., 468 F.Supp. 866, 874 (E.D.N.Y.1978) (“one who seeks Equity’s assistance must stand before the court with clean hands”). More particularly, the finding of fraud warrants a reassessment of the prejudice to defendants that may result should we permit plaintiff’s claim to proceed on the merits. See, e.g., Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 534, 76 S.Ct. 946, 951, 100 L.Ed. 1387 (1956); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980). We recognize that the principal defendants in the action before us are Hank Williams, Jr. and Billie Jean Williams Berlin, Hank Williams, Sr.’s common-law wife, not the administratrix and attorney of Williams’ estate, as in the Alabama action. However, recited evidence in the Alabama court makes clear that the present defendants were aware of plaintiff’s rights to the copyright renewals long before plaintiff. Irene Smith, who was instrumental in concealing from plaintiff evidence of who her father was, acted as Hank Williams, Jr.’s guardian during the 1967-68 proceedings. Similarly, Smith, as administratrix, and Stewart, as attorney, of Hank Williams’ estate, conspired to conceal from Cathy Stone her potential rights, and took pains to cut off those rights. These actions of his guardian benefited Hank Williams, Jr. Hank Williams, Jr.’s counsel was further advised by Stewart that a portion of the estate income was being withheld for appellant. Williams, Jr. never disavowed Stewart’s actions, or mentioned any of these facts in prior court proceedings in Alabama in 1985 or in the district court proceeding we earlier reviewed and to which he and plaintiff were parties. The prejudice to defendants we identified in our prior opinion, 873 F.2d at 625, would not have existed but for the failure of the present defendants to reveal the facts of which they had knowledge. Defendants could have sought a court declaration of their rights vis-a-vis plaintiff. Instead they chose to remain silent. They should not now be allowed to claim that they are prejudiced by plaintiffs present assertion of her rights when they were aware of them all along. Consequently, in reassessing the equitable circumstances peculiar to this case, the equities fall on plaintiffs side. The present litigation is a contest, after all, between Hank Williams’ heirs over copyright renewal rights. To allow defendants to bar plaintiff from claiming her rights when the availability of the laches defense was obtained by them in such an unworthy manner would not only grant defendants a windfall in this suit to which they are not entitled, but would also encourage a party to deliberately mislead a court. Courts of equity exist to relieve a party from the defense of laches under such circumstances. See Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 584-85, 90 L.Ed. 743 (1946). Consequently, the evidence of fraud, which the Alabama Supreme Court found persuasive, makes summary judgment dismissing plaintiffs claim on the grounds of laches inappropriate. The figure representing justice is blindfolded so that the scales are held even, but justice is not blind to reality. Plaintiff therefore should have her day in court and an opportunity to have a jury determine the merits of her claim. Ill Plaintiff also requests a rehearing en banc. She claims an en banc hearing is merited because the dismissal of her claim on the ground of laches contradicts copyright law established by the Supreme Court in Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 80 S.Ct. 792, 4 L.Ed.2d 804 (1960) and Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L.Ed. 526 (1888), and by us in New Era Publications International v. Henry Holt & Co., 873 F.2d 576 (2d Cir.1989). Since the dismissal of the case on laches grounds which this panel originally affirmed is now reversed, we need not decide this question. IV The petition for rehearing is granted. The previous opinion of this Court of April 21, 1989, Stone v. Williams, 873 F.2d 620 (2d Cir.1989), is vacated, and replaced by the present opinion which now reverses the dismissal of plaintiffs complaint by the district court on the ground of laches. The matter 'is remanded to the district court for further proceedings on the merits. 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_origin	H	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. JONES DAIRY FARM, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 538, United Food and Commercial Workers Union, AFL-CIO-CLC, Intervening Respondent. Nos. 89-2512, 89-2821. United States Court of Appeals, Seventh Circuit. Argued April 10, 1990. Decided Aug. 7, 1990. Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for petitioner/cross-respondent. Aileen A. Armstrong, N.L.R.B., Appellate Court — Enforcement Litigation, Joseph Oertel, Paul J. Spielberg, N.L.R.B., Washington, D.C., George F. Squillacote, N.L. R.B., Milwaukee, Wis., for respondent/cross-petitioner. Kenneth R. Loebel, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for intervening respondent. Before CUDAHY, COFFEY and MANION, Circuit Judges. CUDAHY, Circuit Judge. On June 15, 1989, the National Labor Relations Board (the “Board,” the “NLRB”) ordered Jones Dairy Farm (“Jones”) to cease and desist from implementing a mandatory “work hardening” program. Jones asks us to review and set aside the Board’s order; the Board cross-petitions for enforcement of its order. Jones raises two points in its petition. First, Jones argues that the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., grants it a right to implement the program in order to reduce its disability payments to injured and ill employees. Second, Jones contends that the administrative law judge (the “AU”) and the NLRB violated its right to due process by deciding the case on the basis of a no-strike clause in the collective bargaining agreement (the “CBA”), despite the fact that Local 538 (the “Union”) did not prosecute its case on that theory. For the reasons discussed below, we deny Jones’s petition for review and grant the NLRB’s petition for enforcement of its order. I. BACKGROUND At the time the dispute arose over the work hardening program, Jones and the Union were parties to a CBA effective from November 9, 1985, to October 1, 1988. The CBA contained seniority and sick pay provisions. Article XI, the seniority clause, provided in material part: 11. In cases of proven disability, where an employee is not able to perform a job according to his seniority, the Company and the Union may deviate from the seniority provisions in order to place him on a job he can perform. General Counsel’s Exh. 2, at 34. Article XVI set out the sick pay provisions. It read: 1. Regular full-time employees with twelve (12) months or more of continuous service with the Company, who are absent because of physical disability due to sickness or accident (except where such disability is covered by the Workmen’s Compensation Law of Wisconsin), where such disability is supported by acceptable medical evidence, shall receive Sick Pay. 2. Subject to the other provision [sic] of this Article, Sick Pay shall be payable for each period the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation. 5. In cases of disability which would have been covered by this article but for the fact that they are covered by the Workmen’s Compensation Law of the State of Wisconsin, the employee, if eligible under this article, will receive the difference between what he received as compensation under said law and the amount he would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law. Id. at 43, 45-46. Further, the CBA contained a no-strike/no-lockout clause that read in part: 1. Since arbitration is provided for grievances, since the procedures of the National Labor Relations Board are available for claims of unfair labor practices, and since negotiation on matters not covered by this Agreement is to be deferred until the expiration of this Agreement, the Union will not call or sanction any strike, stoppage, slowdown or other interference with work during the term of this Agreement and the Company will not lock out any or all of its employees. Id. at 42 (emphasis added). Because of a high work-related accident rate, Jones and its worker’s compensation insurer, EBI, began studying methods to reduce the number and severity of acci-' dents and the cost of the company’s disability payments. Among the options explored by the company was a so-called “work hardening” program offered by Opportunities, Inc. (“OI”), an organization specializing in boosting the confidence and strength of temporarily partially disabled workers and preparing them to return to their regular jobs. OI provides light duty jobs in a factory setting to temporarily partially disabled employees of participating companies. The companies pay a service fee to OI and also pay wages to their own employees. Under the program, a participating company’s physician would examine a disabled employee and determine what, if any, work he could perform. An appropriate assignment would be made at OI, and the employee would work at the assigned position under the supervision and direction of OI. The employee would earn wages, which would be offset by a reduction in disability benefits. Jones proposed to pay its employees assigned to 01 an hourly wage of $4.00 — about one-third of the normal wages prescribed by the CBA. Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, Case No. 30-CA-9395, at 3 (June 23, 1987) (hereafter the “ALJ’s findings”). Jones asserts that even after state and federal taxes, the partially disabled employee would be no worse off than if he had remained on temporary total disability status. If the employee declines the limited duty work, however, his benefits are still reduced according to the formula, and he obviously does not receive any wages. On June 23, 1986, Jones first notified the Union that it was considering the work hardening program as well as several plans directed at accident prevention and injury and health counseling. Representatives of Jones, EBI and the Union toured OI’s facilities two days later, but when Jones again raised the proposal at a regular grievance meeting on July 14, the Union refused to give its consent. On September 29, 1986, Jones informed the Union that it intended to implement the 01 program unilaterally on October 15; at the Union’s request, Jones delayed action on the plan until it met with Union officials at a special meeting on October 17. At the meeting, the Union refused to consent to the work hardening program and specifically stated as its major concern the issue of bargaining unit employees working outside of Jones’s premises. On October 24, Jones advised the Union that it would unilaterally implement the program on November 3; the company sent letters to the same effect to all of its employees on October 31. On November 11, the Union filed a grievance protesting Jones’s unilateral implementation of the work hardening program, General Counsel’s Exh. 7, and on November 17, the Union filed its charge with the NLRB. The complaint issued by the General Counsel of the NLRB pursuant to the Union’s charge accuses Jones of engaging in unfair labor practices in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the “Act,” the “NLRA”), 29 U.S.C. §§ 158(a)(1) and (5), 158(d). Jones’s App. at 32-37. The complaint explicitly alleges that the work hardening program modified the seniority and sick pay provisions without the Union’s consent. The complaint mentions neither the no-strike clause nor the “management rights” clause contained in Article V of the CBA. General Counsel’s Exh. 2, at 9. Between November 1986 and April 1987 (when the parties presented their cases to the AU), Jones assigned seven of its employees to the 01 work hardening program. Four agreed to participate; three refused and suffered reduced disability compensation. AU’s findings at 5. The AU concluded that the work hardening program was encompassed within “wages, hours, and other terms and conditions of employment” and was therefore a mandatory subject of bargaining under section 8(d) of the NLRA. The AU further determined that the Wisconsin Worker’s Compensation Act was not preempted by the NLRA since the employer was not required to implement a light duty/rehabilitation program. Rather, according to the AU, the implementation of such a program was negotiable. The AU next addressed the Union’s contention that the program impermissibly expanded the bargaining unit. He concluded that “farming out” bargaining unit employees, AU’s findings at 12, was a permissible subject of bargaining that required the consent of both the Union and the employer. The AU then rejected Jones’s contention that the no-strike clause permitted it to take unilateral action on any subject (like the work hardening program) not covered by the CBA. The ALJ read the no-strike clause in a manner wholly contrary to Jones’s interpretation, concluding that, in fact, the clause mandated that the status quo be preserved during the term of the CBA with regard to any subjects not specifically addressed in the CBA. Consequently, the AU ordered Jones to cease and desist from implementing the work hardening program without the Union’s consent. Jones fared no better with the NLRB, although the NLRB did modify the AU’s findings in some respects. The NLRB agreed with the AU that the work hardening program was a mandatory bargaining subject under section 8(d) because worker’s compensation benefits, although provided by state law, are nevertheless “emoluments of value which accrue to employees out of their employment relationship.” Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, 295 N.L.R.B. No. 20, at 7 (June 15, 1989) (citations omitted) (hereafter the “NLRB decision”). The Board rejected the AU's finding that the program was a permissive bargaining subject because it expanded the scope of the bargaining unit. However, the Board concluded that this aspect of the AU’s determination was not necessary to the resolution of the case, since the Board also agreed with the AU that the no-strike clause prohibited Jones from unilaterally implementing the OI program. II. JONES’S CLAIMED RIGHT TO IMPLEMENT THE OI PROGRAM UNILATERALLY Jones asserts, essentially, that its implementation of the work hardening program was authorized by state law and was none of the NLRB’s concern. In support of its position, Jones cites the Supreme Court’s decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Neither of these cases, however, removed the OI program from the purview of the NLRA and the regulatory jurisdiction of the Board. Although neither the AU nor the NLRB devoted much attention to the matter, we consider it important to inquire initially whether the Wisconsin Worker’s Compensation Act did in fact grant Jones a right to-impose a light duty rehabilitation program as a means of reducing its disability indemnity. None of the parties has directed us to a provision of the Worker’s Compensation Act that expressly vests an employer with such a right. The record, too, is ambiguous on this point. Jones relies in large measure on a decision in its favor rendered by an AU in the Worker’s Compensation Division of Wisconsin’s Department of Industry, Labor and Human Relations (the “DILHR”). Castenon v. Jones Dairy Farm, Nos. 87 64614 & 88 11916 (Mar. 20, 1989), reprinted in Jones’s App. at 38-46. The Casten-on decision, which explicitly declined to consider the applicability of federal labor law to the matter, referred to Wis.Stat. section 102.35(3), but then stated that the present matter was not a section 102.35(3) dispute. That section provides: (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within .the employe’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern. (Emphasis added.) Section 102.35(3) is clearly concerned with the rights of recuperating employees. It may be that the Wisconsin AU in Castenon extrapolated from this provision to a corresponding right in employers to insist that temporarily partially disabled employees work up to their physical and mental capacities. Another section of the Worker’s Compensation Act that may apply is section 102.-43(2). That section provides that the weekly compensation schedule for partial disability is “such proportion of the weekly indemnity rate for total disability as the actual loss of the injured employe bears to his average weekly wage at the time of his injury.” Chris M. Faulhaber, Jr., Administrator of the Worker’s Compensation Division of the DILHR, referred to section 102.43(2) in a letter to the Union’s president and explained how benefits for partial disability are affected by earnings from part-time work. It could be inferred from Faul-haber’s letter — although the letter did not say so expressly — that the DILHR would require a healing worker to accept a position within his capabilities if such a position were offered by his employer. But the letter emphasized that any “part-time or limited employment must be employment with the employer for whom the employe was working when injured” and “should be within the parameters of the union contract in effect.” General Counsel’s Exh. 8. Jones cites another source in support of its claimed right — the Worker’s Compensation Handbook (1983 & Supp.1985) prepared by the Wisconsin Bar and reprinted in Jones’s Exhibit 8. The Handbook does say that an employee is required to take light duty work (to the extent of his capacities) if it is offered by his own employer; however, the Handbook does not address whether an employee must take light duty work, assuming he is able, with a different employer or on different terms of employment. Further, the Handbook makes no mention of the potential effect of a CBA on the recuperating employee’s obligation to return to light duty work. Finally, the Handbook asserts that its summary of employees’ obligation to take light duty work is based on the “long-standing construction of the [Worker’s Compensation] Statutes” by the DILHR and one unpublished opinion of the Wisconsin Circuit Court. Jones’s App. at 36-37. The Handbook cites as its sole authority an unpublished Wisconsin Circuit Court case — Gillette Well Drilling v. DILHR, Case No. 143-142 (Dane Co. Cir.Ct. April 7, 1975). Under Wisconsin Civil Procedure Rule 809.23(3), unpublished cases have no precedential value. It may be under Wisconsin law that employers do have a right to insist that their partially disabled employees accept positions they are capable of performing, if the employer has such a position and makes it available. The parties have cited no published case, nor has our own research uncovered any, that establishes such a right. The evidence of DILHR policy contained in the record is inconclusive. Nevertheless, for the purposes of resolving this matter, we will assume that an employer is entitled under Wisconsin law to recall a recovering employee to an appropriate job at the employer’s place of business. Jones attempts to equate its asserted right with rights guaranteed to workers under state laws prescribing, for example, minimum wages and maximum hours. Such laws predated the federal labor laws, and they form a floor for the negotiation of the substantive terms of a collective bargaining agreement. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1 (1987) (“[P]re-emption should not be lightly inferred in [the area of state regulation establishing minimum terms of employment], since the establishment of labor standards falls within the traditional police power of the State.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (“When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.”). By comparing its asserted right, which it also labels an unqualified right, to minimum labor standards laws, Jones would require us to choose between recognizing its asserted right or declaring the Wisconsin Worker’s Compensation Act preempted. Such a choice is unnecessary. The Wisconsin statute has been drafted and interpreted to account for CBA provisions. Section 102.35(3) expressly defers to any applicable seniority provisions in a labor contract, and Faulhaber’s letter to the Union’s president emphasized that the employer’s recall of an employee is subject to the terms of a binding CBA. In our view, therefore, the NLRB persuasively argues that even if Jones had a right under Wisconsin law to insist that its injured workers accept employment up to their capacities, Jones was not required by state law to exercise that right. The right — if it indeed existed — was negotiable. The Board accepted the ALJ’s conclusion that the OI program was a mandatory subject of bargaining, since it clearly fell within the scope of “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). The Board’s findings of fact must be upheld if they are supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e); David R. Webb Co. v. NLRB, 888 F.2d 501, 503 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990). Further, the Board’s legal conclusions should be accepted and enforced unless they are irrational or inconsistent with the act. NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012-13, 89 L.Ed.2d 151 (1986); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); David R. Webb Co., 888 F.2d at 503, 505; Maas & Feduska v. NLRB, 632 F.2d 714 (9th Cir.1979). In particular, we give substantial deference to the Board’s determinations about mandatory and permissive subjects of bargaining. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849; Jack Thompson Oldsmobile, Inc. v. NLRB, 684 F.2d 458, 461-62 (7th Cir.1982); Maas & Feduska, 632 F.2d at 718-19. The NLRB noted that the OI program affected temporarily disabled employees’ wages, hours, types of work and workloads. Further, the program would have reduced employees’ sick pay and disability benefits, and these welfare benefits are a mandatory subject of collective bargaining. See Metropolitan Life, 471 U.S. at 751-52, 105 S.Ct. at 2395-96 (citing Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 & n. 1, 92 S.Ct. 383, 387 & n. 1, 30 L.Ed.2d 341 (1971)). Even if sick pay and disability benefits were not per se mandatory bargaining items, they became so by their inclusion in the CBA. Article XVI(2) clearly stated that sick pay “shall be payable for each period that the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.” (Emphasis added.) Subsection 5 of the same article required Jones to make up the difference, if any, between an employee’s state-mandated worker’s compensation benefits and “the amount [the employee] would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.” Jones’s obligations under the CBA with regard to sick pay and disability benefits were explicit. Jones could not attempt to modify unilaterally those provisions during the term of the CBA without obtaining the Union’s consent or bargaining to impasse. 29 U.S.C. § 158(d). The NLRB’s conclusion that the OI program was a mandatory bargaining topic is, therefore, objectively reasonable and wholly supported. We accept that determination as conclusive in these circumstances. The Board did not reach the question, however, whether Jones had bargained with the Union over the OI program in good faith to impasse. Jones does not argue in its petition to us that impasse was reached, or even sought. In the alternative to its claim of an unqualified right to implement the OI program unilaterally, Jones maintained before the ALJ and the Board that the no-strike clause permitted it to take action unilaterally with respect to any item not covered by the CBA. Both the ALJ and the Board took the opposite view of the no-strike clause’s import, and the Board resolved the matter on the basis of its reading of that clause. We owe the Board no special deference in matters of contractual interpretation. Irvin H. Whitehouse & Sons Co. v. NLRB, 659 F.2d 830, 833 (7th Cir.1981); Local Union 1395, Int’l Bhd. of Electric Workers, AFL-CIO v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986). But we are, of course, mindful of the Board’s considerable experience in interpreting collective bargaining agreements. According to the Board, the no-strike clause was intended by the parties to preserve the status quo during the agreement’s term on mandatory bargaining matters not addressed by the CBA, “just as Section 8(d) [of the NLRA] preserves the status quo as to subjects covered by the agreement.” NLRB decision at 8. Thus, any alteration of the terms of employment during the life of the CBA required mutual assent, and it is undisputed that the Union withheld its consent here. The no-strike clause clearly evinced a desire by the parties to defer negotiation on mandatory items, not, as Jones argues, to waive it. Therefore, we agree with the NLRB and the ALJ that Jones was not free to implement the OI program during the term of the CBA without the Union’s consent; nor could Jones insist that the Union bargain to impasse on that subject. Jones’s unilateral implementation of the OI program therefore violated sections 8(a)(1) and (5) of the NLRA. The Board properly ordered Jones to cease and desist from unilaterally implementing the program and to make restitution to the affected employees. III. JONES’S DUE PROCESS CLAIM Having failed to convince the AU or the NLRB of its “right” to implement the OI program, Jones now claims that its due process rights were violated because the AU and the NLRB resolved the matter on the basis of the no-strike clause. Since the Union’s charge did not specifically allude to the no-strike clause, Jones complains that it did not receive fair notice of that theory and that it was consequently deprived of an opportunity to prepare an adequate defense. It is somewhat incongruous that Jones should charge the NLRB with a due process violation, since it was Jones that drew the AU’s and the Board’s attention to the no-strike clause in the first place. This clause was, indeed, a principal component of Jones’s defense in the administrative proceedings to the Union’s unfair labor practice charge. Jones is now dissatisfied with the intepretation of the clause rendered by the AU and accepted by the NLRB (and by this court). That the AU and Board disagreed with Jones over the meaning of the no-strike clause, however, is no basis for a claim that Jones was denied due process. Evidently, Jones hopes for a remand so that it can introduce some unspecified evidence from the bargaining history in support of its reading of the no-strike clause. But Jones has already been afforded two opportunities to marshall its evidence. We will not remand the case merely because Jones “assures” this court that such evidence exists, Jones’s Brief at 13, without making any effort to particularize the substance of its would-be proffer. Finally, Jones argues that, had it been apprised that the AU and NLRB would base their decisions on the no-strike clause, it would have defended its position by referring to a “management rights” clause in the CBA. Since Jones itself brought up the no-strike clause, it could have (and should have) drawn the NLRB’s attention to the management rights clause as support for its reading of the no-strike clause. Jones’s inexcusable failure to avail itself before the Board of all of its possible defenses, particularly after the adverse decision of the AU, deprives it of the right to have those arguments decided here. Jones’s claim that it was denied due process of law rings hollow. IV. CONCLUSION The NLRB concluded that “[n]othing in the management-rights, sick leave, no-strike/no-lockout provisions or any other section of the collective bargaining agreement permitted the Respondent to alter the status quo in the manner that it has in this case.” NLRB decision at 9-10. Because we agree with the Board’s reading of the CBA, Jones’s petition for review is Denied, and the NLRB’s order is Enforced. . In 1966, Jones recognized Local P-1236 of the United Food and Commercial Workers Union as the bargaining agent of its production and maintenance, employees. Local P-1236 merged with Local 538 during the pendency of this case. The parties do not dispute that Local 538 is the successor to Local P-1236. See NLRB’s Brief at 4 n. 3. . Jones gives the following example of the program's operation: Assume the employee’s regular wage is $8.00 per hour and he regularly works 40 hours per week. His average weekly earnings are $320 ($8.00 X 40 hours). His worker’s compensation indemnity for temporary total disability is $213.00 (Vi X $320.00) [sic] If he works 20 hours per week on a limited duty job he is paid $80.00 ($4.00 x 20 hours) for that work. His wage loss is thus reduced from $320.00 to $240.00, i.e., from 100% to 75% ($240.00 divided by $320.00). This, results in a worker’s compensation indemnity for partial disability of $159.75 (.75 X $213.00). He receives that indemnity, $159.75, plus the pay for the limited duty work, $80.00, for a total of $239.75, which is $26.75 more than the indemnity for temporary total disability. Jones’s Brief at 8-9. . Jones does not explain precisely how much of the employee’s wages from the limited duty work would be subject to federal and state taxes. Jones directs us to its Exhibit 13 in the administrative record, but that document expressly involves calculations based only on gross earnings. In light of our disposition of this case, however, the effect of taxes on the disability package is irrelevant. . The Union concedes that a temporarily partially disabled employee may be required to accept light duty work at Jones's plant. Subsection 11 of Article XI (the seniority provision of the CBA) nevertheless appears to require the consent of both the Union and Jones to place a recovering employee in a suitable position. . Shortly after implementing the program, Jones declared that it would not apply to employees whose sickness or disability was not work-related; Jones feared that subjecting such employees to the 01 program would violate the sick pay provisions of the CBA. Jones’s Brief at 5 n. 3. Jones does not explain, however, why application of the program to employees suffering from a work-related disability would not ¡also violate the CBA’s sick pay regimen. . We discuss the management rights clause below. . Hereafter, we follow the pagination of Jones’s Appendix when referring to the Castenon decision. . Indeed, the Labor and Industry Review Commission, to which Castenon and his fellow claimants appealed the state ALJ’s decision, reversed the state ALJ’s decision and declared the matter preempted in light of the NLRB’s decision and order in the present case. Intervenor's Motion to Supplement the Record filed Oct. 10, 1989, at 1-7. Whether a matter that may be governed by state law is preempted by an applicable federal law is, of course, a question of Congress’s intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978). For the reasons we give in this section, we agree with the NLRB that the NLRA and the Wisconsin Worker’s Compensation Act can "peacefully coexist.” NLRB decision at 6. . The Wisconsin AU who rendered the Casten-on decision testified before the NLRB that Cas-tenon reflects the DILHR’s interpretation of the Worker’s Compensation Act. Tr. at 94-112. . Unpublished opinions may be cited only "to support a claim of res judicata, collateral estop-pel or law of the case." Wis.Civ.P.R. 809.23(3). . Jones declares in its brief: “Even if the collective bargaining agreement in haec verba were to preclude Jones from providing limited duty work, a unilateral modification of the agreement to elimination [sic] that prohibition would not constitute a violation of section 8(d).” Jones's Brief at 19. Since we have some difficulty accepting Jones's argument that such a right exists at all, we have considerably more reservations about deeming the “right” absolute and independent of Jones's collective bargaining obligations. . As we noted above, the ALJ rested his decision on the determination that Jones’s "farming out” of bargaining unit employees to OI was a permissive subject of bargaining that could not be implemented without the Union’s consent. Although the Board disagreed with this aspect of the ALJ’s findings, the issue did not affect the outcome óf the case. Since we resolve the matter on other grounds, we do not reach the Union’s contention that the OI program illegally enlarged the scope of the bargaining unit. . In any event, it appears that the NLRB, which had the entire CBA before it as an exhibit, in fact considered whether the CBA gave Jones residual authority to take unilateral action in the furtherance of its business with respect to matters not covered by the CBA. NLRB decision at 9 n. 13. The Board found no such broad grant of authority in the CBA in this case. 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_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. In re OWEN. Court of Appeals of District of Columbia. Submitted March 13, 1928. Decided April 2, 1928. No. 2038. I. Patents <§=>28 — Originality and beauty are necessary to obtain design patent; mere mechanical skill being insufficient (35 USCA § 73). To entitle one to a design patent under Rev. St. § 4929, as amended (35 USCA § 73; Comp. St. § 9475), there must be originality and beauty; mere mechanical skill being insufficient. 2.. Patents <§=>22 — Substitution of handles, differing little in design from handles of prior art, on ends of electric storage battery container, held not to involve invention (35 US CA § 73). Mere substitution of handles, differing little in design from handles of prior art, on ends of electric storage battery container, held not tó. involve invention, entitling applicant to design patent under Rev. St. § 4929, as amended (35 'USCA § 73; Comp. St. § 9475). Appeal from the Commissioner of Patents. In the matter of the application of Prederieka D. Owen, administratrix of the estate of Richard B. Owen, deceased, for a design patent. Prom a decision of the Commissioner of Patents refusing to allow the application, applicant appeals. Affirmed. B. F. Garvey, of Washington, D. C., for appellant. T. A. Hostetler, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. ROBB, Associate Justice. Appeal from a decision of the Patent Office refusing to allow appellant’s application for a design patent in the form of an electric storage battery container. The container is a plain, rectangular receptacle, with a handle projecting from the top of each end. Section 4929, R. S., as amended (35 USCA § 73; Comp. St. § 9475), provides that “any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, * * * may, upon payment of the fees required by law and other due proceedings had, * * * obtain a patent therefor.” To entitle one to a design patent, there must be “originality and beauty. Mere mechanical skill is insufficient.” Smith v. Whitman Saddle Co., 148 U. S. 674, 13 S. Ct. 768, 37 L. Ed. 606. See, also, H. C. White Co. v. M. E. Converse & Sons Co. (C. C. A.) 20 F.(2d) 311. As observed by the Commissioner, handles were old, and the mere substitution of applicant’s handle, which differs little in design from the handles of the prior art, does not involve invention. The decision is affirmed. Affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Edward P. BLAKE, Appellant, v. UNITED STATES of America, Appellee. Odell M. BLAKE, Appellant, v. UNITED STATES of America, Appellee. Eldridge COOK, Appellant, v. UNITED STATES of America, Appellee. Nos. 8331-8333. United States Court of Appeals Fourth Circuit. Argued June 23, 1961. Decided Oct. 2, 1961. William McL. Ferguson, Newport News, Va., and Catesby G. Jones, Jr., Gloucester, Va. (Ferguson, Yates & Stephens, Newport News, Va., on brief), for appellants. William E. Gwatkin, III, Attorney, Department of Justice, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Joseph S. Bambacus, U. S. Atty., Richmond, Va., and Morton Hollander, Attorney, Department of Justice, Washington, D. C., on brief), for appellee. Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges. SOPER, Circuit Judge. This is an appeal from a decree of the District Court dismissing three consolidated libels filed in admiralty against the United States to recover compensation for the taking of certain oyster grounds of the libellants located in the bed of the lower York River in Virginia, which is said to have occurred when the Government established a Naval Mine Sweeping Practice Area in the vicinity. Libellants became lessees of oyster grounds situated in the York River in the vicinity of Yorktown in 1946 and 1948 under leases from the State of Virginia which were duly recorded under the laws of the state. The oyster grounds are located for the most part to the south of the northern line of the natural navigable channel of the river and in smaller part to the north of this line. The channel is marked in this area at a depth of 20 feet by red nun buoys which have been in their present position since 1912. The oyster grounds lie across the channel of the river from the site of the Naval Mine Warfare School which, at the time the present controversy arose, was located on the south side of the river at Yorktown. The school was established at Yorktown during the second World War and thereafter made use of the lower York River in mine sweeping exercises; and during this period the Navy, acting under temporary authorizations from the Army Engineers, periodically planted non-explosive mines in the lower river for use in the exercises of the school. On February 9, 1955 the District Engineer of the Corps of Engineers, U. S. Army, issued a public notice stating that the permanent establishment in the lower York River of a Naval Mine Sweeping Practice Area and a Naval Drill Mine Field Area had been requested by the Navy for operations similar to those which had been conducted in the past on a temporary basis. The notice contained proposed regulations to be enforced by the Commandant of the Naval School, which restricted the use of the areas for structures or obstacles such as fish traps, beacons, buoys, piles, dolphins, etc., without the approval of the Commanding Officer of the school. The notice also included a chart showing the boundaries of the proposed areas and an invitation to interested persons to present objections to the proposed regulations. The northern boundary of the mine sweeping practice area described in the notice overlapped the oyster grounds so that a relatively small portion of the grounds were south of the northern line of the mine sweeping area while a larger portion were to the north of this line. Copies of the notice were mailed to numerous parties interested in navigation and fishing, to various governmental agencies including the Virginia Commissioner of Fisheries, to local newspapers and also to Postmasters of towns in the vicinity of the residences or places of business of the libellants. On March 17, 1955 a public meeting, held at the school in response to the notice, was attended by representatives of local interests, but not by the libellants, at which the proposals were considered and no objection was raised. Thereafter on May 3, 1955 the Secretary of the Army promulgated an amendment to Section 207.128 of Title 33 of the Code of Federal Regulations, prescribing Naval mine testing areas in the York River. The amended regulation outlined the boundaries of these areas and included restrictions upon the use of the river as above proposed. Subsequently, notice of the amended regulation was sent to all known interested parties who were advised that the amendment would become effective 30 days after its publication in the Federal Register on May 24, 1955. See 20 F.R. 3582-3583. Publicity was thus given to the promulgation of the regulation in conformity to the requirements of 33 U.S.C.A. § 1, to which reference is hereafter made. The evidence does not show that the libellants had notice of the meeting nor does it show when they received actual knowledge of the new regulation. The oyster grounds were marked principally by numerous stakes and buoys located both within and without the natural navigable channel of the river and the Naval operating areas. The stakes consisted of unlighted wooden poles 35 to 40 feet long with a diameter of about 8 inches at the bottom, tapering to about 3 inches at the top, which were driven into the river bottom. The buoys were fashioned of similar poles attached at the bottom by chains to concrete blocks of about 350 lbs. in weight which rested on the river bottom. Some of the stakes and buoys were located as far as 300 yards within the navigable channel and the Naval areas at points south of the boundaries described in the leases. At no time either before or after the establishment of the Naval areas did the libellants seek or obtain permission from the District Engineer of the Army Corps of Engineers, or from the Commandant of the Mine Warfare School, or from any other representative of the United States, to place or retain in place any of the stakes and buoys; nor did they take any steps to remove the stakes and buoys after the area had been established. In the spring of 1956 certain of the mine sweeping equipment was damaged by coming into contact with stakes or buoys within the Naval area and, accordingly, the Naval authorities determined to remove some of them, and in March 1956, ten months after the Naval areas had been formally established, the Commanding Officer of the school directed the removal of stakes and buoys in a number variously estimated from 61 to 100 all of which, according to the findings of the District Judge, were taken from areas within the navigable portion of the river south of the northern boundary line of the Naval areas. Following this removal the libellants were given notice of the existence of the Naval area and the restrictive regulations, but they replaced a few of the stakes without authority. These were subsequently removed by the Government in April 1956. Again in November 1957 three more buoys were removed by the Government from the Naval areas. Some effort was made by the Government without success to locate the owners of the stakes and buoys before they were removed in the first place but the Judge found that the attempt to locate the owners was inadequate. In general the damages claimed by the libellants relate to the value of the stakes and buoys removed and to injuries caused by their removal to the operation of the oyster grounds within the Naval areas as well as grounds adjacent thereto. It does not appear that the libellants planted oysters on the grounds alleged to have been injured by the Government during the period of the Government operations above described and for some years prior thereto. The Judge was of the opinion that the Government was within its rights in establishing the Naval areas and removing the stakes and buoys from the navigable channel and dismissed the libels. The protection of the navigable waters of the United States from obstructions and the regulation of the use of these waters is lodged in the Secretary of the Army by the Acts of Congress, 33 U.S. C.A. § 403 and 33 U.S.C.A. §§ 1 and 3. Section 403 prohibits the creation of any obstruction to the navigable capacity of these waters not affirmatively authorized by Congress. The section also makes it unlawful to build any structures or make any excavations in the navigable waters without the authority of the Secretary. Under this statute the Secretary of the Army issued certain fishing and hunting regulations which are codified as Part 206 of 33 Code of Federal Regulations. Section 206.50 thereof relates to fishermen, oystermen and crabbers acting under authority granted by either of the states of Maryland and Virginia. Such persons are authorized by Paragraph 1 of the regulation to construct and maintain fishing structures in these waters, including oyster ground markers and similar contrivances, subject to the provisions set out in the section. Paragraph 2 provides that the section does not set aside any waters exclusively for fisheries and does not supersede any danger zone or restricted area established in the Chesapeake Bay and its tributaries by the Secretary of the Army under Parts 204 and 207 of the chapter. Part 207 was subsequently amended by the promulgation of amended Section 207.-128 hereinafter referred to. Paragraph 3 of section 206.50 expressly provides that the United States shall not be liable for damage to such structures which may be caused by operations undertaken by the United States for the maintenance of any waterway or for the protection of the public right of navigation. The supervision of such structures is placed in the District Engineer by Paragraph 3(b) (1), and if he determines at any time that any fishing structure causes unreasonable obstruction to navigation, the owners, upon written notice, are required to remove it without expense to the United States. Paragraph (b) (2) provides that fishing structures which are improperly located shall be removed at the expense of the owner and that upon the owner’s failure to do so they may be removed by the District Engineer at the cost of the owner. The libellants contend that having secured the consent of the state of Virginia through the leases of the oyster grounds granted to them they have complied with the terms of Section 206.50 in the placing of their oyster markers. They argue that thereby they acquired property in the oyster stakes and buoys and in the oyster grounds, and that the Navy acted illegally and in excess of the authority of the statute and the regulations when it removed the stakes and poles without notice to the owners. The rights of the parties, however, cannot be determined in this case without taking into consideration the effect of a later regulation which was promulgated as an amendment to 33 C.F.E. Section 207.128. This regulation was enacted under the authority of 33 U.S.C.A. §§ 1 and 3 which empower the Secretary of the Army to regulate the use of the navigable waters of the United States. Section 1 of this statute imposes the duty upon the Secretary to prescribe such regulations for the use, administration and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property or of operations of the United States in channel improvement. It is required that the regulation be posted in conspicuous and appropriate places for the information of the public and violation of this regulation is a misdemeanor punishable by fine or imprisonment. Section 3 empowers the Secretary of the Army, in the interest of National Defense and for the protection of life and property on the navigable waters of the United States, to prescribe such regulations as he may deem best for the use and navigation of any of the navigable waters of the United States endangered by artillery fire in target practice or by the proving operations of Government ordinance at or near such waters; but it is provided: “That the authority conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry and the regulations prescribed * * * shall provide for the use of such waters by food fishermen operating under permits granted by the Department of the Army.” Section 207.128 as amended directly affected the libellants’ property. It provided, as we have seen, for the establishment of a Naval Mine Sweeping Practice Area in the York Eiver which overlapped the boundaries of the libellants’ oyster grounds, and it specifically provided in Paragraph (b) 4 that no structures such as fish traps, buoys, piles, etc., shall be placed in the mine sweeping area without the prior approval of the Commanding Officer, Naval Schools, Mine Warfare, Yorktown, Virginia. The restricted area thus established falls within the terms of Paragraph 2 of Section 206.50 where it was said that the authority granted fishermen and oyster-men to maintain fishing structures in these waters should not be interpreted as setting aside any area of the waters exclusively for fisheries, did not give any property rights or exclusive privileges therein, did not authorize any infringement of Federal regulations, and did not supersede any danger zone or restricted area established by regulations prescribed by the Secretary of the Army. It follows that the libellants gained no right of action against the Government when it exercised its reserved power in the public interest. Nor may the libellants base their claim upon the fact, if it be a fact, that they had no notice of the promulgation of the amended regulation before the stakes and buoys were removed. The new regulation as we have seen, was formally determined upon and promulgated by the Secretary of the Army after public notice and discussion and after wide publicity was given to its enactment. Nothing more was required by the terms of 33 U.S.C.A. § 1 to make it binding upon all members of the public including the libellants. That section of the statute merely provides that the Secretary of the Army shall prescribe regulations for the use of the navigable waters of the United States and that the regulations shall be posted in conspicuous and appropriate places for the information of the public; and it is provided that every person who violates such regulations shall be guilty of a misdemeanor punishable by fine or imprisonment. We are in accord with the finding of the District Judge in this case that Section 207.-128 was validly promulgated after adequate public notice, and, since it acquired the force of law, it is binding upon the libellants as well as all other persons. The libellants maintain the additional position that even if the mine sweeping practice area was validly established under Section 207.128 of the regulation the Government was not justified in the destruction of their property without compensation. It is said that the establishment of the area merely served the purposes of the Navy and the National Defense but did not widen the channel or improve the navigation of the river but rather tended to restrict it, and, therefore, did not constitute an exercise by the United States of its superior navigation easement. For this point libellants chiefly rely on United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231, where it was held that owners of land in California, which was dependent upon seasonal inundations of the San Joaquin River, were entitled to compensation when they were deprived of these benefits in the construction by the United States of a gigantic project for the distribution of the waters of the Central Valley of the state. The Government defended on the grounds that the entire project was undertaken by Congress under its commerce power for the control of navigation. The court, however, held that although Congress had declared that the purpose of the project was to improve navigation, the entire legislative history of the enterprise showed that Congress had elected to treat the matter as a reclamation project and to take state created rights under its power of eminent domain. Since Congress itself in the exercise of its power to promote the general welfare, determined that the property owners were to be compensated the case was taken out of the field in which Congress proceeds under its power to control navigation. This circumstance obviously distinguishes the case from the case at bar. The most recent case in respect to the proper exercise of the Government’s dominant power to regulate and control navigation in the interest of commerce is United States v. Virginia Electric Co., 365 U.S. 624, at pages 627-628, 81 S.Ct. 784, at page 787, 5 L.Ed.2d 838, where the court said: “This navigational servitude— sometimes referred to as a ‘dominant servitude,’ Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 [74 S.Ct. 487, 493, 98 L.Ed. 686], or a ‘superior navigation easement,’ United States v. Grand River Dam Authority, 363 U.S. 229, 231 [80 S.Ct. 1134, 1136, 4 L.Ed.2d 1186] — is the privilege to appropriate without compensation which attaches to the exercise of the ‘power of the government to control and regulate navigable waters in the interest of commerce.’ United States v. Commodore Park, 324 U.S. 386, 390 [65 S.Ct. 803, 805, 89 L.Ed. 1017]. The power ‘is a dominant one which can be asserted to the exclusion of any competing or conflicting one.’ United States v. Twin City Power Co., 350 U.S. 222, 224-225 [76 S.Ct. 259, 260-261, 100 L.Ed. 240]; United States v. Willow River [Power] Co., 324 U.S. 499, 510 [65 S.Ct. 761, 767, 89 L.Ed. 1101]. A classic description of the scope of the power and of the privilege attending its exercise is to be found in the Court’s opinion in United States v. Chicago, M., St. P. & P. R. Co.: “ ‘The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. [Citing cases.] The damage sustained results not from a taking of the riparian owner’s property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.’ 312 U.S. 592, 596-597 [61 S.Ct. 772, 775, 85 L.Ed. 1064].” In view of the emphasis placed upon the Government’s purpose to further the interests of the Navy in setting up the restricted area in the York River, the cases most pertinent for consideration are those in which the Government has undertaken to exercise its dominant servitude primarily or largely for its own benefit. In United States v. Commodore Park, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017, e. g., the owner of land adjacent to and in the bed of a navigable stream or creek in Virginia, whose title was recognized by the state, sued for damages caused when the United States filled in the creek with material dredged from a nearby bay in order to deepen the waters for the operation of large seaplanes in connection with an adjacent Naval Base. It was shown that the Government had acquired lands on both sides of the creek and that the deposit of the dredged material raised the bed of the creek to the level of the shores so as to incorporate the area as an integral part and useful part of the Base. It was urged by the riparian property owners that neither the dredging of the bay nor the deposit of the dredged material in the creek bore any substantial relation to commerce or navigation and, therefore, the Government should pay for the damages caused to the shore owners’ property. The court rejected the contention. It said, 324 U.S. 391-392, 65 S.Ct. 806: “ * * * The ‘fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of Congressional Power.’ [State of] Arizona v. [State of] California, 283 U.S. 423, 456 [51 S.Ct. 522, 526, 75 L.Ed. 1154]. “All the waters affected were navigable. The Constitution entrusted to Congress the responsibility of determining what obstructions may, or may not, be placed in such waters. This power Congress may exercise itself or through its duly authorized agents. Here, the War Department, selected by Congress to pass upon when and to what extent, navigable waters may be altered or obstructed, permitted, and actually supervised, the program accomplished. Even though cases might arise in which the courts would look behind the judgment of this specially authorized agency, this is not such a case.” In the same connection see Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; Bailey v. United States, 62 Ct.Cl. 77. The libellants rely on United States v. 412.715 Acres of Land, D.C.N.D.Cal., 53 F.Supp. 143, but in that case it was found as a fact that the Government in changing the navigability of the waters acted for its own benefit only to the exclusion of the public. It cannot be doubted that the numerous stakes and buoys located by the libellants in the natural navigable channel of the river in waters 20 feet deep were obstructions to navigable capacity within the prohibition of 33 U.S.C.A. § 403. Nor can it be doubted that the removal of the obstructions was an improvement of navigation which served not only the purposes of the Navy but the members of the general public who made use of the stream. Actions of the United States complained of, therefore, fell well within the reach of the cases above cited which hold that so long as the general interests of navigation are served it is irrelevant that special interests of the United States are also advanced. Moreover,, as is pointed out in the quotation from United States v. Commodore Park, supra, the determination of what obstructions may or may not be placed in navigable waters is a matter for the judgment of Congress and its authorized agents whose conclusions the courts may not normally question. For like reason there is no basis for libellants’ argument that the regulation tends to restrict rather than facilitate navigation because, amongst other things, it forbids vessels to anchor in the mine sweeping area except in cases of emergency, prohibits the erection of such structures as fish traps, buoys, piles, etc., and confines vessels with a draft of 10 feet to a channel 300 yards wide during periods announced in advance. The argument ignores the plain fact that restrictions designed to protect the movement of vessels in a traveled area are aids rather than obstructions to navigation and that the regulation of such matters is in the hands of the Secretary of the Army. Affirmed. . The mine field area is less extensive than the mine sweeping area and the complaint seems to be directed toward the activities of the Government in the use of the latter area. In addition to these areas there was established as early as 1948 a Naval anchorage area in the navigable channel of the York River, the northern line of ■which was substantially the same as that of the mine sweeping area. The boundaries of a Naval anchorage area established in 1948 were also shown in the amended regulations. . The libellants also rely on Beacon Oyster Co. v. United States, Ct.Cl., 63 F.Supp. 761, Seipp v. United States, Ct.Cl., 68 F. Supp. 205, and H. J. Lewis Oyster Co. v. United States, Ct.Cl., 107 F.Supp. 570, in which damages were allowed to oyster-men for injuries to the property caused by dredging operations of the Government but the decision in these eases was controlled by an Act of Congress, such as the Act of 1948, 28 U.S.C. § 1497, which provided for the relief of oystermen under such circumstances. Since these decisions were based on the Act of Congress they have no bearing in the present instance. 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_genresp1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Ramon RUIZ PICHIRILO, Respondent, Appellant, v. Laureano MAYSONET GUZMAN, Libellant, Appellee. No. 5650. United States Court of Appeals First Circuit. May 29, 1961. Seymour P. Edgerton, Boston, Mass., Isaías Rodriguez Moreno, San Juan, P. R., Hiller B. Zobel, W. C. Moffett and Bingham, Dana & Gould, Boston, Mass., on the brief, for appellant. Harvey B. Nachman, San Juan, P. R., Stanley L. Feldstein and Golenbock, Nachman & Feldstein, San Juan, P. R., on the brief, for appellee. Before WOODBURY, Chief Judge, and MARIS and ALDRICH, Circuit Judges. Sitting by designation. ALDRICH, Circuit Judge. This is a libel in rem against the M/V Caribe and in personam against her owner (hereinafter respondent) for personal injury sustained by libellant, a longshoreman employed by Bordas & Co., a stevedoring concern engaged in discharging the vessel in the port of San Juan, Puerto Rico. The sole claim is for unseaworthiness, the injury having been caused by an admittedly defective shackle, recently bought. The defense was that the vessel was under demise charter to Bordas. The court ruled that the evidence showed no such charter. This ruling was wrong. A demise charter may be, as this one was claimed to be, by parole. James v. Brophy, 1 Cir., 1895, 71 F. 310, 312. We do not gather the court thought otherwise. We believe the court was misled by testimony of Bordas’ representative that the arrangement was not the usual charter party (although he added that “it is a kind of a charter”). The witness, a layman, was not qualified to draw legal conclusions. Moreover, his reservations appear to have been that it was neither a time charter, nor a bare boat charter, rather than that there was no charter at all. A demise, of course, is not a time charter, and it need not be of a bare boat. United States v. Shea, 1894, 152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403. The evidence showed that respondent, permanently residing within the Dominican Republic, had had' no connection with the operation of the Caribe for some five years, except that he had appointed, or “employed,” the master. That action would not mean a control of the vessel so as to prevent a demise. See United States v. Shea, supra; Grillea v. United States, 2 Cir., 1956, 229 F.2d 687, 689-690; The Willie, 2 Cir., 1916, 231 F. 865. Bordas’ representative testified, without contradiction, that the master was under Bordas’ orders. Bordas paid the master, the crew, and all expenses of the vessel, and paid respondent a flat monthly sum. The suggestion that it was merely an agent for respondent is without merit. Libellant offers no explanation why an agent should be making fixed monthly payments to a principal, rather than the reverse. We hold the evidence indisputably shows that Bordas was operating the ship as a demisee. Reed v. United States, 1870, 11 Wall. 591, 601, 78 U.S. 591, 601, 20 L.Ed. 220 (“possession, command, and navigation”). In Vitozi v. Balboa Shipping Co., 1 Cir., 1947, 163 F.2d 286, we held that an owner who has surrendered all control by demise was not liable in personam for unseaworthiness. Possibly we erred in extending this rule indiscriminately to cases where the unseaworthy condition preceded the demise. See Cannella v. Lykes Bros. S. S. Co., 2 Cir., 1949, 174 F.2d 794, 795, certiorari denied, 338 U.S. 859, 70 S.Ct. 102, 94 L.Ed. 526. But we see no reason to reconsider when, as here, the defective condition arose only after the owner had parted with all possession. See Grillea v. United States, supra, 229 F.2d at pages 689, 690. The judgment in personam against respondent must be set aside. Respondent, as claimant to the vessel, also asks us to dismiss the libel in rem. Since Bordas’ obligations under the Puerto Rico Workmen’s Compensation Act represent its exclusive liability to its employees, 11 L.P.R.A. ch. 1, § 21, an obligation obviously not here involved, and since the owner of the vessel is not personally liable at all, respondent contends that the vessel should not be independently charged. We agree. It is generally accepted that the in rem action in admiralty and the maritime lien are correlative. “Where one exists, the other can be taken, and not otherwise.” The Rock Island Bridge, 1867, 6 Wall. 213, 215, 73 U.S. 213, 215, 18 L.Ed. 753; see The Resolute, 1897, 168 U.S. 437, 440, 18 S.Ct. 112, 42 L.Ed. 533; The Lottawanna, 1874, 21 Wall. 558, 581, 88 U.S. 558, 581, 22 L.Ed. 654; 1 Benedict, Admiralty 18 (6 ed. Knauth 1940); Gilmore & Black, Admiralty 510 (1957); Price, Maritime Liens 12 (1940); Robinson, Admiralty 362 (1939). This does not solve our problem, because we could hold that a lien had arisen from a claim against the ship notwithstanding the absence of a claim against any distinct juridical person, but it does focus attention on the necessity of an underlying claim. The concept of a ship as an individual may have an aura of romance befitting the lore of the sea, but to regard it as an entity having separate responsibilities independent of the primary legal responsibility of some human actor has little rational appeal. This is not to say that the “personification” of the vessel is not a convenient shorthand method of expressing legal results. See Price, Maritime Liens 16 (1940); Hebert, “The Origin and Nature of Maritime Liens,” 1930, 4 Tul.L. Rev. 381, 392. It is something else to use the characterization to achieve them. In a variety of situations courts have refused to charge the ship when neither the owner nor the party in possession, nor the agents of either, were personally liable. In Queen of the Pacific, 1901, 180 U.S. 49, 21 S.Ct. 278, 45 L.Ed. 419, it was argued that a stipulation in a bill of lading requiring all claims against a shipowner to be brought within a certain time did not prevent an in rem action against the vessel after that time. The court rejected this, saying, “The ‘claim’ is in either case against the company, though the suit may be against its property.” 180 U.S. at page 53, 21 S.Ct. at page 279. (Ital. in orig.) In The Oceanica, 2 Cir., 1909, 170 F. 893, 898, certiorari denied 215 U.S. 599, 30 S.Ct. 400, 54 L.Ed. 343, it was alleged that a tug had negligently caused the loss of her tow. The towage contract exempted the tug owner from negligence. The Court refused to charge the tug. That this was not simply a question of contractual interpretation is made clear by The Elizabeth M. Miller, D.C.W.D.N.Y. 1932, 3 F.Supp. 171, 172-173, where the tug was operated by an allegedly exempted demisee. The Western Maid, 1922, 257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299, involved several collisions in which vessels owned outright or pro hac vice by the United States were assumed to be at fault. Sovereign immunity at that time prevented suits against the government. The court refused to hold that a lien had attached which was enforceable when the ship passed into private hands. More recently, in Noel v. Isbrandtsen Co., 4 Cir., 1961, 287 F.2d 783, in rem liability was not established because of the failure to show any personal obligation owed to the libellant to furnish a seaworthy ship. There is nothing in the doctrine of unseaworthiness that should lead to a different result. It is true that one speaks of unseaworthiness “of the vessel” and of “liability without fault,” but this cannot obscure the fact that liability depends upon a legal obligation growing out of a relationship between individuals: the injured party and the one charged with preventing the injury. See United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 1959, 358 U.S. 613, 616, 79 S.Ct. 517, 3 L.Ed.2d 541; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 95-96, 104 (dissenting opinion), 66 S.Ct. 872, 90 L.Ed. 1099; Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 100, 103-104, 64 S.Ct. 455, 88 L.Ed. 561; The Osceola, 1903,189 U.S. 158, 171, 175, 23 S.Ct. 483, 47 L.Ed. 760; cf. Grillea v. United States, supra, 229 F.2d at page 690. A ship does not make a warranty. Whether one speaks in terms of holding out, cf. West v. United States, 1959, 361 U.S. 118, 122, 80 S.Ct. 189, 4 L.Ed.2d 161, or duty owed, Halecki, supra, unseaworthiness liability requires something more than a mere defective condition of the vessel. See Noel v. Isbrandtsen Co., supra. In Smith v. The Mormacdale, 3 Cir., 1952, 198 F.2d 849, certiorari denied 345 U.S. 908, 73 S.Ct. 648, 97 L.Ed. 1344, a longshoreman who was limited in his rights against his employer by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901-950, was held unable to proceed against the vessel which was owned by his employer, although the vessel’s unseaworthy condition was alleged. Following the teaching of the cases earlier discussed, we are not prepared to reach a different conclusion simply because title to the vessel is in the hands of another party who is also not personally liable. Cf. Pedersen v. Bulklube, D.C.E.D.N.Y.1959, 170 F.Supp. 462, 466-467, affirmed, 274 F.2d 824, certiorari denied 364 U.S. 814, 81 S.Ct. 44, 5 L.Ed.2d 46; Vitozi v. Platano, D.C.S.D.N.Y.1948, 1950 A.M.C. 1686; The Elizabeth M. Miller, D.C.W.D.N.Y.1932, 3 F.Supp. 171, 172-173 (dictum). But see Leotta v. The S. S. Esparta, D.C.S.D. N.Y.1960, 188 F.Supp. 168, 169, infra; Reed v. The Yaka, D.C.E.D.Pa.1960, 183 F.Supp. 69, infra. Nor, by some process of inverse reasoning, does this lead us to say that a demisor is personally liable for a condition of unseaworthiness created by the demisee. It should be enough that his ship is subject to a lien to secure whatever obligation the demisee has personally incurred in his operation of the ship. See The Barnstable, 1901, 181 U. S. 464, 21 S.Ct. 684, 45 L.Ed. 954. It is true that in Grillea v. United States, 2 Cir., 1956, 232 F.2d 919(2-1), the court reached the opposite result. It did so without discussion, and with only the simple statement, “we see no reason why a person’s property should never be liable unless he or someone else is liable ‘in personam.’ ” 232 F.2d at page 924. With all deference we think so novel a principle needs more support than a statement that the court sees no reason against it. Grillea seems the more surprising in that Judge Hand, the writer of the majority opinion, had observed not long before, after discussing the ancient doctrine of deodand, “Disputes arise between human beings, not inanimate things; * * * a vessel * * * is, and can be, nothing but the measure of [claimant’s] stake in the controversy.” Burns Bros. v. The Central R. R. of New Jersey, 2 Cir., 1953, 202 F.2d 910, 913. Grillea has resulted in some discussion of the effect of an indemnity clause in the demise. Leotta v. The S. S. Esparta, D.C.S.D.N.Y.1960, 188 F.Supp. 168. See also Reed v. The Yaka, D.C.E.D.Pa.1960, 183 F.Supp. 69. We would agree with Yaka that the existence of an indemnity clause is beside the point. But we cannot agree with Yaka that the fact that the demising owner is eventually going to get the boat back is determinative. This was answered by The Western Maid, supra. Cf. Pedersen v. Bulklube, supra. We do not reach respondent’s other contentions, one of which appears to have some merit. Judgment will be entered vacating the judgment of the District Court and remanding the action for entry of a judgment of dismissal. . We are satisfied on the record that with characteristic forthrightness the court did not seek to avoid the necessity of ruling by making a finding that it did not believe testimony which in fact it did believe. Under these circumstances, and since, in addition, this evidence was inherently credible and undisputed, we will accept it without the necessity of remand. See Union Leader Corp. v. Newspapers of New England, Inc., 1 Cir., 1960, 284 F.2d 582, 587, certiorari denied 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744; Texas Co. v. B. O’Brien & Co., 1 Cir., 1957, 242 F.2d 526, 529. . Actually, the court inaccurately quoted the witness as having said, “something like a charter, but not a charter.” . But see Bisso v. Inland Waterways Corp., 1955, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911. . Liability without fault in analogous situations has not led courts to describe the result as other than an adjustment of loss between the parties involved. See, e. g., Exner v. Sherman Power Constr. Co., 2 Cir., 1931, 54 F.2d 510, 512-514, 80 A.L.R. 686. See generally, Prosser, Torts 317-18 (2d ed. 1955). 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_genresp1	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. 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. The ONEIDA INDIAN NATION OF NEW YORK STATE, also known as the Oneida Nation of New York, also known as the Oneida Indians of New York, and The Oneida Indian Nation of Wisconsin, also known as the Oneida Tribe of Indians of Wisconsin, Inc., Appellants, v. The COUNTY OF ONEIDA, NEW YORK, and The County of Madison, New York, Appellees. No. 720, Docket 72-1029. United States Court of Appeals, Second Circuit. Argued June 5, 1972. Decided July 12, 1972. Lumbard, Circuit Judge, dissented and filed opinion. George C. Shattuck, Syracuse, N. Y. (Bond, Schoeneck & King, Syracuse, N. Y., of counsel), for appellants. William L. Burke, Atty. for County of Madison, Hamilton, N. Y., for County of Madison. Roceo S. Mascaro, Utica, N. Y. (Raymond M. Durr, Boonville, Atty. for County of Oneida, of counsel), for County of Oneida. Charles Donaldson, Syracuse, N. Y., of counsel, American Civil Liberties Union and David H. Getches, Boulder Colo., and Peter J. Aschenbrenner, of counsel, Native American Rights Fund, for appellants, amicus curiae. Before FRIENDLY, Chief Judge, and LUMBARD and MULLIGAN, Circuit Judges. FRIENDLY, Chief Judge: This appeal from an order of the District Court for the Northern District of New York, dismissing a complaint by two Indian nations for want of federal jurisdiction, takes us back to the early days of the Republic. Although on the surface the controversy seems highly appropriate for federal cognizance, that claim shatters on the rock of the “well-pleaded complaint” rule for determining federal question jurisdiction, and we find no other basis that would permit a federal court to entertain the action. The principal allegations of the complaint are as follows: The plaintiffs are The Oneida Indian Nation of New York State, an Indian Nation or Tribe with its principal reservation in Oneida and Madison Counties, New York, and The Oneida Indian Nation of Wisconsin, an incorporated Indian Nation or Tribe with its principal reservation in Wisconsin. The defendants are the two New York counties just mentioned. After alleging the required jurisdictional amount and diversity of citizenship, the complaint dips into history. Prior to the American Revolution the Oneidas owned some 6,000,000 acres of land in central New York. In contrast to other New York Indian tribes, they fought on the side of the colonists. See U.S. Dept, of Interior, Federal Indian Law 966-67 n. 1 (1958) [hereinafter cited as Federal Indian Law]. In recognition of this, a number of treaties were made confirming them in the possession of their lands, except such as they had sold or might choose to sell. To implement these and other treaty obligations, the first Congress adopted the Indian Non-Intercourse Act, 1 Stat. 137 (1790), later Rev. Stat. § 2116, and now 25 U.S.C. § 177. This provided, inter alia: No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. President Washington explained the statute to a delegation of Seneca Indians as follows: “Here, then, is the security for the remainder of your lands. No state, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but it will protect you in all your just rights.” Prior to adoption of the statute, the Oneidas, in the Treaty of Fort Stanwix in 1788, between themselves and the State of New York, had ceded over 5,-000,000 acres of their lands to New York State for what now seems an absurdly small consideration. They had reserved about 300,000 acres in Oneida and Madison Counties. In 1795 representatives of New York State procured the cession by “treaty,” see Federal Indian Law 513 n. 6; cf. Seneca Nation v. Christy, 162 U.S. 283, 16 S.Ct. 828, 40 L.Ed. 970 (1896), of a large portion of these lands, again for what now seems an inadequate consideration and allegedly was so even then. The complaint asserts that no federal consent was obtained, that no United States Commissioner was present at the negotiation or execution of the purported treaty, and that the United States has never approved or ratified it. Part of the premises deeded in 1795 became the property of the defendant counties which currently occupy them for buildings, roads or other public improvements. “By reason of such occupancy of plaintiffs’ premises, defendants for the period January 1, 1968 through December 31, 1969 became indebted to plaintiffs for the fair rental value of such premises to the extent of at least $10,000.00, exclusive of costs and interest.” Plaintiffs demanded judgment for at least $10,000.00 “plus such other and further monetary damages as the Court may deem just.” Appealing from a dismissal of the complaint for lack of federal jurisdiction, the Oneidas assert three different bases — the existence of a federal question, diversity of citizenship and, surprisingly, a claim under the Civil Rights Act. I. As stated, on a surface reading the complaint would seem to state a claim which “arises under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331(a), or to institute an action “by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1362. Decision would ultimately turn on whether the deed of 1795 complied with what is now 25 U.S.C. § 177 and what the consequences would be if it did not. However, this alone does not establish the existence of federal question jurisdiction. “Under existing law it is well established that federal question jurisdiction is present only if the reliance on a federal right appears on the face of the well-pleaded complaint. The first Supreme Court decision to construe the Act of 1875 [creating general federal question jurisdiction] applied such a rule, citing Chitty to determine what allegations were proper, Gold-Washing & Water Co. v. Keyes, 96 U.S. 199 (1877), and the rule has been insisted upon ever since.” ALI Study of the Division of Jurisdiction between State and Federal Courts, Commentary on § 1311, p. 169 (1969). One effect of the rule is to bar “access to federal court on the basis of allegations which are not required by nice pleading rules,” Id. at 169-70, notably in cases involving rights to land. Although plaintiffs’ only specific claims for relief are for two years’ rental value as a result of defendants’ occupancy, or damages for denial of plaintiffs’ right of use, see note 3 swpra, their success depends upon establishment of their right to possession, see Willis v. McKinnon, 178 N.Y. 451, 70 N.E. 962 (1904); Crawford v. Town of Hamburg, 19 A.D.2d 100, 241 N.Y.S.2d 357 (1963), and the action is thus basically in ejectment. As to this, a long and unbroken line of Supreme Court decisions holds that the complaint in such an action presents no federal question even when a plaintiff’s claim of right or title is founded on a federal statute, patent or treaty. Florida Central & P. Railroad v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900); Filhiol v. Maurice, 185 U.S. 108, 22 S.Ct. 560, 46 L.Ed. 827 (1902); Filhiol v. Torney, 194 U.S. 356, 24 S.Ct. 698, 48 L.Ed. 1014 (1904); Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); White v. Sparkhill Realty Corp., 280 U.S. 500, 50 S.Ct. 186, 74 L.Ed. 578 (1930). These decisions were followed and applied by this court in Deere v. St. Lawrence River Power Co., 32 F.2d 550 (2 Cir. 1929). The frequently cited decision in Taylor v. Anderson, supra, written for a unanimous Court by Mr. Justice Van Devanter, who spoke with particular authority on federal jurisdiction, is directly in point. The complaint in an action in ejectment “alleged with much detail that the defendants were asserting ownership in themselves under a certain deed, and that it was void under the legislation of Congress restricting the alienation of lands allotted to the Choctaw and Chickasaw Indians.” 234 U.S. at 74-75, 34 S.Ct. at 724. This was held not to state a claim arising under the laws of the United States, since all that needed to be alleged was “that the plaintiffs were owners in fee and entitled to the possession; that the defendants had forcibly taken possession and were wrongfully keeping the plaintiffs out of possession, and that the latter were damaged thereby in a sum named.” Id. at 74, 34 S.Ct. at 724. It was of no moment that the defendants might and probably would defend on the basis of the deed, which the plaintiffs would then challenge as invalid under federal legislation. Jurisdiction “must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.” Id. at 75-76, 34 S.Ct. at 724. (Emphasis supplied). Plaintiffs are not aided by decisions of this court on which they heavily rely. Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2 Cir.), cert. denied, 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed. 2d 76 (1958), was not an action in ejectment by Indians who were out of possession but a suit for an injunction by Indians who were in possession. In such an action, as in the case of a bill to remove a cloud on title, Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L.Ed. 1270 (1917), a complete statement of plaintiff’s claim to relief is appropriate. Ivy Broadcasting Co. v. American T. & T. Co., 391 F.2d 486 (2 Cir. 1968), characterized in appellants’ brief as “directly on point,” is even further from the mark. The significant holding there was that a case could be regarded as arising under a law of the United States even though this was “federal common law” rather than a statute, a view recently affirmed by the Supreme Court, Illinois v. City of Milwaukee, 406 U.S. 91, 99-100, 92 S.Ct. 1385, 1390, 31 L.Ed.2d 712 (1972). Plaintiffs do not need to resort to that doctrine, since the 1794 statute, now 25 U.S.C. § 177, would be a law of the United States on any basis; their difficulty is that, on the rather technical view taken by the Supreme Court, their action does not “arise” thereunder. We have considered the possibility of sustaining the complaint on a different ground, not suggested by the plaintiffs, but find this also to be precluded. Article 15 of the New York Beal Property Actions and Proceedings Law, McKinney’s Consol.Laws, c. 81, provides that any person claiming an estate or interest in real property may maintain an action against any other person “to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make,” § 1501. Contrary to the common law, this permits an action to remove a cloud from title to be brought by a person not in possession. See N.Y. Real Property Actions and Proceedings Law § 1515; Burke v. Suburban Mortgage Corp., 43 Misc.2d 1077, 252 N.Y.S.2d 911 (Sup.Ct.1964). However, even if we were to make the unlikely assumption that the New York legislature intended this remedy to be available to Indian tribes, and could properly make it so in a case like this, see note 9 infra, plaintiffs can gain nothing from it. It is settled that federal courts may not apply state statutes expanding equity jurisdiction beyond that prevailing when the Constitution was adopted. This is no technical quibble but a rule deemed to be required by the Seventh Amendment’s guarantee of jury trial in actions at law. Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891), which was cited with approval and reaffirmed in Guaranty Trust Co. v. York, 326 U.S. 99, 105106, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), is almost directly in point. An Iowa statute gave any claimant, whether in or out of possession, the right to bring an action in equity to quiet title. The Court upheld the sustaining of a demurrer to such a suit in federal court when the defendant was in possession, since the plaintiff had an adequate remedy at law in federal court. While the decision relied on § 16 of the Judiciary Act of 1789 (later Rev.Stat. § 723 and 28 U.S.C. § 384 (1940 ed.)), which limited suits in equity to cases in which there was no “plain, adequate and complete remedy” at law, and that statute was repealed in 1948 as obsolete in view of the merger of law and equity under the Federal Rules of Civil -Procedure, 62 Stat. 992, the principle remains intact. Cf. Stain-back v. Mo Hock Ke Lok Po, 336 U.S. 368, 382 nn. 26, 27, 69 S.Ct. 606, 614, 93 L.Ed. 741 (1949) ; Potwora v. Dillon, 386 F.2d 74, 77 (2 Cir. 1967). Plaintiffs might argue against this that here they have no adequate remedy at law in a federal court since, for the reasons stated above, there is no federal question jurisdiction over an action in ejectment and, as will later appear, we find no other sustainable ground of federal jurisdiction. But such an argument would be largely answered by Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64, 69-70, 56 S.Ct. 1, 80 L.Ed. 47 (1935). See also Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 76 L.Ed. 447 (1932); Atlas Life Ins. Co. v. Southern, 306 U.S. 563, 568-570, 59 S.Ct. 657, 83 L.Ed. 987 (1939). Di Giovanni was a suit in equity in the District Court for Missouri by a New Jersey fire insurance company against citizens of Missouri to cancel two fire insurance policies, one for $3,000 and another for $1,-500, as obtained by fraud. The Court held that the action must be dismissed because of the existence of an adequate remedy at law, namely, the defense of actions on the two policies. Although “the inadequacy prerequisite to relief in a federal court of equity is measured by the character of remedy afforded in federal rather than in state courts of law,” 296 U.S. 64 at 69, 56 S.Ct. 1 at 3, plaintiff did not demonstrate inadequacy by showing that the jurisdictional amount, then $3,000, would prevent suits on the policies from being maintained in or removed to a federal court. “The statute [28 U.S.C. § 384 (1940 ed.)] forbids resort to equity in the federal courts when they afford adequate legal relief. It does not purport to command that equitable relief shall be given in every case in which they fail to do so.” Id. at 70, 56 S.Ct. at 4. In other words, adequacy of the legal remedy is tested by what a federal court could afford if it had jurisdiction, not by what it could do in the particular case. We do not believe this doctrine would yield even if, as seems not improbable, see note 9 infra, the plaintiffs are likewise without a remedy in the New York courts. While we recognize that Di Giovanni differs on its facts in that there the prospective defendant at law was the plaintiff in equity, we see nothing in Mr. Justice Stone’s opinion that would render this distinction significant. II. Appellants also sought to sustain federal jurisdiction on the basis of diversity, 28 U.S.C. § 1332(a). Conceivably this could be either under § 1332(a) (1) conferring jurisdiction in actions between “citizens of different States” or under § 1332(a) (3) conferring jurisdiction in actions between “citizens of different States and in which foreign states or citizens or subjects thereof are additional parties.” The district court, finding it unnecessary to deal with plaintiffs’ claim that The Oneida Tribe of Wisconsin, Inc. was a citizen of Wisconsin, focused on the status of The Oneida Indian Nation of New York. It considered that the most likely analogy was that of an unincorporated association, with the result that, under United Steelworkers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965), jurisdiction under § 1332(a) (1) would be defeated by the New York citizenship of many of the Nation’s members. Appellants contend that the analogy is false since an Indian nation is something unique. See Federal Indian Law 341. Even if that be so, it would not avail the plaintiffs under § 1332(a) (1). In Strawbridge v. Curtiss, 7 U.S. (3 Crunch) 267, 2 L.Ed. 435 (1806), Chief Justice Marshall stated the rule of complete diversity to be “that each distinct interest should be represented by persons, all of whom are entitled to sue, or may be sued, in the federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts.” 7 U.S. (3 Cranch) at 267. This formulation has been followed in subsequent cases. See, e.g., Florida Central & P. Railroad v. Bell, 176 U.S. 321, 20 S.Ct. 399, 44 L.Ed. 486 (1900); Hooe v. Jamieson, 166 U.S. 395, 17 S.Ct. 596, 41 L.Ed. 1049 (1897); New Orleans v. Winter, 14 U.S. (1 Wheat.) 91, 4 L.Ed. 44 (1816); see also Levering & Garriques Co. v. Morrin, 61 F.2d 115, 121 (2 Cir. 1932), aff’d, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933). The Oneida Nation of New York is surely not a citizen of a state different from New York, and the case under § 1332(a) (1) thus fares no better on plaintiffs’ theory than on that of the district judge since the Nation’s lack of citizenship in a state other than New York would equally defeat diversity jurisdiction. Neither can plaintiffs establish diversity jurisdiction under § 1332(a) (3). Even if The Oneida Nation of Wisconsin, Inc. should be regarded as a citizen of Wisconsin for diversity purposes, the Oneida Nation of New York is not “a foreign state.” This was established as long ago as Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17-18, 8 L.Ed. 25 (1831). III. For this case a sufficient answer to the claim of jurisdiction under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), is that, at least with respect to damage suits, a county is not a “person” within the meaning of these statutes, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Beyond that, the claim is impossible to fathom. Apparently it is based on the fact that although § 11-a of the New York Indian Law, McKinney’s Consol. Laws, c. 26, added by N.Y.Laws 1958, c. 400, apparently to implement 25 U.S.C. § 233, is broad enough on its face to encompass an action like this, it may not be effective because of the proviso in the latter section restricting the grant of jurisdiction to New York courts so as to exclude land claims based on transactions or events antedating September 13, 1952, see note 9 -supra — a matter on which we take no position. Even if the Oneidas’ fears should be realized, we fail to understand how a state could be thought to have violated the Constitution in going only so far as federal law permits. The judgment dismissing the complaint for want of federal jurisdiction is affirmed. . Following defendants’ motion to dismiss the complaint on numerous grounds, one of which was lack of subject-matter jurisdiction, plaintiffs cross-moved to amend the complaint, see note 3 infra, F.R.Civ.P 15(a), to allege that “Jurisdiction is conferred by diversity of citizenship and because this complaint presents a federal question involving the Constitution, Article I, Section 8, Clause 3, the Treaties, and the Laws of the United States, and plaintiffs claim relief under such Constitution, Treaties, and Laws.” Civil rights jurisdiction, 42 U.S.C. § 1983, 28 U.S.C. § 1343, was also alleged. The district court granted plaintiffs’ motion to amend, and further ordered that defendants’ motion to dismiss be deemed made against the amended complaint. . See Treaty of October 22, 1784, 7 Stat. 15; Treaty of January 9, 1789, 7 Stat. 33; Treaty of November 11, 1794, 7 Stat. 44; Treaty of December 2, 1794, 7 Stat. 47. See Federal Indian Law 965, 970-72. . The quoted language was added, in an amendment as a matter of course, F.R. Civ.P. 15(a), as U 22 of plaintiffs’ complaint; f 18 of the original and amended complaints alleges in part that “By reason of said occupancy [by defendants] plaintiffs have been denied use of such parts of the premises and have been damaged to the extent of at least $10,000, exclusive of costs and interest.” Whether these claims are viewed as distinct causes of action, or simply as alternative statements of an appropriate measure of damages on the same cause of action, the outcome is equally unavailing to plaintiffs. While plaintiffs only claimed rental value for a two-year period, they sought to preserve their claim for rental value for both prior and subsequent years. . The jurisdictional issue in this case is the same under either section. Apart from the use of the same language as in § 1331, the legislative history makes clear that the sole purpose of § 1362 was to remove any requirement of jurisdictional amount. See 1966 U.S.Code Cong. & Admin.News, pp. 3145-3149. The decision, Yoder v. Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, Mont., 339 F.2d 360 (9 Cir. 1964), which the statute aimed to overrule, involved a claim that would have been assertable under § 1331 but for the requirement of jurisdictional amount. . Although the complaint makes copious reference to various Indian treaties, see note 2 supra, which are indeed considered to constitute “treaties” within applicable jurisdictional legislation, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 541, 8 L.Ed. 483 (1832), see Federal Indian Law 138-44, it does not make clear how the deed was in breach of them. However, we need not pursue the point since the complaint clearly does allege that the deed was executed in violation of a federal statute. . Recognizing that all the cited cases were decided before adoption of the Federal Rules of Civil Procedure in 1938, we have considered whether the binding force of these decisions could have been affected by the Rules, more particularly by Rule 8(a) with respect to the complaint. We do not see how this result could ensue. The objective of Rule 8(a) was to make complaints simpler, rather than more expansive. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, the rule-making statute, 48 Stat. 1064 (1934), provided that the rules “shall neither abridge, enlarge, nor modify the substantive rights of any litigant,” and Rule 82 directs that the rules “shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” Snyder v. Harris, 394 U.S. 332, 337-38, 89 S.Ct. 1053, 1057, 22 L.Ed.2d 319 (1969), is a recent and pertinent application of Rule 82. . Judge Port correctly held that only such allegations are needed under New York law. See Weiss v. Goffen, 26 Misc.2d 988, 207 N.Y.S.2d 163 (Sup.Ct.1960). . But not in the case of a suit to quiet title, Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205 (1912). As has been well said, “It would be very surprising if this ancient lore as to the forms of action should correspond to any functional justification for federal question jurisdiction,” ALI Study, supra, at 170. . Since there is no diversity under either § 1332(a) (1) or (a) (3), we have no need to consider whether, as held in Hot Oil Service, Inc. v. Hall, 366 F.2d 295 (9 Cir. 1966), on the asserted analogy of the rule relating to state “door-closing” statutes, see Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947) ; Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949), diversity jurisdiction would also be precluded by lack of jurisdiction in the courts of New York, if lack there is. The prevailing rule since Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), has been that state courts may not exercise jurisdiction over Indian tribal affairs or claims arising out of or relating to their restricted tribal lands. See Federal Indian Law 363-64. The history of this restriction, the judicial modifications of it, and its current status are discussed in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Williams reveals that the major role, sanctioned by Art. I, § 8, cl. 3 of the Constitution, in modifying this rule designed for the protection of Indians, has been played by Congress. “[W]hen Congress has wished the States to exercise this power it has expressly granted them jurisdiction which Worcester v. Georgia had denied.” 358 U.S. at 221, 79 S.Ct. at 271. In that connection the Court referred to 25 U.S.C. § 233, adopted in 1950, 64 Stat. 845, which, with certain qualifications, gave the New York courts jurisdiction “in civil actions and proceedings between Indians or between one or more Indians and any other person or persons,” subject, however, to a proviso that the grant should not extend to “civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952.” Appellants point to a statement of the proposer of this proviso on the floor of the House of Representatives, 96 Cong.Rec. 12460 (1950), that in addition to the access to state courts granted by the bill, the Indians “may go into the federal courts and adjudicate any differences they have had between themselves and the great State of New York relative to their lands, or claims in regard thereto, and I am sure that the State of New York should have and no doubt will have no objection to such provision.” But the bill in fact made no “such provision,” and the statement is altogether too tenuous a basis to confer federal jurisdiction not granted by the detailed provisions of Chapter 85 of Title 28. . We are advised that the Oneidas have filed a claim relating to the transaction here at issue with the Indian Claims Commission, 25 U.S.C. § 70a, and have received an award, but that the United States has appealed this to the Court of Claims. 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	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. SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. William V. COFFEY, Defendant-Appellant, and John M. King, Defendant-Appellant. Nos. 73-1396, 73-1397. United States Court of Appeals, Sixth Circuit. Argued Dec. 4, 1973. Decided March 28, 1974. Jack R. Alton, Columbus, Ohio, for defendants-appellants; Lane, Alton & Horst, Columbus, Ohio, on briefs. Paul Gonson, Asst. Gen. Counsel, Washington, D. C., for plaintiff-appel-lee; Lawrence E. Nerheim, Gen. Counsel, David Ferber, Sol., Martin S. Ber-glas, Atty., S.E.C., Washington, D. C., Donald Dreyfus, Atty., Chicago Regional Office, S.E.C., Chicago, 111., on brief. Before CELEBREZZE, Circuit Judge, McALLISTER, Senior Circuit Judge, and WILSON, District Judge. The Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee, sitting by designation. . Section 10(b) of the Exchange Act of 1934 provides as follows : It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. For a discussion of Rule 10b-5’s non-application to non-eulpable conduct, see Note, “Corporations — Rule 10b-5 — Nonparticipating Corporate Director Owes No Duty to Insure that all Material, Adverse Information is Conveyed to Prospective Purchasers,” 5 St. Mary’s L.J. 382, 387 (1967). CELEBREZZE, Circuit Judge. This case presents novel issues for this Circuit regarding the Securities and Exchange Commission’s ability to enjoin corporate officials personally for alleged corporate violations of the federal securities laws, specifically, § 17(a)(1) and (3) of the 1933 Securities Act and § 10(b) of the 1934 Securities Exchange Act, and Rule 10b-5(l) and (3) promulgated thereunder. Appellants are the board chairman (John King) and the financial vice-president (William Coffey) of King Resources Company. The relevant events began when Crofters, Inc., an Ohio “money-finder” formed in 1969, offered to arrange loans totaling $22,000,000 from the State of Ohio to four companies charged in the SEC complaint. One of Crofters’ clients was King Resources Company, a Maine corporation with its headquarters in Colorado, engaged in oil well drilling in over a hundred countries. In early 1970 King Resources was short of cash and was seeking loans from various sources. In February, 1970, Ronald Howard, an independent money-finder and a defendant in the proceedings below, approached William Coffey (then King Resources’ financial vice-president) with the proposal that King Resources seek funds from the State of Ohio. Howard told Coffey that long-term arrangements were possible but that it was a legal prerequisite to obtaining funds from the State that a company’s commercial paper be rated “prime” by the National Credit Office, Inc. (NCO), a division of Dun & Bradstreet. Defendant -Groban, a Crofters partner, contacted Coffey on February 19, 1970, and requested information that NCO would need to determine whether King Resources’ commercial paper merited a prime rating. Coffey sent these materials to Groban. Groban then asked NCO to rate King Resources for the commercial paper market. Rudolph Merker, NCO’s vice-president for commercial paper, requested further information of Coffey, which was forthcoming and is not alleged to have been false. NCO promptly rated King Resources prime for the commercial paper market, on February 26, 1970. Groban notified Ohio’s Deputy Treasurer of King Resources’ prime NCO rating, and the State bought from King Resources a two-year $3,000,000 note on April 17, 1970 and a two-year $5,000,000 note on May 1, 1970. King Resources soon thereafter collapsed financially, rendering Ohio’s notes virtually worthless. On November 16, 1970, the SEC sued to enjoin further violations of the securities laws by 17 defendants, including King Resources and Appellants Coffey and King. The SEC alleged three different categories of securities law violations, only one of which applied to King Resources and Appellants. The Commission alleged that King Resources had sold its notes by misrepresenting its prime rating on commercial paper as proof that its two-year notes were also rated “prime.” It further alleged that King Resources had failed to disclose material facts concerning its financial condition and the proposed use of the loan proceeds, omissions which tended to mislead NCO and the State of Ohio. On the basis of depositions and briefs, the District Court disposed of Appellee’s motion for summary judgment on its petition for a preliminary injunction on August 10, 1972, by issuing a temporary restraining order against all 17 defendants. In a lengthy opinion, it held: [ 0 ]n the state of facts now before us, the Court concludes that the defendants’ use of the word “prime”, as defined by N.C.O. and the customs of the securities industry, in connection with notes of terms in excess of 270 days, constituted a violation of the standard promulgated in O.R.C. § 135.14. Further, that such use of the term “prime”, in connection with non-commercial paper tended to operate as a “device, scheme, or artifice to defraud” within the meaning of Section 17(a)(1) and of Section 10(b) and Rule 10b-5(l) thereunder; and further constituted the engaging in a “transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser” within the meaning of Section 17(a)(3) and Section 10(b) and Rule 10b-5(3) thereunder, [ citations omitted ]. This conduct on the part of the defendants constitutes activity which should be enjoined by the equitable powers of this court. By restraining the 17 defendants, the District Court avoided the question whether the Defendants, particularly Groban, had omitted material information or had made false statements in representing the various companies’ financial situations to Rudolph Merker of NCO: What is actionable in this case is the use of prime ratings, regardless of how they were obtained, for a purpose which would tend to confuse and mislead the purchasers. Holding as we do, it is unnecessary to consider whether there was a material omission within the meaning of section 17(a)(2) and Rule 10b-5(2). Defendants had the obligation to insure that the ultimate use of the prime ratings did not violate other provisions of Section 17(a) and 10(b). This obligation on their part might well have cautioned them to reveal that the terms of the various notes they intended to issue were in excess of 270 days and therefore not properly submitted for'a prime rating. Deciding as we do, however, this determination is extraneous to the necessary grounds of our holdings. The District Court enjoined [T]he defendants who directly participated in obtaining prime ratings for Consolidated, Four Seasons and King Resources [who] knew or should have known that the notes ultimately issued were not properly described by the word “prime.” These “directly participating” defendants included King Resources Company. Appellant King was enjoined as a “responsible officer” of King Resources. Appellant Coffey was enjoined as an “aider and abettor” in the scheme. King Resources Company was nonetheless dismissed from the case because the District Court held that a prior Colorado injunction against the company was res judicata as to the present case. The SEC has not appealed that part of the ruling. Soon after the temporary restraining order was issued, fourteen defendants submitted to consent decrees. Appellants persisted in their opposition to the SEC complaint and were afforded a hearing on consolidated motions for a preliminary and permanent injunction. They were allowed to present evidence concerning all factual matters, though the District Court refused to hear argument on the matters of law it had decided on August 10, 1972. On December 29, 1972, the District Court adopted the findings and conclusions of its August 10 Order in permanently enjoining Appellants from violations of § 17(a)(1) and (3), § 10(b), and Rule 10b-5(l) and (3). It held that Appellants “engaged in or are legally responsible for acts, including those which culminated in obtaining for King Resources Company a rating of ‘prime’ from [NCO], which was substantially employed in connection with notes of term in excess of 270 days.” Appellants attack this final judgment and order. Before beginning a legal analysis of the District Court’s actions, we confront a basic difference between the parties. Appellants argue that the District Court opinion tars them with the finding that they committed a fraud, thus jeopardizing their right to earn a livelihood. The SEC asserts in its Brief that injunctive relief is merely a “mild prophylactic,” which requires “only that a defendant obey provisions of the law that he was already obliged to obey.” When the SEC brings an injunctive suit to protect the public interest in an open and honest securities market, courts will shape their relief flexibly to effectuate the purposes of the Act. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963); SEC v. Barraco, 438 F.2d 97, 98-99 (10th Cir. 1971). However, before an injunction will issue against a particular party in his personal capacity, it must be shown that he personally is about to commit, is committing, or has committed a securities law offense. The statutory authority of the SEC alone requires such a rule. See § 20(b) of the 1933 Act, 15 U.S.C. § 77t(b), and § 21(e) of the 1934 Act, 15 U.S.C. § 78u(e). In this case, all challenged activities have ended, so that the SEC has not based.its request for relief on the assertion that defendants are “about to” commit a violation. Unless Appellants themselves violated the securities laws, there is consequently no basis to enjoin them for fear they will commit “further” violations. See SEC v. National Bankers Life Ins. Co., 324 F.Supp. 189, 197 (N.D.Tex.1971), 334 F.Supp. 444 (D.C.), aff’d, 448 F.2d 652 (5th Cir. 1971). We are disturbed by the SEC’s tacit suggestion that a Court may personally enjoin a corporate official whenever his company or one of its agents has committed a securities law violation. An injunction is effectively drawn when it enjoins violators and their “agents, servants, employees and those persons in active concert or participation with them who receive actual notice of [an] Order.” This is precisely the clause used by the District Court to enjoin all of Appellants’ cohorts, in issuing its permanent injunction against Appellants. Furthermore, it is a basic equity principle that “whenever an injunction, whatever its nature may be, is directed to a corporation, it also runs against the corporation’s officers,” in their corporate capacities. 10 W. Fletcher, Private Corporations § 4875 (1970 ed.). To name individuals personally and to find that they committed a violation they did not commit would be an intolerable abuse of the judicial process. In practical consequence, it would damage the reputations of persons without reason to believe that they personally had violated the securities laws. Cf. SEC v. Frank, 388 F.2d 486, 489 (2d Cir. 1968). Such an arbitrary procedure would also deny named defendants basic constitutional rights in subsequent proceedings, since a personal injunction would be enforceable through contempt proceedings, even if a future violation were alleged that was based on activity wholly apart from the individuals’ corporate relationship. In a contempt proceeding, of course, the defendants would be deprived of the right to defend their actions before a jury. Unless an individual is about to commit, is committing, or has committed a securities law violation, he may not be enjoined in his personal capacity by the SEC. Cf. SEC v. International Camra-Corder Corp., CCH Sec. Law Rptr. para. 91,666 (S.D.N.Y. 1966). The District Court found that Appellants had violated section 17(a)(1) and (3) of the 1933 Securities Act and section 10(b), specifically Rule 10b-5(l) and (3), of the 1934 Securities Exchange Act. In basic terms, these provisions make it illegal to employ a fraudulent scheme or to engage in a deceptive practice in connection with securities sales or purchases. The District Court did not make findings concerning alleged liability under section 17(a)(2) or Rule 10b-5(2), which prohibit false statements and omissions of material fact which would tend to mislead securities purchasers or sellers. Were it the case that Appellants knowingly used King Resources’ “prime” rating on commercial paper as certification of prime quality for their two-year notes (which do not qualify as “commercial paper”), in a misleading manner and without a justifiable excuse, we would have no hesitation in affirming the District Court’s conclusions. We must reverse the holding below, however, because no fraudulent or deceptive scheme or practice has been established. We note that in reviewing this case, decided as it was primarily on the basis of depositions and briefs, we are in as good a position as the District Court to review the pleadings, affidavits, and depositions, and to arrive at conclusions of mixed law and fact. Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir. 1972). The basic factor which precludes a finding of liability under section 17(a)(1) and (3) and Rule 10b-5(l) and (3) is that King Resources’ use, as such, of its prime rating on commercial paper could not have been fraudulent or deceptive. Ohio law required as a precondition for borrowing funds that King Resources show a “prime” rating from NCO on its commercial paper, even though a loan being sought from the State of Ohio would extend beyond 270 days, thus taking it outside the category of commercial paper. Section 135.14, Ohio Rev.Code, limits the entities in which the State Treasurer may invest “interim moneys” of the State to five categories, and limits the term of any obligation to two years. King Resources was eligible to borrow funds only under the following limitation : “In addition to the investments specified in subparagraphs (A), (B), (C), and (D) of this section, the treasurer of state may invest interim moneys of the state in commercial paper notes issued by any corporation for profit which is incorporated under the laws of the United States, a state, or the District of Columbia, which such notes are rated prime by the National Credit Office, Inc., New York, or its successor, provided that the aggregate total amount of interim moneys invested in commercial paper at any time shall not exceed fifty million dollars.” This section, taken literally, would bar investments of Ohio interim moneys in any corporate notes, outside those specified in paragraphs (A), (B), (C), and (D), which exceed 270 days in duration, since NCO rates companies only on their commercial paper, that is, notes of less than a 270-day duration. Yet, King Resources offered and the State Treasurer bought notes of two years’ duration. If we assume that the investment was illegal under Ohio law, the error involved was by the Treasurer of the State, not a fraud practiced by King Resources upon the Treasurer. Under such a view of section 135.14, Ohio Rev. Code, both the Treasurer and King Resources knew exactly the terms of the sale, neither being excused from its ignorance of the fact that a two-year note would be improper under Ohio law. We need only conclude that it is not fraudulent to offer a two-year note so long as it is represented as such to determine that King Resources committed no fraud upon the Treasurer if the Treasurer was not authorized to purchase a two-year note. If, however, we assume that section 135.14 authorizes the purchase of two-year notes from corporations such as King Resources, then we must make sense of the requirement that the notes be rated “prime” by NCO. More than a month after the Treasurer bought the King Resources notes, the Ohio Attorney General advised the Treasurer that a two-year note would be a proper investment if it were rated “prime commercial paper” by NCO. The difficulty which this Opinion poses stems from a latent defect in section 135.14, which authorizes investments only in commercial paper rated “prime” by NCO. In fact, NCO does not rate notes. It only rates companies. If a company can show that it meets the criteria for a “prime” rating on commercial paper it might issue, NCO rates the company “prime” for the commercial paper' market. Only by implication may a particular note be considered to have a “prime” rating, since NCO does not rate individual issues of notes. Thus, a company seeking funds from the State of Ohio is forced to proceed by submitting to the State a proposal of a note not exceeding two years in duration, coupled with a showing that the company itself is rated “prime” on its commercial paper by NCO. This is the only manner in which a company can establish its eligibility for an Ohio loan under § 135.14, Ohio Rev.Code, since NCO only rates companies on their commercial paper (notes of less than 270-day duration). It does not provide ratings which are necessarily valid in evaluating the quality of two-year notes. Under these circumstances, we cannot characterize a company’s use of NCO’s “prime” rating on its commercial paper in seeking to sell two-year notes to the State of Ohio as a fraudulent scheme or a deceptive practice. King Resources’ use of its “prime” rating was mandated by state law as a pre-condition to selling its notes to the State, so that the State cannot, as a matter of law, have been defrauded by such use. Fraud or deceit presupposes the superior knowledge of one party over another. See Myzel v. Fields, 386 F.2d 718, 739 (8th Cir.), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968). The State was not in the position of an innocent purchaser, misled by an insider’s use of a prime rating on short-term paper to justify the quality of its longer term notes, since the State itself required precisely the showing it received. A section 17(a)(1) and (3) or Rule 10b-5(l) and (3) violation depends on one party’s taking unfair advantage of another party through a deceptive practice or fraudulent scheme. There is no duty to disclose information to one who reasonably should already be aware of it. Kohler v. Kohler Co., 319 F.2d 634, 642 (7th Cir. 1963); Arber v. Essex Wire Corp., 490 F.2d 414 at 420 (6th Cir. 1974). Since both King Resources and the State are held to the knowledge that NCO’s rating on commercial paper did not apply to two-year notes, it follows that no violation of these sections of the securities laws could have occurred. The District Court’s finding of Appellants’ liability under section 17(a)(1) and (3) and section 10(b), specifically Rule 10b-5(l) and (3), therefore, is erroneous as a matter of law and must be reversed. The District Court made no findings as to liability under section 17(a)(2) and Rule 10b-5(2), though much evidence was presented on this point. The SEC presented its entire case below and makes no claim that other evidence would be presented should we remand for findings under section 17(a) (2) and Rule 10b-5(2). On the record in this case, we conclude that a remand would be inappropriate in the case of John King, though the SEC should have the chance to show that William Coffey is liable under these provisions. Section 17(a)(2) and Rule 10b-5(2) are directed against false statements and omissions of material fact in connection with securities sales and purchases. In the instant case King Resources’ agents may have omitted material facts both in obtaining a prime rating from NCO and in negotiating with the State of Ohio. The alleged omissions in obtaining NCO’s prime rating are that King Resources was planning to sell two-year (non-commercial) notes to Ohio, that the company was not meeting creditor obligations, and that it was planning to impair its ability to repay short-term loans by reloaning part of its borrowed funds. The alleged omissions in negotiating with the State of Ohio are that King Resources’ “prime” NCO rating did not apply to the two-year notes, that King Resources was not meeting obligations maturing at the time of sale, and that King Resources planned to reloan a substantial part of the proceeds of the Ohio borrowings. As to Appellant Coffey, who personally sent financial information to NCO, a potential finding under Rule 10b-5(2) is that he omitted material facts necessary to make the statements made to NCO not misleading. If the SEC can prove that the alleged omissions represent facts which were known or should have been known by Coffey while dealing with NCO, that they were necessary to make the information forwarded to NCO not misleading, and that Coffey knew or should have known that the omitted information was significant to NCO within the principles of SEC v. Capital Gains Bureau, 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963), then Coffey may have violated Rule 10b-5(2). In addition to these factors, however, it is essential that the SEC show that Coffey’s inaction was in “wilful or reckless disregard for the truth.” The Second Circuit, sitting en bane, recently established this standard in regard to private damage actions in similar situations. Lanza v. Drexel & Co., 479 F.2d 1277, 1306 (2d Cir. 1973). Cf. Mader v. Armel, 461 F.2d 1123 (6th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 465, 34 L.Ed.2d 315 (1972). Although Lanza involved private plaintiffs, and the standards of culpability may be lower in SEC injunctive suits than in private damage actions, SEC v. Capital Gains Bureau, swpra, the reasoning of the Second Circuit in Lanza fully supports our conclusion that the SEC’s proof in an injunctive suit must meet the standard of showing “wilful or reckless disregard for the truth.” Although the allegations in this case may make Coffey a direct participant in a Rule 10b-5(2) violation in his dealings with NCO, a different question arises as to Appellant King’s relationship to the Ohio and NCO contacts and as to Appellant Coffey’s relationship to the Ohio negotiations. In these three instances Appellants had no direct contact with the allegedly misled parties. The record shows that as Chairman of the Board, King attended both Executive Committee meetings where the Ohio loans were authorized. Between these meetings King met with Defendants Groban and Griffiths (of Crofters, Inc.) to discuss additional funds, with no evidénce of discussion of Groban’s representations to NCO or the State of Ohio. Coffey’s involvements in the Ohio loan negotiations were his participation in the meetings which approved the two Ohio loans, his signature on the notes, and his general oversight of King Resources’ financial affairs as its financial vice-president. In considering whether King’s alleged involvement in either NCO or Ohio dealings (and Coffey’s as to the Ohio negotiations) violated section 17(a)(2) or Rule 10b-5(2), we start by noting the three categories of liability for which a person may be enjoined under the securities laws. First, a person may have directly participated in the deceit, endowing him or her with primary liability for the violation. Second, he or she may have knowingly assisted the commission of a violation by another party, making him or her secondarily liable for the violation. Third, a party may have been a “controlling person” of another who is liable for a securities law violation, so as to be liable under section 20 of the Securities Exchange Act of 1934. We cannot find any evidence to support the contention that King was a primary participant in the alleged deception on NCO or the State of Ohio or that Coffey was a direct participant in the Ohio negotiations. Neither King nor Coffey had any contact with the officials negotiating for the State of Ohio, and King had no contact with NCO officials. Since in this case liability under section 17(a)(2) and Rule 10b-5(2) depends on proof of a deceptive omission in the context of deliberations with NCO or Ohio officials, only those individuals who had an affirmative obligation to reveal what was allegedly omitted can be held as primary participants in the alleged deception. A duty to disclose naturally devolved on those who had direct contacts with “the other side.” In the case of King and Coffey as to the Ohio officials and King as to NCO, we would have to imply a duty to contact the allegedly deceived officials and to disclose the allegedly omitted facts. Here the duty which we would have to posit to find primary liability is the duty of a corporate board chairman and financial vice-president carefully to supervise the activities of a money-finder in its negotiations with a State Treasurer’s Office, and in the NCO case, a corporate board chairman’s duty to monitor his financial vice-president’s dealings with a credit-rating agency. Imposing such a duty would effectively make corporate officials primarily liable for any securities law violation by a subordinate. It would disrupt corporate systems of delegation of authority and accountability and would, sub silentio, repeal the protections contained in the “controlling persons” provision, section 20 of the 1934 Act. We refuse to impose such a duty. Our refusal is in accordance with other decisions which have declined to impose duties on persons not in a special relationship with a buyer or seller of securities. SEC v. Great American Industries, Inc., 407 F.2d 453, 460 (2d Cir. 1968) (en banc); Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973) (en banc); Mader v. Armel, 461 F.2d 1123 (6th Cir. 1972). The second category under which Appellants might be held is that of secondary liability. This is the category in which the District Court seems to have placed Appellants, since it held King liable as a “responsible officer” of King Resources and described Coffey as an “aider and abettor.”- Secondary liability is imposed under concepts borrowed from the common and the criminal law — “aiding and abetting” and conspiracy. We are aware of no other standard of secondary liability in securities law, aside from the “controlling persons” provision of section 20 of the 1934 Act (treated herein as a separate category). A detailed discussion of conspiracy is unnecessary here, since no evidence of conspiracy existed. An essential element of conspiracy is an agreement to accomplish a wrongful purpose. Here the wrongful purpose would have been to omit material facts in dealing with NCO and Ohio officials. Casting Appellants’ inaction into a conspiracy with Crofters’ personnel to accomplish this purpose would stretch the usefulness of the conspiracy concept far beyond its proper elasticity. Appellants’ actions are better analyzed under the aiding and abetting rationale. Aiding and abetting has been defined by courts considering securities law cases with reference to both the Restatement of Torts, § 876 (1939), and the criminal law, 18 U.S.C. § 2 (1969). Without meaning to set forth an inflexible definition of aiding and abetting, we find that a person may be held as an aider and abettor only if some other party has committed a securities law violation, if the accused party had general awareness that his role was part of an overall activity that is improper, and if the accused aider-abettor knowingly and substantially assisted the violation. In this regard, we note that Coffey testified that he discussed the' terms of the Ohio loan with Groban of Crofters, Inc. Should the District Court find that through this contact Coffey became aware that Crofters’ personnel were misleading the State of Ohio, his knowledge that a violation was occurring would be established and his failure to take remedial action would be a form of aiding and abetting. We find no evidence, however, that King knew that the personnel of Crofters, who conducted the actual negotiations with the State of Ohio, were misleading the State as to the terms of the loan, the meaning of the NCO prime rating, or King Resources’ financial condition. Nor do we find any evidence that King knowingly assisted any deception which Crofters’ personnel may have perpetrated on State officials. Inaction may be a form of assistance in certain cases, but only where it is shown that the silence of the accused aider and abettor was consciously intended to aid the securities law violation. SEC v. Timetrust, Inc., 142 F.2d 744, 745 (9th Cir. 1944); Brennan v. Midwestern United Life Ins. Co., 417 F.2d 147, 154-155 (7th Cir. 1969) cert. denied, 397 U. S. 989, 90 S.Ct. 1122, 25 L.Ed.2d 397 (1970); Fischer v. Kletz, 266 F.Supp. 180, 195 (S.D.N.Y.1967) (inaction claim dismissed as to financial statements accountants did not prepare); Wessel v. Buhler, 437 F.2d 279, 283 (9th Cir. 1971); SEC v. National Bankers Life Ins. Co., 324 F.Supp. 189, 195 (N.D.Tex.), 334 F.Supp. 444 (D.C.), aff’d, 448 F.2d 652 (5th Cir. 1971). Normally, intent to commit a securities law violation does not require independent proof. Texas Continental Life Ins. Co. v. Dunne, 307 F.2d 242, 249 (6th Cir. 1962); SEC v. Capital Gains Bureau, 375 U.S. 180, 193, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). Knowledge that a securities law violation would be furthered by one’s silence or inaction, however, must be proven by reliable and probative evidence, Pettit v. American Stock Exchange, 217 F.Supp. 21, 28 (S.D.N.Y.1963); SEC v. National Bankers Life Ins. Co., 324 F.Supp. 189, 195 (N.D.Tex), aff’d per curiam, 448 F.2d 652 (5th Cir. 1971), final judgment entered, 334 F.Supp. 444, 456 (N.D.Tex. 1971), aff’d, 477 F.2d 920 (5th Cir. 1973), though the evidence may be circumstantial as well as “direct.” SEC v. National Bankers Life Ins. Co., supra. Were such proof not required, a person who is not primarily liable for a violation could yet be held personally liable for the violation, even though he or she was unaware of the need to disclose information withheld by those primarily liable. The result would be to impose liability for an innocent omission, for non-eulpable inaction. This would stretch the application of Rule 10b-5 beyond its statutory limits, since section 10b of the 1934 Act does not impose liability for innocent acts but only for acts of fraud or deceit. The same analysis leads to the conclusion that King could not be considered an aider and abettor to an alleged Rule 10b-5(2) violation committed in King Resources’ dealings with NCO. There is no evidence that King was personally aware of any omissions of material fact by Crofters’ personnel and Coffey in their dealings with NCO, and there is no indication that he had reason to suspect that a misrepresentation might be made. As we have pointed out above, he need not have doubted the propriety of seeking a “prime” rating, since King Resources needed it to place notes with the State of Ohio and to sell other commercial paper being prepared for sale in May 1970. The third category of possible liability is contained in section 20 of the 1934 Securities Exchange Act. Section 20 provides: (a) Every person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. (b) It shall be unlawful for any person, directly or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this title or any rule or regulation thereunder through or by means of any other person. 15 U.S.C. § 78t. The District Court did not specifically anchor its finding of liability on this section. Yet, its reference to King as the “responsible officer” of King Resources suggests that this section might have been the source of its holding. The Commission asserts that King was a controlling person within section 20(a) of the 1934 Act and that it may be inferred from the District Court’s holding that he failed to establish a “good faith” defense, since the District Court ruled against King. We cannot assume that the District Court used section 20(a) to hold King liable. Whether a person “controls” another under section 20(a) is a complex factual question. Klapmeier v. Tele-check International, Inc., 315 F.Supp. 1360 (D.Minn.1970). But cf. Myzel v. Fields, 386 F.2d 718, 738 (8th Cir. 1967). There is no indication that the District Court made a factual finding to that effect or gave notice to King that he should establish a defense against such a finding. Even had proper findings been made, however, we hold that section 20(a) of the 1934 Act may not be relied upon by the SEC in an injunctive enforcement action. Section 20(b) of the 1934 Act provides for the unlawful actions of controlling persons, and the SEC may only seek injunctions against unlawful actions. See section 20(b) of the 1933 Act, 15 U.S.C. § 77t(b); section 21(e) of the 1934 Act, 15 U.S.C. § 78u(e). Section 20(a) of the 1934 Act makes a controlling person liable “to any person to whom such controlled person is liable.” As a matter of legislative interpretation, we hold that the SEC is not a person under section 20(a), since section 20(a) was meant to specify the liability of controlling persons to private persons suing to vindicate their interests. Section 20(b) sets forth the standard of lawfulness to which a controlling person must conform, on penalty of liability in injunction to the SEC or criminal prosecution. Under section 20(b), there must be shown to have been knowing use of a controlled person by a controlling person before a controlling person comes within its ambit. Without such a restriction, every link in a chain of command would be personally criminally and civilly liable for the violations of inferior corporate agents. This was not the congressional intent in enacting section 20(b). As we concluded above, King has not been shown to have had any knowledge of Crofters’ personnel’s dealings with either the State of Ohio or NCO, nor can we find a scintilla of proof that he “used,” directly or indirectly, Crofters’ personnel to carry out a violation. We conclude that on the record as a whole King could not be held liable as a participant, as a secondary party, or as a controlling person for any possible section' 17(a)(2) or Rule 10b-5(2) violations of King Resources’ agents. Thus, the case must be dismissed as to him. As to Coffey, we find the allegations of his role in obtaining a “prime” rating from NCO sufficient to 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_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Carmen M. PANGELINAN, Santiago C. Masga, Adan C. Masga, Jr. and Adan M. Masga, Plaintiffs-Appellants, v. Antonia M. TUDELA, Defendant-Appellee. No. 83-2398. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 1984. Decided May 25, 1984. Ramon G. Villagomez, Saipan, CM, for plaintiffs-appellants. Vicente T. Salas, Saipan, CM, for defendant-appellee. Before CHOY, GOODWIN and KENNEDY, Circuit Judges. PER CURIAM. Adan M. Masga and his children appeal from an adverse determination of the ownership of land on the Island of Rota. They contend that his children were not given notice of a hearing conducted by the Land Commission of the Trust Territory of the Pacific Islands. They say that Masga's daughter had been appointed as his representative and that the appellee took advantage of her absence to obtain Masga's land by trickery. In the late 1960's and early 1970's, Adan M. Masga showed signs of what the trial court characterized as "mental disorientation." One such sign was his sale of some land for inadequate consideration. Accordingly, Adan's children-appellants Carmen M. Pangelinan, Santiago C. Masga and Adan C. Masga, Jr.-took steps in March 1972 to obtain power to act on his behalf in his land dealings. Adan swore to an "affidavit" appointing his daughter Carmen "land trustee of all my properties on Rota • ." and executed a power of attorney granting Carmen the power to act for him in his land dealings. The "affidavit" was prepared by a member of the Land Commission and was filed with the Commission. Shortly before he executed these documents, Adan applied to the Land Commission for registration of a parcel of land on the island of Rota that he lived on and farmed. The Land Commission has jurisdiction to determine and register title to land in the Trust Territory. See Trust Terr.Code §~ 101-120 (1980). The Land Commission conducted a hearing on Adan's application in October 1972. Neither Carmen nor either of Adan's other children received notice of or were present at the hearing. At the hearing Adan signed an "affidavit" granting the parcel to appellee Antonia M. Tudela. The Commission in due course issued a Determination of Ownership recognizing Tudela as the owner of the parcel. Appellants appealed the Commission's determination to the Commonwealth Trial Court. The trial court set aside the Commission's action, holding that the Commission should have given Adan's children notice of the hearing. Tudela appealed the trial court's decision to the Appellate Division of the District Court for the Northern Mariana Islands which reinstated the Land Commission's Determination of Ownership. This appeal followed. We have jurisdiction under 48 U.S.C. § 1694c (Supp. V 1981). See Camacho v. Civil Service Commission, 666 F.2d 1257 (9th Cir.1982). Appellants contend that 67 Trust Terr. Code § 11O(1)(c), which provides that notice of land registration hearings is to be served "upon all parties shown by the preliminary inquiry to be interested . . .," gave Carmen a right to notice of the hearing. We disagree. The actual notice of the hearing that Adan received satisfies § 110. Appellants argue only that Carmen's capacity as Adan's representative in land matters made her an "interested party" entitled to notice under § 110. But because Adan, her principal, received notice of the hearing, Carmen cannot complain that she, as agent, failed to receive notice. If Adan had been adjudicated an incom-~ petent and a guardian had been appointed for him, § 110 might require that notice be given to his guardian. See, e.g., Hickey v. Naruth Realty Corp., 71 A.D.2d 668, 419 N.Y.S.2d 12 (1979); Goetz v. Gunsch, 80 N.W.2d 548 (N.D.1957); 41 Am.Jur.2d Incompetent Persons § 114. Carmen, however, was not his guardian. Moreover, the trial court did not find that Adan was incompetent at the time of the hearing. It found only a "serious question" as to his competency, which, as the Appellate Division of the District Court noted, falls short of a finding of incompetency. Therefore, there is no need to decide in this case whether notice to an incompetent person without a guardian satisfies § 110. Title 67 Trust Terr.Code § 113 directs the Commission to appoint a guardian to represent any person that the Commission finds incompetent. The Commission did not abuse its discretion by failing to inquire into Adan’s competency at the time of the hearing. First, as the trial court found, Adan “may have appeared to be acting in a normal manner and in possession of his mental faculties” when he appeared at the hearing. Second, the “affidavit” that Adan filed with the Commission appointing Carmen his “land trustee” would not have given the Commission reason to question Adan’s competency. For all the Commission knew, the appointment had been made for the sake of convenience rather than out of concern for Adan’s competency, because Adan had himself executed the document, suggesting that he was competent to manage his affairs. The judgment of the Appellate Division of the District Court of the Northern Mariana Islands is affirmed. . Mr. Masga's name is variously spelled as Adam, Adan, and Aldan. . The island of Rota is now part of the Commonwealth of the Northern Mariana Islands. The portions of the Trust Territory Code dealing with land registration have been replaced by the N. Mar. I. Land Commission Act of 1983, P.L. 3-79 (October 11, 1983), codified at ~`LMar.I. Code §~ 4211-4252 (1984)). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_casesource	021	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. No. 157. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp. Argued March 3-4, 1955. Decided April 11, 1955. Sidney A. Schwartz argued the cause for petitioner. With him on the brief was Edward Ash. Edward J. Behrens argued the cause for respondent. With him on the brief was Charles H. Lawson. By special leave of Court, 348 U. S. 948, Leavenworth Colby argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger, Paul A. Sweeney and Herman Marcuse. Certiorari, 348 U. S. 813, to the United States Court of Appeals for the Second Circuit. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Harlan took no part in the consideration or decision of this case. 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:
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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL 608, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Respondent. No. 621, Docket 86-4107. United States Court of Appeals, Second Circuit. Argued Jan. 7, 1987. Decided Feb. 10, 1987. Ira Sturm, New York City (Manning, Raab, Dealy & Sturm, of counsel), for respondent. Frederick Havard, Atty., N.L.R.B., Washington, D.C. (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Howard E. Perlstein, Supervisory Atty., N.L.R.B., Washington, D.C., of counsel), for petitioner. Before FEINBERG, Chief Judge, and VAN GRAAFEILAND and PIERCE, Circuit Judges. FEINBERG, Chief Judge: The National Labor Relations Board (the Board) petitions for enforcement of an order requiring Carpenters Local 608, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the union), to permit union members to inspect and duplicate hiring hall records that contain the names, addresses and telephone numbers of persons who had used the hiring hall. The union objects to enforcement, arguing that its refusal to supply those records did not constitute a breach of its duty of fair representation under section 8(b)(1)(A) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(1)(A), and contending that the Board’s order conflicts with section 401(c) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 481(c), which permits a union to keep its membership lists confidential. For the reasons that follow, we enforce the Board’s order. I. The order under review concerns the efforts of three union members, John Harte, Franklin McMurray and Eugene Clarke (the dissidents), to obtain information concerning the union’s hiring hall and referral practices. The union operated its hiring hall through a telephone referral system; members seeking work as well as employers needing workers would call the union, and the union would refer workers to particular jobs. The union maintained daily and monthly “shape-up” and “referral” lists. The former contained names and telephone numbers of persons requesting referrals; the latter contained the names of workers and the employers to whom they were referred. According to the union, workers were referred to jobs in the order in which they called in, taking into account any special qualifications requested by the employer and any worker’s preference for certain types of work. Harte, McMurray and Clarke were founders of a dissident group within the union called “Carpenters for a Stronger Union,” and each had been involved in unsuccessful election campaigns against incumbent union officers. At union meetings and in publications distributed to union members, the dissidents objected to various union policies and criticized the performance of several union officers. Some of their concerns related to the operation of the hiring hall. The dissidents maintained that the referral system was unfair and arbitrary, did not allow members to check whether referrals were being administered fairly, and gave Paschal McGuiness, the union’s business manager, and his staff, too much control. Beginning in the summer of 1982 and continuing into the first half of 1983, the dissidents made several requests of union officials to inspect hiring hall records. The dissidents were concerned that their activities within the union were adversely affecting their referral opportunities. The dissidents, however, were never permitted to inspect those records. Instead, they were shown their individual work cards, which reflected when each had called the union for work and when each had been referred to a job. In February and March 1983, the dissidents filed unfair labor practice charges against the union, claiming that the union violated its duty of fair representation when it refused their requests to inspect the hiring hall records. In March 1985, the Administrative Law Judge (AU) held that the union had violated section 8(b)(1)(A) of the NLRA by arbitrarily refusing the dissidents’ requests to inspect the records and by refusing to supply them with information concerning the operation of the hiring hall. In April 1986, the Board affirmed the AU’s rulings, findings and conclusions, and ordered the union, among other things, to allow its members to “review, inspect, photocopy, or duplicate all hiring hall records.” This petition by the Board for enforcement followed. II. A union breaches its duty of fair representation in violation of section 8(b)(1)(A) of the NLRA when it arbitrarily denies a member’s request for job referral information, when that request is reasonably directed towards ascertaining whether the member has been fairly treated with respect to obtaining job referrals. See NLRB v. Local 139, International Union of Operating Engineers, 796 F.2d 985, 992-94 (7th Cir.1986) (hereinafter Local 139). See generally Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). Unions must “deal fairly” with such requests, Local 139, 796 F.2d at 993, and in resolving disputes over disclosing information the Board must balance the member’s need for the information against the union’s legitimate interest in keeping the information confidential. See Id. Cf. Detroit Edison Co. v. NLRB, 440 U.S. 301, 314-15, 99 S.Ct. 1123, 1130-31, 59 L.Ed.2d 333 (1979) (union requests for information from employer); NLRB v. Local Union 497, International Brotherhood of Electrical Workers, 795 F.2d 836 (9th Cir.1986) (hereinafter Local 497) (employer request for hiring hall information). The union argues that the Board erred in finding that the dissidents had a good faith reason for seeking the hiring hall records, contending that the dissidents’ requests should be considered within the context of their efforts to gain elective office within the union. The union claims that the dissidents requested the information in connection with their intra-union political activities and maintains that the union justifiably rejected their demands since the leadership was properly elected. We disagree. Characterizing this dispute solely as part of the dissidents’ attempt to wrest control of the union from the incumbents would unnecessarily constrict the rights of members seeking union office and penalize them for exercising activities that are protected under the NLRA. See 29 U.S.C. § 158(b)(1)(A). Even if the dissidents had political purposes for the information, the union could not deny their requests as long as the dissidents were also motivated by a reasonable belief that they were being treated unfairly by union officials in connection with work assignments. See NLRB v. Leonard B. Hebert, Jr. & Co., 696 F.2d 1120, 1126 (5th Cir.), cert. denied, 464 U.S. 817, 104 S.Ct. 76, 78 L.Ed.2d 88 (1983); Utica Observer-Dispatch, Inc. v. NLRB, 229 F.2d 575, 577 (2d Cir.1956). The union’s arguments challenging the dissidents’ motives do not require extended discussion, and only two arguments warrant any discussion at all. The union claims that McGuiness’ determination that the dissidents had received their “fair share” of work was a satisfactory response to their requests for information. McGuiness, however, only reviewed the dissidents’ individual work records. That investigation could not have addressed the dissidents’ concern that they were being treated unfairly as compared to other workers because McGuiness did not analyze the job referral records of any other persons using the hiring hall. In any event, a union is not permitted to refuse a request for information based on its own determination that the grievance underlying the request is non-meritorious or that the information sought is not essential. Cf. NLRB v. Associated General Contrac tors, 633 F.2d 766, 771-72 (9th Cir.1980), cert. denied, 452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed.2d 418 (1981). If the request is made in good faith, members are entitled to receive the information and determine for themselves whether they have a claim that the union has discriminated against them. The union also notes that McMurray, who ran against McGuiness in a June 1983 election, attempted to obtain the names and addresses of union members by recording this information without the union’s knowledge or consent. The ALT properly found that this event did not affect McMurray’s good faith basis for seeking the hiring hall records because it occurred after he had made almost all of his requests. Moreover, as the Board points out, the hiring hall information “would not have done [the dissidents] much good” in their political activities because the referral lists contain information concerning only 700 to 800 of the union’s 3200 to 3500 members. The record in this case contains ample evidence that the dissidents’ requests for hiring hall records were based on a good faith belief that they were being treated unfairly. For example, almost all of the dissidents’ requests were made while they were unemployed and awaiting referral and while union officials were announcing that there was 100% employment among the membership. There was also evidence that the dissidents’ work cards contained incorrect information and that the dissidents were offered referrals to jobs outside of their specialties when the union had apparently just referred other workers to jobs in those specialties. We therefore conclude that there is “substantial evidence on the record considered as a whole” to support the Board’s finding that the dissidents had a good faith basis for requesting the hiring hall records. Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S.Ct. 456, 467, 95 L.Ed. 456 (1951). The union also argues that its denial of the dissidents’ requests was not arbitrary and therefore did not constitute a breach of its duty of fair representation. The union notes that it is not required to honor all requests for information, but need only “deal fairly” with such requests, see Local 139, 796 F.2d at 993, and claims that its denial of the dissidents’ requests to inspect hiring hall records was reasonably based on its desire to protect confidential information. The AU found, however, that the union’s claims of confidentiality were only an “afterthought,” and that they were “entirely specious and pretextual.” He noted that the union did not have a formal or written policy of confidentiality with respect to this information. In fact, union officials admitted that they had “no guidelines or precedents” for responding to requests for information. By contrast, there was substantial evidence that the union did not consider this information to be confidential. McGuiness stated at union meetings that job referral lists were available for anyone to examine, and Article VII, section 1, of the collective bargaining agreement then in effect between the union and the employer associations required the union to “establish and maintain an open employment list.” It is also significant that union officials never raised their confidentiality concerns with the dissidents as a reason for denying their requests, and that the union did not offer any evidence that its members sought to keep this information confidential. On this record, the Board could properly determine that the dissidents’ interest in assuring the protection of rights that they reasonably suspected were being violated outweighed any legitimate interest the union had in keeping the hiring hall records confidential. See Local 139, 796 F.2d at 992-94. Accordingly, we affirm the Board’s holding that the union violated section 8(b)(1)(A) by arbitrarily denying the dissidents’ reasonable requests to inspect hiring hall records. III. The union also attacks the scope of the Board’s remedy. It claims that the dissidents, through their requests for hiring hall records, should not be allowed to obtain information concerning the membership that they are not otherwise entitled to receive. This argument is based on section 401(c) of the LMRDA, 29 U.S.C. § 481(c), which requires labor organizations to, comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate’s expense campaign literature in aid of such person’s candidacy to all members in good standing of such organization____ and gives every bona fide candidate for office, the right, once within 30 days prior to an election ... to inspect a list containing the names and last known addresses of all members____ Under the LMRDA, a union may keep its membership lists confidential if it complies with the requirements set out in section 401(c) and if it treats all candidates for union office equally in denying requests for the lists. See Schultz v. Radio Officers’ Union, 344 F.Supp. 58, 67-69 (S.D.N.Y.1972); Conley v. Aiello, 276 F.Supp. 614, 616 (S.D.N.Y.1967). The union claims that it has never allowed any such requests and argues that the Board failed to construct a remedy that adequately considered the union’s right, under the LMRDA, to keep its membership lists confidential. The LMRDA, however, only regulates intra-union election campaigns and does not prohibit a union from granting more extensive disclosure than the minimum the statute requires. It would be anomalous to conclude that the LMRDA, a statute designed to protect union members from potential abuse by union officials, see Marshall v. Local Union 478, Laborers’ International Union, 461 F.Supp. 185, 188 (S.D.Fla.1978), prohibits a union from disclosing names, addresses and telephone numbers of union members where, as here, such information is necessary to determine whether the union has violated a worker’s rights. See Local 139, 796 F.2d at 992-93; Local Union 497, 795 F.2d at 838. See also Conley v. United Steelworkers of America, Local Union No. 1014, 549 F.2d 1122, 1125 & n. 4 (7th Cir.1977); Local 324, International Union of Operating Engineers, 226 N.L.R.B. 587, 599 n. 34 (1976) (LMRDA does not “delimit[ ] the scope of a union’s obligation to furnish information to the employees it represents”). We also reject the union’s contention that the portion of the Board’s order permitting the dissidents to copy addresses and telephone numbers of members using the hiring hall was overbroad. The dissidents will need this information to verify the accuracy of the hiring hall records. Although it is conceivable, as the union now suggests, that the Board could have provided the same relief and kept the information confidential by having union employees check the information, considering the animus between the union and the dissidents in this case we cannot say that the Board abused its broad discretion, Lipman Motors, Inc. v. NLRB, 451 F.2d 823, 829 (2d Cir.1971), in ordering a remedy that would enable the dissidents to verify the records. See NLRB v. International Brotherhood of Electrical Workers, Local 575, 773 F.2d 746, 750 (6th Cir.1985). The Board’s order is enforced. 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_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). UNITED STATES of America, Plaintiff-Appellee, v. Anthony John ROMANELLO, Victor Antonio Mendez and Gerald Thomas Vertucci, Defendants-Appellants. No. 83-2206. United States Court of Appeals, Fifth Circuit. Feb. 17, 1984. Rehearing and Rehearing En Banc Denied April 18,1984. Ramsey Clark, Lawrence W. Schilling, New York City, Harold Borg, Kew Gardens, N.Y., for Romanello and Mendez. William W. Burge, Houston, Tex., for Vertucci. James R. Gough, Ronald G. Woods, Asst. U.S. Attys., Houston, Tex., for plaintiff-ap-pellee. Before GOLDBERG, GEE and TATE, Circuit Judges. GOLDBERG, Circuit Judge: ... I saw a lizard come darting forward on six great taloned feet and fasten itself to a [fellow soul].... [T]hey fused like hot wax, and their colors ran together until neither wretch nor monster appeared what he had been when he began .... The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co-defendants. In this case, we are concerned with the specific prejudice that results when defendants become weapons against each other, clawing into each other with antagonistic defenses. Like the wretches in Dante’s hell, they may become entangled and ultimately fuse together in the eyes of the jury, so that neither defense is believed and all defendants are convicted. Under such circumstances, the trial judge abuses its discretion in failing to sever the trials of the co-defendants. Today we hold that the defense of Gerald Vertucci was antagonistic to the defenses of Anthony Romanello and Victor Mendez and that Vertucci should have been severed from his co-defendants. I. FACTS On December 3, 1981, Italian citizens Marcello Farneda and Giuseppi Longhin arrived at the Houston airport, carrying suitcases containing .gold chains. Farneda and Longhin were en route from Italy to Mexico. Vertucci, an employee of Air France, met Farneda and Longhin in the Customs area of the terminal. After a Customs inspection, Farneda and Longhin gave their bags to Vertucci for storage until they left for Mexico the next day (Dec. 4). Vertucci placed the bags in the Air France storeroom. At approximately 6:30 that night (Dec. 3), Vertucci asked an Air France manager to open the storeroom. Vertucci removed the bags and loaded them into a van parked outside the terminal. Vertucci drove off. Later at trial, Vertucci’s counsel would argue that Vertucci was transferring the gold to another terminal from which Longhin and Farneda planned to depart the next day. The government would argue that Vertucci was removing the gold from the airport permanently; At approximately 2:00 a.m. on December 4,1981, one Kenneth Ellis was awakened by his dogs. He discovered Vertucci handcuffed to a light pole at the end of Ellis’ driveway. Ellis lived in Chambers County, Texas, approximately 50 minutes by car from Houston airport. Ellis freed Vertucci. In subsequent statements to police officials, Vertucci maintained that he had been robbed of the gold. According to his story, one man holding a gun accosted him while he was loading the gold into the van at the Air France terminal. The gunman ordered him into the van and directed him to drive away. The gunman was joined by a second man at a nearby motel parking lot. They loaded the gold into an automobile and drove off with the captive Vertucci. As they entered the automobile, Vertucci looked at the license plate but could not read it because it was bent. A short time later, the driver stopped and got out of the car, and Vertucci heard a banging noise as if the license plate were being straightened. Vertucci described the automobile as having a light-colored exterior and a dark interior. It was a large four-door, maybe a Chevrolet, about four or five years old. It had a radar detector. According to Vertucci’s statements he was driven out to Chambers County, and handcuffed to the light pole. The gunman held his weapon against Vertucci’s head, and clicked the hammer; then he punched Vertucci three times in the head. The gunman told Vertucci that if he described his assailants they would return and kill him and his family. The assailants then drove off in their car. Despite the threat, Vertucci described the two men to the police. He described the gunman as a white male, 5'6" to 5'7", 140 to 150 pounds, with a youngish face. The man was clean shaven with short, black, combed-back hair. He had large, brown eyes and a medium-to-olive complexion. He was wearing a leather jacket and a pullover shirt. Vertucci described the second man as a white male, about 30 years old, six feet tall, weighing approximately 210 pounds. He had short black hair, combed back into a kind of “close Afro.” He was clean-shaven and had no sideburns. He had dark eyes and wore jeans and a long-sleeved polo shirt. He was bigger and had a lighter complexion than the gunman. On December 5, 1981, Nick Theodos of the New Jersey State Patrol stopped a vehicle for speeding on the New Jersey Turnpike. Mendez was driving and Romanello was asleep in the back. Mendez invited Officer Theodos to search the car, and the trooper discovered two packages containing gold chains. . Officer Theodos arrested Mendez and Romanello. A subsequent investigation revealed that the gold was the same as that which Longhin and Farneda had brought into the Houston airport. At trial Officer Theodos described the car as a two-toned, blue 1977 Chevrolet with four doors. It had a radar detector and a bent license plate. Officer Theodos did not describe Romanello and Mendez who were present at trial. During the investigation of Romanello and Mendez, John Hensely (one of the agents who had questioned Vertucci) determined that Vertucci’s description of his assailants and their vehicle matched Romanel-lo and Mendez and their automobile. However, Vertucci was not able to pick their photographs out of a line-up. On December 18, Romanello and Mendez were indicted by Texas state authorities for the offenses of aggravated kidnapping and robbery of Vertucci. On February 10,1982, the state charges were dismissed. On March 29, 1982, Romanello, Mendez and Vertucci were all indicted in four felony counts by a federal grand jury. The counts were: 1. stealing jewelry in violation of 18 U.S.C. §§ 659 and 2; 2. importing jewelry into the United States in violation of 18 U.S.C. §§ 542 and 2; 3. transporting stolen goods in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2; 4. conspiring to commit the offenses described in counts 1-3 as well as to obstruct justice in violation of 18 U.S.C. § 371. The government’s theory was that all three defendants participated in the conspiracy and performed various acts in furthering the planned crimes. Vertucci allegedly took the gold from the airport; then he was handcuffed to a pole in order to create the appearance of a robbery. His description of his “assailants” was accordingly partly accurate and partly vague. Accuracy on some points would help him remember details and appear consistent before the police; vagueness on other points would prevent the police from actually catching his co-conspirators. According to the government, Romanello and Mendez were to carry out the next stage of the theft, transporting the gold to New York. However, they were stopped by Officer Theodos before they reached their destination. II. PROCEEDINGS BELOW The three defendants were tried together before a jury in the United States District Court for the Southern District of Texas. The defendants filed pretrial motions and supplemental motions for severance pursuant to Fed.Rule Crim.Proc. 14. They alleged, inter alia, that their defenses were antagonistic and that joinder would have the effect of denying them a fair trial. The parties argued the issue before the trial court, and during the trial, he entered an order denying the motion. He held that Vertucci’s defense was not sufficiently in conflict with the defenses of Romanello and Mendez to justify severance: At the core of Vertucci’s defense of robbery and kidnapping lies his contention that he was not involved in the criminal conspiracy and that he lacked the requisite criminal intent. Mendez and Roma-nello’s claim of noninvolvement and lack of criminal intent is more apparent from their defense that they were not present at the airport at any of the relevant times and that they had no clue that the gold they attempted to transport to New York was stolen. Neither camp’s defense requires the jury to find the other guilty. Although Vertucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers. In sum, the Court concludes that the joint trial of defendants Romanello, Mendez and Vertucci has not, to date, denied them a fair trial. Trial Record, Vol. I, 75-76. The' judge’s conclusions partly reflect Vertucci’s failure to take the witness stand at trial and specifically point the finger at his co-defendants. The joint trial proceeded. At the close of the evidence, the jury returned verdicts of guilty on all counts against all defendants. Vertucci was sentenced to seven years imprisonment. Romanello and Mendez were sentenced to ten years imprisonment. This appeal follows. III. DISCUSSION The Rule 14 issues comprise only a small cluster within a greater galaxy of legal claims. Given our resolution of the sever-anee claim, however, we need not explore those other astral regions. Our universe is limited to the Rule 14 question. A. Requirements for Severance The Fifth Circuit has developed a fairly consistent litany of tests for determining whether severance is required in the “antagonistic defense” situations. This case involves a unique application of these tests, however, and raises some novel legal questions. The hornbook rules can be found in United States v. Crawford, 581 F.2d 482 (5th Cir.1978), and United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B, 1981). See also United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981); United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). Persons indicted together should ordinarily be tried together. Rule 14, however, provides an exception to this general rule: If it appears that a defendant ... is prejudiced by a joinder of ... defendants ... for trial together, the court may grant a severance of defendants or provide whatever other relief justice requires. Fed.R.Crim.Proc. 14; see Crawford, supra, 581 F.2d at 491. The decision whether to sever defendants lies within the discretion of the trial court. The court’s decision should not be overturned absent an abuse of discretion. Id.; Berkowitz, supra, 662 F.2d at 1132. In order to establish an abuse of discretion, a defendant must show that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection. Id. When co-defendants have antagonistic defenses, the courts have applied very specific tests to determine whether the trial was unfair. To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. Berkowitz, 662 F.2d at 1133; Crawford, 581 F.2d at 491. The essence or core of the defenses must be in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve’ the core of the other. Berkowitz, 662 F.2d at 1134, Sheikh, 654 F.2d at 1065. Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense. B. Irreconcilability and Mutual Exclusivity of the Defenses We hold that the core of Vertucci’s defense at trial was sufficiently antagonistic to the core of the defenses of Romanello and Mendez. Vertucci claimed, through his counsel, that Romanello and Mendez had robbed him. The core of his defense was that they had taken the gold from him at gunpoint, and, therefore, he had an excuse for the gold’s disappearance. Romanello and Mendez offered the defense that they had not stolen the gold but had innocently accepted a job to drive it to New York. In line with this, they argued that Vertucci’s story was a lie invented by the real gold smugglers. Obviously these defenses are irreconcilable and mutually exclusive. If the jury believed that Romanello and Mendez robbed Vertucci, then it could not believe that they were innocent shippers. On the other hand, if the jury believed their defense, then they could not have robbed Vertucci, and his defense would cave in. It is not necessary for each defendant to base the core of his defense on the direct accusation of his co-defendant. Severance may be required if only one defendant accuses the other, and the other denies any involvement. For example, in United States v. Johnson, supra, two defenses were held to be “completely contradictory]” though only one defendant (Smith) had incriminated his co-defendant (Johnson). 478 F.2d at 1132. The government had charged both Smith and Johnson with passing counterfeit money. Smith’s defense at trial was that he was a government informer whose only purpose was to help the police apprehend Johnson. Johnson’s sole defense was that he had “played no part in the crime and was not present when it was committed.” Id. Johnson never accused Smith; yet this Court held that “the theory of Smith’s defense was directly in conflict with Johnson’s.” Id. at 1132-33. The trials of the co-defendants should have been severed; therefore, Johnson’s conviction was reversed. Id. In the same way, there is an irreconcilable conflict between the defenses in our case. Johnson provides clear precedent for reversing the convictions of Romanello and Mendez; and, as we shall discuss' later, Vertucci too should be retried. 1. Accusation by Vertucci’s Counsel The government argues, however, that even the convictions of Romanello and Mendez should be affirmed because Vertucci himself never identified them as his attackers. The trial court had relied on this point in holding that the various defenses were not mutually exclusive: Neither camp’s defense requires the jury to hold the other guilty. Although Ver-tucci gave the authorities descriptions of his assailants which bear a resemblance to his co-defendants, he has never accused or identified them as being his attackers. Trial Record, Vol I., 76-77. We disagree, however, with the underlying premise that Romanello and Mendez could not be identified if Vertucci himself did not do it. On the contrary, we hold that Vertucci’s counsel made the specific accusation, and that under the circumstances of this case an accusation by counsel is sufficient to create an antagonistic defense. In his opening statement to the jury, Vertuc-ci’s lawyer (Mr. Burge) declared: [Vertucci] described his assailants. He described their vehicle. Less than two days after that, two men are arrested in New Jersey. They are stopped in New Jersey for a traffic offense, and the gold that was stolen from Gerald Vertucci was in their car. The descriptions, when Gerald Vertucci was talking to the authorities, of the vehicle matched, and based on those descriptions that Gerald Vertucci gave in cooperating with the authorities, the state Grand Jury indicted Romanello and Mendez for aggravated robbery and aggravated kidnapping of Gerald Vertucci. So I ask you, as you listen to the evidence, listen closely; listen closely. Don’t lump Gerald Vertucci in with the two men sitting across the table from him. Listen to the evidence as to Gerald Ver-tucci and separate him and listen to the evidence. He doesn’t have any choice but to be sitting in this courtroom today, but don’t lump him in with the other two. Trial Record, Vol. IX, 30, 32-33. Throughout the trial, counsellor Burge reminded the jury that the state had indicted Romanello and Mendez for robbing and kidnapping his client, see, e.g., id., Vol. XIII, 23 (cross examination of John Hensely), Vol. V, 80 (cross examination of Officer Theodos); Vol. XV, 120 (closing argument); and that Vertucci had accurately described his assailants, id., Vol. XII, 76-79 (cross examination of Officer Theodos to show that Mendez’s car matched Vertucci’s description), Vol. VIII, 23 (cross examination of John Hensely), Vol. XV, 133 (closing argument). An accusation by counsel can state the core of his client’s defense and cast blame on the co-defendant. As Judge Tate stated for the majority in United States v. Sheikh: The taking of an adversarial stance on the part of counsel for co-defendants may generate trial conditions so prejudicial to the co-defendant under multiple attack [i.e., by the government and his co-defendant’s lawyer] as to deny him a fair trial. 654 F.2d at 1066. We think those conditions existed in this case. The core of Ver-tucci’s defense, as pressed by counsel, was that Romanello and Mendez had robbed him. The two defense camps were antagonistic. To be sure, there was a theoretical possibility that the jury might acquit all defendants in the belief that Vertucci was robbed but that his counsel identified the wrong culprits. However, that possibility also exists in cases where a defendant identifies his codefendant. In both situations, the jury must weigh conflicting evidence and always has the option of acquitting every defendant. The real question for a court in considering a severance motion is not how convincing a defendant’s evidence is, but whether the core of his defense directly implicates the co-defendant. We believe that the core of Vertucci’s defense directly accused Romanello and Mendez. Moreover, that accusation was substantiated when the government introduced Ver-tucci’s description of his assailants and argued that the description accurately matched Romanello and Mendez. See Trial Record, Vol. XV, 89. As a practical matter, the arguments by counsellor Burge as well as the government identified Romanello and Mendez as Vertucci’s alleged assailants. We hold that the defense of Vertucci was mutually exclusive of and irreconcilable with the defenses of Romanello and Mendez. To reach a different conclusion would put defendants like Romanello and Mendez in an impossible position. They would suffer compelling prejudice because of the accusation by a co-defendant’s lawyer, but their hope for severance would be dashed because their co-defendant refused to testify. C. Prejudice to Romanello and Mendez The prejudice to Romanello and Mendez was clear in the present case. As we have-seen, they faced an extra prosecutor in the guise of Vertucci’s counsel. See United States v. Sheikh, supra, 654 F.2d at 1066; cf. United States v. Johnson, supra, 478 F.2d at 1132-33. In cross-examination of government witnesses, attorney Burge showed that his client’s description matched Romanello and Mendez in details that the government had neglected to mention. See Trial Record, Vol. XII, 76-79,141. In addition, Burge constantly reminded the jury of the state charges against the co-defendants. Even the government objected to this testimony. Id. at 80-81. Finally, Vertucci’s defense depicted Romanello and Mendez as violent thugs who threatened to kill him if he testified. The totality of these accusations was-truly prejudicial. Romanello and Mendez did not receive a fair trial. D. Prejudice to Vertucci Whether Vertucci suffered sufficient prejudice to deserve a new trial is a more complicated issue. Since Romanello and Mendez did not base their defenses on a direct accusation of Vertucci, he is superficially different from the typical co-defendant receiving a new trial for failure to sever. Cf. United States v. Crawford, supra, 581 F.2d at 492 (each defendant accusr ing the other). Moreover, although United States v. Johnson, supra, seems at first to bear a resemblance to our case, it too is not on point. The formal similarity is that defendant Smith (like Vertucci) incriminated Johnson without having Johnson base his defense on Smith’s guilt. The distinction, however, is that Johnson (unlike Romanello and Mendez) did not attack Smith at all. In addition, Smith did not appeal the denial of severance. 478 F.2d at 1131. Therefore we are faced with a question of first impression: whether Vertucci may deserve a new trial if the core of his defense is his co-defendants’ guilt, but the core of their defense does not directly accuse him. We hold that under the circumstances of this case, Vertucci does deserve a new trial. The prejudice to Vertucci arising from the joint trial was compelling. Although the core of Romanello’s and Mendez’ defense was not Vertucci’s guilt, they did have to disprove his defense. They chose to attack the credibility of his statement to the police. They painted him as an abettor of gold smugglers who fabricated the robbery story in order to shift suspicion from themselves to Romanello and Mendez, the innocent couriers. The attorney for Romanello (Mr. Borg) cross-examined Agent Hensely about Ver-tucci’s statement and elicited testimony that the robbery defense was suspicious from the start. Trial Record, Vol. XHI, 55-59. Then, in closing argument, Borg declared that “Vertucci was not robbed.” Id., Vol. XV, 187. The discrepancies between the actual appearance of his co-defendants and his description of the “supposed gunmen” proved that he had been told by smugglers to give the description of Romanello and Mendez. Id. at 286-87. The attorney for Mendez (Mr. Clark) also argued that Vertucci had been coached to give a fabricated story. Vertucci had given a flawed description of his co-defendants’ “getaway car;” therefore, he could not have seen it himself; he must have been primed. Id. at 171-72. In addition, he could not have been handcuffed to the light pole as long as he claimed, because he had been yelling from the pole and would have been discovered earlier. Id. at 172.. Clark concluded that the smugglers had taken Vertucci to the pole late at night and directed him to say that the gold was stolen. Thus, customs officials would be put off the trail. Id. at 174. Vertucci’s involvement with a smuggling operation would also explain his failure to fill out certain customs documents: “[I]f he smuggles, you want to get it through, that’s it; that’s all.” Id. at 175. In attacking the truth of Vertucci’s defense, attorneys Borg and Clark aided the prosecution. They substantiated the government’s contention that Vertucci had never been robbed, but had been handcuffed to the pole by colleagues. Moreover, they presented the jury with a basic conflict: either Vertucci’s defense was untrue or theirs was. In other words, either Vertucci was guilty or Romanello and Mendez were guilty. In the typical case of antagonistic accusations, “a substantial possibility exists that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Berkowitz, supra, 662 F.2d at 1134. The same problem arose in the present case. The conflict between the two defense camps created a substantial possibility the jury would infer that neither defense was true. This was especially the case where the very antagonism between the defendants fit neatly into the government’s conspiracy theory. Vertucci had stated that he was robbed in order to further the conspiracy; and he had given an accurate description of his “assailants” in order to avoid contradicting himself during later questioning. Naturally, when he came to trial, he had to press the robbery as his only defense. Equally naturally, when Romanello and Mendez-were tried, they had to deny the robbery and show that Vertucci was lying. Given the accuracy of his description, they could not just claim that someone else had robbed him. The conspiracy plan itself produced and explained the antagonism between the defenses. The government could not lose when each defendant attacked the other. The attacks merely weakened each defense and underscored the strength of the government’s theory. Thus, in the circumstances of this case, Vertucci suffered the very prejudice that the severance rules are designed to rectify. Although the coré of his co-defendants’ defense was not his own guilt, they nevertheless had to undermine Vertucci’s defense to establish their own innocence. We hold that a defendant like Vertucci deserves a new, severed trial when: 1. the core of his defense is the guilt of his co-defendant; 2. to disprove his defense would establish his guilt; 3. his defense and the defense of his co-defendant are irreconcilable and mutually exclusive; 4. the co-defendant actively attacks his defense at trial; and 5. he sufferes compelling prejudice as a result. Such was the case here. A fair trial was impossible under the circumstances. “[Whether or not] the evidence of each defendant’s guilt was strong, this joint trial was intrinsically prejudicial.” United States v. Crawford, supra, 581 F.2d at 492. On the other hand, “[b]ecause the evidence was uncomplicated and only two [defense camps] were involved, the inconvenience and expense of separate trials would not have been great.” Id.; see also United States v. Johnson, supra, 478 F.2d at 1134. The trial court abused its discretion in failing to grant a severance. The convictions of all three defendants must be reversed. IV. CONCLUSION Conspiracy trials, with their world-girdling potential, are given more extensive thrust by the admission of hearsay testimony, the use of conspiratorial acts to prove substantive offenses, and the joint trial of defendants. These pressures alone threaten to undermine the fair consideration of individual conspiracy defendants. However, the dangers inherent in joint trials become intolerable when the co-defendants become gladiators, ripping each other’s defenses apart. In their antagonism, each lawyer becomes the government’s champion against the co-defendant, and the resulting struggle leaves both defendants vulnerable to the insinuation that a conspiracy explains the conflict. We find that Vertucci, Roma-nello and Mendez did not receive a fair trial under these conditions. Vertucci should have been tried separately from the other two. Romanello and Mendez may still be tried together. We REVERSE all convictions and REMAND for further proceedings in accordance with this opinion. . Dante, The Inferno, Canto XXV, Circle 8, Bolgia 7, lines 46-48, 58-60 (J. Ciardi, transl.). . Vertucci also alleged that Romanello and Mendez would exculpate him if he were tried separately. The trial court did not grant a severance, stating that Vertucci had failed in his burden of specifying: (1) a bona fide need for the testimony, (2) the likelihood of such testimony, (3) the substance of such testimony, and (4) the exculpatory nature and effect of such testimony. See United States v. Butler, 611 F.2d 1066, 1071 (5th Cir.1980). . Vertucci argues on appeal that the trial court erred in admitting the statements of two.witnesses (Longhin and Farneda) and in refusing to give a requested jury instruction on the law concerning property held “in bond” in Customs. Romanello and Mendez claim that the denial of severance coupled with Vertucci’s decision not to take the witness stand denied them their Sixth Amendment rights to confront a witness against them. They also argue that certain testimony concerning Farneda should not have been excluded; and they join Vertucci in attacking the admission of Longhin’s statements. Finally, each defendant argues that the evidence was not sufficient to support a verdict against him. . We do hold, however, that the evidence was sufficient to support the verdicts against all three defendants. . The conviction of Smith was not reversible, because he was “not highly prejudiced in the presentation of his defense by Johnson’s presence at trial.” Id. at 1132. Moreover, Smith had not appealed on this ground. Id. at 1131. . Our case is distinguishable from others in which severance has been denied. In Berkow-itz, each defendant admitted his own participation in the crime but described his co-defendant as more deeply involved. 662 F.2d at 1132-33. In Sheikh, both defendants denied knowledge that heroin was contained in a packing crate, but neither indicated that he believed the co-defendant to have that knowledge. In contrast to both Berkowitz, and Sheikh, Vertucci’s claim of innocence was premised on his co-defendants’ guilt; and the co-defendants in turn attempted to disprove his defense. Our case is likewise distinguishable from United States v. Swanson, 572 F.2d 523, 529 (5th Cir.1978) (defense of lack of intent not irreconcilable with co-defendant’s claim of non-involvement); United States v. Salomon, 609 F.2d 1172, 1175 (5th Cir.1980) (entrapment defense did not necessarily prove that co-defendant guilty); and United States v. Marable, 574 F.2d 224 (5th Cir.1978) (claim of non-involvement not irreconcilably antagonistic to defendant who offered no defense). . The government also argues that the three defendants could not be antagonistic, because Romanello and Mendez had offered to exculpate Vertucci if he were tried separately. Brief of Appellee at 42-43. This argument appears somewhat specious, however, since Romanello and Mendez never actually exculpated Vertucci before the jury after their motion for severance was denied. . The government argues that references to the state indictments did not prejudice Romanello and Mendez, because other trial testimony proved that the indictments had been dismissed. Brief of Appellee at 42. The prejudice can remain, however, as evidenced by eviden-tiary rules preventing the jury from learning of certain indictments that did not lead to convictions. See, e.g., Fed.R.Evid. 404(b), 608(b), 609. More important, the government’s argument does not contradict our basic point that William Burge identified Romanello and Mendez as the men who attacked Vertucci. . Throughout criminal jurisprudence, we identify clients with their lawyers. There is no reason to treat them any differently in the context of Rule 14. . For example, in United States v. Crawford, supra, 581 F.2d at 490-491, the jury was faced with conflicting testimony about the possession of a shotgun. Although the jury might have concluded that neither co-defendant possessed the gun, this court held that their defenses were antagonistic. Id. at 492. . Q [by Mr. Borg]: Now when you heard this description at an area that you knew had people coming and going, you were suspicious of that story, weren’t you? A: Yes, sir. Q: As a matter of fact, even on December 8th, you thought Vertucci was a suspect? A: He was a suspect, yes. Q: And you had doubts about his story even then, didn’t you? A: Yes, sir. Q: Because you didn’t believe it, did you? A: I had doubts. Mr. Borg: I have nothing else. The Court: All right. Id. at 55, 58-59. . Borg argued: Oh, we have heard about the description of the supposed gunmen that came to Vertucci and said-, if you identify me harm will come to you. Well, do you know the description he gave? .. . [T]hat is not the description of a person that Vertucci claims he actually saw, but had to be somebody that was told about it. [sic] He was told. Id. . As Clark pointed out: The identification of the car was all botched up. The car was dark outside with light blue inside; he had it just the opposite. Someone must have told him that, whoever he may have been working with. Id. . Clark theorized how Vertucci had become involved: You remember Mr. Hensely said, Customs is supposed to check you out on the phone? Oh, got a problem; • what are we going to do? Couple of characters we don’t even know are driving crazy to New York with our gold. The agent wants to see it in the morning. Mr. Vertucci, we got an assignment for you. We are going to take you out, put you at a post and you are going to say it was stolen. Id. 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_crmproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. The NORTHERN TRUST COMPANY, Plaintiff-Appellee, v. COMMUNITY BANK, Defendant-Appellant. No. 88-5767. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1989. Decided April 25, 1989. Holly J. Fujie, Rosen, Wachtell & Gilbert, Los Angeles, Cal., for defendant-appellant. Robert M. Westberg, Pillsbury Madison & Sutro, Los Angeles, Cal., Joseph A. Hearst, Pillsbury Madison & Sutro, San Francisco, Cal., for plaintiff-appellee. Andrew J. Valentine, Asst. Gen. Counsel, The Northern Trust Co., Chicago, III, of counsel. Before SCHROEDER, FLETCHER and TROTT, Circuit Judges. SCHROEDER, Circuit Judge: The plaintiff in this action is the beneficiary of a letter of credit issued by West Coast Bank, a bank which was put into FDIC receivership before the expiration of the letter of credit. After the FDIC refused to honor West Coast Bank’s obligations on the letter, the plaintiff filed this action against the bank that had confirmed the letter of credit, defendant Community Bank. A question of first impression in this case arises under the provisions of the Uniform Commercial Code and the International Chamber of Commerce’s Uniform Customs and Practices for Documentary Credits (UCP) concerning the roles of issuing and confirming banks and the obligations of the banks and the beneficiaries. The question is whether those provisions mean as a matter of law that the confirming bank must honor the letter of credit only if the beneficiary makes a presentment to the confirming bank, in addition to the issuing bank, before the expiration date of the letter of credit. The district court held that those provisions impose no such duty on the beneficiary. We affirm. The background facts are as follows: On December 10, 1981, the Northern Trust Company received an irrevocable standby letter of credit for $66,000 from West Coast Bank of Encino. The letter of credit provided that “[t]his Letter of Credit is available by your drafts at sight on West Coast Bank, Encino, California ...” On December 15, 1981, Community Bank wrote to Northern Trust to inform Northern Trust that it had confirmed the letter of credit, stating simply “[w]e confirm this letter of credit.” The letter of credit carried an expiration date of December 31, 1985. On April 27, 1984, West Coast was declared insolvent and placed under the receivership of the FDIC. On November 1, 1985, Northern Trust presented its sight draft, the original letter of credit and supporting documents to West Coast for payment. Northern Trust was then informed that West Coast was in receivership. In the following weeks Northern Trust made repeated demands upon West Coast either to pay the letter of credit or to return the documents. On January 6, 1986, the FDIC wrote to Northern Trust and stated that it would not honor the letter of credit. On February 19, 1986, Northern Trust demanded payment on the letter of credit from Community Bank. On March 4,1986, Community Bank informed Northern Trust that it would not honor the letter of credit because Northern Trust had not made a timely demand for payment. Northern Trust filed suit in the district court on April 30, 1987 for wrongful dishonor of its letter of credit. Northern Trust moved for summary judgment, which the district court granted. The district court found that Community Bank’s confirmation of the letter of credit constituted an undertaking by Community Bank to make payment, provided that Northern Trust complied with the terms of the letter. The letter called for payment by Community Bank if timely demand was made upon West Coast. As the district court further found, there was no provision in the letter of credit which required Northern Trust to make any separate, independent presentment of the draft, letter of credit and supporting documents to Community Bank. The district court concluded that, as Northern Trust had fully complied with the terms of the letter of credit by making timely presentment to West Coast, Community Bank was obliged to pay the draft. In arguing on appeal that it was not obligated to pay on the letter of credit in the absence of an independent timely presentment to Community Bank, Community Bank relies on California Commercial Code section 5107(2), which provides: A confirming bank by confirming a credit becomes directly obligated on the credit to the extent of its confirmation as though it were its issuer and acquires the rights of its issuer. That provision, however, is silent as to any requirement of independent presentment. Community Bank would like us to interpret section 5107(2) to mean that Community Bank, in acquiring “the rights of its issuer” somehow acquired the right to insist upon an independent presentment. Since presentment was made to West Coast Bank in accordance with the terms of the letter of credit, however, West Coast Bank had no right to insist on further presentment, and Community Bank could not succeed to a non-existent right. The letter of credit stated that it was subject to the International Chamber of Commerce Uniform Customs and Practices for Documentary Credits (UCP). Community Bank also relies on Article 3(b) of the UCP which provides: [Wjhen an issuing bank authorizes or requests another bank to confirm its irrevocable credit and the latter does so, such confirmation constitutes a definite undertaking of the confirming bank in addition to the undertaking of the issuing bank, provided that the terms and conditions of the credit are complied with. UCP, Article 3(b). That provision, however, does no more than require that the beneficiary comply with the terms and conditions of the letter of credit. None of the cases touching upon either of these provisions suggest that they require independent presentment to a confirming bank as a matter of law. What is clear is that the banks can contractually require independent presentment by including such a requirement in the terms of the letter of credit and confirmation documents themselves. In Barclays Bank v. Mercantile National Bank, 481 F.2d 1224 (5th Cir.1973), for example, an independent presentment was made to the confirming bank because such presentment was required by the terms of the confirmation. The confirmation in that case provided: “We hereby confirm the letter of credit and undertake to honor any drafts presented to us on or before expiration date of the letter of credit....” Barclays Bank, 481 F.2d at 1227 n. 3 (emphasis added). See also H. Harfield, Bank Credits and Acceptances 324-25 (5th ed. 1974) (forms for confirmed irrevocable credits which allow the parties to specify a requirement of independent presentment). The parties in this case could have specified a requirement of presentment to the confirming bank, but they did not do so. In the absence of such a contractual agreement, independent presentment is not required. This principle is fully consistent with the provisions of the UCC and the UCP. Because the parties in this case did not provide for a requirement of timely presentment to the confirming bank, all that was required of the beneficiary was compliance with the presentment terms of the letter of credit, i.e., timely presentment to West Coast Bank. This was done. AFFIRMED. . Cal.Comm.Code § 5107(2) is identical to Uniform Commercial Code § 5-107(2). Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this 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 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KNOGO CORPORATION, Respondent. No. 60, Docket 83-4062. United States Court of Appeals, Second Circuit. Argued Oct. 26, 1983. Decided Feb. 3, 1984. Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Sandra Shands Elligers, Atty. National Labor Relations Board, Washington, D.C., of counsel), for petitioner. Clifford P. Chaiet, Jericho, N.Y. (Pearl & Chaiet, P.C., Jericho, N.Y., of counsel), for respondent. Before LUMBARD, OAKES and KEARSE, Circuit Judges. LUMBARD, Circuit Judge: In this consolidated proceeding, the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), petitions for enforcement of two of its orders issued against Knogo Corporation. The orders, issued on July 27, 1982 (Knogo I) and December 14, 1982 (Knogo II) require Kno-go to cease and desist from certain unlawful practices, to offer to reinstate an employee with back pay, to rescind disciplinary warnings against two other employees, and to recognize and bargain collectively with Local 810 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“the Union”). For the reasons set forth below, we grant enforcement except for the Board’s order which requires Knogo to bargain with the Union. I. Knogo manufactures electronic anti-shoplifting devices at its plant in Hicksville, New York. In mid-June, 1978, the Union began an organizing campaign among Kno-go’s employees, conducted by Field Representative David Sapenoff. During lunch and other breaks, Sapenoff approached employees and distributed literature in the employee parking lot in the rear of Knogo’s plant, and in the driveway leading to the rear lot. Although management asked him to leave company property at least twice in the early months of the campaign, Sapenoff continued to hand out literature and cards without interruption. On June 16, 1978, during lunch hour, Sa-penoff approached Patrick Bellucci and Paul Vigliotti. Bellucci had been an employee for nine months, and had been promoted and given two raises. The men talked for fifteen minutes, and were observed by Foreman Michael DiPietro. Upon re-entering the building, Bellucci volunteered that he had talked with a union representative, and was impressed with his ideas. DiPietro responded that the Union had good points and bad points, and asked Bellucci if he had signed a union authorization card. Bellucci truthfully responded that he had not. Within three days though, Bellucci did sign a card, and he started distributing leaflets and soliciting signatures on authorization cards. On June 21, Bellucci bought lunch from a food truck that came to the plant daily. After lunch, he felt sick, and asked Vigliotti to punch his time card out and tell Foreman DiPietro that he had gone home. Vigliotti did punch Bellucci’s time card at 12:29 P.M. Upon his arrival at work the next day Bel-lucci was informed by DiPietro that he was fired because he had gone home without permission. On June 26, 1978, Sapenoff distributed literature calling for an organizing meeting at a nearby bar two days later. Fifteen employees attended the meeting. Shortly after it began, however, Plant Manager Paul Montalbano entered and sat down among the employees. When he was told that the meeting was for employees only, and asked to leave, Montalbano moved to the bar area. Sapenoff tried to restart the meeting, but the employees were uneasy and the meeting broke up. A second meeting was called several weeks later; this time only two employees attended. The organizing campaign continued at a slow pace during the fall of 1978, but picked up in December. That month, Director of Operations Michael Trentacosti directed Knogo’s labor relations consultants to design a benefits package for Knogo employees. Although this was not a regularly scheduled revision of benefits, work continued on the package despite advice from the labor relations consulting firm and Knogo’s attorneys that the Company should not change policies during the organizing campaign. On March 7th, a handbook was issued to all employees listing the new benefits. On May 1, Sapenoff, believing that the Union had secured majority status among the employees, met with Trentacosti in Knogo’s office concerning recognition and bargaining. When Sapenoff arrived the next day to continue his organizing activities, he saw workmen building a fence at the rear of the parking lot. By May 10, a six foot high fence topped with barbed wire surrounded the parking lot. Sapenoff was prevented from entering the lot by guards who told him they were instructed to keep him out. Thus, Sapenoff and other organizers could only speak to employees who stopped their cars as they approached or left the lot. Entry to the lot by others, such as food trucks, delivery trucks, friends and relatives of employees, and a former employee organizing softball games, was not restricted. By June 14,1979, the Union had obtained union authorization cards from 52 of the 101 employees then in the bargaining unit. At the request of the Union, an election was scheduled by the NLRB for July 20. On July 11, nine days before the election, Anthony Minasy, Knogo’s President, summoned to his office seven employees, selected because they were thought to have influence over other workers and had been observed in union activities. He told them he wanted them to carry the Company’s message to other employees. That message was that while the employees had the right to organize and have a union represent them, this union could not guarantee that it would deliver on its promises, and that the employees should shop around because there were many unions who would be more dedicated to their needs than this one. When Minasy asked if any of the employees at the meeting had worked in a plant where they had made less money, one employee, Nick Christofides, answered that he had. Minasy asked why didn’t he go organize there; when Christofides inquired about a raise, Minasy answered that he could always get another job. After the meeting, Christofides was concerned as to why Minasy considered him to be a union organizer. Later in the day, when Foreman DiPietro went to Christo-fides’ work station to adjust a machine, Christofides explained to him that he had just been to a meeting with Minasy, and asked DiPietro if he knew why management considered him an organizer. DiPie-tro asked Christofides if he was a union organizer and whether he had signed a union card; Christofides answered “no” to both questions. During the week preceding the election, Minasy held a series of about eight meetings, each with seven to ten employees, in Knogo’s conference room. At each meeting he read a prepared statement which stated that the reason the improved benefits package wasn’t implemented was that the Union had challenged it, and that the Union was made up of “racketeers” who promised a lot but could not deliver on those promises. On July 20,1979, the Board conducted an election, in which the Union lost 68-21, with 14 ballots challenged. The Union filed objections to the election, based on alleged unfair labor practices. Hearings on its objections were held in the fall of 1979. On September 18, 1980, ALJ Robert M. Schwarzbart issued his Knogo I decision. He found that Knogo had committed unfair labor practices in violation of section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by: (a) Coercively interrogating employees about their union activities and sympathies. (b) Engaging in and creating the impression that it was engaging in the surveillance of the union activities of its employees. (c) Disparately enforcing a rule, practice or policy which restricted or forbade access to its employee parking lot by non-employees. (d) Granting new economic benefits to its employees during the Union’s organization campaign to discourage support for the Union. (e) Blaming the Union and its organizing drive during the critical period before the election, that further economic benefits could not be afforded to employees. (f) Coercively singling out employees who are known union adherents, in the critical period before the election, to meet with management in a locus of authority. The ALJ also held that Knogo violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by firing Patrick Bel-lucci for engaging in union activities. The ALJ recommended that Knogo cease and desist from its unfair labor practices, that it offer to reinstate Bellucci to his former position with back pay and no loss of seniority, and that the results of the election be set aside and Knogo ordered to recognize and bargain collectively with the Union. In October, 1980, one month after the ALJ issued his recommendation, Knogo President Minasy met with employees, and notified them that the election had been set aside and that Knogo would appeal the decision. On October 14, 1980, employee Ira Klein prepared a sign reading “Vote Union”. He, along with another employee, William Layton, posted the sign in the production area. A third employee, Donna Piz-zo, ripped down the sign and threw it away. An argument ensued between Klein and Pizzo. A supervisor reprimanded both Klein and Pizzo for causing a work stoppage, and both were warned that if further arguments erupted they would be disciplined. After the supervisor reported the incident to Director of Operations Trenta-costi, written warning notices were issued to Klein and Layton, but not to Pizzo. The Union filed a complaint, and hearings were held in March, 1981. On September 1, 1981, ALJ Winifred M. Morio issued a decision in Knogo II, finding that Knogo violated sections 8(a)(1) and (3) of the Act by giving warnings to Klein and Layton for engaging in union activities. Also, she found that, conditional upon the Board’s issuing a bargaining order in Knogo I, Knogo violated 8(a)(5) of the Act by unilaterally granting wage and benefits increases in December 1980 without bargaining with the union. The ALJ recommended that the Board order Knogo to rescind the warnings given Klein and Layton, and to bargain with the union before making any changes in terms and conditions of employment. II. The Board affirmed the decisions of both ALJs. On July 27, 1982, it adopted the recommendations made in Knogo I. 262 NLRB No. 171. On December 14, 1982, it adopted the recommendations made in Kno-go II concerning the disciplinary warnings to Klein and Layton and unilateral changes in wages and terms of employment. 265 NLRB No. 130. This consolidated appeal followed. The scope of our review of the Board’s findings “that an employer’s conduct interferes with employee’s rights of association” is quite limited. N.L.R.B. v. Hendel Manufacturing Co. 483 F.2d 350, 352-353 (2d Cir.1973). Thus, we must affirm the Board’s conclusions if supported by substantial evidence in the record as a whole. N.L.R.B. v. Geri-Care, Inc., 697 F.2d 56, 59-60 (2d Cir.1982), cert. denied, -- U.S. --, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983); N.L.R.B. v. International Metal Specialties, Inc., 433 F.2d 870, 871 (2d Cir. 1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). In weighing that evidence, we defer to credibility determinations made by the trier of fact. N.L.R.B. v. Independent Ass’n of Steel Fabricators, 582 F.2d 135, 151 (2d Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979). We are satisfied that the record amply supports the Board’s finding of a pervasive pattern of unfair labor practices. We affirm those findings, and order Knogo to remedy the improper discharge of Bellucci by offering to reinstate him without loss of seniority or pay, and to rescind the improper disciplinary notices to Klein and Layton. However, we decline to adopt the Board’s final directive that Knogo bargain with the Union. A bargaining order may be properly issued, notwithstanding that a union had not been duly elected, if “outrageous” and “pervasive” unfair labor practices have made a fair election impossible, leaving a bargaining order as the only effective remedy to protect the union’s rights; or in “less extraordinary cases,” where the “possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and ... employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order .... ” N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 613-15, 89 S.Ct. 1918, 1939-40, 23 L.Ed.2d 547 (1969). In this case, we are confronted with a pervasive pattern of unfair labor practices. At least two of those practices, the improper discharge of Bellucci and the granting of new benefits to discourage employees’ supporting the Union, constitute so-called “hallmark” violations which have been said will normally support the issuance of a bargaining order. N.L.R.B. v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 (2d Cir.1980). Nevertheless, an election is the clearly preferred remedy; a bargaining order is a drastic remedy, justified “only when an election is unlikely to reflect the uncoerced preference of the bargaining unit.” N.L.R.B. v. Marion Rohr Corp., Inc., 714 F.2d 228, 230 (2d Cir.1983). Thus, even where “hallmark” violations have occurred, a bargaining order may not be appropriate where “significant mitigating circumstances exist,” N.L.R.B. v. Jamaica Towing, supra, 632 F.2d at 212; J.J. Newberry Co. v. N.L.R.B., 645 F.2d 148, 153 (2d Cir.1981). Among the possibly mitigating factors the NLRB was obliged to consider were the passage of time and rate of employee turnover since the time of the violations. N.L.R.B. v. Marion Rohr Corp., Inc., 714 F.2d 228, 231 (2d Cir.1983). It considered neither. In this case, three years had elapsed between the election in July, 1979, and the Board’s issuance of the bargaining order in July, 1982. That substantial lapse of time casts doubt on whether the employee preference for the union, expressed prior to the 1979 elections through authorization cards, still reflected majority will, and thus would strongly argue for a new election. Although “we must guard against rewarding an employer for his own misconduct or delaying tactics,” N.L.R.B. v. Jamaica Towing, Inc., supra, 632 F.2d at 214, the Board conceded at oral argument that Knogo was not responsible for at least twenty-two months of that lapse, from the time the ALJ recommended in September, 1980, that a bargaining order be issued, until its issuance in July, 1982. Moreover, the Board denied Knogo’s motion to reopen the record to show that as of November 10, 1982, there had been considerable turnover in the bargaining unit since the unfair labor practice complained of, so that only a small minority of the current employees had ever expressed support for the Union. In particular, Knogo alleged that as of the date of its motion, the bargaining unit had shrunk from 101 employees to 52, only twenty of whom were employed at the time of the July, 1979, election and only seven of whom had signed authorization cards. We have consistently held that when there has been a large turnover in employees between unfair practices and a Board’s ordér, “[t]he effect of a bargaining order could thus easily be to impose upon the employees a union not desired by the majority of them.” J.J. Newberry Co. v. N.L.R.B., supra, 645 F.2d at 154; see N.L.R.B. v. Pace Oldsmobile, 681 F.2d 99, 100 (2d Cir.1982) (per curiam); N.L.R.B. v. Chester Valley, Inc., 652 F.2d 263, 273 (2d Cir.1981); N.L.R.B. v. Jamaica Towing, supra, 632 F.2d at 214. However appropriate the ALJ’s recommendation of a bargaining order may have been when made in 1980, the Board was obliged to find that a bargaining order was necessary when it was issued. N.L.R.B. v. Marion Rohr Corp., Inc., 714 F.2d 228, 231 (2d Cir.1983). Accepting as true Knogo’s allegations that 60% of the current unit were not employees at the time of the violations and that of the old employees, almost two-thirds had not signed cards, it seems to us inappropriate to foist the Union upon all employees without a reasoned finding that a free election now, more than four years after the violations, is improbable. Because it ignored the passage of time and employee turnover, the Board failed to make such a reasoned finding. Id. at 231. The effect of our enforcing a bargaining order now would be to shift the burden to the employees to go through decertification proceedings. Accordingly, we deny enforcement of the bargaining order. As over four years have now passed since the election, we see little reason to remand the case to the Board for further consideration, and we are not required to do so. Marion Rohr Corp., Inc., supra, 714 F.2d at 232. Enforcement of the Board’s orders is granted, except for that portion which directs Knogo to bargain with the Union, enforcement of which is denied. . Knogo was well aware of the progress of the organizing efforts. In February, 1979, when management learned of a Union leaflet claiming majority support, Knogo filed a petition with the Board to force an election. The petition was dismissed since no claim for representation had been made by the Union. . Section 8(a)(1) of the Act provides that it shall be an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].” Section 7 of the Act, 29 U.S.C. § 157, provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representation of their own choosing .... ” . Section 8(a)(3) of the Act provides that it shall be an unfair labor practice for an employer to “discriminatfe] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” . The Board rejected various other recommendations made by the ALJ in Knogo II. . The Board attempts to distinguish Marion Rohr in two ways. First, it argues that in that case, one Board member dissented from the decision to issue a bargaining order, but here the Board was unanimous. Second, it argues that in Marion Rohr, the alleged turnover occurred before the end of the Board’s hearings, while here the turnover occurred after hearings were concluded. We do not consider either distinction relevant to our decision. Although in Marion Rohr we stated that where a Board member dissents from the bargaining order it is “especially important that the other two panel members carefully articulate the reasons why they believe a fair election cannot be held,” 714 F.2d at 231, that does not imply that such a reasoned explanation of the need for a bargaining order is unnecessary when the Board is unanimous. Similarly, we find that it is irrelevant whether the turnover occurred before or after the conclusion of the hearings. In either case, the bargaining order must be necessary when issued. N.L.R.B. v. Pace Oldsmobile, Inc., 681 F.2d 99, 101 (2d Cir.1982) (per cu-riam). The fact that the Board took 22 months from the time ALJ Schwarzbart issued his opinion and the time it issued the bargaining order was not attributable to Knogo. Thus, the Board was obligated as much here as in Marion Rohr to consider employee turnover before issuing its order. . Our decision not to enforce the bargaining order necessarily means that we also reverse that part of Knogo II that found that Knogo violated section 8(a)(5) of the Act by increasing wages without notifying the Union, and that orders Knogo to cease and desist from “unilaterally changing terms and conditions of employment without notice to the Union and without affording it an opportunity to negotiate and bargain about such changes.” 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_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". UNITED STATES v. ONE 1940 OLDSMOBILE SEDAN AUTOMOBILE, MOTOR No. G-96106. No. 9242. Circuit Court of Appeals, Seventh Circuit. April 20, 1948. Otto Kerner, Jr., U. S. Atty., and Maurice C. Handelman and John Peter Lulinski, Asst. U. S. Attys., all of Chicago, Ill., for appellant. No appearance for appellee. Before SPARKS, MAJOR, and MIN-TON, Circuit Judges. SPARKS, Circuit Judge. By this action the United' States of America sought the forfeiture of the respondent, Oldsmobile Sedan, for violation of the Internal Revenue laws dealing with distilled spirits. The complaint was filed on April 2, 1946. On the same day, a monition issued under the seal of the court to the United States Marshal, by virtue of which he attached the Oldsmobile, and gave due-notice of such seizure by publication and by notice to its owner, Richard Coleman, all as prescribed by the statute. On April 5, 1946, the Grand Jury returned a “No Bill” against the claimant, Coleman, and written notice of that fact under the foreman’s signature was filed with the Clerk of the District Court on the same date. After April 5 and before May 16, 1946, Coleman requested return of his Oldsmobile from the Assistant United States Attorney having charge of the forfeiture proceedings. He suggested to Coleman that he should consult an attorney and procure his advice with respect to the return of the Oldsmobile, and that if-he did not choose to do so, the District Attorney would procure the entry of a default decree. On May 16, 1946, the District Court entered its order of default and directed forfeiture of the Sedan to the United States of America, under which the Marshal executed the order and delivered the Sedan to the Alcohol Tax Unit. On June 24, 1946, Coleman’s counsel discussed the default decree with the District Attorney who advised him that his proper procedure would be to file a motion to vacate the decree of default, setting forth whatever grounds he deemed appropriate. Neither Coleman nor his attorney did anything further until July 22, 1946, when Coleman filed his motion to vacate the default decree, more than 60 days after the decree was entered. Coleman’s motion to vacate the decree was predicated upon his assertion that proper officials of the United States of America had determined in point of fact that the Internal Revenue taxes had been paid on the distilled spirits found in his possession, although he did not state when or how such taxes had been paid, and that because of this determination, the Grand Jury returned a “No Bill.” He further alleged in his motion that on May 25, 1946, he was advised by the District Attorney’s office that criminal proceedings against him had been dropped. The Government filed a motion to dismiss Coleman’s motion on the grounds that he had failed to state any grounds upon which relief could be granted to him, and that he did not file his motion to vacate the decree within the time provided by law for the filing of such motion, hence the court lacked jurisdiction. Coleman’s motion to vacate the decree was heard on September 10, 1946, and his counsel there admitted that proper notice and publication required by law in forfeitures had been had. Coleman alleged that the default decree should be vacated because a constructive fraud had been perpetrated by the plaintiff on the court. This alleged fraud was said to be on the theory that the Criminal Division of the United States Attorney’s office had knowledge and information to the effect that Coleman committed no violation of the Internal Revenue laws, because the grand jury had returned a “No Bill” as to him, and that if in point of fact there was no criminal liability, the libel should not have been prosecuted. For this reason Coleman and his attorney urged that the sixty day rule relied upon by the Government did not apply. The motion to vacate the decree came on for hearing on September 10, 1946. Several rather bitter colloquies were had between the court and counsel on succeeding days. The court issued and later dismissed a rule against the District Attorney to show cause, as for contempt, and on November 15, 1946, entered its findings of fact and conclusions of law. It found that the four and one-half gallon can of distilled spirits found in Coleman’s automobile did not have affixed to it the strip stamp required by Section 2803 of the Internal Revenue Code, 26 U.S.C.A.Int. Rev.Code, § 2803, and that such stamp only cost one cent. The court concluded as a matter of law that it did not believe that it was incumbent upon the court to impose a forfeiture for every violation, no matter how trivial and regardless of circumstances, and that in the instant case, to impose a forfeiture for failure to affix a one cent stamp to the can of illicit alcohol imposed a penalty that was excessive and disproportionate to the offense, and for that reason the Government’s action for forfeiture should be denied. The court then dismissed the Government’s libel. The plaintiff excepted to the court’s conclusions of law, and from that decree of dismissal this appeal is prosecuted. We are here materially concerned only with the forfeiture statutes, 26 U.S.C.A. Int.Rev.Code, §§ 2803 and 3116, which relate to distilled spirits. This action is against the impersonal automobile alone, and its alleged owner, Coleman, is not a party to it. The auto was charged in this civil action with having been the means of illegally transporting a quantity of distilled spirits upon which no internal revenue taxes had been paid. True, the owner of the spirits or the automobile might have legally secured a one cent revenue stamp and placed it upon the receptacle, as provided by the statute, which would have indicated full payment of all internal revenue taxes due, but this was not done. Much is said about the insignificant value of one cent, as compared to the severity of the forfeiture. However, neither the owner of the spirits nor the automobile could have rightfully secured or used the one cent stamp without having paid all the internal revenue taxes due thereon. Hence, it is manifestly unfair to say that the amount here involved is trivial. In any event Congress did not think it was trivial, and we are bound by their enactment. We think the District Court was without discretion to decide otherwise. It was not contended in the District Court, that. Rule 60 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is here applicable, and the respondent is not appearing here, nor is anyone in its behalf. See C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S. Ct. 499, 87 L.Ed. 663; Reynal v. United States, 5 Cir., 153 F.2d 929. It is clear from this record that the decree of forfeiture was not entered through any mistake, inadvertence, surprise or excusable neglect of the defendant or anyone materially interested therein. Due and legal notice was given, and no motion by respondent or any one in its behalf was filed until more than six months had elapsed after the decree of forfeiture was entered. The District Court said that the District Attorney imposed upon the court by failing to advise it of the entry of the “No Bill” by the Grand Jury and that such imposition constituted fraud upon the court. We do not agree with this conclusion. That report did not amount to a finding by the Grand Jury that Coleman had not committed an offense in relation to this transacton, nor did it say that he had. This would not bar the District Attorney from again presenting further evidence to the Grand Jury on this same transaction. The report of “No Bill” by the Grand Jury was made in writing and entered in the clerk’s office of the District Court. This would not prevent the District Attorney from subsequently presenting further evidence if he so desired, and such record in the clerk’s office was as available to the court as it was to the District Attorney.' The record does not show why such a report was made, and it is not necessary that we should know. It is barely possible that the jury might have thought that the loss of Coleman’s automobile might be sufficient punishment without inflicting upon him either a fine or imprisonment. We feel certain that the District Attorney was not guilty of contempt of court for failing to supply this information to the court. There is quite a large discretion vested in the District Attorney to resubmit a presentment to the Grand Jury, or to subsequent grand juries, and this is not subject to the control of the District Court. .United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333; Deutsch v. Aderhold, 5 Cir., 80 F.2d 677; Application of Texas Co. et al., D.C., 27 F.Supp. 847. We think the court erred in setting aside the forfeiture and in dismissing the libel and in ordering the automobile herein referred to turned over to the possession of Richard Coleman. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	39	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". SHICK v. GOODMAN. Circuit Court of Appeals, Third Circuit. March 19, 1929. Rehearing Denied May 13, 1929. No. 3822. Robert P. Shiek, of Philadelphia, Pa., for appellant. Ellwood H. Deysher, of Reading, Pa., for appellee. " Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. BUFFINGTON, Circuit Judge. Prior to the bankruptcy of Albright, he wished to sell some real estate. It was subject to the lien of judgments owned by Shiek, the validity of which were contested by Albright. Accordingly they agreed that the land be sold by Al-bright, that Shiek release the lien of his judgments, sufficient of the purchase money, placed in escrow in the Norristown Trust Company, and substituted for the land. That fund is the subject-matter in dispute in the present case. Within four months thereafter Albright was adjudged a bankrupt, and the rights and status of all parties were thereby fixed, as follows: First, the bankrupt estate had a vested but contingent interest in the fund in the trust company, for if Shiek’s judgments were not valid it would go to Al-bright’s trustee; second, Shiek had an interest in the fund, adverse to the bankrupt and his estate, contingent upon the validity of his judgments. Now whatever rights Shiek might have asserted to have his adverse claim decided elsewhere, he chose to submit them to the bankruptcy court by filing claims of his judgments and taking part in the consideration of their validity by that court. He asserted or invoked no right as an adverse claimant to have such validity decided elsewhere, and while he made objections from time to time to the course of procedure, he did not challenge the jurisdiction of the bankruptcy court as such. Accordingly, that court proceeded and held his judgments invalid. Shiek’s attempt, pending such adjudication, to go into the state'court, where his judgments were entered, and have that court determine their validity, and as a result the validity of the claims he had filed and litigated in the bankruptcy court, was unwarranted. We find no error in the court below enjoining him from so doing. Its decree is therefore affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_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. ALISON v. UNITED STATES. NO. 79. Argued November 12, 1952. Decided December 8, 1952. Karl E. Weise argued the cause for Alison in No. 79. With him on the brief was Paul Kern Hirsch. Hilbert P. Zarky argued the cause for the United States in Nos. 79 and 80. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Lyon, Ellis N. Slack and Lee A. Jackson. David B. Buerger argued the cause for Stevenson-Chislett, Inc. in No. 80. With him on the brief was George M. Heinitsh, Jr. Mr. Justice Black delivered the opinion of the Court. The questions in these two income tax cases are so much alike that they can be treated in one opinion. Both taxpayers had moneys embezzled by trusted agents and employees. As' usual, the defalcations had been going on for many years before they were discovered. On discovery, efforts were made immediately to identify the takers and fix the dates and amounts of the thefts. In the Alison case, No. 79, the books revealed the thief and the precise amounts taken each year from 1931 to 1940. In No. 80, Stevenson-Chislett, Inc., the cover-up had been so successful that painstaking investigation failed to reveal who took the funds or the time when the un-ascertained person or persons took them. Each taxpayer claimed a tax deduction for the year the losses were discovered and their amounts ascertained. The Government objected, claiming that the deduction should have been taken in each of the prior years during which the moneys were being surreptitiously taken. In the Stevenson-Chislett case, the District Court held that the uncertain circumstances of the embezzlement entitled the taxpayer to take its losses the year the loss was discovered and the amount ascertained. 98 F. Supp. 252. The District Judge decided the other way in the Alison case and denied her declarations. 97 F. Supp. 959. His holding, however, was not in accord with his own views, but was compelled, he thought, by the Third Circuit’s decision in First National Bank of Sharon, Pa. v. Heiner, 66 F. 2d 925. The Court of Appeals for the Third Circuit certified to us the question of deductibility in both cases. Pursuant to 28 U. S. C. § 1254 (3), we ordered the complete records sent up so that we might decide the entire matters in controversy. Internal Revenue Code, §§23 (e) and (f) authorize deductions for “. . . losses sustained during the taxable year. . . .” The Government reads this section as requiring a taxpayer to take a deduction for loss from embezzlement in the year in which the theft occurs, even though inability to discover in time might completely deprive the taxpayer of the benefit of this statutory deduction. Only at the time the money is stolen, so it is argued, is a loss “sustained.” But Treasury practice itself belies this rigid construction. For more than thirty years the Regulations have provided that “A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.” 26 CFR § 29.43-2. (Emphasis supplied.) Information contained in a letter from the Commissioner attached as an appendix to the Government’s brief cites many instances in which the Treasury has allowed deductions for embezzlement losses in years subsequent to those in which the thefts occurred. Apparently the Department has felt constrained to do this in order to prevent hardships and injustice. These have been departures from the “ordinary” rule of attributing embezzlement losses to the year of theft. This Treasury practice evidently stems at least in part from the special nature of the crime of embezzlement. Its essence is secrecy. Taxpayers are usually well aware of all the circumstances of financial losses for which tax deductions are allowed. Not so when a trusted adviser or employee steals. For years his crime may be known only to himself. He may take money planning to return it and he may return it before there is discovery. Furthermore, the terms embezzlement and loss are not synonymous. The theft occurs, but whether there is a loss may remain uncertain. One whose funds have been embezzled may pursue the wrongdoer and recover his property wholly or in part. See Commissioner v. Wilcox, 327 U. S. 404. Events in the Alison case show the practical value of this right of recovery. A substantial proportion of the embezzled funds was recovered in 1941, ten years after the first embezzlement occurred. This recovery alone is ample refutation of the view that a loss is inevitably “sustained” at the very time an embezzlement is committed. Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. See Boehm v. Commissioner, 326 U. S. 287. An inflexible rule is not needed; the statute does not compel it. For years the Treasury has administered the tax law under regulations saying that deductions shall “ordinarily” be taken in the year of embezzlement. Ordinarily does not mean always. We hold that the special factual circumstances found by the District Courts in both these cases justify deductions under I. R. C., §§23 (e) and (f) and the long-standing Treasury Regulations applicable to embezzlement losses. See Boston Consolidated Gas Co. v. Commissioner, 128 F. 2d 473; Gwinn Bros. & Co. v. Commissioner, 7 T. C. 320. Accordingly, the judgment in No. 79 is reversed and the judgment in No. 80 is affirmed. It is so ordered. Mr. Justice Douglas and Mr. Justice Burton dissent. 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_app_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. ARKANSAS LOUISIANA GAS CO. v. CITY OF TEXARKANA, TEX., et al. No. 8788. Circuit Court of Appeals, Fifth Circuit. Dec. 14, 1938. W. C. Fitzhugh and H. C. Walker, Jr., both of Shreveport, La., and Jno. J. King, of Texarkana, Tex., for appellant. Ed. B. Levee, Jr., of Texarkana, Tex., and F. B. Davenport and Shirley W. Peters, both of Dallas, Tex., for appellees. Before HUTCHESON and HOLMES, Circuit Judges, and DEAVER, District Judge. HUTCHESON, Circuit Judge. Appellant is a publice service company, owning and operating, under franchise, a natural gas distribution system in the City of Texarkana, Texas, by which it serves with natural gas, the city and its inhabitants. Appellees are the City, the Mayor, the Board of Aldermen, and certain persons alleged to be acting in concert with the City, to complainant’s injury. The claim, in general, was that the City and the other defendants, under the purported authority of Art. 1111, Vernon’s Ann.Civ.St.Tex. but in fact unlawfully, and without right, were going about to construct a natural gas system to be paid for out of revenue bonds, for the purpose and with the result of instituting an unlawful and ruinous competition with plaintiff’s gas distribution system, and thus of depriving it of its properties in violation of the due process the Fourteenth Amendment, U.S.C.A.Const. Amend. 14, guarantees. As alleged in detail, the unlawfulness was: (1) That the City was not a Home Rule city, but one under special charter, and' therefore wholly without power to issue revenue bonds, or otherwise proceed under Art. 1111; (2) that the construction contract was invalid, because not let to the lowest bidder in competitive bidding, upon definite and adequate specifications; (3) that the contract the City had made with Peters for personal direction and supervision of the project was unlawful, because (a) it illegally delegated to him non-delegable public powers; and (b) it awarded him a fee in compensation, which was excessive, unreasonable, fraudulent and unconscionable; (4) the contract for the sale of the bonds was in violation of the Texas statutes, and void, in providing for a sale at less than par and interest, and in addition, it was usurious. The defense primarily was, that complainant was without legal standing to maintain, or at least, to obtain any relief in, this suit, because no litigable or justiciable right or interest of plaintiff is affected by the matters of which it complains, and it is therefore not entitled to call defendants’ actions in question, or ask relief as to them. Subject to this defense, defendants affirmed, as stoutly as plaintiff had denied: (1) That the City had authority under Art. 1111, to build the plant and pay for it by the sale of revenue bonds; (2) that the construction contract was in all things valid; (3) that there was no vice in the contract with Peters, and (4) none in the contract for the sale of the bonds. There was a reference to a Master, and after full and exhaustive hearings on the facts and the law, a thorough and exhaustive report. In it the Master found (1) that the court had jurisdiction; (2) that plaintiff had a right to bring, but not a right to recover in, the suit; (3) that the City of Texarkana had power and authority under Art. 1111 to construct, operate, and encumber the proposed gas system; (4) that none of the contracts made or steps taken by the City in connection with the proposed gas distribution system, taken in themselves, or together, were invalid; (5) that complainant had not been deprived of property without due process of law, had not shown any injury to itself entitling it to relief. He recommended that the bill be dismissed at plaintiff’s cost. On objections and exceptions to the report, the District Judge, agreeing in substance with it, made findings of fact and conclusions of law of his own, as follows: “1. I conclude that this court has jurisdiction of the subject matter of this controversy. “2. I conclude that the City of Texarkana is a ‘Home Rule’ City under the Constitution and Statutes of Texas; and that, since it is a ‘Plome Rule’ City it has the authority to construct and operate the proposed gas system, and to encumber the same and its revenues for the cost of construction. “3. I conclude that the construction contract could be let, as was done, although there was no fund available for the payment when the same was done. “4. I conclude that the bonds did not provide for any usurious rate of interest. “5. I conclude that the ‘Revenue Bonds’ might be sold for less than par, as was done. “6. I conclude that the City did not surrender its administrative discretion to the respondent Peters in any way. “7. I conclude that the contract made by the City of Texarkana with the respondent Peters was not subject to attack by complainant. “8. I conclude that the construction contract, including the plans and specifications, advertisement and successful bid therefor, was not invalid. “9. I conclude that none of the other matters complained of by complainant were invalid. “10. T further conclude that the complainant is not in any position to complain about the Peters contract, the construction contract, and the other matters alleged by it to be invalid. “11. I do not think that a dismissal of the bill should be had, but the decree should be for the respondents, upon the merits, with all costs taxed against the complainant. “12. I conclude that all of the complainant’s objections and exceptions to the Master’s report, save the suggestion that under the Master’s view and report of the case, a dismissal of complainant’s bill was improper, should each be overruled; and the Master’s report confirmed.” Upon these findings there was a decree in effect confirming the Master’s report, but instead of dismissing the bill as he had recommended, denying relief under it. Here appellant vigorously pressing upon us that its substantial rights have been, and are being, invaded by what the City has done and is proposing to do, and that the acts and things it complains of are illegal, insists that the decree should be reversed. Appellees as stoutly maintaining that the Master and the District Judge were right in holding that the City was well within its powers, and that the, matters and things complained of were legally and properly done and accomplished, yet vigorously press upon us that plaintiff’s appeal fails as its suit did, at the threshold. They insist that no legally cognizable and justiciable right or interest of appellant is infringed or invaded by the proposed construction and operation of which appellant complains, and that on this ground alone the decree should be affirmed. We agree with appellees. Appellant’s reliance on Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483, will not do. What was in question there was the right of one doing a business, which could be done only under license from the Corporation Commission, to prevent the Commission from discriminating against it in granting a license to another. Here is no question of a licensee suing to prevent discrimination, none of discrimination. Here is merely an effort to prevent a competition which plaintiff has neither contract, nor other legal right to prevent, merely on the ground that the threatened competition is being unlawfully instead of lawfully, launched. It may not be doubted that the City of Texarkana has authority to construct gas works, and to furnish a supply of gas. Both by specific provision in its original charter, “The right is hereby granted to the said City of Texarkana to construct, extend and own or acquire its public utilities, such as gas, water, elefctric light works, * * * and generally to acquire and own all of its public utilities of a like character, and to furnish and sell the products and commodities therefrom to the public for private or commercial use,” and by Article 1175, Title 28 R.S., authorizing cities adopting amendments under the “Home Rule” constitutional and statutory provisions, to “buy, own, construct within or without the city limits and to maintain and operate a system or systems, of gas”, the City is granted this power. Whether, then, it has the power to institute the system under Art. 1111 by issuing revenue bonds, and whether the particular contracts and acts' of the City, brought • into question here, are subject to question, is wholly immaterial, for, granting as it must, that the City has the power to subject appellant to competition, it does not lie in appellant’s mouth to question the means or methods, by which this competition is launched. Duke Power Co. v. Greenwood County, 4 Cir., 91 F.2d 665; Greenwood County v. Duke Power Co., 4 Cir., 81 F.2d 986; City of Allegan v. Consumers’ Power Co., 6 Cir., 71 F.2d 477; Arkansas-Missouri Power Co. v. Kennett, 8 Cir., 78 F.2d 911; Alabama Power Co. v. Ickes, 67 App.D.C. 230, 91 F.2d 303, affirmed 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; c/f Jenkins v. City of Cooper, Tex.Civ.App., 87 S.W.2d 778; Hazelwood v. City of Cooper, Tex.Civ.App., 87 S.W.2d 776, 777; and Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. But we may go further, and say that we think it perfectly plain, under the authorities, that the City of Texarkana, having adopted a “Home Rule” amendment, is entitled to the benefits of Art. 1111, and may, under it, provide for the building of a gas system payable out of revenue bonds. Ex parte Norton, 113 Tex.Cr.R. 306, 21 S.W.2d 663; City of Corpus Christi ex rel. Harris v. Flato, Tex.Civ.App., 83 S.W.2d 433; c/f Anderson v. Brandon, 121 Tex. 188, 47 S.W.2d 261. Holding as we do, that no justiciable interest or right of plaintiff was impaired by the acts it complains of, we find it unnecessary to consider the other questions it raises. The order appealed from is affirmed. “All cities and towns including Home Rule Cities operating under this title shall have power to build and purchase, to mortgage and encumber their light systems * * * or natural gas systerns * * * and to evidence the obligation therefor by the issuance of bonds, notes or warrants” secured on its properties. Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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. George AVLON, Appellant, v. GREENCHA HOLDING CORP., Appellee. No. 23, Docket 22449. United States Court of Appeals Second Circuit. Argued Oct. 10, 1956. Decided Dec. 10, 1956. Clark, C. J., dissented. See also, 232 F.2d 129. Ramey & MeKelvey, New York City, Edward J. Bazarian, New York City, for appellant; Deane Ramey, New York City, of counsel. William J. Tropp, New York City, for appellee; Arthur C. Parker, New York City, of counsel. Before CLARK, Chief Judge, and HAND and SWAN, Circuit Judges. SWAN, Circuit Judge. This is an action to recover for personal injuries sustained by the plaintiff by reason of the collapse of an iron grating, on which he was standing, attached to the outside of a building owned by the defendant. The action was commenced in a court of the State of New York and was removed to the federal court on the ground of diversity of citizenship. At the close of the plaintiff’s case, the court granted a motion by the defendant to dismiss the complaint for failure to prove a prima facie case. On appeal it is contended that there were issues of fact which should have been submitted to the jury. The correctness of this contention turns on whether there was evidence on which the jury could have found that the plaintiff had the status of an invitee rather than a bare licensee while standing on the iron grating; and the answer to this question is controlled by New York law, since federal jurisdiction rests on diversity. The plaintiff was a cook employed by a cafeteria company which occupied as lessee the first floor and basement of defendant’s two story building located at 3195 Broadway, New York City. The dining room of the cafeteria was separated from the kitchen by a wall or partition through which was a connecting doorway. The main entrance to the dining room was from the street level of Broadway. In the rear wall of the dining room was a door marked “Exit,” with a red electric light above it. At the rear of the kitchen was another door similarly marked and lighted. Each of these “Exit” doors opened onto an iron grating or platform which was affixed to the outside of the building. The platform was approximately 5 feet wide and 35 feet long and was suspended over an areaway some 25 feet below the floor level of the cafeteria. No steps led from the platform to the ground but at one end of the platform iron stairs led to the roof of an adjacent building. From the roof other stairs led to a rear doorway into a bowling alley which was located in the second story of the defendant’s building. At the front of the building there was an entrance from the street to the bowling alley used by customers. On the date of the accident, June 1, 1948, the plaintiff had gone from the kitchen to the dining room, using the doorway in the partition which separated them. On leaving the men’s wash room, which is in the dining room, he went through the “Exit” door in order to “have a smoke” and “get some fresh air.” As he proceeded along the platform to return to the kitchen a section of the iron grating collapsed under his weight and he was precipitated to the areaway below. There was testimony that the plaintiff had used the platform similarly on three or four prior occasions; that other employees sometimes so used it; that patrons of the cafeteria occasionally used the platform and fire escape stairs as a way of reaching the bowling alley; and that the president of the defendant had the opportunity to see such use. He denied knowing that either employees or patrons of the restaurant ever used the fire escape. No proof was offered as to what caused a section of the platform to collapse. The plaintiff testified, as did also the president of the defendant, that the platform appeared to be in good condition. Without a formal opinion the trial judge, upon argument of the defendant’s motion to dismiss, ruled that the evidence proved that the plaintiff was no more than a bare licensee while using the outside platform, and, as such had established no right to recovery, since the defendant was guilty of no affirmative act of negligence. Under New York law the ruling was correct. We can find nothing in the evidence which could support a jury’s verdict that the plaintiff was an invitee. The outside structure was not within the premises leased to the plaintiff’s employer. The lease, which was the “Standard Form of Store Lease” of the Real Estate Board of New York made no reference to it.* At best the jury could have found no more than that the landlord had notice that the tenant’s employees and patrons occasionally used the platform as a passageway or as a place to smoke and get a breath of outside air, and acquiesced therein without protest. But there is no evidence of any invitation or inducement on the part of the landlord to make such use of it, and mere consent to such use does not indicate that the plaintiff was an invitee. The existence of the “Exit” signs with red lights above showed clearly that those doorways were intended for emergency exists to the fire escape; they could not reasonably be found by the jury to serve as an invitation to use the platform as a passageway except in case of emergency. The plaintiff knew it was a fire escape, and in an affidavit reporting the accident said he “fell through fire escape platform.” The platform had no steps leading to the ground but did lead to the roof of an adjoining building, and the only purpose it could have had was to provide an escape in case of need. Indeed, it conformed to the statutory definition of a fire escape in section 4(16), Multiple Residence Law of New York, McK.Consol.Laws, c. 61-B. Vega v. Lange, supra, note 3, held squarely that the use of a fire escape for other purposes, with the owner’s knowledge and consent, does not make the user an invitee. A Court of Appeals case which strongly supports the ruling below is Walker v. Bachman, 268 N.Y. 294, 197 N.E. 287. There the plaintiff was the child of a tenant of the defendant, who owned a two-family house in the rear of which were two garages facing a cement space intended for use only for automobiles entering or leaving the garages. The plaintiff’s father did not rent or use either of the garages and had no right to use the cement yard as appurtenant to the apartment leased to him. The cement yard was enclosed by a parapet 14 inches high. While playing with her brother in the yard the infant plaintiff stumbled over the parapet and sustained injuries. There was evidence that the children over a considerable period of time had, to the knowledge of defendant, played in the yard. The trial court submitted to the jury, over the defendant’s exception, the question whether the infant plaintiff was an invitee or a mere licensee. The plaintiff had a verdict and the júdgment entered thereon was affirmed in the Appellate Division, 243 App.Div. 514, 276 N.Y.S. 1018. The Court of Appeals reversed and dismissed the complaint, stating that the child was in the back yard with the implied consent of the defendant, but she was there for her own purposes only and the defendant’s acquiescence did not become an invitation. It seems to us that Judge Pound’s gloss upon the distinction between “invitee” and “licensee” in Vaughan v. Transit Development Co., 222 N.Y. 79, 82, 118 N.E. 219, still stands: “Long-continued acquiescence in such use does not become an invitation. The law does not penalize good nature or indifference nor does permission ripen into right.” See discussion in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158, 159, 71 N.E.2d 447. The supposed departures from the rule as to the effect of acquiescence disappear upon analysis of the facts. In Murtha v. Ridley, 232 N.Y. 488, 492, 134 N.E. 542, 543, the “children of the tenants had used it [the enclosed space] as a playground. Tenants hung their clothes in it. At one time the daughter of Mrs. Frankel planted flowers and vegetables in the yard. Mrs. Neach, the janitress, kept the yard and areaway clean and removed the debris. The tenants were obliged to go into the yard and fasten the lines to the clothes pole.” On this evidence the court said 232 N.Y. on page 493, 134 N.E. on page 543, that there was some evidence “establishing this yard as an appurtenance to this apartment house.” We understand by “appurtenance” a part of the premises the use of which was by implication affirmatively granted to the tenants. In Walker v. Bachman, supra, [268 N.Y. 294, 197 N.E. 288] the facts of which we have just stated, the court said that the “child was in the backyard with the implied consent of the defendant; but she was there for her own purposes only, and the defendant’s acquiescence did not become an invitation,” citing Vaughan v. Transit Development Co., supra, and distinguishing Murtha v. Ridley, supra, because there the evidence “established the yard as an appurtenance to the apartment house.” Whatever “appurtenance” may mean, obviously it requires more than “continued acquiescence.” In Sil-verberg v. Schweig, 288 N.Y. 217, 218, 42 N.E.2d 493, the following testimony, if believed, constituted an express invitation. The plaintiff wished to connect an aerial between his father’s store and the defendant’s apartment, and to do so “he desired access to a fire escape platform on such multiple dwelling and to obtain such access asked the defendant Herman for a key to an apartment which abutted the platform; that such defendant could not find a key and told the infant plaintiff to go up on the roof of his father’s store and then onto the fire escape ladder.” The court held that this evidence created a case for the jury, citing Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970, 971, which had held that a child was an “invitee” upon the roof of an apartment house where, not only the tenants’ children habitually played and which the tenants used “as a place to dry clothes”— as in Murtha v. Ridley, supra — but also where the janitor “on many occasions he dressed himself as a cowboy and came to the roof when the children were at play and there in their presence practiced at throwing a lariat and performed tricks with a whip.” Admittedly, it is always difficult to forecast what will be the position of the court of another jurisdiction; but it appears to us that up to the present time there has been no contradiction in the decisions of the New York courts as to the proposition that acquiescence alone is not invitation, and there is no evidence of anything more in the case at bar. Judgment affirmed. . In his complaint the plaintiff refers to this structure as a “fire escape and platform which, with the knowledge and consent of the said defendant, was regularly-used by persons lawfully in and upon said premises as a passageway to and from divers parts or portions of the said premises.” . Paragraph 4 contains the statement: “Landlord has not conveyed to Tenant any rights in or to the outer side of the outside walls of the building of which the demised premises form a part, • * ia itg context the statement should doubtless be restricted to a prohibition against attaching signs, wires, etc., to the outside walls. If relevant at all to the contention that the tenant had permission to use the platform as a passageway between the dining room andi the kitchen, its implication is adverse rather than helpful . In Vega v. Lange, 248 App.Div. 521, 290 N.Y.S. 736 at page 738 the court said: “The mere consent to the use to which the infant plaintiff put the fire escape did not indicate that she was an invitee,” citing as authority Vaughan v. Transit Development Co., 222 N.Y. 79, at page 82, 118 N.E. 219, in which Judge Pound said: “If plaintiff had had no permission to come on the premises he would have been a trespasser. If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for. his own convenience and his status was that of a bare licensee.” Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Edward FIELDS, Appellant, v. Donald WYRICK, Appellee. No. 81-1245. United States Court of Appeals, Eighth Circuit. Submitted Sept. 17, 1981. Decided April 23, 1982. Rehearing and Rehearing En Banc Denied May 28, 1982. Jeffrey E. Hartnett, Clayton, Mo., for Edward Fields. John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, Mo., for appellee. Before LAY, Chief Judge, and HEANEY and ROSS, Circuit Judges. HEANEY, Circuit Judge. Edward Fields appeals from the district court’s denial of his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. We reverse the lower court on the ground that Fields’ state court conviction was obtained as a result of his involuntary confession. Federal habeas corpus relief, therefore, should have been granted. Fields, a soldier then stationed at Fort Leonard Wood, was charged with raping a Waynesville, Missouri, woman on September 21, 1974. He was convicted by a jury on March 13, 1975, and wasN sentenced to twenty-five years imprisonment. His conviction was affirmed on appeal. State v. Fields, 538 S.W.2d 348 (Mo.Ct.App.1976). Fields subsequently filed three successive motions to set aside his conviction under Rule 27.26 of the Missouri Rules of Criminal Procedure. These motions were denied. Fields v. State of Missouri, 596 S.W.2d 776 (Mo.Ct.App.1980); Fields v. State of Missouri, 572 S.W.2d 477 (Mo.1978). Fields then sought a writ of habeas corpus, citing various grounds allegedly justifying relief. Only one of these asserted errors concerns us on appeal, i.e., Fields’ contention that the trial court erroneously admitted testimony regarding his “involuntary confession.” Our recitation of the circumstances leading up to Fields’ confession relies primarily on facts either stipulated to by the parties at the suppression hearing or as set out in the court’s opinion affirming Fields’ conviction on direct appeal. Fields was arrested on September 25, 1974, and charged with rape. He was released on his own recognizance and retained private defense counsel. After discussing the matter with his counsel and a military attorney, Fields consented to the administration of a polygraph examination in connection with the rape charge. The examination was conducted on December 4, 1974, by Jesse Merl Bourne, Jr., an agent with the United States Army Criminal Investigation Division (CID) at Fort Leonard Wood. Although an attorney is allowed to be present during a CID polygraph examination, Fields’ counsel was not invited to be present, nor was he informed that the test would be given that day. Before the polygraph examination was given, Fields was advised that he had the right to remain silent and to have an attorney present, and he signed a written form consenting to the examination. After the examination was completed, Bourne told Fields that there “had been some deceit” and asked him if he had some explanation as to why his answers were bothering him. Fields thereupon stated that he had had intercourse with the victim on September 21, 1974, but that she had instigated and consented to the contact. Bourne then asked Fields if he wished to discuss the matter further with another CID agent, Charles Fann, and the Waynes-ville Chief of Police, James Cole. Fields agreed to do so. Police Chief Cole gave Fields the Miranda warnings before questioning him. Fields repeated to Cole and Agent Fann his account of what happened on September 21, i.e., that the victim had voluntarily engaged in sexual relations with him at her residence. Fields sought to suppress the testimony of Police Chief Cole and Agents Bourne and Fann regarding his “confession” to voluntary intercourse. On the day of Fields’ trial, a hearing was held on Fields’ motion, at the conclusion of which the trial court stated the following: Well, I’m going to overrule the Motion to Suppress for the reason that this defendant on several occasions was advised what his rights were. It’s true that he was represented by counsel and he talked to counsel about it. And while I’m inclined to believe that we ought to make every effort to protect the rights of individuals, grant them their constitutional rights, still, after the defendant is advised not on one occasion, but on several occasions, what his rights are, then he voluntarily requests and puts himself in position for making statements which — with the understanding that they might be used against him, I think that in this case that he waived those rights and I would have to overrule the Motion to Suppress. The trial court did not enter written findings of fact or conclusions of law on the motion to suppress. The propriety of this ruling was the sole issue raised in Fields’ direct appeal of his conviction. The Missouri Court of Appeals stated that Fields’ pleadings or briefs did not preserve anything for appellate review, but went on to “briefly” consider Fields’ constitutional claim under a “plain error” standard. State v. Fields, supra, 538 S.W.2d at 349-350. The court concluded that the motion to suppress was properly denied because “defendant had been repeatedly and amply advised of his rights [and] voluntarily, knowingly and intelligently waived his rights.” Id. at 350. We are mindful of the Supreme Court’s recent admonition that in federal habeas corpus proceedings the court must apply a “presumption of correctness” to factual determinations made by the state courts. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722, 731 (1981). The applicable statute provides that this “presumption of correctness” applies to a state court’s “determination after a hearing on the merits of a factual issue * * * evidenced by a written finding, written opinion, or other reliable and adequate written indicia.” 28 U.S.C. § 2254(d). The presumption does not, of course, attach to a state court’s resolution of a question of federal law or to “a mixed determination of law and fact that requires the application of legal principles to the historical facts of [a] case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980) As the Supreme Court has noted, the question of whether or not a defendant has effectively waived his constitutional rights is not one of fact but of federal law. See Brewer v. Williams, 430 U.S. 387, 397 n.4, 97 S.Ct. 1232, 1238 n.4, 51 L.Ed.2d 424 (1977). Accordingly, we have accepted those “basic, primary or historical facts” determinated by the state courts, while independently reviewing the legal conclusion drawn therefrom. After a careful review of the record and the state court’s findings, we conclude that Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation described above. Fields’ incriminating statements were, therefore, not voluntarily made and should have been suppressed. It has been clear since Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that “the right to have counsel present at [an] interrogation is indispensable to the protection of the Fifth Amendment privilege” against self-incrimination. Id. at 469, 86 S.Ct. at 1625. This aspect of the Miranda ruling reflects the Court’s concern that “the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators.” Id. M The importance of the right to have counsel present during a custodial interrogation has recently received renewed emphasis. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that once a suspect invokes his right to counsel, he is not subject to further interrogation until counsel is provided to him, unless the suspect himself initiates dialogue with the authorities. In so ruling, the Court apparently sought to buttress the right to counsel by creating a per se rule restricting the circumstances under which a court can find that the right has been waived. See Note, Edwards v. Arizona: The Burger Court Breathes New Life Into Miranda, 69 Cal.L.Rev. 1734, 1746-1747 (1981). Objective criteria controls the waiver determination when a suspect has invoked the right to counsel: either counsel must be present at subsequent custodial interrogations or else the dialogue at issue must have been initiated by the accused. The per se rule enunciated in Edwards does not resolve the issue present here. Fields and his counsel mutually agreed that Fields should take the polygraph examination, Fields appeared at the examination without his counsel and stated that he did not want counsel present during the examination. Fields thereby “initiated” further dialogue with the authorities after his right to counsel had been invoked. Accordingly, the question of whether Fields waived his right to have his counsel present at the subsequent interrogation becomes more complex. The Edwards Court stated that if * * * in the course of a meeting initiated by the accused, the conversation it not wholly one-sided [and] the officers * * * say or do something that clearly would be “interrogation” * * * the question would be whether * * * the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. Edwards v. Arizona, supra, at 486 n.9, 101 S.Ct. at 1885 n.9, 68 L.Ed.2d at 387 n.9. The burden of proving that a defendant has knowingly and voluntarily waived his right to have counsel present at an interrogation rests with the government, and the Supreme Court has characterized that burden as a “heavy” one. See Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628. Regardless of whether the Edwards per se rule is strictly applicable, the clear import of the Edwards decision is to affirm that a defendant’s right to have counsel present at custodial interrogations must be zealously guarded, particularly when the defendant has retained counsel and thereby has expressed a desire to deal with the authorities through counsel. We cannot find that the government proved a knowing and intelligent waiver in this case without significantly undermining that principle. In our view, the right to have counsel present is especially crucial where, as here, the authorities utilize the “results” of a polygraph examination to elicit incriminating statements from the accused. It has been suggested that the primary utility of polygraphs administered in the course of a criminal investigation is to induce confessions from the accused. See Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector, 214-215 (1981). This Circuit has refused to admit the results of unstipulated polygraph examinations into evidence because “the polygraph does not command scientific acceptability and * * * is not generally believed to be sufficiently reliable in ascertaining truth and deception to justify its utilization in the trial process.” United States v. Alexander, 526 F.2d 161, 164 (8th Cir. 1975). Accord, United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); United States v. Skeens, 494 F.2d 1050, 1053 (D.C.Cir.1974). See DeMartino v. Weidenburner, 616 F.2d 708, 713 (3rd Cir. 1980); United States v. Russo, 527 F.2d 1051, 1058-1059 (10th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 831 (1976). The Missouri state courts refuse to allow any polygraph examination results into evidence at trial, even if the parties have stipulated to the use of such evidence. See State v. Biddle, 599 S.W.2d 182, 191 (Mo.1980) (en banc); State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962). The Missouri Supreme Court recently stated that [gjiven the large margin of error stated by some experts and the disagreements among the experts as to the polygraph’s reliability, a stipulation as to the admissibility of its results is, in effect, an agreement to rely upon chance rather than upon competent evidence, as well as an agreement regarding scientific opinion beyond the competence of either party to understand or evaluate. State v. Biddle, supra, 599 S.W.2d at 190 n.10. The questionable reliability of so-called “lie-detectors” does not, however, diminish the significant psychological impact the device can have on the examinee. See Lykken, supra, at 211-212. It may seem futile to maintain silence in the face of the examiner’s statement that the machine, cloaked with the mystique of scientific infallibility, has shown the accused to be lying. Furthermore, the examiner is not likely to be challenged by the accused when he indicates that the machine has shown “some deceit;” the accused, and frequently the court reviewing the circumstances of a polygraph-induced confession, has no way of knowing what, in fact, the test results revealed. We do not, of course, imply that the use of a polygraph and its “results” is the kind of “trickery” that necessarily renders post-test confessions involuntary. We merely hold that because of the significant potential for abuse inherent in a post-polygraph interrogation, the courts must be particularly cautious about finding that a suspect has “waived” his right to have counsel present at such an interrogation. There is no question that Fields waived his right to have counsel present while the examination itself was being conducted. Fields was advised that he did not have to answer any of the examiner’s questions and that he could have an attorney present at the examination. Prior to the beginning of the polygraph examination, Fields stated that he did not want a lawyer present and signed a written consent to the examination. This fact is not sufficient to meet the government’s burden to prove that Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation. The line we draw is not an artificial one. In Henry v. Dees, 658 F.2d 406 (5th Cir. 1981), the Fifth Circuit held that the defendant’s waiver of his constitutional right to remain silent and have counsel present during a polygraph examination did not extend to questions propounded by the examiner after the defendant was “off” the polygraph machine. The defendant, Gilbert Henry, with his counsel present, had signed written consent forms waiving his constitutional safeguards for the duration of the polygraph examination and stipulating to the admissibility of any statements of guilt procured by the examiner during the examination. The examiner, administering the examination without defendant’s counsel present, interrupted his questioning, informed the defendant that he had “failed” and asked did he “want to tell me about the thing?” The court concluded that the incul-patory statements made by the defendant in response to that inquiry were not, under the totality of the circumstances, freely and voluntarily made and, therefore, should have been suppressed. Id. at 408-409. In refusing to extend Henry’s examination consent to the post-test questioning, the Fifth Circuit noted that “[n]either Henry nor his counsel contemplated that the instruments they signed exposed Henry to questioning which was not an integral part of a polygraph examination.” Id. at 410. There is similarly no evidence that Fields or his lawyer anticipated that the CID officer would attempt to elicit incriminating statements from Fields after the examination was run. Fields’ lawyer stated at the suppression hearing that he and the defendant only wanted a “polygraph to be run and that we be given results.” It was his understanding that “the running of the polygraph would have merely shown deceit or non-deceit and would have been used for the purposes of a possible pretrial negotiation.” Agent Bourne, the polygraph examiner, did not attempt to dispel this mistaken impression before the examination began. Bourne testified that he did not inform Fields that if the machine indicated that his responses were deceitful that Bourne would continue the questioning “to find the truth.” Nonetheless, Fields “was subjected to interrogation of a[n] [investigative] officer, out of the presence of his counsel, and without the benefit of meaningfully timed Miranda warnings.” Id. (emphasis added). “The [officer] moved from administration of a polygraph examination to police interrogation without pausing to remind [the defendant] of his privilege against self-incrimination and his right to have counsel present during questioning.” Id. at 409. As a result, the officer obtained highly incriminating admissible testimony from the defendant, instead of merely determining the results of the polygraph examination—results which could not have been introduced at Fields’ trial. See State v. Biddle, supra, 599 S.W.2d at 191; State v. Weindorf, supra, 361 S.W.2d at 811. Because we hold that Fields’ consent to the polygraph did not constitute a waiver of his right to have counsel present at the post-test interrogation, we then must inquire whether he subsequently waived this right. The government has simply introduced no evidence from which we can conclude that when Fields was confronted with the accusatory statement that the “lie-detector” showed he was lying, he waived his right to the protection of counsel in this coercive situation. After Fields “confessed” to Agent Bourne, he was requestioned by Police Chief Cole and CID Officer Fann. This questioning was preceded by Miranda warnings. These warnings, however, could hardly be considered “meaningfully timed.” Fields had already told Bourne his version of the events of September 21, 1974, a story that was merely repeated to the other officers. Cole’s and Fann’s testimony at trial regarding the substance of Fields’ “confession” was cumulative. Therefore, even if we were to consider the belated warnings to be sufficient evidence that Field voluntarily, knowingly and intelligently waived his right to have counsel present, the warnings — and the alleged waiver — simply came too late. We note that the troublesome circumstances of this case could have been easily avoided. If the polygraph did, in fact, detect physiological responses by Fields that the examiner associated with deceitful testimony, it would have been a simple matter for him to contact Fields’ counsel before proceeding to interrogate the defendant. This action, of course, was not constitutionally commanded. But it would have prevented the situation we are presented with here — a defendant, in the absence of his retained counsel, giving key inculpatory testimony to an investigative officer, without any indication in the record that he knowingly and intelligently waived his right to have his counsel present. For the reasons set forth above, we remand to the district court with directions to it to order the state to either release the appellant or afford him a new trial. The district court shall fix a reasonable time period within which the state must provide this relief. . Fields also claims that he was denied effective assistance of counsel at his trial, on direct appeal, and in perfecting his 27.26 motions; that the warrant causing his arrest lacked probable cause; and that the jury which convicted him was selected in a manner which systematically excluded women and blacks. Because we agree that Fields’ confession was involuntary, we need not reach the other issues raised in his habeas petition. . The dissent in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), seems to suggest that the majority has eroded this principle by holding that the Sumner appeals court had not complied with § 2254(d) even though the ruling at issue was a disagreement with the state court “over the constitutional significance of the facts of the case, and not over the facts themselves.” Sumner v. Mata, supra, 449 U.S. at 557, 101 S.Ct. at 774, 66 L.Ed.2d at 737. We are not inclined to read more into the majority opinion than is clear from its holding — i.e., that a federal court considering a habeas petition can overturn the factual findings of a state trial or appellate court only if, in the opinion granting the writ, the court clearly states why it considers any of the eight “exceptions” to the § 2254(d) “presumption of correctness” to be applicable. Id at 552, 101 S.Ct. at 771, 66 L.Ed.2d at 734. The majority explicitly reasserted that “even a single federal judge may overturn the judgment of the highest court of a state insofar as it deals with the application of the United States Constitution or laws to the facts in question.” Id. at 544, 101 S.Ct. at 768, 66 L.Ed.2d at 729. . Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). . As we have noted, the trial court did not enter evidentiary findings and the appellate court merely provided a brief explication of some of the circumstances leading up to Fields’ confession. Because we find that no part of the .appeals court’s version of the relevant events is inconsistent with our conclusion that the confession was involuntary, we need not reach the issue of whether section 2254(d)’s strictures apply to that court’s brief, “plain error” review of Fields’ claim. Cf. Sumner v. Mata, supra, 449 U.S. at 545, 101 S.Ct. at 768, 66 L.Ed.2d at 730 (§ 2254(d) applies to state appellate court findings made after plenary consideration of petitioners’ claim, including review of state court record). . There is no question that Fields’ “confession” was material to his conviction because, if believed, it definitively established that Fields had intercourse with the victim on the day of the rape. The rape victim never saw her assailant, except for his hand, because her face was covered by a pillowcase throughout the assault. When asked at trial if the defendant’s hand was the one she saw that day, the victim replied “no.” . The fact that Fields “initiated” the meeting with the authorities does not render the resulting interrogation “noncustodial,” as the state seems to suggest; it merely changes the standard by which the existence vel non of a waiver is determined. Nor was the interrogation “noncustodial” simply because Fields was not in jail at the time the polygraph was run. Fields had been arrested on the rape charge, and was released on his own recognizance only under the condition that his company commander know where he was at all times. . Professor Lykken cites, for example, the experience of the Los Angeles Police Department polygraph laboratory. Their examiners estimate that they obtain confessions from twenty-five percent of the suspects subjected to polygraph tests. Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector, 208 (1981). . As this Court noted in United States v. Alexander, 526 F.2d 161, 165 (8th Cir. 1975), [tjhere is no “lie detector.” The polygraph machine is not a “lie detector,” nor does the operator who interprets the graph detect “lies.” The machine records physical responses which may or may not be connected with an emotional reaction and that reaction may or may not be related to guilt or innocence. quoting, H.R.Rep.No.198, 89th Cong., 1st Sess. 13 (1965). See Lykken, supra, at 55-62. . That was the case here: the results of Fields’ polygraph examination were not part of the record before the district court or on appeal. . Fields consented to the polygraph examination because it was his and his commanding officers’ hope that a “successful” polygraph examination of Fields would encourage the authorities to drop the charges against Fields so that he could graduate and transfer out with the rest of his basic training class. . In response to questioning by the state’s attorney, Bourne testified: Q. After the polygraph examination was done, did you have any further conversations with this man? A. Yes sir. Q. Did you indicate to him that he did not have to make any further statements other than what he had already done on the polygraph examination? A. No sir, we continued to discuss it. . The Missouri Court of Appeals, in its opinion affirming Fields’ conviction, erroneously considered Fields’ consent to the polygraph to be sufficient evidence of knowing and intelligent consent to the post-test interrogation. The court bolstered its consent finding by stating that Fields testified that before the test began he was read his rights and “I understood it to be that I didn’t have to make any statements, do anything without my counsel being present.” The transcript reveals, however, that Fields in fact stated that at the time of his arrest, he understood that he did not have to make any statements before he retained counsel and had him or her present. As the Supreme Court has noted, “waiver requires not merely comprehension but relinquishment.” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). Miranda warnings successfully imparted to Fields at the time of his arrest no more constitute conclusive evidence of a post-polygraph waiver than does the fact that Fields waived his right to protection of counsel during the examination. . In our view, neither the Henry v. Dees decision, nor ours in the instant case, is inconsistent with our Court’s opinion in United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978). Little Bear, under investigation for the manslaughter of her husband, agreed to take a polygraph examination. Before the examination began, she signed a written consent form. She therein stated that she was consenting to an interview with the FBI, a part of which was to be the polygraph. The examiner attached the apparatus to Little Bear, and asked her if she had stabbed her husband. She responded in the affirmative and said she wanted to talk about it. The polygraph was removed and Little Bear confessed. The Court held that the confession was voluntarily made. A number of factors distinguish Little Bear from the situation present here. Of primary importance is the fact that Little Bear had not retained counsel when she went to take the polygraph. Accordingly, the Court was not required to determine whether the agents’ procedure had deprived Little Bear of a previously asserted right to deal with the authorities through counsel. Furthermore, Little Bear expressly consented to an interview that was not confined to questions propounded as part of the polygraph examination. There was no question then of whether the examiner had improperly exceeded the scope of what Little Bear had consented to. Finally, and relatedly, Little Bear’s “confession” was prompted by the examiner’s first and only question propounded while she was on the machine. She was not subjected to “post-test” interrogation prompted by alleged deceitful responses. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. COMMISSIONER OF INTERNAL REVENUE v. McILVAINE et al. No. 5327. Circuit Court o£ Appeals, Seventh Circuit. July 19, 1935. Frank J. Wideman, Asst. Atly. Gen., and Sewall Key and John MacC. Hudson, Sp. Assts. to Atty Gen., for petitioner. John P. Wilson and Clay Judson, both of Chicago, 111., for respondents. Before EVANS, SPARKS, and ALSCHULER, Circuit Judges. ALSCHULER, Circuit Judge. Petitioner seeks review of decisions of the United States Board of Tax Appeals denying petitioner’s contention that the taxable estate comprises a single instead of three trusts. As a single trust the income tax rate for the years in question would have been carried into the higher brackets sufficiently to make the taxes in controversy larger by about $30,000 than if taxed as three trusts; and it is for this difference that the Commissioner assessed deficiencies for the respective years. The Board found there were three trusts, and no deficiencies. March 19, 1913, John P. Wilson conveyed to his son, John P. Jr., and William B. Mcllvaine, in trust, certain securities for the benefit of his three children, John, Martha, and Anna. The trustees were authorized to receive the entire income, and to sell the securities and reinvest the proceeds in accordance with the written directions of any two of the beneficiaries; and to accumulate the net income for fifteen years unless the period be shortened by the beneficiaries with the approval of the grantor if living; and after that time to distribute all net income in equal shares to the beneficiaries as provided. Provision was made that the instrument might be altered, changed, or modified to any extent by the three children with the approval of the grantor if living. June 19, 1919, an amendment was made to the trust instrument providing that the trust property should be divided into three separate and equal trusts, each part to be separately held in trust by the trustees severally for one of the donor’s said three children, and that the trustees should assign an undivided one-third interest in all the property they then held in trust for each of the children; and that all additions to the trust estate should be divided equally between the separate trust estates unless it be otherwise directed in the instrument of gift; and that the net income of the three trust estates should be paid to the beneficiaries entitled thereto upon the request of any two of the original beneficiaries, the income which was not paid out to be added to the principal of the trust fund from which it was derived. December 1, 1920, a second amendment was made which canceled certain parts of the amendment of June 19, 1919, and substituted for it provisions which are the same as paragraphs 1 and 2 of article III of a third amendment which was duly made December 6, 1920. Article III of the third amendment is set forth in the margin. It may be assumed that the trust instrument as originally drawn created a single trust. Concededly the trust, by its terms and with the consent of the beneficiaries and of the donor, if living, might be altered and amended in any of its provisions, so that there might be constituted any number of trusts; and it is unquestioned that the motive for setting up a larger number of trusts is not here material. So even though the sole purpose of the changes which were made was to bring about a reduction in the federal tax upon the income from the trust property, this would not transgress any right of the Government. The sole question is whether, under the amendments made, there were three trusts. That it was the definite intent of the donor by these amendments to set up three separate trusts is too plain for controversy. In the amendments he repeatedly so states; and unquestionably the beneficiaries, in consenting to the amendments, did so with the intent and under the assumption that, whatever may have been the previous status, thereafter there were to be three separate trusts. While the intent of the parties is a prime factor in construing such an instrument and in case of doubt this is accorded high evidentiary value, yet the instrument itself, where it is sufficiently plain, must determine its character and, scope. Colton v. Colton, 127 U. S. 300, 8 S. Ct. 1164, 32 L. Ed. 138; State Savings Loan & Trust Co. v. Commissioner, 63 F.(2d) 482 (C. C. A. 7) ; Hubbell v. Burnet, 46 F.(2d) 446 (C. C. A. 8). True, there was here no provision for physical division of the trust property by segregating each portion of it. Under the terms of the amended instrument the corpus of each of the three trusts consisted of an undivided one-third interest. The physical property remained undivided in the possession of the trustees, who were the same for each of the three trusts. We perceive no valid reason why this may not be so, and it is well settled by authority that an undivided interest in real or personal property may properly be the subject-matter of a trust. Vanderpoel v. Loew, 112 N. Y. 167, 19 N. E. 481; Starbuck v. Farmers’ Loan & Trust Co., 28 App. Div. 272, 51 N. Y. S. 58; Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, 191 N. E. 250; Bogert Trusts and Trustees, Vol. 1, pp. 351 and 352; Tentative Draft No. 1 of the Restatement of the Law of Trusts, § 73. It is well settled that separate and several trusts may be created by the same instrument, and be administered by the same trustees. DeVer H. Warner, Trustee, v. Commissioner, 7 B. T. A. 1292 [affirmed (C. C. A.) 26 F.(2d) 1023]; Lynchburg Trust & Savings Bank v. Commissioner (C. C. A.) 68 F.(2d) 356; Carruth v. Carruth, 148 Mass. 431, 19 N. E. 369; Claflin v. Dewey, 177 Mass. 166, 58 N. E. 581. Just what mode may or should be adopted for possessing and conserving the physical property which is thus subject to the separate trusts in undivided interests is not here of necessary significance. In this case, however, the trustees upon adoption of the amendments assumed to set up separate individual trust accounts for each'of the three beneficiaries of the supposed separate trusts, and charged unto themselves as trustees severally for the separate beneficiaries an undivided one-third of the property and funds granted by the donor, and kept the accounts accordingly. What more they could have done to carry out the donor’s intent that there should be three separate and distinct trusts is not readily manifest— unless indeed they made physical division of the property, which was not essential to the separate trust estates. In our judgment it was, after the amendments, as if in the very first instance the donor had, by separate instruments, conveyed to trustees, whoever they might have been — the same or different persons — an undivided one-third of the property in trust for the several separate beneficiaries. In such case we do not conceive that it would have made any difference that the three trusts thus created were in all respects eqtial in value and in treatment, and subj ect to identical conditions and stipulations, and were to be so kept, as was here the case. If the conditions and terms of the several trusts so created had differed radically from one another, and there had been different trustees, there would have been no question but that the trusts were separate and several. But is this different if the terms of each of the trusts which the donor thus undertook to create are ideniical and the trustees the same? This of itself would not amalgamate into one trust that which would otherwise be three. But we are concerned with income rather than with the physical possession of the property which produces it. While the property subject to the three trusts actually remained in the physical custody of the same persons who became the trustees for each of the three trusts, this was only for the purpose of holding, investing and conserving it, and for receiving and distributing the income therefrom to the three trusts which the amended instrument created. In this sense these persons, call them trustees, agents, custodians, or what not, in holding and collecting the income of the undivided property, and receiving the income therefrom, were merely the conduit through which the income, as it was received, was immediately passed to the three trusts. In so receiving the income these persons became at once equitably the trustees for its transmittal to the three trusts. In such relation the receipt of the entire income will be deemed in equity the receipt of it for its instantaneous passing to and for the three undivided trust estates. Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 58 L. Ed. 530; Burckhardt v. Northwestern National Bank (C. C. A.) 38 F.(2d) 568. This is particularly true here, where these same persons were acting in the two capacities, i. e., of holding and conserving the property and collecting the income therefrom, and of taking unto themselves as the trustees of the three separate trusts, as that income is received, the three undivided thirds of it for and on behalf of each of the three distinct trusts set up under the amended trust instrument. As above indicated the practice was to hold the trust property undivided, and we have treated the matter as though this were required by the trust agreement, reaching the conclusion that even if so required there were three trusts instead of but one. But article III of the third amendment specifies: “The trust funds and estate held under this Trust Indenture shall be kept divided by said Trustees into three- (3) equal parts, each of which shall be held and administered as a separate trust for the benefit respectively of one of the three children of said party of the first part, hereinbefore named, subject, however, to the conditions, limitations and provision's hereinafter set forth. “A separate account shall be kept by the said Trustees of each of said trusts, and the investments in each of said separate trusts shall at all times be kept'the same, both in kind and quantity, as near as may be, and-to that end joint investments may be made by the Trustees on behalf of said separate trusts, each trust contributing an equal amount of the funds used in making such joint investments.” It does not appear that those in custody of the property literally - followed the direction by physically dividing the trust property in the manner specified. Instead of segregating the property as directed and making similar investments for the three trust estates, or joint investments, they followed the practice above indicated of permitting the trust property to remain unsegregated. In all probability literal compliance with the letter of the trust instru1 ment could have been required; but as the financial result to the beneficiaries seems to have been the same, and no question of malfeasance or nonfeasance appears to have arisen, and since the question here concerns not custody or administration of the trust property, but involves only the income which, as it was received, passed at once to these persons in their capacities as separate trustees of the separate trust estates, we refer to this trust provision mainly as indicating definitely the purpose of the parties that there be three separate trusts, a purpose which to all intents, so far as concerns income and the tax thereon, appears to have been fully effectuated. Our strong inclination to sustain the reasoning and conclusions herein of the Board of Tax Appeals, as reported in 29 B. T. A. 304, is much tempered by the fact that the Circuit Court of Appeals of the Second Circuit, in Commissioner v. United States Trust Company of New York, Trustee Under Deed of John P. Wilson (C. C. A.) 75 F.(2d) 973, has decided otherwise. This case involved another trust of the same donor with the same beneficiaries as here, originally created about the same date as the one here and subsequently amended at about the' same time and in very much the same manner, with some slight but concededly immaterial differences. To the New York trustee the donor conveyed personal property, and subsequent amendments to the trust were made for the declared purpose of creating three^ separate trusts wherein the three originally named were the several beneficiaries. After the amendments the same question arose as to whether the federal income tax should be computed upon the-basis of a single trust or three separate-trusts ; and upon the Board’s finding and holding that three trusts were created, which were separately taxable, the Commissioner sought review in the Court of Appeals, which determined that there was. in fact but a single trust and reversed the-decision of the Board. It would serve no useful purpose to enter upon further discussion of the propositions there and here considered. Suffice it to say that while we regret to differ from that distinguished court, we are satisfied. that the Board properly reasoned and ruled that here three trusts were created, and the income from each was taxable accordingly and not as a single trust; and that the Board was right in determining there was no deficiency. The decisions of the Board of Tax Appeals are affirmed. • “(1) The trust funds and estate held under this Trust Indenture shall be kept divided by said Trustees into three (3) equal parts, each of which shall be held and administered as a separate trust for the benefit respectively of one of the three children of said party of the first part, hereinbefore named, subject, however, to the conditions, limitations and provisions hereinafter set forth. “A separate account shall be kept by the said Trustees of each of said trusts, and the investments in each of said separate trusts shall at all times be kept the same, both in kind and quantity, as near as may be, and to that end joint investments may be made by the Trustees on behalf of said separate trusts, each trust contributing an equal amount of the funds used in making such joint investment. “Any and all additions to the trust estate held under this Indenture (other than those from the accumulation of income from the separate trust estates) shall be divided between said separate trust estates held under this Indenture, in equal shares or parts, except and unless it shall be otherwise directed in the instrument of gift making an addition to the trust estate held under this Indenture. “Any property belonging to said trust estate may be taken and held for convenience in the name of a nominee of the said Trustees, or in the name of either of said Trustees, or in the name of said Trustees as joint tenants, without the addition of the word ‘Trustee’ or ‘Trustees,’ or words indicating that such property is held in trust. “(2) The said Trustees shall in each year pay out as much of the net income from each of said separate trusts to the beneficiaries from time to time entitled to share therein as shall during such year be requested or directed by one or more instruments in writing, signed by a majority in interest of the beneficiaries then entitled to share or participate in any distribution made of the income of all of said trusts. But equal payments must be made out of the net income from each of said separate trusts, to the end that said several separate trusts may be maintained on a basis of equality in amount so far as practicable. “So much of the net income received in any year from each separate trust estate as shall not have been paid out during such year under the above clause, shall be added to and form a part of the principal of the separate trust estate from which it was derived; provided, however, that said Trustees shall in each year pay out for charitable uses and purposes so much of the net income of said trusts as shall be requested by an instrument in writing signed by said Martha Wilson, John P. Wilson, Jr., and Anna W. Dickinson, or the survivors or survivor of them, which payments shall be made in equal amounts from each of said separate trusts, and the Trustees shall not be under any obligation to inquire as to the nature of the uses for which said payments are requested to be made, but shall be free from any liability by reason of any payment made in pursuance of a written request signed as aforesaid. “Any request in writing for the distribution of any part of the income of any of said trusts may be signed by the guardian of any beneficiary who may be a minor or under disability, with like effect as though such request had been «signed by the beneficiary in person, free from disability. “(3) From and after the death of any one of the original beneficiaries under this Indenture, the net income which he or she would have been entitled to receive if living, shall be paid to the issue of said par“ty of the first part, in accordance with any directions in regard thereto contained in the last will and testament of such deceased beneficiary, and in default of any such direction or appointment then to the issue surviving from time to time, if any, of such deceased beneficiary, per stirpes; and in default of such issue then to the issue surviving from time to time of the said party of the first part, per stirpes.” 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_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. TAXPAYERS UNITED FOR ASSESSMENT CUTS, et al., Plaintiffs-Appellants, v. Richard H. AUSTIN, et al., Defendants-Appellees, Citizens for Education Ballot Question Committee, Intervening Defendant-Appellee. No. 92-1854. United States Court of Appeals, Sixth Circuit. Argued March 23, 1993. Decided June 1, 1993. Rehearing Denied July 1, 1993. Timothy Downs (argued and briefed), Bethesda, MD, for plaintiffs-appellants. Gary P. Gordon, Asst. Atty. Gen. (argued and briefed), Lansing, MI, for defendants-appellees. Kevin J. Moody (argued and briefed), Michael J. Hodge, Miller, Canfield, Paddock & Stone, Lansing,- MI, for Intervening defendant-appellee. Before: RYAN and SUHRHEINRICH, Circuit Judges; and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. In this action under 42 U.S.C. § 1983 (1988), the plaintiffs, Taxpayers United for Assessment Cuts (“Taxpayers”) and several individuals who are registered voters in Michigan, allege that their First and Fourteenth Amendment rights were violated when the Michigan Board of State Canvassers (“Board”) refused to certify their proposed initiative for submission. They now appeal from an order of the district court dismissing their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, we AFFIRM the district court. I Taxpayers, one of the plaintiffs, is a nonprofit, unincorporated Michigan association that circulated an initiative petition in Michigan. If adopted, its proposal would reduce property tax assessments and give Michigan circuit courts jurisdiction over property tax assessment disputes. The other plaintiffs are registered voters in Michigan who support the initiative. The original named defendants are state officials who are charged with enforcing Michigan election laws. A group called Citizens for Education Ballot Question Committee (“Citizens”), which was formed to oppose the initiative advocated by the plaintiffs, intervened in this action as a defendant. Under Michigan law, individuals and associations can initiate legislation if they can obtain signatures from registered voters totaling eight percent of the total vote cast in the last gubernatorial election. Once the signatures have been collected, the signed petition forms are submitted to the Board, which is the body charged with determining whether the signatures on the petitions are valid and sufficient in number. If enough signatures on the petition comply with the requirements imposed by Michigan law, then the Board certifies the initiative to be processed in accordance with Michigan law. In March, 1990, the Board approved the form of Taxpayers’ proposed petition to initiate legislation. Taxpayers circulated the petition, obtained 224,048 signatures, and submitted the petition to the Board. A fair summary of the proceedings before the Board and the Michigan courts is as follows: the plaintiffs needed to collect, based upon the results of the most recent gubernatorial race, 191,726 valid signatures to get their proposal certified. After examining the 46,-441 submitted petition sheets, the Board’s staff disqualified a large number of signatures on the basis of statutory deficiencies as part of a process referred to in the record and by the parties as the “technical checks.” An example of a signature eliminated by this process is a signature which was not accompanied, as required, by the signatory’s complete home address. There remained 212,-071 signatures after such invalid signatures were eliminated. Following its usual procedure, the Board’s staff then chose a random sample of 1,599 signatures from these 212,-071 signatures, and found that 210 of the 1,599 signatures were invalid for various reasons; e.g., the signatory was not in fact a registered voter. The Board’s staff ultimately projected, based upon the results of this random sampling, that only 184,390 of the remaining 212,071 signatures on Taxpayers’ petition were valid, that is, 7,336 fewer than the 191,726 required to certify the initiative. The staff presented its findings to the four-member Board. After holding several hearings on the sufficiency of the petition, the Board concluded that it could not certify the initiative. Taxpayers and several individual plaintiffs (collectively referred to as “plaintiffs”) then sought a writ of mandamus in the Michigan Court of Appeals to force the Board to certify the initiative. The court of appeals remanded the case to the Board and ordered it to recalculate the number of valid signatures using a larger random sample. The Board so re-examined the petition, but again found that there was a shortfall. Taxpayers returned to the court of appeals, but the court of appeals refused to remand again. Taxpayers sought appeal to the Michigan Supreme Court, but the court denied leave to appeal. The plaintiffs then filed the instant § 1983 action in federal district court alleging that the state had deprived them of their First and Fourteenth Amendment rights. Specifically, they contended that they had been denied their right to vote and their rights to assemble and to engage in political speech. They also raised due process and equal protection challenges, alleging that the state must prove that the Michigan procedure for reviewing the validity of initiative petitions is necessary to serve a compelling state interest. Plaintiffs did not allege, however, that the bases for removing names from the petition were different from those normally used by the Board or that the Board in any other way processed the petition differently from the way it generally processes petitions. In short, the plaintiffs do not allege any class-based discrimination or disparate treatment. The defendants moved for dismissal of the complaint, arguing that the district court did not have jurisdiction because the complaint did not present a federal question. They further contended that the complaint did not state a claim upon which relief could be granted and also contended, alternatively, that they were entitled to summary judgment because the record showed without dispute that the plaintiffs were not entitled to relief. The district court rejected the defendants’ jurisdictional defense, but held that the plaintiffs’ allegations did not state a claim for violation of their First or Fourteenth Amendment rights. It reasoned that, as to jurisdiction, the federal Constitution does not guarantee the right to an initiative; however, once a state creates an initiative, the initiative becomes a means by which voters can communicate with other voters; therefore, the state must ensure that the process does not violate federal constitutional rights. The district court therefore held that there was jurisdiction because the complaint alleged a claim that was not, quoting Duke Power Co. v. Carolina Envt'l. Study, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978), “so patently without merit as to justify ... the court’s dismissal for want of jurisdiction.” See also Oneida Indian Nation v. Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). Nevertheless, the court concluded that the contested provisions of Michigan law and the procedures followed by the Board do not violate the plaintiffs’ First Amendment rights. The district court also rejected the equal protection and due process arguments: after noting that the right to vote was not implicated and that no suspect classification was involved, it concluded that the Michigan laws and the Board’s procedures in processing the tendered supporting signatures were rationally related to Michigan’s legitimate interest in ensuring that its initiatives are run honestly. The plaintiffs then filed this timely appeal. II The state defendants argue (and Citizens also argues) that the district court did not have jurisdiction over this lawsuit. Citing an unpublished order of this court and a couple of decisions from other jurisdictions, they point out, and plaintiffs do not dispute, that the right to initiative is created by state law and is not a right guaranteed by the federal Constitution. Therefore, the state defendants contend, this case presents no federal question. Taxpayers contends that, while a right to initiative is not guaranteed by the federal Constitution, once the state enacts an initiative procedure, there are constitutional limits on the way in which the state may administer the initiative. Thus, the plaintiffs contend, the district court had jurisdiction because they allege that the way in which the initiative was processed in this case violated the Constitution. The plaintiffs assert jurisdiction under 28 U.S.C. § 1331, which gives the federal courts jurisdiction over causes of action arising under the Constitution and laws of the United States, and under 28 U.S.C. § 1343(a)(4), which gives the federal courts jurisdiction over actions for money damages or equitable relief under any federal statute providing for the protection of civil rights, including the right to vote. In an unpublished order of this court, Lott v. Austin, 1987 WL 38525, 1987 U.S.App. LEXIS 11163 (6th Cir. August 18, 1987), which is cited by the state defendants, this court affirmed the dismissal of a federal constitutional challenge to Mich.Comp.Laws Ann. § 168.472a, which is part of the statute regulating the initiative process. Concluding that the initiative process “is a creature of state law and is not a right secured by the federal Constitution,” this court affirmed the dismissal of the complaint in that case for failure to present a federal question. Id. at *1. In support of this decision, this court cited two decisions from other jurisdictions: Wright v. Mahan, 478 F.Supp. 468 (E.D.Va.1979), aff'd without opinion, 620 F.2d 296 (4th Cir.1980) and Walgreen Co. v. Illinois Liquor Control Comm’n, 111 Ill.2d 120, 94 Ill.Dec. 733, 488 N.E.2d 980, appeal dismissed sub nom., Bober v. Walgreen Co., 476 U.S. 1180, 106 S.Ct. 2911, 91 L.Ed.2d 541 (1986) (appeal dismissed for want of a substantial federal question). In Wright, the Virginia case, the plaintiffs were attempting to have a proposition placed on the ballot. After exhausting their remedies in state court, the plaintiffs filed a lawsuit under § 1983 in federal court and premised jurisdiction on 28 U.S.C. § 1343(a)(3), which gives the federal courts jurisdiction over civil actions claiming deprivation of “any right, privilege, or immunity secured by the Constitution of the United States.” 28 U.S.C. § 1343(a)(3) (1988). The defendants did not dispute jurisdiction, but did file a motion to dismiss for failure to state a claim. The court, however, considered the jurisdiction question sua sponte and concluded that “a right to petition for, have access to the ballot for, and vote in a municipal initiative election is a wholly State created right” and is not a right secured by the First or Fourteenth Amendment. Wright, 478 F.Supp. at 474. Consequently, the court concluded that it did not have jurisdiction over the lawsuit, and dismissed it for lack of jurisdiction. Id. The Fourth Circuit, as stated, affirmed without opinion. In Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), a case more recent than our unpublished decision in Lott v. Austin, 1987 WL 38525, 1987 U.S.App. LEXIS 11163 (6th Cir. August 18, 1987), the Court struck down a Colorado provision that made it a felony to pay anyone to circulate a petition to get an initiative placed on the ballot. A unanimous Court concluded that although the right to an initiative is not guaranteed by the federal Constitution, once an initiative procedure is created, the state may not place restrictions on the exercise of the initiative that unduly burden First Amendment rights. Although Meyer dealt with a limitation on communication with voters and not with methods used to validate and invalidate signatures of voters to an initiative petition, the principle stated in Meyer is that a state that adopts an initiative procedure violates the federal Constitution if it unduly restricts the First Amendment rights of its citizens who support the initiative. Accordingly, we conclude that although the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution; therefore, we conclude, as did the district court, that the plaintiffs have stated a colorable claim under § 1983, giving the district court jurisdiction over this action. Duke Power Co. v. Carolina Environ. Study, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Oneida Indian Nation v. Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). This does not mean, however, that the plaintiffs’ claim can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim. The plaintiffs still must make allegations that, if true, would state a violation of the First or Fourteenth Amendment. It is to this issue that we now turn. III This court reviews de novo the district court’s grant of defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). G.M. Eng’rs & Assoc., Inc. V. West Bloomfield Township, 922 F.2d 328, 330 (6th Cir.1990). “Whether the district court properly dismissed a complaint pursuant to Fed. R.Civ.P. 12(b)(6) is a question of law.... All factual allegations are deemed admitted, and when an allegation is capable of more than one inference, it must be construed in the plaintiffs’ favor.” Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir.1991). A Rule 12(b)(6) motion should only be granted if “it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Hospital Bldg. Co. v. Trustees of the Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). IV The plaintiffs first contend that Michigan’s procedures deny them the right to vote. They contend that the act of signing a petition to get an initiative placed on the ballot is entitled to the same protection as voting. Since the Michigan procedure excluded the signatures of some registered voters only because the “technical checks” showed a failure to comply with Michigan initiative law, it is argued that those signatories have been unconstitutionally deprived of their right to vote. This, the plaintiffs contend, violates the equal protection guarantee because the “signature votes” of some registered voters are excluded for no valid reason. We are not persuaded. The Supreme Court has held in a number of opinions that the right to vote is a fundamental right, see, e.g., Kramer v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); however, the plaintiffs do not cite to us nor does our research identify any decision of the Supreme Court or a lower federal court holding that signing a petition to initiate legislation is entitled to the same protection as exercising the right to vote. In Kelly v. Macon-Bibb County Bd. of Elections, 608 F.Supp. 1036 (M.D.Ga.1985), a question presented was the constitutionality of a provision for a county referendum which required, to place the referendum on the ballot, a petition signed by registered voters who voted in the last general election. Supporters of the referendum presented a petition bearing signatures in sufficient number. The officials administering the referendum, however, excluded, as the statute required, signatures of persons who were not registered to vote in the county in the last general election and signatures of persons who had not so voted. In response to the contention that such action by the officials was in violation of the federal Constitution, the court stated: Plaintiffs, however, have not been prohibited from exercising a fundamental constitutional right. This is not a “right to vote” case; referendums, unlike general elections for a representative form of government, are not constitutionally compelled. The fluoridation program was implemented by an Act of the Georgia General Assembly. The state, consistent with the Constitution, could have directed that exclusions from the Act’s coverage be available only by legislative action. By allowing an “opt out” procedure by way of local referendums, the state did not create a fundamental right protected by the federal Constitution. In establishing eligibility requirements for those voters authorized to call a local referendum by way of petition, the state may not discriminate on the basis of “suspect” classifications such as race. However, the classifications established by defendants’ construction of § 12-5-175(a) do not involve such suspect classifications. There being no fundamental constitutional right to call a local referendum, defendants are not required to establish a compelling state interest in support of their construction of the challenged statute. y We also conclude that the plaintiffs’ rights to free speech and political association have not been impinged. Because the right to initiate legislation is a wholly state-created right, we believe that the state may constitutionally place nondiscriminatory, content-neutral limitations on the plaintiffs’ ability to initiate legislation. Unlike the challenged provisions in Meyer, Michigan’s initiative system does not restrict the means that the plaintiffs can use to advocate their proposal. Further, the Michigan procedure does not limit speech on the basis of content. Moreover, as the Supreme Court has recognized in other contexts, a state has a strong interest in ensuring that its elections are run fairly and honestly. Anderson v. Celebreeze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983). It also has a strong interest in ensuring that proposals are not submitted for enactment into law unless they have sufficient support. See id. at 788 n. 9, 103 S.Ct. at 1570 n. 9. The Michigan procedure does nothing more than impose nondiscriminatory, content-neutral restrictions on the plaintiffs’ ability to use the initiative procedure that serve Michigan’s interest in maintaining the integrity of its initiative process. Our result would be different if, as in Meyer, the plaintiffs were challenging a restriction on their ability to communicate with other voters about proposed legislation, or if they alleged they were being treated differently than other groups seeking to initiate legislation. But, in the instant case, we believe that it is constitutionally permissible for Michigan to condition the use of its initiative procedure on compliance with content-neutral, nondiscriminatory regulations that are, as here, reasonably related to the purpose of administering an honest and fair initiative procedure. Accordingly, we conclude that the plaintiffs’ First Amendment claim is without merit. VI The plaintiffs also contend that the Michigan laws violate their Fourteenth Amendment due process and equal protection rights. With respect to the equal protection challenge, since no fundamental right is involved and the plaintiffs have not alleged that they are members of a suspect class, the Michigan provisions will pass muster if they are reasonably related, to a legitimate government interest. Moore v. City of East Cleveland, 431 U.S. 494, 498, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1971); Zielasko v. Ohio, 873 F.2d 957 (6th Cir.1989) (applying rational basis scrutiny to challenge to electoral laws where no fundamental right or suspect classification was involved). As stated, the plaintiffs basically contend that Michigan law violates their rights in five ways. They first contend that the form of the petition sheet, which requires signatories to give their full addresses, is irrational. We disagree. The Supreme Court recognized in Anderson that reasonable and nondiscriminatory regulation of elections is necessary to ensure that elections are run fairly and honestly. Anderson, 460 U.S. at 788, 103 S.Ct. at 1569. Requiring voters to put their full address on petitions is rationally related to Michigan’s goal of keeping its elections fair because requiring a full address helps ensure that false signatures are not put on the petition and that unregistered voters do not sign it. The plaintiffs, however, contend that these “technical checks” lead to irrational results because a number of registered voters were excluded from their petition merely because they did not give their full address, while at least some unregistered voters who did sign with their full addresses were counted toward the number required to submit the initiative to the legislature. To avoid this result, the plaintiffs argue that the state should only use random sampling to test the validity of the signatures on the petitions and not the system of technical checks. As stated above, the Supreme Court has recognized that reasonable, nondiscriminatory regulation of elections is permissible because of the state’s interest in preserving the integrity of its elections. Anderson, 460 U.S. at 788, 103 S.Ct. at 1569. We believe that the procedure that Michigan has adopted is just such legislation. Moreover, since the plaintiffs have not alleged that any fundamental right or suspect classification is involved, it is irrelevant that the state could have chosen a better method of protecting its interest in guaranteeing an honest initiative system. Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981) (“The equal protection obligation ... is not an obligation to provide the best governance possible”). To uphold the Michigan procedure, we only must conclude that the method chosen is rational, and requiring a full address makes it easier for the Board to determine whether a voter is registered and whether a signature has been fraudulently placed upon the petition. Thus, the plaintiffs’ first argument has no merit. The plaintiffs next contend that it was irrational to disqualify 15,000 signatures merely because the petition forms on which a number of the signatories signed did not comply with the statutorily prescribed form. Michigan law requires all circulators of petitions to place a warning at the top of the petition forms informing potential signatories that, among other things, they cannot sign if they are not registered voters and cannot sign twice. On a number of the petition forms, the warning had been moved to a different part of the form and had been printed in smaller type. Also, in some cases, the wording of the warning itself had been altered. Requiring persons who circulate petitions to include this warning on petition forms is rationally related to the state interest in keeping the initiative process fair: because it is impossible to canvass all of the signatures on a petition (there were 46,416 sheets of signatures to be examined in a relatively short period), warning potential signatories that they cannot sign twice or sign if they are not registered to vote is rationally related to Michigan’s legitimate interest in reducing the number of invalid signatures on the petitions. Thus, the plaintiffs’ argument has no merit. The plaintiffs next argue that the Board should not have excluded 2,000 signatures merely because several circulators dated the petitions incorrectly. Michigan law requires circulators of initiative petitions to certify that to the best of their knowledge the signatures on the petition are genuine and that the petitions were signed only by registered voters. Mich.Comp.Laws Ann. § 168.-544c(3). Michigan law also requires that all signatures on a petition be dated within six months of the filing date of the petition. Mich.Comp. Laws Ann. § 168.544c(3). Any signatures on petition forms that did not comply with these requirements were excluded from the final count. The requirements outlined above are rationally related to the legitimate interests of ensuring that the signatories are registered voters, that the signatures are genuine, and that petitions may be quickly and accurately processed. Requiring a warning to be placed on petition forms and requiring circulators to certify that, to the best of their knowledge, no unregistered voters have signed the petition helps guarantee that fewer invalid signatures are placed on the petition. The requirement that signatures be dated within six months of the filing of the petition is rationally related to the state’s interest in ensuring that the signatories still support the petition at the time the petition is submitted to the Board. Thus, this argument is also without merit. Plaintiffs next contend that the practice in Michigan of excluding the signatures of any person who has signed the petition twice is irrational. In this case, 5,000 persons signed twice. The Board excluded both the first signature, and the subsequent duplicative signature. Excluding these signatures, however, is rationally related to Michigan’s interest in protecting against fraud in its initiative system. The plaintiffs’ final contention is that the Board should have used only one method to test the validity of the signatures; they contend that using both a system of random sampling and using the so-called “technical checks” produces irrational results, so, the plaintiffs argue, the Board should have used only the random sampling technique. In this case, the Board first screened the. signatures to determine whether they complied with the technical requirements of Michigan law. Signatures that did not comply were excluded. The Board then took a random sample of the remaining signatures, determined how many of the signatures in that sample were invalid, e.g., the signatory was not actually registered to vote, and projected, based upon that sample, the number of valid signatures on the entire petition. The plaintiffs contend that using both of these methods together produced irrational results because, they contend, the Board excluded, by using the technical checks, many signatures of persons who were actually registered to vote. We cannot see how using both technical checks and random sampling produced irrational results. As the district court stated, requiring, for example, that circulators of a petition place a warning on the petition forms and that signatories put their full addresses on the petition helps prevent unregistered voters from signing the petition. This, it seems to us, may even make the random sampling procedure more accurate. Moreover, even if the method that Michigan has chosen to canvass its initiative petitions is not the best method, as stated above, under the rational relationship analysis, a state is not required to use the best method for examining its petitions. A state is only, constitutionally required to use a method that is rationally related to the legitimate interest of ensuring that an election is fair and honest. The system used by Michigan does just that. YII Accordingly, we AFFIRM the district court. . The district court was able to rule on plaintiffs' claims on the basis of the motion to dismiss rather than on the basis of the motion for summary judgment because the complaint and its numerous exhibits presented a sufficient record for such a ruling. The plaintiffs do not contend that, as a procedural matter, the court erred in making its ruling under Fed.R.Civ.P. 12(b)(6) rather than Fed.R.Civ.P. 56. . This court reviews de novo the question of whether it has subject matter jurisdiction. Greater Detroit Resource Recovery Auth. v. United States Environmental Protection Agency, 916 F.2d 317, 319 (6th Cir.1990). . Unpublished decisions of this court are of little precedential value. Sixth Circuit Rule 24(c); Eyerman v. Maty Kay Cosmetics, 967 F.2d 213, 218 (6th Cir.1992); Hall v. Shipley, 932 F.2d 1147, 1152 (6th Cir.1991). . It is clear that there has been no violation of the plaintiffs’ procedural due process rights because the Board and the Michigan courts gave the plaintiffs all of the procedure that they were due. . However, it should be noted that the random sampling process used by the Board eliminated the signatures of some who, it was determined, were not registered. .Before the Board, the plaintiffs alleged that random sampling was an improper way to test the validity of signatures, yet before this court, they argue that it is the only proper way to test the validity. . The full warning provides: "Whoever knowingly signs this petition more than once, signs a name other than his or her own, signs when not a qualified and registered votepj or sets opposite his or her signature on a petition, a date other than the actual date on which the signature was affixed, is violating the provisions of the Michigan Election Law.” Mich.Stat.Ann. § 6.1482 [M.C.L.A. § 168.482], . As examples, the plaintiffs submit three of the petition sheets containing signatures that were excluded. On one of the sheets, the circulator wrote the month and day that he signed the petition, but he did not put down the year. On another, the date the circulator put on the petition was a date after it had been submitted to the Board, and on the third, a signatory signed the petition on the day after the circulator signed it. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_casetyp1_7-3-3	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes". PEERLESS CAS. CO. v. WEYMOUTH GARDENS, Inc. No. 4831. United States Court of Appeals First Circuit. Aug. 24, 1954. John S. Whipple, Boston, Mass. (Douglas Danner and Peabody, Arnold, Bat-chelder & Luther, Boston, Mass., with him on brief), for appellant. Marcien Jenckes, Boston, Mass. (John L. Hall, John B. Reigeluth and Choate, Hall & Stewart, Boston, Mass., with him on brief), for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. WOODBURY, Circuit Judge. This is an appeal from a judgment for the plaintiff in an action brought for the penal sum of a bond conditioned on the faithful performance of a contract for the construction of a group of small dwelling houses. The case was referred to a master who after hearing filed a detailed report containing findings of fact and rulings of law on the basis of which he concluded that the defendant was liable to the plaintiff for the full amount of the bond ($75,000) with interest thereon from the date of demand. The District Court, after a hearing on the plaintiff’s motion to confirm the master’s report and the defendant’s objections thereto, adopted the master’s findings of fact, and, concluding that there was no error in the master’s rulings of law, entered the judgment for the plaintiff from which the defendant has taken this appeal. Federal jurisdiction under Title 28 U.S.C. § 1332(a) (1) based on diversity of citizenship and amount in controversy is alleged and clearly established. No useful purpose would be served by stating the voluminous and complicated facts in full detail. It will suffice to summarize them briefly and then to proceed at once to a consideration of the contentions of the appellant which seem to us of sufficient moment to warrant discussion. The bond in suit was given to secure the performance of a fixed cost contract for the construction of a group of small houses in Weymouth, Massachusetts entered into in May, 1950, between Wey-mouth Gardens, Inc., a Massachusetts corporation, as the owner, and Weymouth Construction Company, Inc., another Massachusetts corporation and the principal on the bond, as the builder. The latter apparently began construction at once but soon ran into difficulties, for with the advent of hostilities in Korea in June there sprang up a system of priorities with resultant shortages of materials and increases in prices. Furthermore, many building materials, temporarily at least, vanished from the market altogether. These factors severely interfered with construction. Furthermore in August the construction company began to feel the effects of lumbermen’s and teamsters’ strikes which further increased the cost of materials. In consequence the houses were not completed within ninety days as the contract required. Nevertheless the builder strove to maintain construction in spite of the financial pressures and other difficulties under which it labored. It became evident in February, 1951, however, that it would not be able to finish the houses and later that month it abandoned the job altogether. The defendant bonding company through one of its vice-presidents knew of the delay in completing the houses, and the reasons therefor, as early as August, 1950, but took no action on that information. The plaintiff notified the defendant by ordinary letter on March 19, 1951, that the contract was in default, and on April 6 the plaintiff gave notice of that fact again, this time by registered letter in conformity with the notice provision of the bond. Promptly thereafter the defendant signified its election not to avail itself of its option to complete the contract, or to sub-let the completion thereof, and the plaintiff thereafter completed construction at an additional cost substantially in excess of the penal sum of the bond. The appellant’s first contention is that the master’s finding that the excess cost of completing the houses was due to economic restrictions engendered by the hostilities in Korea rather than by fault of the contractor requires the entry of a judgment in its favor. The argument is that the above finding by putting the blame for the unanticipated increase in the costs of construction on the Korean conflict instead of on any fault of the contractor absolves the latter from liability for non-performance, and, since the contractor could not be held for breach of contract, the surety cannot be held for the reason that the obligation of a surety coexists with the obligation of the principal and is extinguished when the obligation of the principal comes to an end. In short, the defendant-appellant says that the master’s finding that the hostilities in Korea made it impossible for the principal to perform its contract absolves the surety because an impossibility which excuses a principal also excuses a surety. We do not quarrel with the general principle of law upon which the appellant relies. The trouble with the appellant’s contention is that it rests upon a misinterpretation of the master’s findings. He did not find that the conflict in Korea, with its resultant economic dislocation, made it impossible ever to perform the construction contract. Indeed, he could hardly have made such a finding in the face of the established fact that the houses eventually were built while hostilities in Korea continued. The master’s findings are that dislocations in this country’s economy caused by the Korean conflict made it impossible for the contractor to finish the houses on time, and thus excused it from that feature of the contract, but that it was the contractor’s financial inability to cope with those economic dislocations which made it unable to complete the houses at all. Certainly unexpected increases in cost is a risk every contractor takes in entering into a fixed price contract like the one under consideration here. And an increase in costs caused by the unexpected outbreak of a war does not constitute the intervention of a superior force which ends the obligation of a valid contract by preventing its performance. Columbus Ry. & Power Co. v. City of Columbus, 1919, 249 U.S. 399, 39 S.Ct. 349, 63 L.Ed. 669. The principal undertook the contractual duty to build the houses regardless of cost and at least one purpose of the bond was to secure performance of that duty regardless of the principal’s financial capacity to carry out its obligation. The appellant’s second contention is that it is relieved of any liability by the plaintiff-appellee’s failure to give it notice by registered letter mailed to its home office of the contractor's breach of contract within a reasonable time after the breach occurred as required by the terms of the bond. The argument in a nut shell is that a breach of contract occurred in August, 1950, when the contractor failed to complete the houses within the time limit imposed, but that it was not legally notified of any breach of contract until April, 1951, about eight months later, which cannot possibly be considered “within a reasonable time” as required by the third condition precedent of the bond. The fallacy in the argument lies in its assumption that the principal’s breach of contract occurred in August, 1950, when it became obvious that none of the houses could be completed within the ninety day time limited by the contract. It is true that there was a failure to comply with the terms of the contract in this respect. But the master found and the appellant itself emphasizes that finding in its first contention on this appeal, that that failure was excused, or rendered non-actionable, by a supervening impossibility. Therefore this is not a case in which a breach of contract occurred in August, 1950, which the obligee-owner waived, thereby extending the surety’s obligation on its bond. It is a case of failure to comply with the time limit for construction specified in the contract, but not a breach of that term of the contract, for the master found that compliance with that provision was impossible because of the effect of the hostilities in Korea on the economy of the country. The first actionable breach of contract occurred in February, 1951, when the principal abandoned the job. In view of the fact that for months prior to that time the surety’s vice-president in the area knew of the principal’s difficulties but did nothing, apparently in the hope that the principal would eventually complete the houses and relieve it of liability on the bond, and the fact that the surety was notified informally, that is by ordinary letter, on March 19, 1951, a few weeks after the breach, we do not think that it must be said that formal notification of default on April 6, 1951, by registered letter in strict compliance with the condition precedent of the bond was not “within a reasonable time” after breach. Other contentions advanced by the appellant have on consideration been found too insubstantial to warrant discussion. The judgment of the District Court is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) 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. WARDIUS v. OREGON No. 71-6042. Argued January 10, 1973 Decided June 11, 1973 Marshall, J., delivered the opinion of the Court, in which Brennan, Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Burger, C. J., concurred in the result. Douglas, J., filed an opinion concurring in the result, post, p. 479. J. Marvin Kuhn argued the cause and filed a brief for petitioner. W. Michael Gillette, Assistant Attorney General of Oregon, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and John H. Clough, Assistant Attorney General. Jerome B. Falk, Jj\, filed a brief for Virgil Jenkins as amicus curiae urging reversal. Mr. Justice Marshall delivered the opinion of the Court. This ease involves important questions concerning the right of a defendant forced to comply with a “notice-of-alibi” rule to reciprocal discovery. In Williams v. Florida, 399 U. S. 78 (1970), we upheld the constitutionality of Florida's notice-of-alibi rule which required criminal defendants intending to rely on an alibi defense to notify the prosecution of the place at which they claimed to be at the time in question, and of the names and addresses of witnesses they intended to call in support of the alibi. In so holding, however, we emphasized that the constitutionality of such rules might depend on “whether the defendant enjoys reciprocal discovery against the State.” Id., at 82 n. II. In the case presently before us, Oregon prevented a criminal defendant from introducing any evidence to support his alibi defense as a sanction for his failure to comply with a notice-of-alibi rule which, on its face, made no provision for reciprocal discovery. The case thus squarely presents the question left open in Williams, and we granted certiorari so that this question could be resolved. 406 U. S. 957 (1972). We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed. I On May 22, 1970, petitioner was indicted under Ore. Rev. Stat. § 474.020 for unlawful sale of narcotics. The sale allegedly occurred the previous day. At trial, after the State had concluded its case, petitioner called one Colleen McFadden who testified that on the night in question, she had been with petitioner at a drive-in movie. The prosecutor thereupon brought to the judge’s attention petitioner’s failure to file a notice of alibi, and after hearing argument the trial judge granted the State’s motion to strike McFadden’s testimony because of this failure. Petitioner himself then took the stand and attempted to testify that he was at the drive-in with McFadden at the time when the State alleged the sale occurred. Once again, however, the State objected and the trial judge again refused to permit the evidence. Petitioner was convicted as charged and sentenced to 18 months’ imprisonment. On appeal, the Oregon Court of Appeals rejected petitioner’s contentions that the Oregon statute was unconstitutional in the absence of reciprocal discovery rights and that the exclusion sanction abridged his right to testify in his own behalf and his right to compulsory process. 6 Ore. App. 391, 487 P. 2d 1380 (1971). In an unreported order, the Oregon Supreme Court denied petitioner’s petition to review. See App. 21. II Notice-of-alibi rules, now in use in a large and growing number of States, are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e. g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L. Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149 (1960). The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals. “The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as ‘due process’ is concerned, for [a rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” 399 U. S., at 82 (footnote omitted). Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland, 373 U. S. 83 (1963), it does speak to the balance of forces between the accused and his accuser. Cf. In re Winship, 397 U. S. 358, 361-364 (1970). The Williams Court was therefore careful to note that “Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.” 399 U. S., at 81 (footnote omitted). The same cannot be said of Oregon law. As the State conceded at oral argument, see Tr. of Oral Arg. 19, Oregon grants no discovery rights to criminal defendants, and, indeed, does not even provide defendants with bills of particulars. More significantly, Oregon, unlike Florida, has no provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense. We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick, 393 U. S. 348 (1969); Cicenia v. Lagay, 357 U. S. 504 (1958). But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a “search for truth” so far as defense witnesses are concerned, while maintaining “poker game” secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. Indeed, neither the respondent nor the Oregon Court of Appeals contests these principles. Nor does the State suggest any significant governmental interests which might support the lack of reciprocity. Instead, respondent has chosen to rest its case on a procedural point. While conceding that Oregon law fails to provide for reciprocal discovery on its face, the State contends that if petitioner had given notice of his alibi defense, the state courts might have read the Oregon statute as requiring the State to give the petitioner the names and addresses of state witnesses used to refute the alibi defense. Since petitioner failed to give notice, his alibi defense was not permitted and there were, therefore, no state rebuttal witnesses whose testimony tended to disprove the alibi. Since no such testimony was introduced, respondent argues that Oregon's willingness to permit reciprocal discovery remains untested. The State says, in effect, that petitioner should not be permitted to litigate the reciprocity issue in the abstract in federal court after bypassing an opportunity to contest the issue concretely before the state judiciary. It is, of course, true that the Oregon courts are the final arbiters of the State’s own law, and we cannot predict what the state court might have done had it been faced with a defendant who had given the required notice of alibi and then sought reciprocal discovery rights. But it is this very lack of predictability which ultimately defeats the State’s argument. At the time petitioner was forced to decide whether or not to reveal his alibi defense to the prosecution, he had to deal with the statute as written with no way of knowing how it might subsequently be interpreted. Nor could he retract the information once provided should it turn out later that the hoped-for reciprocal discovery rights were not granted. For this reason, had petitioner challenged the lack of reciprocity by giving notice and then demanding discovery, he would have done so at considerable risk. To be sure, the state court might have construed the Oregon statutes so as to save the constitutionality of the notice requirement and granted reciprocal discovery rights. But the state court would also have had the option of reading state law as precluding reciprocal discovery. If the court adopted this latter alternative, it would have had to strike down the notice-of-alibi requirement. But petitioner would have had only a Pyrrhic victory, since once having given the State his alibi information, he could not have retracted it. Thus, under this scenario, even though the notice-of-alibi rule would have been invalidated, the State would still have had the benefit of nonreciprocal discovery rights in petitioner’s case — the very result which petitioner wishes to avoid by challenging the rule. The statute as written did not provide for reciprocal discovery, and petitioner cannot be faulted for taking the legislature at its word. Indeed, even at this stage of the proceedings, the respondent has made no representation that the State would in fact provide reciprocal discovery rights to a defendant who complied with the notice-of-alibi scheme. Respondent says only that the State might have granted such rights. But the State cannot constitutionally force compliance with its scheme on the basis of a totally unsubstantiated possibility that the statute might be read in a manner contrary to its plain language. Thus, in the absence of fair notice that he would have an opportunity to discover the State's rebuttal witnesses, petitioner cannot be compelled to reveal his alibi defense. Since the trial court erred and since there is a substantial possibility that its error may have infected the verdict, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. The Chief Justice concurs in the result. The requirement was attacked as a violation of the defendant's due process right to a fair trial and an invasion of his privilege against self-incriminaton. But the Court found that “[g]iven the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” 399 U. S., at 81. Moreover, we held that “the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.” Id., at 83. The Florida rule provided: “ ‘Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause.’ ” See 399 U. S., at 104. Ore. Rev. Stat. § 135.875 provides: "(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of his purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, he shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise. "(2) As used in this section, 'alibi evidence’ means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed.” Petitioner also argues that even if Oregon’s notice-of-alibi rule were valid, it could not be enforced by excluding either his own testimony or the testimony of supporting witnesses at trial. But in light of our holding that Oregon’s rule is facially invalid, we express no view as to whether a valid rule could be so enforced. Cf. Williams v. Florida, supra, at 83 n. 14. See Id,., at 82 n. 11; Note, The Preclusion Sanction — A Violation of the Constitutional Right to Present a Defense, 81 Yale L. J. 1342 n. 4 (1972). This Court has therefore been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial. See, e. g., Washington v. Texas, 388 U. S. 14, 22 (1967); Gideon v. Wainwright, 372 U. S. 335, 344 (1963). Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1180-1192 (1960). As the Oregon Court of Appeals has recently pointed out, “Oregon’s criminal code is almost completely lacking in pretrial discovery procedures.” State v. Kelsaw, 289 Ore. App. 295, 502 P. 2d 278, 280-281 (1972), pet. for cert, pending, No. 72-6012. The only discovery rights Oregon appears to permit are the rights to view written statements made by state witnesses and by the defendant, in the hands of the police. See State v. Foster, 242 Ore. 101, 407 P. 2d 901 (1965); Ore. Rev. Stat. §§ 133.750, 133.755. Cf. State v. Kelsaw, supra. Indeed, the State’s inherent information-gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant’s favor. As one commentator has noted: “Besides greater financial and staff resources with which to investigate and scientifically analyze evidence, the prosecutor has a number of tactical advantages. First, he begins his investigation shortly after the crime has been committed when physical evidence is more likely to be found and when witnesses are more apt to remember events. Only after the prosecutor has gathered sufficient evidence is the defendant informed of the charges against him; by the time the defendant or his attorney begins any investigation into the facts of the case, the trail is not only cold, but a diligent prosecutor will have removed much of the evidence from the field. In addition to the advantage of timing, the prosecutor may compel people, including the defendant, to cooperate. The defendant may be questioned within limits, and if arrested his person may be searched. He may also be compelled to participate in various non-testimonial identification procedures. The prosecutor may force third persons to cooperate through the use of grand juries and may issue subpoenas requiring appearance before prosecutorial investigatory boards. With probable cause the police may search private areas and seize evidence and may tap telephone conversations. They may use undercover agents and have access to vast amounts of information in government files. Finally, respect for government authority will cause many people to cooperate with the police or prosecutor voluntarily when they might not cooperate with the defendant.” Note, Prosecutorial Discovery under Proposed Rule 16, 85 Harv. L. Rev. 994, 1018-1019 (1972) (footnotes omitted). Before this Court, respondent presses the related argument that petitioner failed to object to the exclusion of his alibi testimony at trial and that his conviction therefore rests on an independent state procedural ground. See Brief for Respondent 5 n. 2. But, as the transcript makes clear, the issue arose when the trial court sustained the State’s objection to introduction of the alibi testimony. Petitioner then proceeded to make an “offer of proof” in order to protect the record on appeal. Respondent cites us to no Oregon cases which would require petitioner to object to the sustaining of an objection in this context, and the state appellate court’s willingness to reach the merits of petitioner’s federal claims provides convincing proof that the judgment does not rest on adequate state grounds. See Warden v. Hayden, 387 U. S. 294, 297 n. 3 (1967). Nor did petitioner’s attorney rest entirely on his own reading of Oregon’s discovery provisions. As the attorney argued at trial, “Several weeks ago this came up again — this came up in the Circuit Court here with Judge Perry, and Judge Perry allowed the alibi testimony in based upon [Williams v. Florida] and said that he at that time, based on our statute and based on this opinion, that he didn’t feel that our criminal code and our statute should allow a substantive evidence [sic] that the defendant might have to be kept out due to this, and that is the reason that notice was not given. I relied somewhat upon that and my own interpretation of this case also.” App. 6. The State cites us to State v. Kelsaw, supra, a recent Oregon Court of Appeals decision holding that a defendant must be given reciprocal information as to the time and place of the alleged offense before he can be required to comply with the notice-of-alibi rule. But merely informing the defendant of the time and place of the crime does not approach the sort of reciprocity which due process demands. Moreover, in view of the fact that Kelsaw was decided after petitioner's trial, it cannot be suggested that the decision gave him notice that even this limited reciprocity would be granted. 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. BROADCORT CAPITAL CORPORATION, Plaintiff-Appellee, v. SUMMA MEDICAL CORPORATION, a New Mexico corporation, Defendant/Third-Party Plaintiff-Appellant, v. MERRILL, LYNCH, PIERCE, FENNER & SMITH, INC., a Delaware corporation, Third-Party Defendant. No. 91-2160. United States Court of Appeals, Tenth Circuit. Aug. 17, 1992. Michael E. Vigil, of Marchiondo, Vigil & Voegler, P.A., Albuquerque, N.M., for the defendant/third-party plaintiff-appellant. Robert M. St. John (Rex D. Throckmor-ton and Edward Ricco of Rodey, Dickason, Sloan, Akin & Robb, P.A., with him on the brief), of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for the plaintiff-appellee and third-party defendant-appellee. Before SEYMOUR and TACHA, Circuit Judges, and BENSON, District Judge. The Honorable Dee V. Benson, District Judge for the United States District Court for the District of Utah, sitting by designation. TACHA, Circuit Judge. Appellant Summa Medical Corporation (Summa) appeals from a jury verdict in favor of appellee Broadcort Capital Corporation (Broadcort). On appeal, Summa raises nine issues: (1) whether Broadcort proved a prima facie case; (2) whether Broadcort had standing to sue; (3) whether error was committed in dismissing Sum-ma’s third-party complaint against Merrill, Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch) because of a failure of proof; (4) whether error was committed in submitting a conversion claim to the jury; (5) whether error was committed in submitting monetary damages to the jury; (6) whether the damage award was excessive; (7) whether error was committed in submitting punitive damages to the jury; (8) whether error was committed in admitting into evidence settlement discussions; and (9) whether the district court abused its discretion by refusing to allow a witness to testify as an expert, We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. BACKGROUND On March 9, 1988, Broadcort filed an action in the United States District Court for the District of New Mexico against Summa. The complaint sought (1) a declaration that Summa was obligated to transfer and register a stock certificate, (2) indemnity for all losses that Broadcort sustained as a result of the alleged wrongful refusal of Summa to permit registration and transfer of the stock certificate, (3) money damages in an amount that would permit Broadcort to purchase 769,600 shares of Summa stock, (4) attorneys’ fees, and (5) punitive damages. Summa denied that it was obligated to register transfer of the stock certificate and asserted, among other things, that Merrill Lynch — not Broadcort — was the real party in interest. Summa also filed a third-party complaint against Merrill Lynch, asserting claims for negligence and breach of warranty. The district court granted summary judgment in favor of Merrill Lynch on these claims. By an amended third-party complaint, Summa asserted a claim against Merrill Lynch for fraud, which the district court, dismissed at the close of the evidence. After the jury trial, Broadcort’s claims under N.M.StatAnn. § 55-8-401 and for conversion were submitted to the jury, which returned a verdict in Broadcort’s favor on both theories. The jury awarded Broadcort $1,600,000 in compensatory damages and $400,000 in punitive damages. Viewing the record in the light most favorable to Broadcort, the evidence reveals the following. This action involves a stock certificate, number 21351, which represented 875,000 shares of Summa common stock. Summa issued the certificate on July 23, 1987 — without restriction of any kind — in the name of Metro Title and Escrow Company (Metro), which was controlled by A.Y. Laurins. Summa issued and delivered the certificate to Metro allegedly to serve as collateral for a loan from Metro to Scout Petroleum, Inc. (Scout), a Summa subsidiary. Scout was then to forward the loan proceeds to Summa. This particular transaction was the third in a series of loan transactions that involved Laurins (or one of his companies) and Sum-ma — all arranged through Lincoln Capital Advisory Corporation (Lincoln Capital). On July 23, 1987, Summa sent the stock certificate to Laurins, operating as TPB, at his San Francisco office. Laurins was a customer of a securities firm, Cowles, Sa-bol & Co. (Cowles), which cleared its securities through Broadcort. Laurins maintained an account for one of his companies, CBG, with Cowles. On July 27, 1987, in an effort to place the 875,000 shares of Sum-ma stock in the hands of his broker (Cowles), Laurins had the stock certificate delivered to Broadcort’s office in San Francisco. A stock power executed by Laurins on behalf of Metro and a certificate of corporate resolution executed by the secretary of Metro attesting to Laurins’ authority to execute the stock power were delivered with the certificate. Laurins instructed Broadcort to transfer the 875,000 shares of Summa stock represented by the certificate to one of his accounts at Cowles. Meanwhile, stock certificate 21351, with the accompanying stock power and certificate of corporate resolution, was forwarded to Broadcort's New York office and from there to Merrill Lynch. Merrill Lynch attached a form guaranteeing the corporate identity of Metro and affixed stamps guaranteeing the signatures appearing on the stock power and the certificate of corporate resolution. A Merrill Lynch employee also wrote the date July 24, 1987 on the certificate of corporate resolution. In that form the certificate and related documents were negotiable. By guaranteeing the signatures, Merrill Lynch assumed full responsibility for the validity and authority of the signatures and thus eliminated any risk to the transfer agent related to the signatures. Merrill Lynch sent the certificate and transfer documents to Midwest Securities Trust Company (Midwest), a company that handles the physical transfers of Summa stock. After satisfying itself of the negotiability of the certificate and that the transfer documents were complete, Midwest credited Broadcort’s account at Merrill Lynch with 875,000 shares of Summa stock. In turn, Broadcort credited Cowles with the same number of shares pursuant to Laurins’ instructions. Shortly thereafter, Laurins ordered Cowles to sell 18,750 shares of the stock. The proceeds from these shares were paid to Laurins’ account in San Francisco. Laurins also directed the transfer of the remaining 856,250 shares from his account at Cowles to accounts at other brokerage houses in the United States and Canada. Midwest also forwarded the stock certificate to Summa’s transfer agent for registration of transfer. A transfer agent is expected to complete such a transfer within seventy-two hours. If the transfer agent considers the transfer documents defective, then the documents are returned for correction to the company that tendered them. Summa’s transfer agent received the certificate and accompanying documents from Midwest on August 17, 1987. The certificate was unrestricted, and Summa had not placed a stop transfer order on the certificate at that time. The transfer agent, however, acting pursuant to instructions from Summa’s general counsel, first held the shares for two weeks, then ultimately can-celled the shares, refused to register the transfer, and seized the certificate. At the direction of Summa’s general counsel, the shares represented by the certificate were reissued to Lincoln Capital to support another loan transaction. Neither Summa nor its transfer agent ever notified Broadcort, Merrill Lynch, or Midwest that they had seized the certificate and reissued the shares to Lincoln Capital. Midwest first learned of the refusal to transfer in October 1987, when it asked Summa’s transfer agent why the certificate had not yet been transferred. Summa’s transfer agent advised Midwest that the loan for which the certificate had been issued was not consummated. Apparently, this statement was not true because Laurins actually had disbursed substantial loan proceeds to Summa. In any event, Broadcort did not find out until late November 1987 that the registration of transfer had not been completed. Summa claimed that it refused to register transfer of the shares because the shares were to have been held as collateral for a loan to a Summa subsidiary, Scout Petroleum, and the loan was not fully funded. Scout had executed a loan agreement with Laurins’ company, TPB, for a $500,-000 loan to be secured by the shares. Sum-ma’s chairman testified that TPB advanced only $100,000 of the loan amount. At trial, Broadcort demonstrated that the loan, along with the collateral arrangement, was a sham. The loan agreement gave TPB the power to sell the stock immediately. The certificate itself was not restricted in any way. The loan proceeds were derived from sale of the stock. On prior occasions, Summa and a partnership controlled by Summa’s chairman had entered into identical “loan” transactions with Laurins’ company, CBG, involving 1.7 million shares of Summa stock. The loans were never repaid. After cancellation of the loan for which certificate 21351 was issued, subsidiaries of Summa entered into two other “loans” arranged through Lincoln Capital — the same loan broker that had arranged the Laurins loans. These two loans totalled approximately $2.8 million, for which 1.3 million shares of Summa stock were “pledged.” These loans were arranged in the same manner and using the same form agreement as the loans from Laurins’ companies. As a result of these loan transactions, the number of shares of Summa common stock outstanding increased by more than seven million shares between March 1987 and the time of trial. This increase occurred even though the Securities and Exchange Commission had not approved a significant registration of Summa common stock since at least 1987. A request by Summa to register additional stock had been pending before the SEC without approval since 1988. At trial, Summa’s chairman, a former securities broker, could not find any distinction between the sale of Summa stock pledged as collateral for a defaulted loan and sale of the stock directly into the market by Summa in violation of securities registration requirements. Summa's transfer agent testified that the transfer documents had nothing to do with her refusal to register transfer of the shares at Broadcort's and Midwest's direction. She testified that she would not have registered the transfer if the documents had been in perfect order, or even if Laurins had appeared in person to authorize a transfer, because she knew the shares were related to a loan transaction. As a result of the refusal of Summa's transfer agent to register transfer of the shares, Broadcort's account ended up "short" by 875,000 shares of Summa stock. Broadcort used shares credited by Midwest to its Merrill Lynch account to carry out Laurins' instruction to sell and transfer the shares represented by the certificate. When Summa cancelled the shares represented by the certificate and refused to register the transfer, Midwest debited Broadcort's account for these shares. This left Broadcort with an 875,000 share deficit. Consequently, Broadcort became obligated to its customers to deliver on demand 875,000 more shares of Summa stock than it had on deposit. Broadcort introduced evidence showing that when it is unable to deliver stock, customers have the right to "buy in" the missing stock-that is, to purchase the "short" shares on the open market and charge Broadcort for the cost of the purchase. At the time of trial, Broadcort had been "bought in" to the extent of 18,400 shares of Summa stock at a cost of $38,-962. 50. Additionally, to protect itself against future "buy ins," Broadcort purchased 87,000 shares of Summa stock in the market. Broadcort purchased these shares at what it believed to be favorable prices at a cost of $172,480. Some of these shares already had been delivered to customers. At the time of trial, Broadcort was still short by 769,600 shares of Summa stock which, when and if demand was made, it would have to purchase in the market. The jury subsequently returned a verdict in favor of Broadcort in the amount of $1,600,000 in compensatory damages and $400,000 in punitive damages. DISCUSSION I. Summa first asserts that Broadcort failed to prove a prima facie case that Summa breached its statutory duty under New Mexico law to register the transfer of stock certificate 21351 to Broadcort. The duty to register a transfer arises under Article 8 of the New Mexico Uniform Commercial Code. Section 55-8---401 provides: If a certificated security in registered form is presented to the issuer with a request to register transfer or an instruction is presented to the issuer with a request to register transfer, pledge or release, the issuer shall register the transfer, pledge or release as requested if: (a) the security is indorsed or the instruction was originated by the appropriate person or persons (Section 55-8-308 NMSA 1978); (b) reasonable assurance is given that those indorsements or instructions are genuine and effective (Section 55-8-402 NMSA 1978); (c) the issuer has no duty as to adverse claims or has discharged the duty (Section 55-8-403 NMSA 1978); (d) any applicable law relating to the collection of taxes has been complied with; and (e) the transfer, pledge or release is in fact rightful or is to a bona fide purchaser. N.M.Stat.Ann. § 55-8-401(1). The official comment to the section states that "[i]f any of the preconditions do not exist, there is no duty to register transfer." Id. cmt. 3. Summa asserts that Broadcort did not establish a prima facie case because it failed to prove that it was a "purchaser" or that the transfer was "rightful" as required by § 55-8-401(1)(e). To establish a prima facie case, Broad-cort must only demonstrate either that it was a bona fide purchaser or that the transfer was in fact "rightful." Pursuant to N.M.StatAnn. § 56-8-302, “[a] ‘bona fide purchaser’ is a purchaser for value in good faith and without notice of any adverse claim... who takes delivery of a certificated security in bearer form or in registered form issued or indorsed to him in blank.” On appeal, Summa does not contest either the form of the transfer or that Broadcort accepted the stock certificate in good faith and without notice of an adverse claim. Instead, Summa argues that Broadcort was not a “purchaser” as defined in Article 8 of New Mexico’s Uniform Commercial Code. We disagree and conclude that Broadcort, in this case, does fall into the broadly defined category of a “purchaser.” A “purchaser” is defined as “a person who takes by purchase.” N.M.StatAnn. § 55-1-201(33). A “ ‘purchase’ includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property." Id. § 55-1-201(32) (emphasis added). In. this case, when Laurins delivered the stock certificate to Broadcort, he instructed Broadcort to transfer the 875,000 shares to one of his accounts at Cowles. As part of the transaction, the certificate and accompanying transfer documents were forwarded to Merrill Lynch and then to Midwest. After reviewing the certificate and transfer documents, Midwest — pursuant to industry practice — credited Broadcort’s account at Merrill Lynch with 875,000 shares of Sum-ma stock. Broadcort then credited 875,000 shares to Cowles, who in turn credited Lau-rins’ account with the shares. By crediting Cowles account before it actually received shares of Summa stock on deposit, Broad-cort was left in a “short” position. In other words, Broadcort obligated itself to meet demands for delivery that its other customers might have for shares of Sum-ma stock until the transfer of Summa shares was registered and Broadcort’s short position was eliminated. We conclude that by crediting Cowles with 875,000 shares of Summa stock before transfer of the shares was registered, a property interest in the stock certificate was created in Broadcort. Therefore, Broadcort qualifies as a purchaser as contemplated in § 55-8-401(l)(e). Official Comment 5 to § 55-8-304 states that “a bank, stockbroker or other intermediary who, in the particular transaction acts purely in that capacity, is not a purchaser.” Summa argues that Broadcort acted purely in the capacity as an intermediary and, thus, cannot be a purchaser. Broadcort, however, by crediting Summa shares to Cowles before it actually received the shares from Midwest, performed more than a purely intermediary function. Therefore, we hold that Broadcort was a purchaser and did not fail to prove a prima facie case under § 55-8-401. II. Summa asserts that Broadcort lacked standing to bring this suit because Broadcort could not compel registration of the stock or seek money damages. Section 55-8-401(2) states that “[i]f an issuer is under a duty to register a transfer, pledge or release of a security, the issuer is also liable to the person presenting a certificated security or an instruction for registration or his principal for loss resulting from any unreasonable delay in registration or from failure or refusal to register the transfer, pledge or release.” (Emphasis added.) Summa asserts that Broadcort lacks standing under this provision because the certificate was presented for transfer by Midwest and because the “short” position resulting from the seizure of the certificate was created by Midwest against Merrill Lynch’s account, not Broadcort’s. First, the record demonstrates that Broadcort was a principal of Midwest and, therefore, falls explicitly within the scope of persons that may recover under § 55-8-401(2). According to the evidence presented at trial, Broadcort — and not Midwest— bore the risk that the transfer of certificate 21351 would not be registered by Summa’s transfer agent. Therefore, for the limited purpose of submitting the stock certificate to Summa's transfer agent, Midwest acted on Broadcort’s behalf. Accordingly, we conclude that Broadcort was Midwest’s “principal” — as that term is used in § 55-8-401(2) — with respect to the presentation of stock certificate 21351. See Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083, 1087 (1958) (agency relationship created where “the principal has in some manner indicated that the agent is to act on his behalf”). Second, although the short position was entered against the Merrill Lynch account on Midwest’s books, the evidence indicates that Broadcort remains responsible to its customers for delivering the shares of Summa stock because Merrill Lynch debited Broadcort’s account for these shares. Indeed, the trial evidence demonstrates that Broadcort, not Merrill Lynch, already has been “bought in” with respect to a portion of the 875,000 shares of Summa stock. Broadcort, not Merrill Lynch, has suffered the injury. Thus, we conclude that Broadcort has standing under section 55-8-401(2). III. At the close of all the evidence, the district court dismissed Summa’s third-party complaint because Summa had not shown that it relied on the alleged fraud or forgery of Merrill Lynch’s employee and, therefore, did not establish a claim for common law fraud under New Mexico law. Summa asserts that, under Citizens Bank v. C & H Construction & Paving Co., Inc., 89 N.M. 360, 552 P.2d 796 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976), the district court erred in concluding that Sum-ma had to rely on Merrill Lynch’s alleged fraud. Summa claims that a Merrill Lynch employee altered the transfer documents that accompanied the certificate so that the documents would appear proper when presented to Summa’s transfer agent. According to Summa, when Broadcort received the stock certificate and corporate resolution, Laurins’ account had an “N/N” flag that prohibited him from trading the shares or receiving the proceeds of any sales. This flag remained when the stock certificate was sent to Merrill Lynch to determine the negotiability of the certificate. An employee of Merrill Lynch altered the corporate resolution to make it timely. This resulted in the “N/N” notation being removed from Laurins’ account and allowed the stock certificate to be placed into the stream of commerce. In reliance on the actions taken by Merrill Lynch, Midwest gave Merrill Lynch an immediate credit of 875,000 shares of Summa stock, and Midwest presented the certificate to Summa’s transfer agent for registration. It is undisputed that Summa’s transfer agent did not rely on the actions of the Merrill Lynch employee. The transfer agent testified that regardless of what Merrill Lynch did or did not do, she still would not have registered the transfer of the certificate. The district court found that an action for fraud could not be maintained because there was no reliance on the part of Summa. In Citizens Bank, a bank brought an action against a corporation and some of its officers. The noncorporate defendants filed counterclaims based on an alleged fraud by the bank in connection with- some loan proceedings. The bank defended this counterclaim, in part, on the ground that one of the defendants — James C. Davis— could not recover because he did not rely on the false representations made by the bank. Id. 552 P.2d at 801. The New Mexico Court of.Appeals rejected this argument. The court stated that “under the-facts of this case, it was not necessary for James C. Davis to rely on the false representations of Citizens Bank.” The court based this statement on two principles. First, quoting a Colorado appellate court, it stated that “ ‘[a] representation, to be the basis of a fraud and deceit action, need not, in all cases, be made to the party seeking recovery. [Citations omitted]. It is neces-. sary only that the plaintiff be in the class of persons that the defendant intended to influence.’ ” Id. at 801-02 (quoting Mead & Mount Constr. Co. v. Fox Metal Indus., Inc., 511 P.2d 509, 510 (Colo.App.l973)). Second, the court stated that “ ‘[t]he right to recover for deceit should not be restricted to the immediate parties making the contract. If a third party is injured by the deceit, he should be allowed to recover against the one who made possible the damages to him by practicing the deceit in the first place.’ ” Id. at 802 (quoting Highland Motor Transfer Co. v. Heybum Bldg. Co., 237 Ky. 337, 35 S.W.2d 521, 523-24 (1931)). Finally, the court explained that “[t]hese concepts state a broad rule which protects an innocent person from the intentional fraud of another.” Id. Thus, under New Mexico law, an innocent person can recover for fraud — even though they did not rely on the fraud — as long as someone relied and the plaintiff is within the class of persons that the defrauder intended to influence. After reviewing the record, we conclude that Summa’s third-party complaint was correctly dismissed under Citizens Bank. We base our conclusion on different grounds than the district court. First, Summa has not demonstrated.that they are “innocent” in this transaction. Indeed, the record reveals evidence quite to the contrary. Second, Summa made no showing that Merrill Lynch’s alleged fraudulent activity was made for the purpose of influencing Summa. Third, the uncontroverted testimony was that Summa was not directly injured by the actions of Merrill Lynch; Summa’s transfer agent would have refused to recognize the transfer regardless of whether-the notation appeared. Summa also suggests that it was indirectly injured because Merrill Lynch’s actions facilitated the transfer of the shares by Laurins into the stream -of commerce. However, the record clearly demonstrates that this is exactly what Summa expected — or at least suspected — would happen. Summa placed no restrictive legend on the stock certificate it transferred to TPB. Moreover, Summa had entered into similar loan transactions with an understanding that Laurins could sell Summa shares and place them in the stream of commerce. Summa cannot now claim’ injury for actions of Merrill Lynch that did no more than further Sum-ma’s intent and understanding of what would result from its loan transactions with Laurins and his companies. These facts stand in stark contrast to the facts of Citizens Bank where the injured party was innocent, the defrauder intended to influence the injured party, and the injured party did in fact suffer harm. Therefore, we conclude that Summa failed to establish a claim for fraud and that the district court correctly dismissed Summa’s third-party complaint against Merrill Lynch. IV. Summa argues that the district court erred by submitting the conversion claim to the jury. The jury concluded that Summa was liable for conversion when it failed to register the transfer. Summa’s argument contains two parts: first, it argues that the exclusive remedy for failure to register is the issuance of securities or money damages to purchase the securities under section 55-8-104; second, it asserts that Broadcort could not establish an action for conversion because it did not own the certificate. Neither of these arguments is persuasive. First, the UCC drafters intended that general principles of law supplement the Code’s provisions. See N.M.Stat.Ann. § 55-1-103 cmt. 1 (“[T]his section indicates the continued applicability to commercial contracts of all supplemental bodies of law except insofar as they are explicitly displaced by this act.”); see also New Jersey Bank, N.A. v. Bradford Sec. Operations, Inc., 690 F.2d 339, 346 (3d Cir.1982) (“[t]he UCC does not displace the common law of tort as it affects the parties in their commercial dealings except insofar as reliance on the common law would thwart the purposes of the Code”); Morgan Guar. Trust Co. v. Third Nat’l Bank, 400 F.Supp. 383, 383 (D.Mass.1975) (“Suits in conversion, a common law tort, are not specifically provided for in Article 8. Yet the Code’s authors envisioned that such suits would be brought.”), aff'd, 529 F.2d 1141 (1st Cir.1976). In light of the intent of the drafters of the UCC, we are convinced that the Supreme Court of New Mexico would not foreclose an action for conversion where a plaintiff also sues under § 55-8-401. Sum-ma also asserts that Broadcort’s exclusive remedy was to compel transfer of the stock. Because we conclude, viewing the evidence in the light most favorable to Broadcort, that Summa committed an act of conversion, monetary damages are clearly appropriate. See Frank Bond & Son, Inc. v. Reserve Minerals Corp., 65 N.M. 257, 335 P.2d 858 (1959). Thus, Broad-cort’s remedies are not limited to a compelled transfer of stock. Second, Broadcort established the elements of conversion. Under New Mexico law, an action for conversion arises “if at the time of conversion, plaintiff had ownership of the chattel or had the right to possession thereof.” Aragon v. General Elec. Credit Corp., 89 N.M. 723, 557 P.2d 572, 574 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). We already have concluded that Broadcort had a property interest in stock certificate 21351 when it credited Cowles with 875,000 shares of Summa stock before the transfer was registered. Further, the evidence, taken in the light most favorable to Broadcort, reveals that Broadcort had a right to possession. Broadcort established that Summa had an obligation to either register transfer or return the certificate for the correction of defects. When Summa refused to transfer, Broadcort had a right to possess the certificate. Summa refused to return the certificate and thus committed an act of conversion. V. Summa contends that the damage award was excessive in that the jury awarded Broadcort $1,600,000 in actual damages. Summa asserts that Broadcort should only be able to recover monetary damages based on the value of stock as of the date Summa refused to register the transfer. See Loretto Literary & Benevolent Inst. v. Blue Diamond Coal Co., 444 A.2d 256, 259 (Del.Ch.1982). However, in Frank Bond & Son, 335 P.2d at 861, the New Mexico Supreme Court stated that the measure of damages for conversion includes the “value of the subject matter... at the time and place of the conversion... or a different value where that is necessary to give just compensation.” Viewing the evidence in the light most favorable to the verdict, Broadcort established that just compensation is the cost Broadcort will incur in replacing the shares that it is obligated to furnish its customers. Summa also argues that Broadcort failed to properly mitigate its damages because it did not purchase replacement stock when the Summa shares were at their lowest value. The jury verdict demonstrates that it found that Broadcort acted reasonably in mitigating its damages, and the evidence clearly supports this conclusion. First, although it is easy to ascertain the lowest price of a stock in hindsight, it is very difficult to do so at the time one intends to buy stock. Second, if Broadcort had gone into the market and purchased large blocks of Summa stock, the price almost certainly would have gone up. Third, Broadcort remained out of the market in 1987 in order to avoid the need to make any purchase at all in hopes that a settlement with Summa could be reached. Therefore, we conclude that the jury’s award is supported by substantial evidence and that Broadcort did not fail to mitigate its damages. VI. The district court allowed Broadcort to submit a claim for punitive damages to the jury. Summa contends that the district court erred because the UCC does not allow the recovery of punitive damages for a failure to register a transfer of a stock certificate. Because we already have concluded that Broadcort stated a claim for conversion and because punitive damages can be appropriate in an action for conversion, we do not address this argument. Second, Summa asserts that even if the district court properly submitted the conversion claim to the jury, the evidence was insufficient as a matter of law to support an award of punitive damages. After reviewing the evidence, we conclude that the jury reasonably could have inferred that Summa was aware, and probably intended, that Metro would transfer the shares represented by certificate 21351. This view coincides with a pattern of prior and subsequent transactions in which Sum-ma or a subsidiary of Summa used shares of Summa stock as collateral to obtain loans from Laurins or another lender. Further, Summa placed no restrictive legend on the certificate and did nothing to warn transferees that it would not register the transfer of the shares. From this evidence, which suggests that Summa knew that certificate 21351 would or could end up in the hands of a third party transferee, the jury could have inferred that Summa acted with willful indifference and conscious disregard for Broadcort’s rights and intended to commit a fraudulent act. See Aragon, 557 P.2d at 575 (punitive damages appropriate in connection with a conversion where defendant insurance company acted in bad faith by refusing to pay plaintiff in accordance with terms of insurance contract). Thus, the record reveals sufficient evidence to support an award of punitive damages. Summa also asserts that the punitive damages award was excessive because the jury instructions did not contain adequate safeguards and standards by which the jury properly could consider whether to award punitive damages and, if so, in what amount. In Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992), we held that an award of $25,000,-000 in punitive damages shocked our judicial conscience. Id. at 1561. In Pacific Mutual Life Insurance Company v. Has-lip, — U.S. -, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the Supreme Court held that a punitive damages award — an award that was more than four times the amount of compensatory damages — did not cross the line into the area of constitutional impropriety. Id. — U.S. at-, 112 S.Ct. at 1046. Here, the jury awarded punitive damages in the amount of $400,000 damages — only one quarter the amount of the award of compensatory damages. Further, the jury instructions satisfied Summa’s interest in rational decision making and ensured that the jury’s discretion would be exercised within reasonable constraints. Id. — U.S. at -, 112 S.Ct. at 1044. Thus, after reviewing the record and the jury instructions in this case, we conclude that this award does not “jar one’s constitutional sensibilities” and was not entered in violation of due process principles. Id. — U.S. at-, 112 S.Ct. at 1043. VII. Summa next contends that the district court erred in admitting evidence of settlement discussions that involved a different dispute. During the trial, Broadcort questioned Laurins’ brother, Zigards Laurins, concerning the settlement discussions of a different claim related to a prior loan transaction in which shares of Summa stock served as collateral. Zigards Laurins testified that Summa’s president and chairman of the board, Francisco Urrea, Jr., admitted to him that Laurins’ companies had a contractual right to sell the stock before any default on the loans. Broadcort subsequently cross-examined Urrea. Over Summa’s objection, Urrea testified that, during his settlement conversations with Zigards Laurins, he suspected that the collateralized stock was sold, but did not know for sure until 1988. Fed.R.Evid. 408 provides that [ejvidence of (1) furnishing or offering or promising to furnish, or (2) accepting 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_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James B. PACKARD, Appellant, v. UNITED STATES of America, Appellee. No. 19318. United States Court of Appeals Ninth Circuit. Dec. 22, 1964. Irving C. Sugarman, Bernheim, Sugar-man & Gilbert, Richmond, Cal., for appellant. Cecil F. Poole, U. S. Atty., David R. Urdan, Asst. U. S. Atty., San Francisco, Cal., for appellee. Before ORR, HAMLEY and DUNI-WAY, Circuit Judges. PER CURIAM: The judgment is affirmed for the reasons stated in the opinion of the trial court. (United States v. Packard, D.C., 236 F.Supp. 585). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. James REESE, Petitioner, v. Fred R. DICKSON, Warden, California State Prison, San Quentin, California, Respondent. Misc. No. 720. United States Court of Appeals Ninth Circuit. Feb. 13, 1958. James Reese, in pro. per. No appearance for respondent. STEPHENS, Chief Judge. James Reese is confined in a California State Penitentiary after conviction of seven felonies as stated in his petition to me as follows: “Petitioner was convicted in the Superior Court of the City and County of San Francisco, (California) April 19, 1956, on seven counts; two counts of murder, one count of assault with intent to commit murder, three of burglary, and one count of rape. The Superior Court imposed the death penalty on each of the two murders.” Petitioner is sentenced to be executed on the fourteenth day of February, 1958. He claims that he has exhausted his state remedies for relief and the record shows that he has unsuccessfully petitioned the United States District Court for relief through a proceeding for the issuance of the writ of habeas corpus. The District Court refused to issue a certificate of probable cause, and the day before yesterday (February 11, 1958) petitioner filed the instant petition with me praying for me to issue the certificate and to grant him the right to appeal in forma pauperis. His petition in the main is little or nothing more than assertions of error at his trial which could only be raised in his behalf on direct appeal. He also accuses his attorney of fraud and alleges that his attorney was not effective in his defense and that he has been prejudiced by an illegal search and seizure. There is nothing before me that would justify me in finding that the District Court abused its discretion in denying the petition for the issuance of the certificate of probable cause. And I find nothing which would justify me in issuing the certificate upon petitioner’s direct petition for such action. I find no support for the claim that petitioner has not been accorded due process. Of course, the objective of our legal criminal procedure is the ascertainment of guilt or innocence, and the safeguards to such objective known as “due process” must be observed. Yet the objective remains and should never change to a microscopic search for error upon a standard too strict to be understood or put in action only by technicians. It may be of some little significance and some, though small, comfort to those of us whose duty calls us to act in this regrettable business, that in petitioner’s long and carefully self-prepared petition, there is not to be found a claim of innocence in addition to his formal plea of not guilty. The petitions for the issuance of a certificate of probable cause and for the privilege of prosecuting an appeal in forma pauperis are denied. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. HORN & HARDART COMPANY, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION. No. 85-5722. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 20, 1986. Decided June 17, 1986. J. Skelly Wright, Senior Circuit Judge, dissented and filed an opinion. Allen R. Snyder, Washington, D.C., with whom Robert J. Elliott and Stephen A. Goldberg, Washington, D.C., were on brief, for appellant. John C. Morland, with whom Christopher M. Klein, Washington, D.C., was on brief, for appellee. Before: STARR and BUCKLEY, Circuit Judges, and WRIGHT, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge STARR. Dissenting opinion filed by Senior Circuit Judge WRIGHT. STARR, Circuit Judge: This appeal is taken from the District Court’s grant of summary judgment in favor of the National Railroad Passenger Corporation, more commonly known as “Amtrak.” The issue presented is whether the trial court erred in its interpretation of termination provisions contained in three 1980 leases between Amtrak, as owner of the Pennsylvania Station in New York City, and The Horn & Hardart Company, the proprietor of several commercial establishments situated within Penn Station. Horn & Hardart contends that the District Court improperly granted summary judgment in the face of a need for further factual development both as to the meaning of the termination provisions and as to whether the facts, as ultimately adduced, would have warranted Amtrak’s invocation of these clauses. While Horn & Hardart’s arguments are not without force, we are persuaded in the end that the District Court’s disposition of this case is correct. We therefore affirm. I Horn & Hardart is a familiar corporate face in New York. Its operations extend underground, as it were, to include within the confines of Penn Station three restaurant and cocktail lounge operations each of which is the subject of a separate lease. The three leases contain identical provisions in respect of termination, permitting that power to be invoked by Amtrak: in the event that [Amtrak] shall require the demised premises for its Corporate purposes ..., or in case of the proposed re-construction or demolition of the terminal building in which the demised premises are located (resulting thereafter in the re-construction or demolition thereof)____ In November 1984 Amtrak dispatched to Horn & Hardart termination notices with respect to all three leases. Amtrak’s stated reason for displacing its long-standing lessee was to permit construction of an ambitious project, duly approved by Amtrak’s board of directors, to modernize Penn Station pursuant to a master plan. As represented to the court below, “Amtrak’s current intention is to reconstruct the portion of Pennsylvania Station in which the demised premises are located so that a new ticket facility can be installed on the premises ... occupied by [Horn & Har-dart].” Amtrak’s Statement of Material Facts As To Which There Is No Genuine Dispute 117. Horn & Hardart challenged Amtrak’s use of the termination clause, repairing to United States District Court here in Washington, Amtrak’s corporate situs and the jurisdiction whose law governs the three leases in accordance with' applicable federal law. 45 U.S.G. § 546(d) (1982). Horn & Hardart averred that since the Penn Station operations commenced in 1967 the Company had expanded substantial sums to improve the leased premises, as most recently evidenced by the conversion in 1980 of a “Horn & Hardart” coffee shop to an “Arby’s” and the modernization of its two other premises, the “Iron Horse” and the “Dolphin Bar,” in which approximately $1 million had previously been invested. To protect its sizable investments, Horn & Hardart argued, the Company had not only negotiated long-term leases but had succeeded in limiting substantially Amtrak’s powers of termination. Specifically, the parties had agreed to the language, which we have quoted above, only after Horn & Hardart had fended off in negotiations a considerably more sweeping termination clause advanced by Amtrak which would have empowered the latter to terminate the leases (upon ninety days’ written notice) in case [Amtrak] shall desire to use the demised premises, or any portion thereof, either for itself or through agreement with others for transportation or public service purposes, or for construction, reconstruction ... of that portion of the building of which the demised premises constitute a part____ The upshot of this successful negotiation effort, Horn & Hardart maintained, was to restrict Amtrak’s right to terminate the leases to situations which would “require” termination because of activities affecting Amtrak as a corporate entity, and to situations involving reconstruction or demolition of the entire “terminal building” in which the leased premises were located, as compared with reconstruction or demolition “of that portion of the building” of which the leased premises were a part. Verified Complaint 1111, at 5-6. Arguing that Amtrak’s purported terminations were entirely inadmissable under the express terms agreed to by the parties, Horn & Hardart sought a declaration that the terminations were unlawful, an injunction prohibiting Amtrak from seeking to evict or otherwise remove Horn & Hardart from the premises, and compensatory damages of not less than $2.5 million. Amtrak promptly moved to dismiss the complaint or, alternatively, for summary judgment. Inasmuch as Amtrak submitted evidence outside the pleadings, the District Court treated the motion as falling into the latter category, see Fed.R.Civ.P. 12(b)(6). The court ruled in favor of Amtrak, concluding, in brief, that the operative words of the termination clause, namely “require[d] ... for Corporate purposes” were unambiguous and thus amendable to authoritative judicial construction. As to the term “require,” the court determined that “[bjoth the plain meaning of the word [“require”] as used in the leases and case law supports Amtrak’s position.” Memorandum Opinion at 6. In so concluding, the trial court rejected Horn & Hardart’s argument that, as evidenced by the Declaration of one of its officers who had conducted the lease negotiations on behalf of the Company, the term “require” was substituted for the term “desire” in order “to reflect the fact that the leases could be terminated only if termination was mandatory or indispensible.” Id. at 8. See Horn & Hardart’s Opposition to Defendant’s Motion to Dismiss at 12 (“[T]he Leases use ‘require,’ which in this context clearly means ‘to demand as necessary or essential’ or ‘to make indispensable.’ ”) (citation omitted). So too, the District Court eschewed the Company’s interpretation of “Corporate purposes,” which Horn & Har-dart construed to mean “that Amtrak may take Horn & Hardart’s space only when such space is indispensable for Amtrak’s continued existence as an entity which provides ‘intercity and commuter rail service.’ ” Opposition at 19 (citation omitted). In the trial court’s view, this proffered construction was “unduly narrow.” Memorandum Opinion at 8. Invoking “plain meaning,” the court determined: [I]t is obvious that Amtrak’s use of Horn and Hardart’s space for expanding ticket counter and waiting room facilities is for Amtrak’s corporate purposes of providing modern, cost-efficient, intercity passenger rail transportation service. Id. at 9. Looking to the uncontradicted evidence as to the use to which the leased premises would in fact be put, the court concluded that “Amtrak has the right to terminate the leases in order to expand its ticket counter and waiting area because Amtrak ‘requires’ the demised premises for its ‘Corporate purposes.’ ” Id. at 9. In so doing, the court construed what it viewed as the critical term, “require,” as “necessary or needed,” not, as Horn & Hardart vigorously argued, “mandatory or indispensable.” Id. II On appeal, Horn & Hardart’s principal argument is that the lease terms were infected by “patent ambiguity.” Brief for Appellant at 10, thus rendering the contract dispute unsuitable for summary judgment. To compound this threshold legal error, the Company contends, the District Court’s summary disposition resurrected Phoenix-like the sweeping, pro-Lessor termination clause that the parties, by virtue of Horn & Hardart’s effective negotiation efforts, had discarded. That is to say, “[t]he trial court’s interpretation is tantamount to construing the word ‘require’ to mean ‘desire.’ ” Id. at 14. This fundamental legal error, the Company asserts, had the effect of cutting off, without warrant, the development of “relevant facts” through “essential discovery,” id. at 15, all in derogation of the orderly procedures contemplated by the Federal Rules of Civil Procedure, especially Rule 56(f). The Company suggests that the court below, remaining as it did on high legal ground instead of delving into the facts, ignored the incongruence of its legal pronouncements with the facts themselves. Such facts include facial alterations to the Arby’s lease and Horn & Hardart’s acceptance of Amtrak’s sweeping termination clause in a contemporaneously executed lease for retail space (aside from the three leases at issue here). What is more, the Company argues, the pivotal term, “Corporate purposes,” is not only ambiguous but is clearly less expansive than Amtrak’s proffered interpretation, which would encompass any corporate activity that does not stray beyond the outer perimeter of the ultra vires doctrine. This extraordinary sweep, the Company maintains, could not possibly have been intended by the parties inasmuch as the parties in their negotiations modified the termination provision so as to substitute “Corporate purposes” for “transportation or public service purposes.” Taken together, the pro-Horn & Hardart modifications to the lease provisions were meant, as the Company sees it, to restrict Amtrak’s right to terminate. The District Court’s pre-trial disposition, Horn & Hardart argues, permits Amtrak unfairly to claim victory in the courthouse despite its defeat at the negotiating table. To exacerbate matters, the Company goes on, Amtrak is thereby permitted to effect a forfeiture of Horn & Hardart’s valuable leasehold interests, a result disfavored by the more merciful principles animating courts of justice in construing contracts. Finally, in Horn & Hardart’s view, the District Court’s interpretation has rendered surplusage the “re-construction” provision in the termination clause, which limits Amtrak’s right to abrogate the leases to when the terminal building — not just the portion of the building of which the leased premises are a part — is reconstructed. Ill Notwithstanding the able arguments of counsel for the Company, we find ourselves in full agreement with the District Court’s pivotal determination that the contract language is properly amenable to dispositive interpretation as a matter of law. Consistent with applicable law, see, e.g., Clayman v. Goodman Properties, Inc., 518 F.2d 1026,1034 (D.C.Cir.1974), the District Court turned to the language of the contract itself to determine whether the provision was ambiguous. As the District Court rightly said, the construction of unambiguous contractual language is a matter of law entrusted to the court. Washington Metropolitan Area Transit Authority v. Mergentime Corporation, 626 F.2d 959, 961 (D.C.Cir.1980). The issue, then, is whether the language that has so sharply divided the parties is, in truth, reasonably susceptible of different construction or interpretations. Papago Tribal Utility Authority v. FERC, 723 F.2d 950, 955 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984). We conclude that the District Court’s interpretation of the language, based upon its plain meaning, is unimpeachable. Horn & Hardart’s construction of the contract, whether it is based on the term “corporate purpose” alone or on the juxtaposition of the terms “require” and “corporate purpose,” is not yielded by a fair examination of the language itself. The sole interpretation advanced by the Company before the District Court and on appeal is, as we have seen, that Amtrak can lawfully trigger the clause “only if termination was mandatory or indispensable” for Amtrak’s corporate purposes. Opposition at 8; see also Reply Brief for Appellant at 4-5. This is a reading to which the actual language does not reasonably admit. Corporate life and death does not have to be on the line to “require [space] ... for Corporate purposes.” We concur fully with the able District Judge’s view that the Company’s strained interpretation “would render the termination provision virtually useless and would be inconsistent with Amtrak’s mandate from Congress to provide modern, efficient, rail passenger service.” Memorandum Opinion at 6. Contrary to Horn & Hardart’s assertions, our rejection of its corporate life-and-death standard does not render the termination provision operable at the whim of the landlord. The undisputed evidence shows that Amtrak did not terminate the Company’s lease in order to secure a more lucrative leasehold arrangement. Rather, Amtrak, pursuant to a broad plan of substantial improvements to Penn Station, sought to employ the precise space occupied by Horn & Hardart for expanded ticket counter space and other, non-leasehold purposes. Those specific purposes, under the undisputed facts presented here, suffice to bring the lessor’s reason for termination within the plain meaning of the lease’s termination provision. That the use of the demised premises by Amtrak in this instance is “reasonably necessary” to give life to one of its general corporate purposes is further supported by Horn & Hardart’s acknowledgment that Amtrak could have terminated the leases pursuant to the leases’ condemnation clause, a provision which incorporates Amtrak’s right to acquire or take property when “required for intercity rail passenger service.” 45 U.S.C. § 545(d)(1) (1982). Horn & Hardart’s remaining concerns need not detain us. There is, fairly viewed, no “forfeiture” at work here since the leases either did (Arby’s) or could have contained a cancellation premium clause. Indeed, pursuant to the Arby’s cancellation premium clause, Horn & Hardart in August 1985 received $180,000 from Amtrak; what is more, the original 1967 lease likewise contained a cancellation premium clause. The disincentive of a cancellation premium clause constituted the specific protective mechanism to which the parties agreed. We are similarly unpersuaded that the District Court’s reading of Part 1 of the termination clause (“require ... for Corporate purposes”) renders surplusage the provisions of Part 2 of the clause (“re-construction”). The clauses do indeed overlap in this particular setting, but overlap in one situation cannot properly be equated with the unhappy condition of “surplusage.” For it appears to us that the latter Part— the “reconstruction” portion of the clause — may have efficacy in other settings, such as where reconstruction might be forced on Amtrak by, say, Madison Square Garden which sits atop the subterranean provinces of Penn Station. Finally, we observe merely in passing that the acceptance of Horn & Hardart’s plea that this case move beyond the summary-judgment station and onto the tracks of discovery and trial would likely lead to a highly extensive factual undertaking as to the “indispensability” of the substantial improvements project now underway and approved by the Amtrak board of directors. The unlikelihood that the parties contemplated such a result fortifies us in our conclusion, reached independently for the reasons heretofore stated, that the plain language of this provision reasonably admits only of the construction discerned by the District Court. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
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. UNITED STATES v. INADI No. 84-1580. Argued December 3, 1985 Decided March 10, 1986 Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 400. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Trott, Samuel A. Alito, Jr., and Patty Merkamp Stemler. Holly Maguigan argued the cause for respondent. With her on the brief were Julie Shapiro and William F. Sheehan. Justice Powell delivered the opinion of the Court. This case presents the question whether the Confrontation Clause requires the Government to show that a nontestifying co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator’s out-of-court statements. I — I Following a jury trial in the Eastern District of Pennsylvania, respondent Joseph Inadi was convicted of conspiring to manufacture and distribute methamphetamine, and related offenses. He was sentenced to three years’ imprisonment to be followed by a 7-year parole term. The evidence at trial showed that in September 1979, respondent was approached by unindicted co-conspirator Michael McKeon, who was seeking a distribution outlet for methamphetamine. Respondent’s role was to supply cash and chemicals for the manufacture of methamphetamine and to be responsible for its distribution. McKeon and another unindicted co-conspirator, William Levan, were to manufacture the substance. In the course of manufacturing and selling methamphetamine, McKeon, Levan, and respondent met with another unindicted co-conspirator, John Lazaro, at an empty house in Cape May, New Jersey. There they extracted additional methamphetamine from the liquid residue of previous batches. In the early morning hours of May 23, 1980, two Cape May police officers, pursuant to a warrant, secretly entered the house and removed a tray covered with drying methamphetamine. With the permission of the issuing Magistrate, the officers delayed returning an inventory, leaving the participants to speculate over what had happened to the missing tray. On May 25, 1980, two Drug Enforcement Administration agents in Philadelphia monitored a meeting between respondent and Lazaro alongside Lazaro’s car. At one point one of the agents saw respondent lean into the car. After Lazaro drove off, the agents stopped his car. They searched the car, Lazaro, and a passenger, Marianne Lazaro, but they found nothing and let the Lazaros leave. Marianne Lazaro later recounted that during the search she threw away a clear plastic bag containing white powder that her husband had handed to her after the meeting with respondent. Eight hours after the search, one of the agents returned to the scene of the crime and found a clear plastic bag containing a small quantity of methamphetamine. From May 23 to May 27, 1980, the Cape May County Prosecutor’s Office lawfully intercepted and recorded five telephone conversations between various participants in the conspiracy. These taped conversations were played for the jury at trial. The conversations dealt with various aspects of the conspiracy, including planned meetings and speculation about who had taken the missing tray from the house and who had set Lazaro up for the May 25 stop and search. Respondent sought to exclude the recorded statements of Lazaro and the other unindicted co-conspirators on the ground that the statements did not satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E), governing admission of co-conspirator declarations. After listening to the tapes the trial court admitted the statements, finding that they were made by conspirators during the course of and in furtherance of the conspiracy, and thereby satisfied Rule 801(d)(2)(E). Respondent also objected to admission of the statements on Confrontation Clause grounds, contending that the statements were inadmissible absent a showing that the dec-larants were unavailable. The court suggested that the prosecutor bring Lazaro to court in order to demonstrate unavailability. The court also asked defense counsel whether she wanted the prosecution to call Lazaro as a witness, and defense counsel stated that she would discuss the matter with her client. The co-conspirators’ statements were admitted, conditioned on the prosecution’s commitment to produce Lazaro. The Government subpoenaed Lazaro, but he failed to appear, claiming car trouble. The record does not indicate that the defense made any effort on its own part to secure Lazaro’s presence in court. Respondent renewed his Confrontation Clause objections, arguing that the Government had not met its burden of showing that Lazaro was unavailable to testify. The trial court overruled the objection, ruling that Lazaro’s statements were admissible because they satisfied the co-conspirator rule. The Court of Appeals for the Third Circuit reversed. 748 F. 2d 812 (1984). The court agreed that the Government had satisfied Rule 801(d)(2)(E), but decided that the Confrontation Clause established an independent requirement that the Government, as a condition to admission of any out-of-court statements, must show the unavailability of the declarant. 748 F. 2d, at 818. The court derived this “unavailability rule” from Ohio v. Roberts, 448 U. S. 56 (1980). The Court of Appeals rejected the Government’s contention that Roberts did not require a showing of unavailability as to a nontestifying co-conspirator, finding that Roberts created a “clear constitutional rule” applicable to out-of-court statements generally. 748 F. 2d, at 818. The court found no reason to create a special exception for co-conspirator statements, and therefore ruled Lazaro’s statements inadmissible. Id., at 818-819. We granted certiorari, 471 U. S. 1124 (1985), to resolve the question whether the Confrontation Clause requires a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying co-conspirator, when those statements otherwise satisfy the requirements of Federal Rule of Evidence 801(d)(2)(E). We now reverse. i — i HH A The Court of Appeals derived its rule that the Government must demonstrate unavailability from our decision in Roberts. It quoted Roberts as holding that “in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” 448 U. S., at 65. The Court of Appeals viewed this language as setting forth a “clear constitutional rule” applicable before any hearsay can be admitted. 748 F. 2d, at 818. Under this interpretation of Roberts, no out-of-court statement would be admissible without a showing of unavailability. Roberts, however, does not stand for such a wholesale revision of the law of evidence, nor does it support such a broad interpretation of the Confrontation Clause. Roberts itself disclaimed any intention of proposing a general answer to the many difficult questions arising out of the relationship between the Confrontation Clause and hearsay. “The Court has not sought to ‘map out a theory of the Confrontation Clause that would determine the validity of all . . . hearsay “exceptions.”’” 448 U. S., at 64-65, quoting California v. Green, 399 U. S. 149, 162 (1970). The Court in Roberts remained “[cjonvinced that ‘no rule will perfectly resolve all possible problems’” and rejected the “invitation to overrule a near-century of jurisprudence” in order to create such a rule. 448 U. S., at 68, n. 9, quoting Natali, Green, Dutton, and Chambers: Three Cases in Search of a Theory, 7 Rutgers-Camden L. J. 43, 73 (1975). In addition, the Court specifically noted that a “demonstration of unavailability ... is not always required.” 448 U. S., at 65, n. 7. In light of these limiting statements, Roberts should not be read as an abstract answer to questions not presented in that case, but rather as a resolution of the issue the Court said it was examining: “the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial.” Id., at 58. The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. See Mancusi v. Stubbs, 408 U. S. 204 (1972); California v. Green, supra; Barber v. Page, 390 U. S. 719 (1968); Berger v. California, 393 U. S. 314 (1968). All of the cases cited in Roberts for this “unavailability rule” concern prior testimony. In particular, the Court focused on two cases, Barber and Mancusi, that directly “explored the issue of constitutional unavailability.” 448 U. S., at 76. Both cases specifically limited the unavailability requirement to prior testimony. Barber, supra, at 722; Mancusi, supra, at 211. Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that Roberts simply reaffirmed a longstanding rule, foreshadowed in Pointer v. Texas, 380 U. S. 400 (1965), established in Barber, and refined in a line of cases up through Roberts, that applies unavailability analysis to prior .testimony. Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable. B There are good reasons why the unavailability rule, developed in cases involving former testimony, is not applicable to co-conspirators’ out-of-court statements. Unlike some other exceptions to the hearsay rules, or the exemption from the hearsay definition involved in this case, former testimony often is only a weaker substitute for live testimony. It seldom has independent evidentiary significance of its own, but is intended to replace live testimony. If the declarant is available and the same information can be presented to the trier of fact in the form of five testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence. See Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 143 (1972). But if the declarant is unavailable, no “better” version of the evidence exists, and the former testimony may be admitted as a substitute for live testimony on the same point. Those same principles do not apply to co-conspirator statements. Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government — as here — offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evi-dentiary value of his statements during the course of the conspiracy. In addition, the relative positions of the parties will have changed substantially between the time of the statements and the trial. The declarant and the defendant will have changed from partners in an illegal conspiracy to suspects or defendants in a criminal trial, each with information potentially damaging to the other. The declarant himself may be facing indictment or trial, in which case he has little incentive to aid the prosecution, and yet will be equally wary of coming to the aid of his former partners in crime. In that situation, it is extremely unlikely that in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force. These points distinguish co-conspirators’ statements from the statements involved in Roberts and our other prior testimony cases. Those cases rested in part on the strong similarities between the prior judicial proceedings and the trial. No such strong similarities exist between co-conspirator statements and live testimony at trial. To the contrary, co-conspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence. Under these circumstances, “only clear folly would dictate an across-the-board policy of doing without” such statements. Advisory Committee's Introductory Note on the Hearsay Problem, quoted in Westen, The Future of Confrontation, 77 Mich. L. Rev. 1185, 1193, n. 35 (1979). The admission of co-conspirators’ declarations into evidence thus actually furthers the “Confrontation Clause’s very mission” which is to “advance ‘the accuracy of the truth-determining process in criminal trials.’” Tennessee v. Street, 471 U. S. 409, 415 (1985), quoting Dutton v. Evans, 400 U. S. 74, 89 (1970). C There appears to be little, if any, benefit to be accomplished by the Court of Appeals’ unavailability rule. First, if the declarant either is unavailable, or is available and produced by the prosecution, the statements can be introduced anyway. Thus, the unavailability rule cannot be defended as a constitutional “better evidence” rule, because it does not actually serve to exclude anything, unless the prosecution makes the mistake of not producing an otherwise available witness. Cf. Westen, supra; Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1403 (1972). In this case, for example, out-of-court statements by Michael McKeon and Marianne Lazaro, who testified under immunity, could be introduced based on their testimony in court. The statements of William Levan were admissible because he properly asserted his Fifth Amendment privilege and thereby was unavailable. Second, an unavailability rule is not likely to produce much testimony that adds anything to the “truth-determining process” over and above what would be produced without such a rule. Dutton, supra, at 89. Some of the available declar-ants already will have been subpoenaed by the prosecution or the defense, regardless of any Confrontation Clause requirements. Presumably only those declarants that neither side believes will be particularly helpful will not have been subpoenaed as witnesses. There is much to indicate that Lazaro was in that position in this case. Neither the Government nor the defense originally subpoenaed Lazaro as a witness. When he subsequently failed to show, alleging car trouble, respondent did nothing to secure his testimony. If respondent independently wanted to secure Lazaro’s testimony, he had several options available, particularly under Federal Rule of Evidence 806, which provides that if the party against whom a co-conspirator statement has been admitted calls the declarant as a witness, “the party is entitled to examine him on the statement as if under cross-examination.” Rule 806 would not require respondent to make the showing necessary to have Lazaro declared a hostile witness, although presumably that option also was available to him. The Compulsory Process Clause would have aided respondent in obtaining the testimony of any of these declarants. If the Government has no desire to call a co-conspirator declarant as a witness, and if the defense has not chosen to subpoena such a declarant, either as a witness favorable to the defense, or as a hostile witness, or for cross-examination under Federal Eule of Evidence 806, then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant “available.” While the benefits seem slight, the burden imposed by the Court of Appeals’ unavailability rule is significant. A constitutional rule requiring a determination of availability every time the prosecution seeks to introduce a co-conspirator’s declaration automatically adds another avenue of appellate review in these complex cases. The co-conspirator rule apparently is the most frequently used exception to the hearsay rule. See 4 D. Louisell & C. Mueller, Federal Evidence § 427, p. 331 (1980). A rule that required each invocation of Rule 801(d)(2)(E) to be accompanied by a decision on the declarant’s availability would impose a substantial burden on the entire criminal justice system. Moreover, an unavailability rule places a significant practical burden on the prosecution. In every case involving co-conspirator statements, the prosecution would be required to identify with specificity each declarant, locate those declar-ants, and then endeavor to ensure their continuing availability for trial. Where declarants are incarcerated there is the burden on prison officials and marshals of transporting them to and from the courthouse, as well as the increased risk of escape. For unincarcerated declarants the unavailability rule would require that during the sometimes lengthy period before trial the Government must endeavor to be aware of the whereabouts of the declarant or run the risk of a court determination that its efforts to produce the declarant did not satisfy the test of “good faith.” See Ohio v. Roberts, 448 U. S., at 74-77; id., at 77-82 (Brennan, J., dissenting); see also United States v. Ordonez, 737 F. 2d 793, 802 (CA9 1984). An unavailability rule would impose all of these burdens even if neither the prosecution nor the defense wished to examine the declarant at trial. Any marginal protection to the defendant by forcing the government to call as witnesses those co-conspirator declarants who are available, willing to testify, hostile to the defense, and yet not already subpoenaed by the prosecution, when the defendant himself can call and cross-examine such declarants, cannot support an unavailability rule. We hold today that the Confrontation Clause does not embody such a rule. I — I I — I I — I To some degree, respondent’s arguments m this case require us to revisit this Court’s resolution of this question in Dutton v. Evans, 400 U. S. 74 (1970). Although Dutton involved a state co-conspirator rule instead of Federal Rule of Evidence 801, the state rule actually admitted a broader category of co-conspirator statements. Nevertheless, a plurality of this Court found that the rule did not violate the Confrontation Clause and a fifth Member of the Court, Justice Harlan, reasoned that the Confrontation Clause was not applicable at all. In Dutton the plurality stated that “we do not question the validity of the coconspirator exception applied in the federal courts.” Id., at 80. Upon closer examination today, we continue to affirm the validity of the use of co-conspirator statements, and we decline to require a showing of the declarant’s unavailability as a prerequisite to their admission. We accordingly reverse the judgment of the Court of Appeals for the Third Circuit. It is so ordered. Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if it is offered against a party and is “a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.” The trial court also noted that two of the four co-conspirator declarants (Mrs. Lazaro and McKeon) had testified and that a third (Levan) was unavailable because he had asserted his Fifth Amendment privilege outside the presence of the jury. The reliability of the out-of-court statements is not at issue in this case. The Court of Appeals determined that whether or not the statements are reliable, their admission violated the Sixth Amendment because the Government did not show that the declarant was unavailable to testify. 748 F. 2d, at 818-819. The sole issue before the Court is whether that decision is correct. Roberts involved a state criminal trial on charges of forging a check in the name of Bernard Isaacs and of possession of stolen credit cards belonging to Isaacs and his wife. At the preliminary hearing, defense counsel called the Isaacs’ daughter as a witness. She testified that she had permitted the defendant to use the Isaacs’ apartment for several days, but she refused to admit that she had given the defendant the checks or credit cards. Between the preliminary hearing and the trial, through no fault of the State, she disappeared. At trial, the defendant testified that the Isaacs’ daughter had given him the checks and credit cards to use. The State sought to offer the transcript of her preliminary hearing testimony in rebuttal. 448 U. S., at 58-60. Federal Rule of Evidence 804 also imposes an unavailability requirement before allowing the admission of prior testimony. The Rule 804 requirement is part of the law of evidence regarding hearsay. While it “may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U. S., at 155, the overlap is not complete. In federal court the unavailability rule for former trial testimony was established long before Pointer v. Texas, 380 U. S. 400 (1965), in Mattox v. United States, 156 U. S. 237 (1895). In fact, the actions of the parties in this ease demonstrate what is no doubt a frequent occurrence in conspiracy cases — neither side wants a co-conspirator as a witness. As explained supra, at 395, the interests of the prosecution and the co-conspirator seldom will run together. Nor do the co-conspirator’s interests coincide with his former partners, since each is in a position that is potentially harmful to the others. Rule 806 states: “When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. ... If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.” U. S. Const., Amdt. 6: “In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor . . . .” Cf. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586-601 (1978). It is not clear from the Court of Appeals’ opinion whether in order to meet its burden of showing unavailability, the prosecution would be required to call the declarant as a witness, or only to ensure that the declar-ant is available for testimony if needed. The unavailability rule suffers from many of the same flaws under either interpretation, and in fact may be even less defensible under an interpretation requiring the prosecution to call each declarant as a witness. In addition to the reasons mentioned in the text why an unavailability rule would be of little value, many co-conspirator statements are not introduced to prove the truth of the matter asserted, and thus do not come within the traditional definition of hearsay, even without the special exemption of Federal Rule of Evidence 801(d)(2)(E). Thus, some of the out-of-court statements in this case presumably could be admitted without implicating the Confrontation Clause. For example, in one of the recorded phone conversations Levan and Lazaro discuss the missing tray with Lazaro suggesting that “Mike” took it and speculating about who set Lazaro up for the May 25 stop. 748 F. 2d, at 815. Certainly these statements were not introduced in order to prove the truth of the matters asserted, but as background for the conspiracy, or to explain the significance of certain events. We explained just last Term that admission of non-hearsay “raises no Confrontation Clause concerns.” Tennessee v. Street, 471 U. S. 409, 414 (1985). Cross-examination regarding such statements would contribute nothing to Confrontation Clause interests. Federal Rule of Evidence 801 characterizes out-of-court statements by co-conspirators as exemptions from, rather than exceptions to, the hearsay rule. Whether such statements are termed exemptions or exceptions, the same Confrontation Clause principles apply. The court in Ordonez found a Confrontation Clause violation because the Government, after introducing drug ledgers containing entries made by unidentified co-conspirators, did not adequately demonstrate that it was totally unable to identify those conspirators. 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_respond1_5_3	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Your task is to determine which specific state government agency best describes this litigant. STATE OF WISCONSIN, Plaintiff-Appellee, v. Kathleen SCHAFFER, Defendant-Appellee, Appellant. Nos. 76-2234 and 76-2235. United States Court of Appeals, Seventh Circuit. Argued May 2, 1977. Decided Nov. 3, 1977. Stephen M. Glynn, James M. Shellow, Milwaukee, Wis., for defendant-appellant. William J. Mulligan, U. S. Atty., John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee. Before FAIRCHILD, Chief Judge, DUFFY, Senior Circuit Judge, and SWYGERT, Circuit Judge. FAIRCHILD, Chief Judge. The appellant, Kathleen Schaffer, was charged with first degree murder of William Weber and was tried for this offense in the Circuit Court for Milwaukee County, Wisconsin. During the course of this trial Schaffer caused the circuit court to issue a subpoena duces tecum requiring William Mulligan, the United States Attorney for the Eastern District of Wisconsin, to produce certain documents, including the minutes of a federal grand jury relating to the Weber homicide. Having been served with the subpoena, the United States Attorney moved the circuit court to quash it as it related to the grand jury transcripts. The circuit court denied the motion and ordered the United States Attorney to produce the grand jury materials or show cause why he should not be held in contempt. Mulligan promptly filed a petition for removal in the United States District Court. Although the petition was captioned State of Wisconsin v. Kathleen Schaffer, it is clear from the text that no attempt was being made to remove the criminal case against Schaffer, but only the proceeding directed at the United States Attorney to compel him to produce the grand jury minutes or show cause why he should not be held in contempt. The petition cited 28 U.S.C. § 1442, and, echoing its language, characterized the action to be removed as one civil in nature commenced in a state court against an officer of the United States for an act under color of such office or on account of a right or authority claimed under an Act of Congress. The removal was to embrace only the issue of the subpoena requiring the United States Attorney to produce grand jury minutes, and the copies of pleadings attached related only to that matter. Hearings were had before the district court on November 26 and 30, 1976. On December 3, the district court entered an order, embodying the views announced by the court November 30. The court found that it had jurisdiction under 28 U.S.C. § 1442; that the removal related only to the issue of the circuit court order denying the motion to quash the subpoena and the order to show cause, and did not remove the state court murder trial. In its order the district court vacated the order for the production of grand jury minutes and order to show cause why the United States Attorney should not be held in contempt. Kathleen Schaffer appealed (No. 76-2234). During the course of the hearings on the removed contempt matter, and in response to the suggestion of the court as to the proper procedure, counsel for Ms. Schaffer filed a petition under Rule 6(e), Fed.R. Crim.P., for the release of testimony before grand juries “relating to the death of William Weber, the activities of William Weber prior to his death and the transactions between such witnesses and William Weber.” A further hearing was held December 1. On December 3, 1976, the district court denied the petition, finding that petitioner had failed to show particularized need sufficient to overbalance the strong policy in favor of the secrecy of grand jury proceedings. The court declined to assume the burden of an in-camera inspection of the minutes identified by the United States Attorney to determine the presence of exculpatory material, although the court did ascertain that none of the persons identified by petitioner in connection with the State proceedings appeared before the grand jury. Ms. Schaffer appealed (No. 76-2235). Her trial in state court proceeded, and resulted in her conviction and sentence to life imprisonment. I. The Vacation of the Subpoena — Contempt Order, Appeal No. 76-2234 Appellant does not argue the merits of the decision of the district court that the circuit court order requiring the United States Attorney to make disclosure or face contempt proceedings must be vacated. We think it clear that a court .may not compel such disclosure in violation of the obligation of secrecy imposed by Rule 6(e), and that if the merits be reached, the order of the district court was correct. Appellant challenges the jurisdiction of the district court to decide the merits for the reason that the removal petition was legally insufficient to bring the subpoena —contempt matter before the court. She contends that the state court’s order to show cause did not commence a removable “civil action” or “criminal prosecution” within the removal statute, that no independent action was initiated against the United States Attorney, and, therefore, no removable action existed. The appellant argues that the proceeding involving the United States Attorney was merely ancillary to the trial of the criminal case, and an exercise of the inherent power of a court to secure compliance with its subpoena. 28 U.S.C. § 1442(a) provides that “A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court . . .” Subparagraph (1) includes among these persons “Any officer of the United States, . . for any act under color of such office . . . .” None of the parties questions the fact that Mr. Mulligan qualified as an officer acting under color of his office. This case was removable, therefore, if the proceeding against him can be characterized as a civil action or criminal prosecution for the purpose of § 1442(a). The appellant argues that the order to show cause did not initiate an action against Mr. Mulligan. However, by statute a trial judge is empowered to commence contempt proceedings and use an order to show cause as the notice of process. Wis. Stat. §§ 295.01, 295.03(1) (1976). Although the court was not informed of the United States Attorney’s refusal to comply with the subpoena by verified petition, as required by § 295.03, the court was made aware of the non-compliance by Mr. Mulligan’s own motion to quash the subpoena. The subsequent denial of Mulligan’s motion and the issuing of an order to show cause sufficiently commenced the contempt proceeding against Mulligan. We think the language “civil action or criminal prosecution” should be broadly construed in the light of the purpose of the subsection, and find ourselves in agreement with the statements of the Fourth Circuit in State of North Carolina v. Carr, 386 F.2d 129, 131 (4th Cir. 1967): The issue is whether or not the contempt proceedings constituted a ‘civil action or criminal prosecution commenced in a State court’ within the meaning of 28 U.S.C. § 1442(a). The District Court classified the present proceeding as ‘criminal.’ The Government argues that it was ‘civil.’ The State urges that it was neither, but rather ‘sui generis.’ Accordingly, the State says, it was not either a ‘civil action’ or ‘criminal prosecution’ within the meaning of the removal statute. We think it unfruitful to quibble over the label affixed to this contempt action. Regardless of whether it is called civil, criminal, or sui generis, it clearly falls within the language and intent of the statute. To repeat, the central and grave concern of the statute is that a Federal officer or agent shall not be forced to answer for conduct assertedly within his duties in any but a Federal forum. Thus the statute looks to the substance rather than the form of the state proceeding; this is the reason for the breadth of its language. Accordingly, the applicability of the statute to the present case is perfectly apparent. By citing Carr for contempt, the State Court attempted to subject him to incarceration until such time as he complied with the Court’s order and thus disobeyed the directive of his superior officers. A statute designed to permit Federal officers to perform their duties without State interference clearly applies to such a situation, regardless of the label the State chooses to affix to its action. We conclude that the proceeding here, although ancillary to the murder trial, constituted a sufficient separate action against Mr. Mulligan for an act in his official capacity as United States Attorney. The resultant ease, whether deemed criminal or civil in nature, placed Mulligan in jeopardy for his refusal, based on his official duty, to comply with a state court order. He was required to defend his actions and face the consequences of his disobedience. Whatever the docketed title of this case, it represented a distinct action against Mulligan, commenced by the order to show cause. Clearly the petition did not seek removal of the entire state murder prosecution. The issue in the proceeding against Mulligan was, in our opinion, distinct and separable from the charge against Kathleen Schaffer, and, as such, validly removed without also removing the murder case. United States v. Penney, 320 F.Supp. 1396, 1397 (D.C. 1970). The purpose of the removal statute is to insure a federal forum for cases where federal officials must raise defenses arising out of their official duties. Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Mr. Mulligan’s refusal to comply with the subpoena was based on the proposition that he could not disclose the requested material without violating Rule 6(e) of the Federal Rules of Criminal Procedure. This rule prohibits his disclosure of grand jury transcripts unless done in the performance of his duties or unless directed by the district court. His defense to the charge of contempt thus was based on his duty under federal law. The removal statute is clearly broad enough “ . to cover all cases where federal officers can raise a colorable defense . . . ” arising out of their official duties. 395 U.S. at 405-407, 89 S.Ct. at 1816. Mr. Mulligan, having become a defendant in a contempt proceeding, was faced with such a case, and, therefore the exercise of removal jurisdiction by the district court was proper. The appellant suggests, however, that if Mr. Mulligan’s involvement in the contempt proceeding made removal proper, the entire murder prosecution was removed to the federal district court. Appellant points out that when an action is pending in a state court against a number of defendants, only one of whom is a federal officer, sued on account of an official act, removal at the instance of the federal officer removes the entire action with all defendants. See Iowa Public Service Co. v. Iowa State Commerce Commission, 407 F.2d 916, 918 n.3 (8th Cir. 1969), cert. denied, 396 U.S. 826, 90 S.Ct. 71, 24 L.Ed.2d 77 (1970); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962). As already stated, we think the proceeding against the federal officer here was distinct and separate for the purpose of the removal statute. Finally, the appellant refers us to a district court opinion, In Re Heisig, 178 F.Supp. 270 (N.D.Ill.1959), and suggests that its reasoning should control the removal issue. Heisig involved the removal of contempt proceedings by federal officials. The district court remanded the case to the state court holding that the contempt proceeding was not a civil action or criminal prosecution, and, therefore, not removable under the statute. 178 F.Supp. at 273. This finding was only one of the several grounds which the court thought justified a remand. To the extent that Heisig held that a contempt proceeding does not constitute a civil action or criminal prosecution within the meaning of § 1442, we deem it erroneous. II. The Denial of the Rule 6(e) Petition, Appeal No. 76-2285 The appellant also appeals from the order denying her petition for disclosure of the grand jury testimony. The district court found that the appellant had “ . . . failed to satisfy the particularized need requirement which has been en-grafted upon Rule 6(e) of the Federal Rules of Criminal Procedure.” After analyzing the appellant’s petition, the court characterized the request for disclosure as a “mere hope” that some unknown witnesses may have provided the grand jury with some kind of exculpatory evidence. Balanced against the need for secrecy of grand jury proceedings, the court held that the appellant’s claim did not warrant disclosure of the transcripts. Grand jury testimony has traditionally been treated as confidential communication and, therefore, the proceedings have been cloaked in secrecy. United States v. Socony Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943). The scope and application of the rule of secrecy of grand jury proceedings has been codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Paragraph (e)(1) of this rule, which was recently amended, generally prohibits disclosure of the grand jury proceedings by a government attorney, a grand juror, or anyone who assists in the taking of testimony. Subparagraph (e)(2)(C)(i) provides an important exception to the rule by permitting disclosure “when so directed by the court preliminarily to or in connection with a judicial proceeding . . . .” The specific reasons for the maintenance of secrecy are varied. See, United States v. Rose, 215 F.2d 617, 628-29 (3rd Cir. 1954). They all support the important policy of encouraging and facilitating the exchange of information between witnesses and grand jurors, free from the fear of retaliation or tampering. United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). A trial judge must be circumspect in the exercise of his discretion in ordering the disclosure of grand jury minutes. He may only order such disclosure when the party seeking it has demonstrated that a “particularized need exists . . . which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). The “particularized need” standard was reaffirmed in Dennis v. United States, 384 U.S. 855, 868-75, 86 S.Ct. 1840, 16 L.Ed.2d 975 (1966) with a general suggestion by the Court favoring disclosure. Within the context of disclosure based on need, the trial judge is required to choose the path which best promotes the administration of criminal justice. 384 U.S. at 870, 86 S.Ct. 1840. The appellant argues that she has demonstrated particularized need for the transcripts. She contends that since the federal grand jury has finished its work the reasons for maintaining secrecy are substantially less compelling than the policies favoring disclosure. At stake, she adds, is her ability to prove her innocence. Finally, the appellant stresses that the disclosure would be monitored by the state trial judge, who has volunteered to screen the grand jury material for exculpatory evidence. Only if the judge finds such evidence would any grand jury material be disclosed to the appellant. Appellant was tried for the murder of William Weber, which occurred November 12, 1973. The principal witness against her was Earl Seymour, who has pled guilty to second degree murder after a mistrial for first degree murder, and testified that he shot Weber. The State’s theory was that appellant, said by Seymour to have been present at the shooting, had lured Weber to the place where Seymour shot him, and had procured the killing because Weber, her source of drugs, had threatened to cut off her supply. Some months after the homicide, June, 1974, and thereafter, the federal grand jury investigated illicit drug activities, and are thought to have inquired, incidentally, into the related killings not only of Weber, but one Mitchell, killed a few days later. Indictments were returned against Callen, Druml, and Gaertner. The federal DEA is known to have investigated these activities. At lest Callen and Druml have been convicted. Schaffer was first charged with the murder of Weber in August, 1975. Testimony at the Schaffer trial developed that Callen was associated with Weber in the sale of cocaine. Druml was their supplier, to whom Weber came to owe a substantial amount of money. Two days before the homicide, Callen and Druml visited Weber and Druml demanded payment. Weber’s girlfriend, Maloney, found her apartment ransacked the day of the murder, but found $10,000 which the intruders had missed. Callen later asked her about the money, and she turned it over to him. Seymour, who confessed to killing Weber, and testified against Schaffer, had dealings with Gaertner. He also testified to playing an intriguing role as a double agent, employed on a commission basis to assist the Republic of Mexico in problems arising from importing and exporting contraband. He claimed to be responsible for one to two dozen arrests for drug offenses by American authorities. Moreover, he had been tried for the Weber murder, but the trial ended in a mistrial, after which he plead guilty to second degree murder. He had been a witness in his own behalf at the first trial and acknowledged at the Schaffer trial numerous instances of perjury. Counsel for Schaffer represented that the defense position was that Schaffer was not present when Seymour killed Weber, although the record does not show whether she had testified or intended to testify. Counsel suggested that the grand jury minutes might reflect testimony that the homicide was motivated as a result of Weber's dealings in drugs with others, and particularly of his refusal to pay Druml. It does appear that testimony before the grand jury related at least incidentally to the killing of Weber. The Assistant United States Attorney tendered sealed packets of testimony to the district court. He represented that in one packet were the transcripts “which relate to the investigation that [counsel] is apparently concerned with.” A smaller packet was said to contain excerpts described as “those portions of testimony which may in some remote way relate to the subject which is included in the petition submitted on behalf of Kathleen Schaffer.” It also appears that the state authorities had conducted a John Doe proceeding, investigating the same matters as the federal grand jury. All the records of this proceeding, including the reporter’s notes and lists of witnesses have been lost. Although appellant’s petition sought “release” of the grand jury testimony without qualification, counsel orally, at the hearing, very drastically and significantly narrowed his request. He asked only that the minutes be turned over for in-camera inspection by the Honorable Max Raskin, who presided at the state trial, and was thus in a position to be aware whether any material would be helpful to appellant. This limitation has been repeated in the briefs on appeal, with testimony being made known to counsel only upon Judge Raskin’s determination that the testimony constituted exculpatory evidence. We are aware that demonstrating a particularized need is often a difficult task and applying this standard to a given set of facts is an inexact process. Courts have found that a particular need has been shown when disclosure is requested to impeach a witness. United States v. Proctor & Gamble, supra, 356 U.S. at 683, 78 S.Ct. 983, to attack deposition testimony, Atlantic City Electric Co. v. A.B. Chance Co., 313 F.2d 431 (2d Cir. 1963), or to refresh a witness’ recollection about matters he previously testified to before a grand jury, Baker v. United States Steel Corp., 492 F.2d 1074, 1079 (2d Cir. 1974). The district court declined to review the grand jury minutes for testimony which might appear to aid appellant’s ease, but he did ascertain from the list of witnesses that none of the individuals named by appellant had testified before the grand jury. Hence impeachment by use of prior inconsistent statements was ruled out. Appellant was not able to name a particular witness before the grand jury whose testimony she needed to see. Thus it must be acknowledged that appellant has not demonstrated the more traditional forms of need. We think, however, on balance, that it was an abuse of discretion not to authorize disclosure to Judge Raskin, with suitable directions for disclosure by him to appellant’s counsel only in the event and to the extent that testimony likely to be helpful to her case appeared. We think one consideration that should be given particular weight here is the fact that the state court judge issued a subpoena duces tecum requiring the production of the federal grand jury minutes. The subpoena was for the distinct purpose of furthering a full and fair trial in the state prosecution. It cannot be doubted that Judge Raskin ordered the production of the minutes in the interest of a proper administration of justice. Accordingly, principles of federalism and comity come into play and should be accommodated unless factors dictating secrecy are overriding. Once a grand jury has completed its work, indictments having been brought, the reasons for secrecy become less compelling. State of Illinois v. Sarbaugh, 552 F.2d 768, 775 (7th Cir. 1977). The grand jury in question sat between June and November of 1974, and even though the government asserts that some of the matters relating to that grand jury investigation have not been concluded, it has undoubtedly completed its primary task. “[Ajfter the grand jury’s functions are ended, disclosure is wholly proper where the ends of justice require it.” Socony-Vacuum Oil Co., supra, 310 U.S. at 234, 60 S.Ct. at 849. We recognize that at this juncture, the state trial having been completed, a review of the minutes would doubtless be carried on in the light of standards for newly discovered evidence. Naden v. Johnson, 61 Wis.2d 375, 212 N.W.2d 585 (1973). We assume that Judge Raskin is still willing to undertake the task. Because of the obvious questions concerning the credibility and criminal involvement of the State’s chief witness, the plausibility of the involvement of Weber’s drug traffic associates in his death, the probability that grand jury testimony concerning the transactions of his associates at about the time of the murder would disclose that fact, if true, the accessory type theory of Schaffer’s guilt, and the seriousness of the offense with which she was charged and convicted, and because disclosure will be made only to Judge Raskin until evidence helpful ttf appellant is found present, we think appellant’s need for disclosure thus limited outweighs the policy of secrecy. The judgment appealed from in Appeal No. 7&-2234 is AFFIRMED. The judgment appealed from in Appeal No. 76-2235 is REVERSED, and the cause remanded for further proceedings consistent with this opinion. . An order denying a petition, based on Rule 6(e), which “disposes of the contentions of all the parties, leaving nothing else to be decided, . ends the controversy before . . . ” the court, and therefore is appealable under 28 U.S.C. § 1291. United States v. Byoir, 147 F.2d 336, 337 (5th Cir. 1945). See also, State of Illinois v. Sarbaugh, 552 F.2d 768, 773 (7th Cir. 1977). The order before us fits this characterization and is therefore appealable. . Pub.L. 95-78. The Rule was amended on July 30, 1977, effective October 1, 1977. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Which specific state government agency best describes this litigant? A. state of ___ - state in its corporate capacity in criminal cases B. state 0f ___ - state in its corporate capacity in civil cases C. other state level activity D. not ascertained Answer:
sc_respondent	216	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. SCHNEIDER v. RUSK, SECRETARY OF STATE. No. 251. Decided February 18, 1963. Milton V. Freeman, Robert E. Herzstein, Horst Kur-nick and Charles A. Reich for petitioner. Solicitor General Cox, Assistant Attorney General Miller, J. William Doolittle, Beatrice Rosenberg and J. F. Bishop for respondent. Jack Wasserman, David Carliner and Melvin L. Wulf for the American Civil Liberties Union, as amicus curiae. Per Curiam. Trial of this case should have been before a three-judge District Court convened pursuant to 28 U. S. C. §§ 2282, 2284, as petitioner requested. Her complaint explicitly-sought an -“injunction restraining the enforcement, operation or execution of . . . [an] Act of Congress” — § 352 (a)(1) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1484 (a)(1), which provides that a naturalized American citizen shall lose his nationality by “having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated . . . .” The District Court concluded that petitioner’s complaint presented no substantial constitutional issue and denied petitioner’s motion to convene a three-judge court, relying on Lapides v. Clark, 85 U. S. App. D. C. 101, 176 F. 2d 619 (1949), cert. denied, 338 U. S. 860, in which the Court of Appeals for the District of Columbia Circuit had directly upheld the predecessor of a companion provision, § 352 (a)(2) of the 1952 Act, 8 U. S. C. § 1484 (a)(2), which deprived the naturalized American of his citizenship for residing for five years in any foreign state. The Court of Appeals’ per curiam affirmance was also based on Lapides. Although no view is here intimated as to the merits of the constitutional question in the present case, we disagree with the conclusion of the courts below as to the substan-tiality of that issue. The intervening decisions of this Court in Perez v. Brownell, 356 U. S. 44, and Trop v. Dulles, 356 U. S. 86, reveal that the constitutional questions involving deprivation of nationality which were presented to the district judge were not plainly insubstantial. The single-judge District Court was therefore powerless to dismiss the action on the merits, and should have convened a three-judge court. Ex parte Northern Pac. B. Co., 280 U. S. 142, 144; Stratton v. St. Louis S. W. R. Co., 282 U. S. 10, 15; Ex parte Poresky, 290 U. S. 30; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713. The judgments below are vacated and the case is remanded to the District Court for expeditious action consistent with the views here expressed. So ordered. 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_appbus	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 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. TRAVELERS INS. CO. et al. v. BRANHAM, Deputy Commissioner, United States Employees Compensation Commission, et al. No. 5069. Circuit Court of Appeals, Fourth Circuit. May 21, 1943. Leon T. Seawell, of Norfolk, Va., for appellants. Braden Vandeventer, and Russell T. Bradford, Asst. U. S. Atty., both of Norfolk, Va. (Sterling Hutcheson, U. S. Atty., of Norfolk, Va., and Ward E. Boote, Chief Counsel, U. S. Employees’ Compensation Commission, and Herbert P. Miller, Associate Counsel, both of Washington, D. C., on the brief), for appellees. Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges. DOBIE, Circuit Judge. This is an appeal from a decree of the United States District Court affirming a decision by Charles Branham, Deputy Commissioner, United States Employees Compensation Commission, Fifth District (hereinafter called the Commissioner), and awarding to Florence Phillips, a widow of Albert Phillips, the compensation allowed by thé Commission under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act (hereinafter called the Act), 33 U.S.C.A. Chapter 18, Section 901 et seq. The only question presented for our decision is whether the accident resulting in the death of Albert Phillips, came within the ambit of the Act. The specific provision of the Act, relative to coverage, with which we are particularly concerned, is Section 2(4), 33 U.S.C.A. § 902(4): “The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).” The Commissioner made the following findings of fact: “That on the 1st day of May, 1941, Albert J. Phillips was in the employ of the employer above named at Portsmouth in the State of Virginia, in the Fifth Compensation District, established under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, and that the liability of the employer for the payment of compensation under said Act was insured by The Travelers Insurance Company; that on said day the said Albert J. Phillips, while performing service for said employer upon the navigable waters of the United States, sustained personal injury which arose out of and in the course of his employment and resulted in his death, while employed as a general labor foreman, engaged in the- construction of a dry dock located adjacent to the Elizabeth River at the Norfolk Navy Yard, Portsmouth, Virginia; that on said day the said Phillips accidentally fell from the gangplank of a tremie barge, a distance of about 14 feet, landing on the ground below, and resulting in fracture of the fifth cervical vertebra, with displacement, causing paralysis of the lower portion of the body, from which he died on May 7, 1941; that at the time of the accident the said employer was engaged in the construction of a dry dock for the United States Navy, the dimensions of which are 1,100 feet long, 150 feet wide, and 50 feet deep; that there was used in connection with the construction of said dry dock a so-called tremie barge, located upon the navigable waters of the United States, which was about 300 feet long and about 35 feet wide, and which was originally a railroad car float; that the- employer constructed thereon eight towers to handle concrete and a system of hoppers to control the movement of con- . Crete;. that a gangway extended from the barge to the shore trestle; that the barge operated inside the dry dock, and was shifted up and down therein by means of winches on the deck and cables extending to the shore; that the barge had no propulsion power of its own; that it was towed into the dry dock by a tugboat; that it was moved to new locations within the dry dock every eight or ten hours; “That at the time of the accident the principal work consisted of underwater concreting known as ‘tremie’ concreting; 'that the concrete was distributed from a concrete plant located on the shore through iron pipes extending over the trestle, the gangplank and onto the barge, from whence : it was poured through hoppers into pipes leading to the underwater forms on the 'floor of the dry dock; that the gangplank was 59 feet long and 14% feet wide, was made fast to the barge by a series of pins and was raised and lowered by means of a hoist on the barge which was operated by steam; that the gangplank was a part of the barge’s equipment; . “That just before the accident the pipes had been disconnected, the gangplank raised, and the barge moved to a new position; that the.said Phillips, decedent, was at that time engaged in supervising work . in connecting the pipes to the barge at the new location; that while .so engaged he was seen by a co-worker, one A. S. Kohl, . leaving the barge and walking toward the shore trestle and, while on the gangplank ■ of the barge, inside the dry dock, he accidently fell from the gangplank to the ground below, resulting in the injuries which caused his death; that the place where he landed was within the range of mean low tide and mean high tide; that the accident occurred at low tide and the ground underneath the gangplank was damp from the receding tide; that at high tide the water would have been about 18 inches deep at the place where decedent .' landed; . “That the said dry dock was being constructed exclusively for the repair and other work about ships; that it is designed solely as an aid to navigation, and has no .relation to land commerce; that decedent was engaged in a maritime operation and enterprise, and his employment was maritime; that his death occurred on • the navigable waters of the United. States and is within the purview of the said Longshoremen’s Act.” There was also in the record uncontroverted evidence that at certain places within the uncompleted dry dock the water, flowing in from the Elizabeth River, reached a depth of more than 50 feet, and that, in the conversion of the car-float into a tremie barge for pouring concrete under water, no important changes were made in the hull, so that the barge was still clearly a vessel, within the admiralty meaning of that term, which was capable of engaging in maritime navigation. Cf. Butler v. Robins Dry Dock & Repair Co., 240 N.Y. 23, 147 N.E. 235. Counsel for appellants, in seeking a reversal of the decree below, urge: (1) The accident did not occur upon navigable waters of the United States; (2) The accident did not occur upon a dry dock; (3) The deceased was not engaged at the time of the accident in any maritime employment; (4) In any event, the matter is one of purely local concern. In connection with the second of these contentions, appellants argue that the language of the Act contemplates a completed structure, a finished dry dock, and not, as here, an unfinished structure on which only about one-twentieth of the work had been actually completed. Appellants insist upon the analogy of the building of a ship and cite the recent decision of our Court in Frankel v. Bethlehem-Fairfield Shipyard, 4 Cir., 132 F.2d 634. That case is not in point here, for what was there held was that Frankel was not a “seaman”, as that term is used in the Jones Act, 46 U.S.C.A. § 688. In the Raithmoor, 241 U.S. 166, 36 S.Ct. 514, 60 L.Ed. 937 (though the facts in the Raithmoor case and the instant case are different) Chief Justice Hughes (241 U.S. at pages 175-177, 36 S.Ct. at page 516, 60 L.Ed. 937) used language indicating that such an analogy is not a happy one. Cf. Merritt-Chapman & Scott Corporation v. Bassett, 50 F.Supp. 488, decided April 8, 1943, by the United States District Court for the Western District of Michigan, Northern Division. See, also, The Blackheath, 195 U.S. 361, 25 S.Ct. 46, 49 L.Ed. 236; United States v. Bruce Dry Dock Co., 5 Cir., 65 F.2d 938. As to whether the employment of Phillips was maritime in nature, and as to whether the accident occurred on navigable waters, see John Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L, Ed. 819; The Admiralty Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633; Minnie v. Port Huron Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732; Diomede v. Lowe, 2 Cir., 87 F.2d 296; Butler v. Robins Dry Dock & Repair Co., 240 N.Y. 23, 147 N.E. 235. The Act, as a remedial statute, must be liberally construed. Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 52 S.Ct. 187, 76 L.Ed. 366; DeWald v. Baltimore & Ohio Railway Co., 4 Cir., 71 F.2d 810. Since the enactment of the Act, the United States Supreme Court, in this particular connection, has certainly given a restricted application to the doctrine of local concern, when the application of that doctrine would deny a remedy under the Act. Parker v. Motor Boat Sales Co., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184; Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. ■ — —. See, also, Robinson on Admiralty, p. 122. And compare the opinion of Mr. Justice Rutledge in Aguilar v. Standard Oil Co., 63 S.Ct. 930, 87 L.Ed. —decided by the United States Supreme Court April 19, 1943. It would seem that Congress, in the Act, intended to exercise to the fullest extent all the power and jurisdiction it possessed over the subject matter. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598; Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802. Then, there is the very strong language of Mr. Justice Black in Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 229, 87 L.Ed. -: “Where there has been a hearing by the federal administrative agency entrusted with broad powers of investigation, fact finding, determination, and award, our task proves easy. There we are aided by the .provision of the federal act, 33 U.S.C. § 920, 33 U.S.C.A. § 920, which provides that in proceedings under that act, jurisdiction is to be ‘presumed, in the absence of substantial evidence to the contrary’. Fact findings of the agency, where supported by the evidence, are made final. Their conclusion that a case falls within the federal jurisdiction is therefore entitled to great weight and will be rejected only in cases of apparent error.” Attention is also called to the language of this same Justice in Parker v. Motor Boat Sales Co., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184. Here we have the precise, findings of the Commissioner, which were affirmed by the United States District Court. In the light of the whole picture, we cannot say, as to the instant case, there is any “apparent error” in either the findings of fact or in the finding that this case falls within the ambit of the Act. We, accordingly, affirm the decree of the District Court. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_crmproc2	12	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited. UNITED STATES, Plaintiff-Appellee, v. Evan Raymond DALE, Defendant-Appellant. No. 11427. United States Court of Appeals Seventh Circuit. May 26, 1955. John J. Hoban, East St. Louis, 111., for appellant. C. M. Raemer, U. S. Atty., East St. Louis, 111., and Edward G. Maag, Asst. U. S. Atty., East St. Louis, III., for appellee. Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges. DUFFY, Chief Judge. This is a petition by defendant to be enlarged upon bail pending an appeal to this Court from his conviction under the provisions of Title 18 U.S.C. § 1951, known as the Anti-Racketeering Act. Defendant was tried before a jury upon an indictment containing three counts. In the first count defendant and another were charged with conspiracy to obstruct interstate commerce by extorting $1,030,000 “by calling and conjuring up strikes, causing labor disputes, work stoppages, and difficulties in connection with the construction of” the power plant being constructed at Joppa, Illinois, “under various pretexts and claims of right but not actually for the purpose of obtaining legitimate labor objectives * * This count charged the attempted extortion from Ebasco Services, Inc. and Electric Energy, Inc. and the officers and agents of both. Ebasco Services, Inc. was the contractor, and Electric Energy, Inc. was the owner of the power plant being erected which was to furnish electric power for an atomic energy plant in Kentucky. The second count charged the defendant and another with attempting to extort $1,030,000 from the same victims as alleged in count one. The third count charged the defendant alone with obstructing interstate commerce by extortion by extorting $7,500 from Maxon Construction Company, a sub-contractor under Ebasco Services, Inc. The jury found the defendant guilty on all three counts and the District Judge sentenced defendant Dale to imprisonment for 15 years on each count, said sentences to run concurrently, and he imposed a fine of $10,000.00. Judge Wham refused defendant’s petition to be enlarged upon bail pending appeal, referring to Dale as a “menace” because of his threats to his community and his disloyalty to his Union. Defendant concedes that there is ample evidence in the record from which the jury could conclude that the defendant threatened economic loss in the form of labor trouble if defendant’s demands for money were not met. Testimony at the trial also showed that defendant Dale asserted to his victims that 15 years ago he had been a chauffeur for a gangster, Blackie Perazzo of Chicago, and that by reason of Perazzo’s murder, it had been necessary for Dale to leave Chicago. He also told his victims that 15 years previously he had exchanged his shovel for a blackjack and had been using it effectively ever since, and bragged about his control over 38,000 laborers in southern Illinois, Indiana and Kentucky. Dale asserted to his victims that if they did not perform business in the “customary manner” trouble usually developed, and that one contractor failed to do business in the “customary manner” and seven men were killed. Defendant boasted that he had been indicted for murder but that the State’s Attorney who had procured the indictment was defeated at the next election by the labor vote controlled by defendant. Dale asserted to his victims that the job never would be completed unless they did business in the “customary manner” and that an example of what would happen if they failed to do so was a job where there had been 87 work stoppages. Dale explained to his victims that to insure labor peace it was customary to pay him 1% of the contract price in cash. Rule 46(a) (2) Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: “Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. * * * ” Defendant contends a substantial question is involved because he claims that the Anti-Racketeering Act does not punish as extortion the obtaining of money or other valuable consideration by “fear” of mere economic reprisal. Secondly, defendant contends that there is not sufficient evidence in the record to support the charge that defendant was guilty of extortion by inspiring fear of physical violence. Defendant’s third point is that he was denied his constitutional rights because about a year prior to the time of the trial he was required to submit to inquisition before a Missouri grand jury at which time questions were directed to him with reference to certain labor practices at Joppa, Illinois. We consider first defendant’s principal contention that a substantial question is here presented for review because “fear” of economic loss is insufficient to support a conviction under the Anti-Racketeering Statute. Defendant says: “This question appears never to have been directly decided in any court.” In making this claim defendant’s counsel is clearly in error. The most recent case is Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied 75 S.Ct. 604. That Court, after pointing out that the Anti-Racketeering Act does not curtail legitimate labor activities, and after setting forth the same contentions made by the defendants there as made by the defendant here, stated, 219 F.2d at page 189: “Defendants have cited no authority sustaining their position. We conclude that ‘fear’ as defined in the extortion section of the Anti-Racketeering Act should be given its ordinary meaning, and consequently ‘fear’ would include fear of economic loss.” The Court also pointed out that in Nick v. United States, 8 Cir., 122 F.2d 660, 138 A.L.R. 791, the only threat that Nick had made was to have his operators strike, and the only fear there involved was the fear of economic loss. Nevertheless, the Court there sustained the conviction under a statute where the wording was similar to the statute under which the defendant, in the instant case, was prosecuted. Other cases where courts have held fear of economic loss and injury is sufficient under the extortion section of the Anti-Racketeering Act are United States v. Compagna, 2 Cir., 146 F.2d 524, and Hulahan v. United States, 8 Cir., 214 F.2d 441. We find no authority to the contrary. We do not think a substantial question is presented on this point. Defendant seems to concede that if he had used threats which inspired fear of physical violence and extorted or attempted to extort money by reason thereof, such conduct would be within the scope of the Anti-Racketeering Act. At least one count of the indictment herein made such a charge and defendant was found guilty thereof. Defendant now says that there was not sufficient evidence in the record to support that charge. Although we do not have the record before us, defendant here admits that witnesses (which the jury was entitled to believe) testified to threats made by defendant as hereinbefore set forth. We think such threats would naturally and logically inspire fear of physical violence. As the sentences imposed where to run concurrently the burden was upon petitioner to show error as to each count. Ex parte Cohen, 9 Cir., 191 F.2d 300, certiorari denied Cohen v. United States, 342 U.S. 947, 72 S.Ct. 551, 96 L.Ed. 704. See also United States of America v. Wheeler, 7 Cir., 219 F.2d 773, 774; United States v. Kelley, 7 Cir., 186 F.2d 598, 602, certiorari denied 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375, and United States v. Perplies, 7 Cir., 165 F.2d 874, 877. The petitioner has not met this burden. The remaining point relied on by defendant is that the trial court erred in denying defendant’s belated motion to dismiss the indictment. This motion was presented on the second day of the trial and claimed that defendant was subpoenaed and testified before a grand jury in the State of Missouri, and that at said time he did not have an attorney, nor was he advised of his privilege against self-incrimination. Although we think there is no merit to defendant’s contention, see Thompson v. United States, 7 Cir., 10 F.2d 781, certainly his objection to the indictment was not timely made. The indictment had been filed many months before the date of the trial. Defendant was represented by competent counsel. No showing is made that defendant claimed his privilege. His objection comes too late. United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687; Rule 12, Federal Rules of Criminal Procedure, 18 U.S.C.A. The attitude of this Court has been extremely liberal for granting petitions for enlargement upon bail pending appeal. However, we consider this an exceptional case. First, we are convinced that no substantial question is presented which should be determined by this Court. Second, if defendant were released on bail there would be a temptation, at least, for defendant to absent himself. The government points out that the defendant is presently under six indictments in the Eastern District of Illinois charging 37 violations of the Anti-Racketeering Act; that he is under an indictment in the Eastern District of Missouri charging offenses under the same statute, and that he is also under indictment in the Southern District of Illinois on the charge of evading more than $150,000 in income tax. Undoubtedly the District Court considered these numerous charges might be a temptation for the accused to seek a more hospitable climate. Applications for release upon bail pending appeal have been denied in similar cases. In Bianchi v. United States of America, 8 Cir., 219 F.2d 182, certiorari denied, 75 S.Ct. 604, the defendant’s motion for enlargement upon bail was denied by both the trial court and by the Court of Appeals for the Eighth Circuit. Thereafter, on May 5, 1954, Mr. Justice Clark of the Supreme Court likewise denied the application. Likewise in United States v. Callanan, D.C., 113 F.Supp. 766, defendant and four others were convicted of conspiracy under the Anti-Racketeering Act and of substantive offenses under that Act. Callanan was sentenced to imprisonment for 12 years under each count, and bail was denied him by the District Court pending appeal. Application was made by Callanan to the United States Court of Appeals for the Eighth Circuit which petition was there denied, 223 F.2d 171, following which Callanan applied to the Justices of the Supreme Court, but enlargement upon bail was denied him during the October Term, 1954. Petition for enlargement upon bail is Denied. . Some of the Court opinions refer to this section as the “Hobbs Act”. The original Anti-Racketeering Act of 1934, 48 Stat. 979, was re-enacted with amendments in 1946, 60 Stat. 420. Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. 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, Appellee, v. Joseph MAURO, Appellant. No. 379, Docket 74-2124. United States Court of Appeals, Second Circuit. Argued Nov. 6, 1974. Decided Nov. 25, 1974. Certiorari Denied March 24, 1975. See 95 S.Ct. 1426. Aaron Schacher, Brooklyn, N. Y. (Arnold E. Wallach, New York City, of counsel), for appellant Mauro. Paul B. Bergman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E.D.N. Y., Lee A. Adlerstein, Asst. U. S. Atty., of counsel), for appellee. Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges. IRVING R. KAUFMAN, Chief Judge:’ The inevitably uneven pace at which amendments to the Federal Rules of Criminal Procedure must be adopted presents us in this ease with a novel question concerning the requirement of timeliness for motions to suppress. Joseph Mauro, convicted on several charges of counterfeiting, attacks on this appeal the denial of his suppression motion which was made for the first time during the course of trial. We affirm. A statement of the convoluted facts will assist in making clear that the motion to suppress was untimely. Shortly after his release from prison in June of 1970, Louis Stoppiello found himself in need of money. Unable to acquire sufficient income to satisfy his needs through the custoniary channels, he turned to borrowing. Accordingly, he was introduced by Sal Seminara to Joseph Mauro, who loaned sums of money to Stoppiello. By October of 1971 Stop-piello had fallen far behind in his steep interest payments, and he and Mauro commenced discussions on ways in which the repayment might be made. The method ultimately arrived at proved satisfactory to both, though it contributed little to the solution of the current problem of inflation. Mauro undertook to supply Stoppiello with counterfeit bills in denominations of $10 and $20, and Stoppiello sold them at about 30% of the face amount. The proceeds of the sales were applied toward accrued interest on the debt owed Mauro. The pressures of the task of distributing counterfeit money proved to be somewhat wearing on Stoppiello, leading to his admission to the Brooklyn Veterans’ Administration Hospital. But his hope that he could be shielded in a hospital setting from the strains of his venture were short-lived, for on December 10, 1971 he received a visit there from his friend Seminara, who was accompanied by a man introduced as “Mickey.” Unknown to Stoppiello, Seminara had agreed to cooperate with the Government, and his companion was in fact Secret Service agent Michael Reilly. Always alert to new business opportunities, Stoppiello sold Reilly eight $10 bills, telling him at the same time that larger transactions could be arranged, although the price would have to be set by his supplier, “Joe.” In a later telephone conversation, Stoppiello quoted Joe’s figure at $27 per $100 face amount. The two men met again on December 30, after Stoppiello’s release from the hospital, at which time Reilly was given two more counterfeit bills. Shortly thereafter, they agreed to exchange $5000 in false bills on January 4, 1972, at Bay Parkway and 72nd Street in Brooklyn. On the morning of January 4, Stop-piello met with Mauro and one Lenny Bilz at Anton’s Luncheonette, a store located close to where the transaction was to take place. When Reilly failed to appear at the scheduled hour, Stoppiello telephoned him and arranged a new appointment for 2:00 P.M. the same afternoon. Mauro in the meantime had become apprehensive over Reilly’s trustworthiness, and so he instructed Stop-piello and Seminara, who had just arrived, that they were to make the transfer. Accordingly, Stoppiello removed the money from between some magazines in the back seat of Mauro’s light green 1967 Mustang which was parked nearby, and took it to the basement of his apartment house located opposite from Anton’s Luncheonette. Shortly after 2:00 P.M. Reilly, accompanied by agent Rick Zaino, arrived at Bay Parkway and 72nd Street in a blue Cadillac. Approximately seven other agents were stationed in the immediate vicinity. Stoppiello and Seminara appeared momentarily, then departed to retrieve the counterfeit bills from Stop-piello’s apartment, as Reilly drove into a nearby gasoline station to telephone his office. While he was on the telephone, Mauro drove into the station in his green Mustang, accompanied by Bilz. Mauro watched Reilly intently during his conversation, then walked over to him, as he was leaving the telephone, and frisked him. Had Reilly been carrying a gun — which he was not' — it would have confirmed Mauro’s suspicion that he was an agent. After the two had returned to their respective cars, Mauro maneuvered his Mustang to within two car lengths of Reilly’s Cadillac, where he remained throughout the unfolding events. Stoppiello and Seminara soon returned, and Seminara entered the Cadillac, carrying the money in a brown paper bag. Reilly then opened the trunk of his car — a signal to the seven agents nearby. Mauro and Bilz were immediately arrested and simulated arrests were also made of Reilly, agent Zaino, and Seminara. Stoppiello, who had fled, was apprehended at his apartment several hours later. As a result of the foregoing, Mauro’s Mustang was seized and delivered to the Custom’s Bureau Seizure Room for forfeiture pursuant to 49 U.S.C. §§ 781, 782 (1970). After his arrest and appropriate warnings, Stoppiello spoke freely with the agents about Mauro’s involvement, but refused to testify against Mauro. Apparently because the Plan for Achieving Prompt Disposition of Criminal Cases in the Eastern District of New York might require dismissal of the charges for failure to proceed to trial against Mauro, the complaint against him was dismissed upon the Government’s motion on February 15, 1972. Stoppiello, however, was indicted, and on March 3 he agreed to cooperate. He informed agent John Yiggiano that the steering column of Mauro’s Mustang had several counterfeit bills hidden in it. Without a warrant, Viggiano quickly went to Max-ford’s Garage in Manhattan, where the car was stored, and extracted from the steering column five $10 bills whose serial numbers matched those printed on the money Seminara had given Reilly on January 4. Ten days later Mauro petitioned for reclamation of the car, and upon its return repaired the steering column at a cost of $150. The forfeiture proceedings which had been instituted were then abandoned by the Government. Despite these adversities, Mauro continued undaunted in his lending activities. He continued to meet with Stop-piello, pressing him for the still unpaid principal and interest. Stoppiello, whose sentence was adjourned after a plea of guilty to passing two counterfeit notes on December 30, 1972, agreed to continue his cooperation with the Government by concealing a small transmitting device on his person to record his conversations with Mauro. Tapes of their discussions on June 15, June 28, and July 12, 1972 provided full substantiation of Mauro’s involvement in the January 4 transaction. In the course of the July 12 conversation Mauro also stated that he and his then attorney, George Rosen-baum, had learned of Stoppiello’s role in the discovery of the bills in the steering column of the Mustang from the files at the Bureau of Customs. Because of Stoppiello’s belated testimony and the information contained in the tapes, an indictment was returned against Mauro on July 13, 1972, charging possession and transfer of the 500 counterfeit bills which Seminara had given Reilly, and conspiracy to possess and sell counterfeit money. After pretrial proceedings on January 8, 1974, Aaron Schacher — who replaced Rosen-baum as Mauro’s counsel — made extensive requests relating to the taped conversations. The Government furnished Schacher with a full transcript of the conversations on January 14, 1974 and Schacher and Mauro listened to the tapes on January 26, 1974. On March 4, seven days after the trial had begun, Mauro moved — on the basis of material supplied several days before by the Government pursuant to 18 U.S.C. § 3500— to suppress the money found in the steering column of his car. The district court denied this motion, finding the warrantless search and seizure reasonable since the Mustang had lawfully been seized for forfeiture, and also because there had been no unreasonable delay in the forfeiture proceedings. Moreover, Judge Mishler held that the motion to suppress was untimely. Mauro was subsequently convicted of conspiracy to deal in counterfeit money, 18 U.S.C. § 371 (1970), possession of 500 counterfeit $10 Federal Reserve Notes, 18 U.S.C. § 472 (1970), and transfer of these 500 notes, 18 U.S.C. § 473 (1970). Because we agree that the motion to suppress was untimely we affirm the conviction. A proper understanding of new Fed. R.Crim.P. 41(f), governing motions to suppress in the federal district courts, requires a brief examination of its predecessor, old Rule 41(e), as well as a cursory review of the amendments of the Federal Rules which may have left the meaning of present 41(f) unclear. Prior to 1972, Rule 41(e), governing motions both for return of property and for suppression, provided: A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained . . . . The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing. The requirement that motions to suppress be made in advance of trial, although not incorporated in a rule until 1946, was in fact no more than a restatement of the existing law and practice. Advisory Committee Notes to Fed.R.Crim.P. 41(e), 18 U.S.C.A. at 213 (1961); United States v. DiRe, 159 F.2d 818, 820 (2d Cir. 1947) (L. Hand) (dic-turn), aff’d, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The requirement that objections be timely made served a number of important purposes. Foremost among these, of course, was the need to avoid interruptions of a trial in progress with auxiliary inquiries which not only broke the continuity of the jury’s attention, but also interfered with that “[djispatch in the trial of criminal causes [which] is essential in bringing crime to book.” Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). Prompt objection to evidence which may have been illegally seized serves other objectives as well. A motion in advance of trial avoids the serious personal inconvenience to jurors and witnesses which would result from interruptions and delay once the jury had been selected and the trial had commenced. United States v. Bennett, 409 F.2d 888, 901 (2d Cir.), rehearing denied, 415 F.2d 1113, cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969). Cf. United States v. Allied Stevedoring Corp., 241 F.2d 925, 931 (2d Cir. 1957) (L. Hand, J.) The more telling argument is that the waste of prosecutorial and judicial resources occasioned by preparation for a trial could be avoided if a timely and successful motion were made in advance. United States v. Salli, 115 F.2d 292, 293 (2d Cir. 1940). In addition, we cannot ignore the right of immediate appeal provided to the Government by the Omnibus Crime Control Act of 1968, as amended, 18 U.S.C.A. § 3731 (Supp. 1974) (appeal from pre-trial grant of motion to suppress); see also 18 U.S.C. § 2518(10) (b) (wiretap evidence). This right would be rendered meaningless if a request for suppression could be postponed until mid-trial, when the only alternative to abandonment of the prosecution would be completion of a fruitless and sometimes lengthy trial in the hope of an ultimately successful post-trial appeal from the granting of the suppression motion. Despite these .persuasive reasons for continuation of the timeliness requirement, the 1972 amendments to the Federal Rules of Criminal Procedure appear to have omitted the requirement from the successor to former Rule 41(e). An examination of the history of these and subsequent changes demonstrates, however, that the apparent ellipsis is due to the piecemeal adoption of rule changes rather than to any conscious purpose on the part of Congress or the rulemakers. Present Rule 41(f), adopted in 1972, provides: A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12. Present Rule 12(b) states, however, that (1) . . . Any defense or objec- tion which is capable of determination without the trial of the general issue may be raised before trial by motion. [Emphasis supplied.] The provision for a pre-trial motion to suppress would thus appear to be permissive rather than mandatory. That this should be the effect of the amendment to Rule 41 would be strange indeed, in the face of the advisory committee’s commentary that The amendment to subdivision(e) [of Rule 41] and the addition of subdivision (f) are intended to require the motion to suppress evidence to be made in the trial court rather than in the district in which the evidence was seized as now allowed by the rule. Advisory Committee Notes to Fed.R. Crim.P. 41, 18 U.S.C.A. at 60 (Supp. 1974). Because old Rule 41(e) allowed suppression motions to be brought in the district where evidence was seized as well as the district where the trial was to take place, it often resulted in needless duplication of effort. To remedy this problem, the 1972 changes prescribed distinct procedures for motions for return of property as distinguished from suppression motions. Motions for return could still be brought in the district of seizure, but motions to suppress were required to be made in the trial court. Not the slightest indication is given that the change was intended to relax in any degree the time schedule for the making of a motion either to return or to suppress property. Only the places where such motions were to be brought were dealt with. The confusion has its roots in the fact that amended Rule 41 was intended to be accompanied by modifications to Rule 12, which would have made clear that the requirement of timeliness was to be continued. The preliminary draft provided : 12(b) Pre-trial Motions .... The following must be raised prior to trial: (3) Motions to suppress evidence on the ground that it was illegally obtained ; (f) . . . Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts 26-29 (1970). Although proposed Rule 12 was not transmitted to Congress in 1972 as a corollary to changes in Rule 41, the difficulty obviously lay elsewhere than in these sections, for the version ultimately transmitted on April 22, 1974 differs from the preliminary draft in only insignificant respects. See 42 U.S.L.W. 4553 (April 23, 1974). Congress recently postponed the effective date of the amendments transmitted in April of 1974 until August 1, 1975. Pub.L.No. 93-361 (July 30, 1974). Mauro makes no claim in this case of misplaced reliance upon the conjunction of the presently effective Rules 41(f) and 12(b). In these circumstances, given the persuasive indications that the 1972 amendments were not intended to abolish the requirement that suppression motions should be made in advance of trial, we find quite proper the admission of evidence of the bills taken from the steering column of Mauro’s Mustang. It is clear that Mauro knew early in 1972 that the column had been opened, since the car was returned to him shortly after his petition for reclamation on March 13 of that year, and he was charged $150 to have it repaired. In addition, the transcript of the July 12 conversation discloses that even before the indictment was filed both Mauro and Rosenbaum, his attorney at the time, had learned from the Customs Bureau files that Stoppiello had informed agent Viggiano of the cache. A transcript of that same conversation was given to Schacher on January 14, 1974, shortly after he was substituted for Rosenbaum as Mauro’s counsel, and more than a month in advance of trial. Schacher also listened to the tapes of the conversations on January 26. Under these circumstances we find little merit to the contention that the § 3500 material, supplied at the conclusion of Stoppiello’s testimony, was the first information concerning the seizure received by Mauro and his counsel. There was ample opportunity to move to suppress during the nineteen months between the return of the indictment and trial, and the failure to do so — especially in light of the other overwhelming evidence against Mauro — is fatal to Mauro’s objection belatedly raised in the course of the trial. Affirmed. . We recently recognized that a witness’s refusal to testify is not equivalent to “unavailability” which, under the Plan, will have the effect of tolling the running of the six-month period within which the Government must be ready for trial. United States v. Flores, 501 F.2d 1356 (2d Cir. 1974). Dismissal of the complaint would, however, have that effect. Id. at 5149-50. . This indictment was consolidated for trial with another, charging Mauro with extortion, 18 U.S.C. § 894(a) (1970), in connection with the loans made to Stoppiello. Mauro was acquitted of the extortion charges. 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_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. NOR-AM AGRICULTURAL PRODUCTS, INC. and Morton International, Inc., Plaintiffs-Appellees, v. Clifford M. HARDIN, Secretary of Agriculture, G. W. Irving, Jr., Administrator Agricultural Research Service and Harry W. Hays, Director Pesticides Regulation Division, Defendants-Appellants. No. 18478. United States Court of Appeals, Seventh Circuit. Nov. 9, 1970. Howard S. Epstein, Dept, of Justice, Washington, D. C., William J. Bauer, U. S. Atty., Chicago, Ill., for defendants-appellants; Harold M. Carter, Director, Regulatory Division, Raymond W. Fullerton, Atty., Regulatory Division, Office of the General Counsel, Dept, of Agriculture, Washington, D. C., of counsel. Holland C. Capper, Chicago, Ill., for plaintiffs-appellees; Robert B. Gerrie, James H. Ryan, Geoffrey G. Gilbert, McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel. Before SWYGERT, Chief Judge, and KILEY, FAIRCHILD, CUMMINGS, KERNER and PELL, Circuit Judges. CUMMINGS, Circuit Judge. This is an appeal from a preliminary injunction granted by the district court which effectually restrains the Secretary of Agriculture and other personnel of the Department of Agriculture from continuing the suspension of the registration of 17 Panogenic compounds as “economic poisons” under the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135 et seq. A three-judge panel of this Court, one judge dissenting, upheld the preliminary injunction. 435 F.2d 1133. Subsequently, the Government’s petition for a rehearing en banc was granted. Plaintiff Morton International, Inc. manufactures seventeen types of cyano (methylmercuri) guanadine known as Panogens. Plaintiff Nor-Am Agricultural Products, Inc. distributes Morton’s Panogens. These mercury compounds are used as fungicides in treating seeds intended for planting. They were duly registered as “economic poisons” with the Secretary of Agriculture, as required by Section 4(a) of the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135b(a). Pursuant to Section 4(c) of the Act (7 U.S.C. § 135b(c)), on February 18, 1970, the Department of Agriculture telegraphed plaintiff Nor-Am that its Panogen registrations had been suspended “in view of the recent accident involving the ingestion of pork from hog feed seed treated with cyano (methylmercuri) guanadine.” On the same date, Dr. Harry W. Hays, Director of the Pesticides Regulation Division of the Agricultural Research Service, sent a letter to Nor-Am more fully explaining the Department’s action. That letter indicated that the registration of the 17 Panogens was suspended “[t]o prevent an imminent hazard to the public from the use of cyano (methylmercuri) guanadine as a seed treatment.” The letter referred to three New Mexico children who had been hospitalized in a comatose condition because they had eaten pork from hogs fed screenings and sweepings from seed previously treated with a fungicide product containing cyano (methylmercuri) guanadine. The letter added that the Panogen labels were inadequate to prevent the treated seed screenings and sweepings from being fed to hogs. Dr. Hays further said that other incidents had been reported showing that mercury treated seed screenings and sweepings had been fed to livestock or “disposed of in a manner that results in wildlife feeding on them.” Finally, the letter noted that the ingestion of cyano (methylmercuri) guanadine reportedly caused irreversible injury to the central nervous system. On March 27, 1970, the Director of Science and Education in the office of the Secretary again wrote Nor-Am. This letter elaborated the reasons for the emergency suspension: “The action * * * was based on the fact that the directions for use and precautionary statements have failed to prevent treated seed from being used as feed. Recent reports also indicate that birds feeding on treated seed have significant levels of mercury in their tissues. “In view of the insidious nature of alkyl mercury poisoning and the irreversible injury to the central nervous system, we firmly believe that this class of compounds should be discontinued for seed treatment. To allow new stocks to enter channels of trade would increase the risk of injury to man and other vertebrate animals.” On March 9, 1970, the registrations of similar products of other manufacturers were suspended. The suspensions prevent the shipment of these products until their registration is again permitted. Plaintiffs and the other distributors and manufacturer were not, however, required to recall existing stocks from their customers. Administrative review of the Secretary’s order was initiated on March 27, 1970, when Nor-Am requested an expedited administrative hearing as provided by Section 4(c) of the Act. Instead of awaiting such a hearing, however, plaintiffs filed this suit on April 9, 1970, and quickly sought a preliminary injunction. Thereupon defendants moved to dismiss the proceeding. They claimed that the district court lacked jurisdiction to review the suspension order in advance of the hearing established by the statute; that plaintiffs had not exhausted the administrative procedures established by the Act; that the Secretary’s order was a non-reviewable, discretionary act; and that the Secretary had not acted arbitrarily or capriciously. This motion was supported by an affidavit of Dr. Hays describing two specific instances of contamination of meat resulting from the consumption of mercury-treated seed by swine or cattle. The affidavit noted action taken by Sweden in November 1965 to restrict the use of alkyl mercury as a result of studies indicating contamination of fish. Dr. Hays further cited an available publication describing numerous reports of accidents associated with the use of mercury in treating seeds. He averred that alkyl mercury can produce permanent damage to the central nervous system, and that there are no known effective antidotes for chronic poisoning by that substance. Finally, as additional support for the emergency action, the affidavit stated that the Advisory Center on Toxicology, National Academy of Sciences, had expressed the opinion in March 1970 that all alkyl mercury compounds should be considered alike in terms of their toxicological properties, and that on February 27, 1970, the Public Health Service of the Department of Health, Education, and Welfare had recommended the cancellation of organo mercury compounds for seed treatment because of the hazard associated with their use. At the hearing on the motion for the preliminary injunction, two Nor-Am employees and the general manager of a seed improvement association testified that Panogen products had been marketed for 20 years as a very useful fungicide seed treatment. Nothing as economical or efficacious is available as a satisfactory substitute for liquid methyl-mercury seed treatment products. Plaintiffs added a red dye to their products in order to prevent misuse of treated seed as human or animal feed. Warning labels were also prepared by plaintiffs for use on their products and on the treated seed containers. Plaintiffs’ witnesses knew of no “permanent” injuries caused by Panogfens. . Dr. Hays testified that when the February 18th suspension telegram was sent, to his knowledge the only permanent human injuries resulting from the use of Panogens were to the three Alamogordo, New Mexico, children. Twelve of the 14 hogs fed the treated seed near Alamogordo died. He stated that alkyl mercury compounds have a propensity to accumulate in the central nervous tissues, particularly in the brain. Such effects have not only been reported in laboratory animals but observed in pheasants, quail and other wildlife. The scientific community has discovered no effective antidote for alkyl mercury compounds. High levels of mercury have been found in the tissues of pheasants and quail in California and Ohio. He considered alkyl mercury substances used for the treatment of seed as imminently hazardous to the public because they “can be ingested by wildlife, or inadvertently used by domestic animals, or ingested by man." There is an inadequate degree of control in preventing treated seed from getting into feed or food, as evidenced by the number of grain seizure actions taken in the past by the Food and Drug Administration after finding such treated seed in grain. He felt that such treated seeds involve an undue risk to the public and that labels are inadequate to prevent any accidental misuse. After the hearing, the district judge found that the court had jurisdiction over the subject matter of the dispute pursuant to the provisions of 28 U.S.C. § 1331, 28 U.S.C. § 1337, 28 U.S.C. §§ 2.201-2202, Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the “general equity powers of this Court.” The district judge also determined that unless preliminary injunctive relief were granted, plaintiffs would suffer irreparable harm for which they had no adequate administrative or legal remedy, although they were “likely to prevail on the merits.” The judge further concluded that preliminary relief was “consistent with the public interest.” Accordingly, he held the suspension of the Panogen registrations to have been arbitrary, capricious, and contrary to law, and defendants were enjoined from taking action against plaintiffs or the Panogens in reliance on the suspension order. Defendants were also ordered to give notice that the Panogens may again be distributed and sold in interstate commerce. Finally, the preliminary injunction permitted defendants to issue notices of cancellation of the registrations of these “economic poisons” effective only after the public hearing permitted by Section 4(c) of the Act. Upon consideration of this cause by the entire Court, we are of the opinion that the district court lacked power to grant this relief because the plaintiffs have not exhausted their administrative remedy. The fundamental provisions regulating judicial review of administrative actions are contained in the 1946 Administrative Procedure Act. 5 U.S.C. § 701 et seq. Section 10(c) of that Act governs which agency actions shall be reviewable : “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. * * ” 5 U.S.C. § 704. I In determining the status of the instant suspension in the light of the Administrative Procedure Act, we must turn first to the pertinent provisions of the Federal Insecticide, Fungicide and Rodentieide Act. 7 U.S.C. § 135 et seq. The 1964 amendments to Section 4 of that Act (Pub.L. 88-305, 88th Cong., 2nd Sess.) greatly strengthened the ability of the Secretary of Agriculture to take affirmative action protecting the public from hazardous and mislabeled commodities. ' Congress enacted new powers to deny, suspend, and cancel registrations where the Secretary had previously been compelled to accede to registration under protest should he be faced with an adamant demand. In Section 4(c), Congress also added hearing procedures guiding the exercise of these new powers. 7 U.S.C. § 135b (c). The Secretary was required to give notice to the appellant or registrant of asserted defects and, upon request, was obliged to refer the dispute to an “advisory committee” of experts or to a public hearing. In the event of an adverse determination by the Secretary after consideration of the matter by an advisory committee, the applicant or registrant could again request a public hearing. Notwithstanding these procedural specifics, Congress provided for emergency action by permitting immediate suspension of registration in the face of “an imminent hazard to the public.” 7 U.S. C. § 135b(c). In almost the same breath, however, Congress recognized the need for prompt determination of the accuracy of the Secretary’s judgment and provided that in the wake of an emergency suspension the Secretary should “give the registrant prompt notice of such action and afford the registrant the opportunity to have the matter submitted to an advisory committee and for an expedited hearing under this section.” The 1964 Amendments also added special provisions for judicial review of agency actions directed toward denial, suspension, or cancellation of the registration of “economic poisons.” After describing the Secretary’s expanded powers and their mode of exercise, Section 4(e) states that “[f]inal orders of the Secretary under this section shall be subject to judicial review, in accordance with the provisions of subsection d. * ” 7 U. S.C. § 135b(c). Section 4(d) outlines the mechanics, forum, and character of the judicial review contemplated by Congress: “d. In a case of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. * * The findings of the Secretary with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole, including any report and recommendation of an advisory committee. * * * The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. The court shall advance on the docket and expedite the disposition of all causes filed therein pursuant to this section.” 7 U.S.C. § 135b(d). Together, these statutory provisions do not expressly or impliedly contemplate immediate review of emergency suspensions by either district or appellate courts. The reference to review of “any order” contained in Section 4(d) indicates no broadening of the class of reviewable orders under Section 4(c), for judicial review must conform to the nature of the order, “the context of the Act,” and “the relation of judicial power to the subject-matter.” Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 106, 68 S.Ct. 431, 434, 92 L.Ed. 568; see also, Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 384-385, 58 S.Ct. 963, 82 L.Ed. 1408. Implicit in Section 4(d) is the limitation on judicial review resulting from the specific extension on review in Section 4(c) only to “final orders of the Secretary.” Section 4(d) thus merely details the prodecural aspects and standards of the judicial review permitted by Section 4(e). Cf. McManus v. Civil Aeronautics Board, 286 F.2d 414 (2d Cir. 1961). Equally unacceptable is the contention that an emergency suspension order is a “final order” of the Secretary made reviewable by Section 4(c). That limitation on judicial review serves to avoid delay and interference with agency proceedings by confining review to orders effectively terminating administrative adjudication. Cf. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 224, 232, 84 S.Ct. 306, 11 L.Ed.2d 281. The suspension order and surrounding procedural scheme of the 1964 Statute refute the conclusion of finality under this Act. See Jaffe, Judicial Control of Administrative Action, p. 418 (1965). By its very nature and within the explicit purview of Section 4(c), the emergency suspension of registration represents a tentative, temporary measure. This interlocutory character is unaltered by the inclusion of the customary prerequisite that the hazard be “imminent.” It is preliminary to more thorough administrative consideration of the hazardous condition of the “poisons.” The statute expressly contemplates special proceedings to follow suspension posthaste. These include the informal submission of the disputed matters to an advisory committee of experts whose report and recommendations become part of the record for consideration at the expedited hearing and, under Section 4(d), on judicial review. The emergency suspension becomes final only if unopposed or affirmed, in whole or in part, by subsequent decision based upon a full and formal, consideration. The provisions for judicial review spelled out in the statute also compel the inference that the emergency action of the Secretary by no means culminates administrative proceedings on the matters of registration of an “economic poison.” Review is not “de novo” in a trial court; rather, it is based on the substantiality of the evidence in the administrative record and is before the appropriate court of appeals. Such provisions with respect to judicial review are classic indications that Congress intended administrative adjudications to proceed to conclusion prior to judicial scrutiny. We conclude that Congress intended to confine judicial review of registration disputes under Section 4(c) of the Act to final orders of the Secretary culminating administrative adjudication. Under this Act, the emergency suspension of registration preceding such adjudication does not constitute such a final order and is therefore not “reviewable by statute” within Section 10(c) of the Administrative Procedure Act, supra, p. 1155; II Plaintiffs contend that this order should nevertheless entitle them to review under the “final agency action” provision of Section 10(c) of the Administrative Procedure Act. They argue that suspension of registration by the Secretary possesses sufficient “finality” as an administrative action to warrant immediate recourse to the courts despite its status as a preliminary act within the framework of Section 4(c) of the Federal Insecticide, Fungicide and Rodenticide Act. Suspension, they urge, immediately and drastically affects their rights and interests as greatly as formally finalized cancellation. They suggest that neither subsequent agency proceedings nor judicial review established by Section 4(d) adequately test the Secretary’s determination of “imminent hazard to the public.” Unless they are permitted this exceptional remedy, they claim that the Secretary’s findings amount, to autonomous discretion. Under Section 10(c) of the Administrative Procedure Act, the concept of finality of administrative action encompasses a complex array of considerations which may vary in accordance with the character and activities of the administrative agency, and with the nature and role of the agency action from which judicial review is sought. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-156, 87 S.Ct. 1507, 18 L.Ed.2d 681. The flexibility of the finality concept does not, however, permit facile disregard of the purposes of congressional delegation of power and of the clear procedural scheme delineated in this particular statute. The importance of executive and administrative autonomy, as well as respect for the will of Congress, was observed in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767-768, 67 S.Ct. 1493, 1500-1501, 91 L.Ed. 1796: “The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.” The function of the Secretary’s emergency power, as well as the practical exigencies of coordinating administrative and judicial machinery, militates against avoiding the prescribed procedures. The emergency suspension of registration of an economic poison under Section 4(c) involves highly discretionary administrative action with deeply rooted antecedents in the realm of public health and safety. In subtle areas of regulation, summary emergency action frequently precedes formal administrative or judicial adjudication. See, e. g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599-600, 70 S.Ct. 870, 94 L.Ed. 1088; cf. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S.Ct. 608, 75 L.Ed. 1289; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030. Where, as here, Congress follows discretionary preliminary or interlocutory agency action with specially fashioned adjudicative machinery, strict observance of the prescribed procedure prior to judicial intervention is compellingly indicated. Precipitous judicial review of this tentative judgment would at best be a difficult matter of dubious social benefit. Moreover, it strains administrative resources at a stage in the process which is most delicate and to a degree which may ultimately be rendered unnecessary by ordinary agency operations, both formal and informal. Even the limited review here contemplated nullifies the need or utility of the further agency action desired by Congress. The administrative process is interrupted before issues have been crystalized and narrowed and without affording opportunity for application of technical expertise and informed judgment. As this record demonstrates, judicial review at this stage requires factual elaboration by the district court. Such bifurcation and duplication of governmental resources and efforts demontrates the wisdom of judicial restraint, since once the district court has inserted itself into the process, it becomes wasteful or pointless to return the matter to the agency. Securities and Exchange Commission v. R. A. Holman & Company, Inc., 116 U.S.App.D.C. 279, 323 F.2d 284, 287 (1963), certiorari denied, 375 U.S. 943, 84 S.Ct. 350, 11 L.Ed.2d 274. Judicial scrutiny of the accuracy and correctness of the Secretary’s emergency suspension largely abrogates need of expedition of further agency proceedings. At the very least, however, the agency must postpone its further proceedings (even if it plans ultimately to expedite them) pending the outcome of judicial review. Not only may this aggravate the harm suffered by the innocent registrant by prolonging litigation, but it unnecessarily encumbers governmental efforts and may have the adverse effect of coloring further agency actions. Nothing in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, relied upon by plaintiffs, suggests a contrary conclusion regarding the reviewability of the instant suspension order. Abbott Laboratories was an action for essentially declaratory review of a strictly legal issue concerning the validity of a regulation. The rule-making process of the agency had culminated, and judicial review would neither impede enforcement of the regulation nor interfere with administrative proceedings. Entirely different considerations are operative where, as here, judicial review is sought of the factual basis supporting an emergency order which itself initiates clearly defined adjudicatory proceedings within the agency. These distinctions were expressly recognized by the Court in Abbott Laboratories when it distinguished Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088, by pointing out that the “drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act.” 387 U.S. at p. 148, 87 S.Ct. at p. 1515. Similarly, we find distinguishable and inapplicable the holding in Environmental Defense Fund, Incorporated v. Hardin, 428 F.2d 1093, 1098-1099 (D.C. Cir. 1970), as it might relate to action by the Secretary of Agriculture in suspending registrations of an economic poison. There the Secretary of Agriculture refused to issue notices of emergency suspension or cancellation for DDT and the Court concluded that due to his inaction there were no further administrative proceedings available to the interested parties under the Federal Insecticide, Fungicide and Rodenticide Act. In contrast, issuance of a notice of emergency suspension under Section 4(c) of the present Act specifically results in further formal agency proceedings. These differing administrative consequences command respect and negate the present applicability of the conclusion reached by the court in Environmental Defense Fund that “[n]o subsequent action can sharpen the controversy arising from a decision by the Secretary * 428 F.2d at p. 1098. Judicial review of the Secretary’s suspension order is inconsistent with the procedural remedies created by Congress for such an occasion. It is also at odds with the restraint courts have long exercised in dealing with preventive measures available to agencies charged with protecting such sensitive areas of public welfare. Here the plaintiffs have not yet exhausted their statutorily prescribed administrative remedies and there has as yet been no “final agency action” within Section 10(c) of the Administrative Procedure Act. III In addition to the statutory avenues of review, plaintiffs urge that the equity powers of the court have been properly invoked to prevent irreparable injury caused by the suspension order. The circumvention of clearly prescribed administrative procedures by awarding equitable relief is an exceptional practice. As explained in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773-774, 67 S.Ct. 1493, 1503-1504, 91 L.Ed. 1796, the rule that administrative remedies may occasionally be by-passed to protect strong private interests from irreparable harm “is not one of mere convenience or ready application. Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action or in advance of it, a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm, to permit shortcircuiting the administrative process. Congress’ commands for judicial restraint in this respect are not lightly to be disregarded.” Plaintiffs have failed to establish such an irremediable threat to sufficiently strong interests to warrant equitable intercession at this juncture. We cannot accept the verdict of the judge below that the administrative remedies are inadequate. There is no contention that the Secretary has usurped powers beyond his jurisdictional scope. Cf. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772. Unlike Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, plaintiffs can assert their claims as a practical matter, informally and formally, without judicial interruption of agency practices. Nothing in the nature of the objections raised by plaintiffs here suggests that exhaustion of agency remedies would be an exercise in futility. Cf. McKart v. United States, 395 U.S. 185, 197-198, 89 S.Ct. 1657, 23 L.Ed.2d 194. The administrative agency has shown no incapacity or unwillingness to correct a demonstrably false suspension without advice from the courts. We have no basis for concluding that expedition by the agency would be any less effective than expedition by the judiciary. Finally, failure of the courts to entertain a complaint at this time does not foreclose judicial review entirely. See Yakus v. United States, 321 U. S. 414, 64 S.Ct. 660, 88 L.Ed. 834; cf. McKart v. United States, supra, 395 U.S. at p. 197, 89 S.Ct. 1657; Environmental Defense Fund, Incorporated v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970). The primary interests threatened in this case are not public but private. They are interests of property rather than of life or liberty. Although plaintiffs claim danger to farmers and consumers from removal of their products, their direct and immediate concern is the impact of suspension upon their businesses. In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S.Ct. 459, 464, 82 L.Ed. 638, Justice Brandéis observed that. “the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage.” We do not demean plaintiffs’ possible losses when noting moreover, that the temporary suspension affects business profits, not the very existence of the commodities plaintiffs seek to purvey. Where public health and safety demand emergency removal of a commodity from the market, even unrecoverable financial losses incurred pendente lite must be deemed an expense of the litigation itself. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088; cf. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030. Congress was not bound to supply the optimal protection to registrants affected by emergency suspensions. Congress balanced the public and private interests when it fashioned not only the Secretary’s discretionary power but also the administrative procedures to follow exercise of that power. The Court’s conclusion in Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 601-602, 70 S. Ct. 870, 874, 94 L.Ed. 1088, is applicable to this case with equal force: “The purpose of the * * * provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of [suspensions], and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by [suspension], * * What we do today determines the jurisdiction of the District Court in all the eases in that category. If the court in the present case can halt all [suspensions] but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of [suspension]. We would impair or destroy the effectiveness of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail.” If this preliminary injunction were approved, other litigants could obtain district court threshold review by parroting plaintiffs’ claim that the Secretary had acted arbitrarily and capriciously in suspending their registrations, even though Sections 4(c) and 4(d) specify that review shall only be in the courts of appeals after action by the advisory committee and then by the Secretary. We should not countenance such an evasion of the review procedure provided by Congress in this statute. In reaching this conclusion, we express no opinion on the merits of the controversy between these parties concerning the registration of Panogens. The preliminary injunction is dissolved and the case is remanded to the district court with instructions to dismiss the complaint. Reversed. . At the hearing below, the Assistant United States Attorney advised the court that this suspension matter had been placed on the Department’s calendar on an expedited basis. Its processing has been interrupted by this litigation. . The first and most serious instance described by the affidavit involved the aforementioned severe mercury poisoning of members Of an Alamogordo, New Mexico, family in January 1970. The members of that family had ingested pork from contaminated hogs which had been fed mercury-treated seeds. The second instance of meat contamination involved seven Oregon cattle fed mercury-treated seed by a farmer and consequently declared unfit for human consumption. . Bidstrup, Industrial Poisoning with Mercury. . In addition to the provision for imiAediate suspension of registration to prevent an imminent hazard to the public, which is the subject of this suit, Section 4(c) permits cancellation of registrations. The cancellation is effective 30 days after service of notice by the Secretary upon the registrant “unless within such time the registrant (1) makes the necessary corrections ; (2) files a petition requesting that the matter be referred to an advisory committee; or (3) files objections and requests a public hearing.” 7 U.S.C. § 135b (c). We have been advised that the Secretary issued such notices of cancellation on August 4, 1970, nine days before this rehearing was granted, but an advisory committee was not convened to process the matters as of September 30, 1970, possibly because of the pendency of this rehearing. . See generally, 3 Davis, Administrative Law Treatise, Ohs. 20, 21 (1958) ; Jaffe, Judicial Control of Administrative Action, Ch. 10 (1965). . Compare the similar suspension provision in the Pood, Drug and Cosmetic Act (21 U.S.C. § 355(e)) which would also be thwarted if the reasoning below were applied to it. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_respond1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. In re CRYSTAL PALACE GAMBLING HALL, INC., Debtor. CRYSTAL PALACE GAMBLING HALL, INC., Frank P. Silver, Donald Brown, Frank Meyer, Appellants and Cross-Appellees, v. MARK TWAIN INDUSTRIES, INC., Appellee and Cross-Appellant. Nos. 85-1614, 85-1663. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1986. Decided May 20, 1987. Eric Zubel, Las Vegas, Nev., for appellants and cross-appellees. Dawn Coda-Wagener, Los Angeles, Cal., for appellee and cross-appellant. Before NORRIS, BEEZER and BRUNETTI, Circuit Judges. PER CURIAM: I FACTS AND PROCEEDINGS BELOW On January 16, 1980, the Crystal Palace Gambling Hall filed a Chapter 11 bankruptcy petition. On May 25, 1984, Crystal Palace and Mark Twain Industries (MTI) entered into an agreement whereby Crystal Palace would sell the casino to MTI. Pursuant to this purchase agreement, MTI deposited $450,000 into an escrow account on June 18 of that year. Crystal Palace had filed a plan of reorganization on May 31, 1984, and on October 1 the district court ordered that the proposed plan be confirmed. In that order, the court stated that “[t]he effective date of the plan shall be the date the sale to Mark Twain Industries closes, which sale shall close not less than thirty (30) days from the entry of this Order.” For some reason, the district court’s order of October 1 was not entered until October 17. On October 29, counsel for Crystal Palace approached the district court ex parte, without notice to MTI, and sought modification of the district court’s order. As a result, the district judge entered a second order modifying the terms of the first order from “not less than thirty days” to “[the] sale shall close by October 31,1984.” That order was entered on November 1 (the day after the order required the sale to close). On October 30, counsel for MTI filed a motion to extend the time for closing the sale until November 10. On November 8, MTI petitioned for an expungement of the court’s October 29 order, and sought an order confirming the plan of reorganization. The court granted the motion, expunged its second order, and ordered the sale to occur “on or before ... November 16, 1984.” Between November 9 and November 19, the debtor filed numerous motions. However, none of these motions sought clarification or reconsideration of the district court’s order that required the sale to close on November 16. On November 13; MTI deposited the purchase price ($4,500,000) with the escrow holder. On November 15, Crystal Palace filed a notice of appeal from the court order that required sale on November 16. This appeal was entitled In re Crystal Palace Gambling Hall, Inc., Debtor, Crystal Palace Gambling Hall, Inc. vs. Mark Twain Industries, No. 84-2735. Crystal Palace did not seek a stay of the district court’s order pending appeal. On December 27, MTI filed a motion for dismissal of the appeal, and on February 21, 1985, the appeal was dismissed. On November 16, 1984, the district court appointed a special master for the purpose of considering (1) MTI’s motion for an order to show cause why the debtor should not be held in contempt, (2) Crystal Palace’s motion requiring MTI to forfeit the earnest money deposit, and (3) Crystal Palace’s modified plan of reorganization. On November 27, Crystal Palace signed an agreement with Margaret Elardi to sell the casino to her. Also on November 27, the special master filed his report and recommendations. Both parties filed objections to the special master’s report, and on December 31, the district judge issued an order as to the objections of both parties. In that order, the court generally adopted the master’s recommendations, and directed the appellants to immediately execute all the closing documents necessary to sell the casino to MTI. Contrary to the master’s recommendation, the judge found both Crystal Palace and its shareholders in contempt of court for failure to close the sale in conformity with his prior order. The judge ordered the debtor and shareholders to pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.” The judge also expressed concern that he had been misled into signing the October 29, 1984 order. The sale to MTI was finally concluded on January 11, 1985. On January 30, Crystal Palace filed a notice of appeal from the district court’s December 31 order, and on February 8, the shareholders joined in that appeal. On February 8, MTI also noticed its cross-appeal of the district court’s December 31 order. II JURISDICTION As we have stated previously, “[w]here the contempt proceeding is the sole proceeding before the district court, an order of civil contempt finding a party in contempt of a prior final judgment and imposing sanctions is a final decision under section 1291.” Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The order is final for purposes of section 1291 “[e]ven though the size of the sanction imposed by the order depends upon the duration of contumacious behavior occurring after entry of the contempt order, ....” Id. Thus, the contempt order in this case is appealable. However, the filing of a timely notice of appeal is “mandatory and jurisdictional....” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960). MTI alleges that the shareholders did not file a timely notice of appeal. Federal Rule of Appellate Procedure 4(a) states that notice of appeal “shall be filed with the clerk of the district court within 30 days after ... entry of the ... order appealed from____” Fed.R.App.P. 4(a)(1). The order appealed from was entered December 31, 1984, and MTI argues that since notice of appeal was not filed until February 8, 1985, well past the thirty day limit, it was untimely. Generally, an notice of appeal must be filed within thirty days. However, under the circumstances of this case, the shareholders had fourteen days after Crystal Palace filed its appeal to file their notice of appeal. Federal Rule of Appellate Procedure 4(a)(3) states: f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. The clear language of this rule indicates that this fourteen day period applies to “any other party” to a lawsuit. It does not distinguish between appellants and appellees. This was the viewpoint of those who drafted the rule. The 1966 committee note to this subsection states: [t]he added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords. Leading commentators have stated that this rule “permits any party to the action ... such added time as the sentence affords.” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 204.11[1] (2d ed. 1986) (emphasis added); see also id. at ¶ 203.25[3]. The appeal by the shareholders was filed within eight days of the initial appeal by Crystal Palace. Thus, even though thirty days had passed since the final judgment, the shareholders’ appeal was timely, pursuant to Fed.R.App.P. 4(a)(3). Thus, we have jurisdiction over the shareholders’ appeal. Ill STANDARD OF REVIEW “A court has wide latitude in determining whether there has been contemptuous defiance of its order,” and we review a lower court’s decision to impose sanctions for contempt for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984). Under this standard, a contempt order will not be reversed unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached after it weighed the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985). IV ANALYSIS A. The District Court’s Standard of Review. The appellants argue that the district court must accept the master’s findings of fact unless they are clearly erroneous. We agree. See Fed.R.Civ.P. 53(e)(2); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2614 (1971); Leader Clothing Company v. Fidelity and Casualty Company of New York, 237 F.2d 7, 11 (10th Cir.1956). The district court accepted all of the master’s findings of fact and conclusions of law except for the master’s conclusions concerning contempt. Congress has determined that the power to hold a party in contempt is a discretionary power vested in the court whose order has been violated. “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as ... disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.G. § 401 (1982). The appellants in this case did not violate an order of the master, they violated an order of the district court. Thus, the discretion to hold the appellants in contempt remained in the district court and the master’s recommendations on that subject could not bind the court. The judge did not abuse his discretion by disregarding the master’s conclusion and imposing sanctions for contempt on the appellants. B. The District Court’s Contempt Order. Appellants argue that their actions were not contemptuous. They state that (1) exceptional circumstances justified their actions, and (2) MTI had not closed escrow within the thirty days provided for in the plan of reorganization. 1. The appellants explain that they obtained a commitment from Margaret Elardi to purchase their assets for $690,000 more than MTI had agreed to pay and that these “exceptional circumstances” justified their decision not to transfer the property. The special master seemed to agree with this “exceptional circumstances” analysis. He stated that “[t]he action of the Debtor in Possession in failing to conclude the sale was motivated by a desire to gain additional monies for its equity security holders and as of this time does not appear to be contemptuous in nature.” The district court expressed doubts that these “exceptional circumstances” justified disobedience to a court order, particularly in light of its order filed November 8th requiring the sale to close on or before November 16,1984. We agree with the district court. The “exceptional circumstances” offered by the appellants are irrelevant. If a person disobeys a specific and definite court order, he may properly be adjudged in contempt. Shuffler v. Heritage Bank, 720 F.2d 1141, 1146 (9th Cir.1983). “A person fails to act as ordered by the court when he fails to take ‘all the reasonable steps within [his] power to insure compliance with the [court’s] order[ ].’ ” Id. at 1146-47 (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977)). It does not matter what the intent of the appellants was when they disobeyed the court’s order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). Moreover, the contempt need not be willful. Perry v. O’Donnell, 759 F.2d 702, 704-06 (9th Cir.1985). Even though “[t]he sole question is whether a party complied with the district court’s order,” a party can escape contempt by demonstrating that he is unable to comply. Mazzola, 716 F.2d at 1240. That was not the case here. If the appellants believed that the district court incorrectly issued an order, their remedy was to appeal and request a stay pending the appeal. Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975); see also Chapman v. Pacific Telephone and Telegraph Co., 613 F.2d 193, 197 (9th Cir.1979). “Absent a stay, ‘all orders and judgments of courts must be complied with promptly.’ ” Mazzola, 716 F.2d at 1240, (quoting Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975)). Although both Crystal Palace and the shareholders appealed, no stay was obtained. A party cannot disobey a court order and later argue that there were “exceptional circumstances” for doing so. This proposed “good faith” exception to the requirement of obedience to a court order has no basis in law, and we reject the invitation to create such an exception. The appellants were not justified by exceptional circumstances in disobeying the court’s order. 2. The appellants argue that they were “amply justified” in not executing the necessary documents, since MTI did not close escrow within the thirty days provided for in the plan of reorganization. They assert that MTI should have forfeited the earnest money deposit of $450,000. This argument is without merit. The sale closed in a timely manner. Both the special master and the district judge found that the parties intended that the running of the thirty-day closing period should begin with the entry of the confirmation order as opposed to the issuance of the confirmation order. This finding is strongly supported by the record. However, whether the sale closed in a timely manner, whether there were inconsistencies in the documents, whether the district court was correct, or whether the appellants thought they were justified in their legal position, all became irrelevant when the court filed its November 8th order. That order, in no uncertain terms, required Crystal Palace to execute the necessary documents by November 16. Thus, as of November 8, Crystal Palace had no legal justification for not executing the necessary documents. Again, the appellants’ only recourse was to appeal and obtain a stay pending the outcome of that appeal. No stay was obtained and the documents should have been executed. The appellants’ unreasonable subjective beliefs do not provide legal justification for their disobedience of a court order. C. The District Court’s Actions, Appellants also argue that the actions of the court caused confusion and that this confusion was the reason they did not comply with the order. In support of this proposition, Crystal Palace points out that the district judge referred two of its motions to the special master, and therefore, the judge apparently felt that these motions were of sufficient importance and complexity to require this reference. We reject the notion, that by referring these issues to a special master, the court somehow implied that the appellants’ motions were meritorious. Furthermore, the appellants’ actions betray their allegations of confusion. After the district court ordered Crystal Palace to transfer the documents, Crystal Palace filed numerous motions, but not one of those motions requested either clarification or reconsideration of the court’s order. Nor did the appellants seek a stay while they challenged the court’s order on appeal. Crystal Palace argues that “[wjhile a party is not free to disregard a lawful order of a court, a party may seek clarification of that order.” At the time the appellants decided not to execute the necessary documents, the district court’s order needed no clarification. The November 8th order explicitly stated that the sale must occur “on or before ... November 16, 1984.” If there had been any ambiguity or uncertainty earlier, that ambiguity ceased to exist when the November 8th court order was issued. D. Sanctions. The district court properly concluded that the appellants were in contempt of court. As a sanction, the court ordered that the debtor and its shareholders pay MTI “any reasonable amounts expended by it for interest on monies borrowed from November 16, 1984, until appropriate documents of sale are properly executed by the debtor ... in compliance with the present order.” In its cross-appeal, MTI argues that the sanctions should include (1) $43,000 in loan fees, (2) the lost use of the purchase price for a two month period, (3) $80,000 in legal fees for “warding off appellants’ various legal attacks on the first order[,j” (4) legal costs in defending the appeal from the district court’s third order, “which this court found meritless and dismissed,” and (5) the two months of lost proceeds it would have otherwise obtained from the operation of the casino. As we have stated previously, a sanction for “[cjivil contempt is characterized by the court’s desire to ... compensate the contemnor’s adversary for the injuries which result from the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.1983). However, an award to an opposing party is limited by that party’s actual loss. United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Shuffler, 720 F.2d at 1148; Falstaff, 702 F.2d at 779. We affirm the imposition of sanctions. The award of interest on monies borrowed by MTI to consummate the purchase of the casino was not an abuse of discretion. See Shuffler v. Heritage Bank, 720 F.2d 1141, 1148-49 (9th Cir.1983). However, the amount and nature of the sanctions imposed by the court are unclear. We remand this case to the district court for a determination of the amount of the sanctions to be awarded and whether the sanctions shall include the loan fees, the lost use of the purchase price, attorney fees or the proceeds earned by the casino. V CRYSTAL PALACE’S MOTION TO STRIKE AND MOTION TO RECONSIDER The appellants have filed a motion to strike portions of the Appellee’s answering brief. They state that a number of matters discussed in that brief are not properly before this court and should not be raised in the answering brief. They further argue that if they made procedural errors, MTI should have objected pursuant to Fed. R.App.P. 27(a) and (b). Ninth Circuit Rule 13 requires that an opening brief recite the procedural posture of the case, what justification a party has for seeking attorney fees, and whether an appeal is properly before this court. The appellee’s brief did not go beyond the scope of this rule. The motion to strike is denied. The appellants also urge us to reconsider our August 25 order, in which we denied their motion for an extension of time to file a reply brief. That motion is now moot. However, we note that the reply brief was due August 11, but the order gave the appellants until September 2 to file their brief. Thus, although the order denied an extension of time, the appellants actually received a twenty-two day extension. VI ATTORNEY FEES AND COSTS ON APPEAL MTI argues that it is entitled to compensation for attorneys’ fees, costs, damages and other expenses incurred as a result of this appeal pursuant to Federal Rule of Appellate Procedure 38. Pursuant to Rule 38, a party may be entitled to attorney fees if an appeal is frivolous. We conclude that this appeal is not frivolous, and deny the award of attorney fees. Each party will bear its own costs. VII CONCLUSION The district court properly found the appellants in contempt, and its ruling was not an abuse of discretion. We remand to the district court so it can determine the amount and nature of the sanctions to be imposed on Crystal Palace and its shareholders. The appellants’ motion to strike is denied, and the motion to reconsider is moot. AFFIRMED AND REMANDED WITH INSTRUCTIONS. EACH PARTY WILL BEAR ITS OWN COSTS. . Crystal Palace filed the following motions: motion for forfeiture of earnest money deposit, motion to extend time, motion to disqualify counsel, motion to continue hearing to take place on November 16, debtor’s objection to application for order compelling sale of property, motion for an order modifying the debtor’s plan of reorganization, debtor’s modified plan of reorganization, ex parte application for an order requiring MTI to forfeit earnest money deposit, debtor’s first modified plan of reorganization, brief re: rejection of postpetition executory contract. . Even though the agreement with Elardi was not signed until November 27, the special master found that it was concluded on November 6. . Although there is a conflict in the terms of several of the documents as to when this thirty-day closing period was supposed to begin running, three of the four documents that discuss this matter: paragraph 4 of the purchase agreement, the confirmation order (both of which were drafted by counsel for Crystal Palace), and article III of the plan of reorganization, all indicate that the transaction was supposed to occur within a period of time after entry of the order as opposed to issuance of the order, 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_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BURNET, Commissioner of Internal Revenue, v. SAN JOAQUIN FRUIT & INVESTMENT CO. No. 6346. Circuit Court of Appeals, Ninth Circuit. June 22, 1931. G. A. Toungquist, Asst. Atty. Gen., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., and Sewall Key, John H. McEvers, Helen R. Carloss, and E. C. Crouter, Sp. Assts. to Atty. Gen., for petitioner. Joseph D. Peeler, of Los Angeles, Cal., and George M. Naus, of San Eraneiseo, Cal. (J. R. Sherrod, of Washington, D. C., of counsel), for respondent. Before RUDKIN, WILBUR and SAWTELLE, Circuit Judges. SAWTELLE, Circuit Judge. This is a petition for review of a decision of the United States Board of Tax Appeals. The facts, as stated in the opinion and findings of the Board, are as follows; “Under date of July 21, 1925, the Commissioner of Internal Revenue sent a deficiency notice to the San Joaquin Fruit & Investment Company of Tustin, California, the petitioner herein, in which he stated: “ ‘The determination of your income tax liability for the years 1918 and 1919 has resulted in a deficiency in tax aggregating $111,281.07, as set forth in Bureau letters dated. March 9, 1925, and April 22, 1925.’ “In a statement attached to this letter this total deficiency was divided into a deficiency of $66,147.93 for 1918 and a deficiency of $45,133.14 for 1919. Within the proper time after receipt of this letter, the petitioner filed its petition with the Board at Docket No. 6988 in which it alleged four errors; one re-> lating to invested capital, two relating to depreciation and one relating to the' use of improper comparatives in special assessment. Thereafter, the respondent filed his answer and the ease eamfe on for hearing in Los Ang-eles, California, at the conclusion of which hearing, upon the petitioner’s motion, the ease was continued and placed upon the reserve calendar. Following this, the petitioner moved to amend its original petition in order to allege that the petitioner was not in existence during the taxable years and that inasmuch as the Commissioner is not trying to tax it as a transferee, it is not liable as a taxpayer for any alleged deficiency. This motion was granted, and thereafter the respondent filed his answer to the amended petition and the case came on for further hearing. In the original petition the caption was as follows: ‘San Joaquin Fruit & Investment Co. (formerly San Joaquin Fruit Co.) Tustin, California.’ The petition was verified by the president of the San Joaquin Fruit & Investment Company and in the verification it was stated that the San Joaquin Fruit .& Investment Company was the successor to the San Joaquin Fruit Company. The verification of the amended petition was substantially'the same. “Under date of July 27, 1925, the Commissioner mailed a deficiency notice addressed to San Joaquin Fruit & Investment Company, Tustin, California, the petitioner herein, in which he stated: “ ‘An audit of your income and profits tax return' for the year ended December 31, 1920, has resulted in the determination of a deficiency in tax of $22,872.09, as shown in Bureau letter dated June 16,1925.’ “Thereafter in due time, the petitioner filed its petition at Docket No. 6989 in substantially the same form as it filed its petition at Docket No. 6988. The Commissioner answered, the ease was heard at the hearing in Los Angeles, California, above mentioned, after ’which it was continued and placed on the reserve calendar, an amended answer was filed raising the question of the identity of the taxpayer just as in the other case, the respondent answered and the case came on for further hearing. “It appears that in neither of these proceedings is the Commissioner attempting" to determine, assess or collect the liability, if any, of the petitioner as a transferee of the San Joaquin Fruit Company, in respect of the tax of that company for the taxable years. Moreover, the alleged taxes in controversy, if they be taxes at all, must be taxes of the San Joaquin Fruit Company, which seems to have been in business during the taxable years. The record shows that the San Joaquin Fruit Company was incorporated in October, 1906, under the laws of the State of California for certain purposes for a term of twenty-five years with a capital stock of $100,000 divided into 1000 shares of the par value of $100 each; on November 6, 1922, at a regular meeting of its board of directors they decided to call a meeting of the stockholders on November 18, 1922, for the purpose of considering and acting upon the proposition to dissolve the corporation, wind up its affairs and dispose of its assets according to law; this meeting of the stockholders was duly held on the 18th day of November, 1922, and from the minutes of that meeting it appears that the San Joaquin Fruit & Investment Company held 807 shares of the stock of the San Joaquin'-Fruit Company; at this meeting the resolution was adopted to dissolve the corporation, wind up its affairs and distribute the assets according to law; thereafter on the 26th day of December, 1922, a court of competent jurisdiction decreed that the directors of the San Joaquin .Fruit Company be made trustees for the dissolution of its assets and the winding up of its affairs and ordered them to distribute the real and personal property to the San Joaquin Fruit & Investment Company and further ordered, adjudged and decreed that the San Joaquin Fruit Company was thereby dissolved; the last paragraph of the decree was as follows: “ ‘It is further ordered, adjudged and decreed, that the respective interests of the. stockholders of said San Joaquin Fruit Company, have hereinbefore been fixed, namely) there were four stockholders as herein named, three of whom have assigned their whole interest herein unto the said San Joaquin Fruit and Investment Company, and that now the San Joaquin Fruit and Investment Company is the only stockholder, and the only person to whom said property and assets of said San Joaquin Fruit Company shall be distributed and conveyed.’ “The record further shows that thereafter a copy of the decree was filed in the office of the Department of State of the State of California; the San Joaquin Fruit Company on June 19, 1919, filed its income and profits tax return for the year 1918; on March 15, 3 920, filed its return for 1919; on March 15, 1921, filed its return for 1920 and on May 12,1922, filed its return for 1921; the San Joaquin Fruit and Investment Company was incorporated in July, 1922, under the laws of the State of California, for a period of fifty years, with a capitalization of $1,500,000 divided into 15,000 shares of tho par value of $100 each, for certain purposes set forth in its articles of incorporation, which purposes were similar to, but broader and not the same as the purposes set forth in the articles of incorporation of the San Joaquin Fruit Company; under date of December 29,1927, tho Commissioner sent a notice of liability under section 280 of the Revenue Act of 1926 (26 USCA § 1069 and note), to the San Joaquin Fruit & Investment Company as a transferee of the San Joaquin Fruit Company liable for additional taxes of the latter company for tho year 1921, following the receipt of which the San Joaquin Fruit & Investment Company filed a petition with this Board at Docket No. 35,835, which proceeding has not been consolidated with the present proceedings and is not being decided in the present proceedings. “After carefully considering the facts before us 'we are satisfied that the petitioner has made out a prima facie case, which has not been overcome by the respondent, which prima facie case shows that the petitioner was not in existence during the taxable years and that the tax liability which the Commissioner is trying to establish against the petitioner is not its tax liability. Therefore, for the years 1918, 1919 and 1920 an order of no deficiency will be entered. “The situation in regard to the year 1921 is somewhat different. For that year, under date of September 1,1926, tho Commissioner sent a deficiency, notice addressed to the ‘San Joaquin Fruit Company % San Joaquin Fruit and Investment Company, Tustin, California,’ in which he stated: “ ‘An audit of your income and profits tax return for the calendar year 1920 has resulted in the determination of a deficiency in tax of $21,867.40 as shown in Bureau Letter dated July 20, 1926.’ “The letter of July 20, 1926, was addressed in the same way. On October 25, 1926, at Docket No. 20,801, a petition was filed under the title of ‘San Joaquin Fruit & Investment Company (formerly San Joaquin Fruit Company)’. The petition was verified by tho president of the San Joaquin Fruit & Investment Company, which verification stated that the San Joaquin Fruit & Investment Company was the successor to the San Joaquin Fruit Company. Errors were set forth in this petition which were similar to the errors set forth in the above-mentioned two petitions. Tho respondent filed his answer. The hearing at Los Angeles, California, covered this ease also, at the conclusion of which hearing this case was continued and placed on the reserve calendar and came on for further hearing with the other three eases, all three of which cases were consolidated* for hearing and decision by an order of the Board. At the last hearing the petitioner moved to amend its petition in this case as he had theretofore done in the other two cases and for the same purposes. On this motion, which was objected to by counsel for the respondent, we have taken no action. “Upon consideration of the circumstances in connection with this proceeding at Docket No. 20,801, we are of the opinion that the deficiency notice in question was sent to the San Joaquin Fruit Company in connection with its tax liability for the year 1921 and that the deficiency notie» was not a notice to the San Joaquin Fruit & Investment Company corporation, which filed the petition herein and was not a notice of the determination of its tax liability for any year, and that neither the San Joaquin Fruit. & Investment Company, its president, who* verified the petition, nor counsel, who pi’e-pared and signed the petition, had proper authority or purported to act for the San Joaquin Fruit Company. Tho petitioner herein not being the taxpayer within the meaning of the section of the Revenue Act giving the Board jurisdiction to hear and decide proceedings, we have no jurisdiction in this proceeding and therefore dismiss the same. Bisso Ferry Co. v. Com’r of Internal Revenue, 8 B. T. A. 1104; Bond, Inc., v. Com’r of Internal Revenue, 12 B. T. A. 339; American Arch Co. v. Com’r of Internal Revenue, 13 B. T. A. 552; Weis & Lesh Manufacturing Co. v. Com’r of Internal Revenue, 13 B. T. A. 144; Sanborn Brothers v. Com’r of Internal Revenue, 14 B. T. A. 1059; Carnation Milk Products Co. v. Com’r of Internal Revenue, 15 B. T. A. 556. “For the years 1918,1919 and 1920 judgment will he entered for the petitioner. The proceeding in so far as it relates to the year 1921 is dismissed for lack of jurisdiction.” There are six assignments of error as follows: First and second, that the Board erred as a matter of law in deciding that there were no deficiencies for the years 1918, 1919, and 1920, and in not deciding that there were deficiencies for said years and for the year 1921; third, that the Board erred as a matter of law in dismissing for lack of jurisdiction the proceeding in so far as it relates to the year 1921; fourth and fifth, that the Board erred as a matter of law in failing to vacate the decision referred to in assignments 1, 2 and 3; sixth, that the Board committed other plain errors manifest in'the record. It is contended by counsel for respondent that assignments 1 to 5, inclusive, are too general and are directed solely to the decision, that they do not point to any special ruling or to the insufficiency of the evidence to support the decision, and that consequently such assignments present nothing for the consideration of the appellate court, and that the sixth assignment is unworthy of discussion. It is true that the assignments are general in character, and, if we were to follow the strict rules applicable to appeals from the District Courts, we might decline to consider them, but in view of section 1003 (a) and (b) of the Revenue Act of 1926, 26 USCA § 1226 (a) and (b), it is thought that the assignments are sufficient to warrant us in reviewing the decision of the Board. Those sections are as follows: “(a) The Circuit Courts of Appeals and the Court of Appeals of the District of Columbia shall have exclusive jurisdiction to review the decisions of the board (except as provided in section 346 of Title 28); and the judgment of any such court shall he final, except that it shall be subject to review by the Supreme Court of the United States upon certiorari, in the manner provided in section 347 of Title 28. “(b) Upon such review, such courts shall have power to affirm or, if the decision of the board is not in accordance with law, to modify or reverse the decision of the board, with or without remanding the ease for a rehearing, as justice may require.” Counsel for petitioner in their brief state that the petitioner raises no question concerning the taxes for the years 1918-1919, because, as stated in the brief: “While the Commissioner appears to have had waivers covering taxes for the years 1918 and 1919, such waivers were not introduced in evidence and therefore, so far as the record is concerned, it appearing that the statute of limitations had run against the.assessment of taxes for those years at the time the sixty-day letters were issued, the Commissioner raises no question concerning taxes for those years.” We shall, therefore, confine our discussion to the question of the legality of the taxes imposed for the years 1920 and 1921. Section 274 (a) of the Revenue Act of 1924, chapter 234, 43 Stat. 253, 297 (26 USCA § 1048 note) provides that: “If, in the ease of any taxpayer, the Commissioner of Internal Revenue determines that there is a deficiency in respect of the tax imposed by this chapter, the taxpayer, except as provided in section 1051 of this title, shall be notified of such deficiency by registered mail, but such deficiency shall be assessed only as hereinafter provided. Within sixty days after such notice is mailed the taxpayer may file an appeal with the Board of Tax Appeals established by section 1211.” Section 2 (a) (1) of said act of 1924, 26 USCA § 1262 (a) (1), provides that, when used in that act, “The term ‘person’ means an individual, a trust or estate, a partnership, or a corporation.” Section 2 (a) (9), 26 USCA § 1262 (a) (9) states that, in that act “the term ‘taxpayeri means any person subject to a tax imposed by this title.” Section 283 (b) of the Revenue Act of 1926 (26 USCA § 1064 (b) contains the following provisions: “If before February 26, 1926, any person has appealed to the Board of Tax Appeals under section 1048 of this title [subdivision (a) of section 274 of the Revenue Act of 1924] * * * and the appeal is pending before the board on February 26,1926, the hoard shall have jurisdiction of the appeal. In all such eases the powers, duties, rights, and privileges of the commissioner and of the person who has brought the appeal, and the jurisdiction of the board and of the courts, shall be determined, and the computation of the tax shall be made, in the same manner as provided in subdivision (a) of this section. * * * ”• As shown in the above-quoted findings of the Board, the deficiency notice for the year 1920 was addressed to the investment company, respondent herein. The deficiency notice for the year 1921 was sent to the fruit company in care of the investment company. For the year 1920 judgment was entered for the respondent, and proceedings, in so far as they related to the year 1921, were dismissed for lack of jurisdiction. It is contended that, inasmuch as the record of the proceedings before the Board discloses that after said notices had been sent out directed, as hereinbefore staled, the respondent, San Joaquin Fruit & Investment Company, appeared as petitioner and described itself as the “taxpayer,” “formerly the San Joaquin Fruit Company,” and “successor to San. Joaquin Fruit Company through change of name only,” and for some time participated in the hearings before said Board and raised no question as to the sufficiency of the sixty-day letters sent to it until after the time had expired within which determination could be made against the fruit company, and, the case having been tried in part upon the theory that respondent was liable for the taxes in question, it was estopped to change its position and deny its liability. We believe that this position is well taken. The San Joaquin Fruit & Investment Company was in law and in faet the “taxpayer” in the instant ease, and so held itself out in its own pleadings, further setting forth the theory under which it regarded itself as the “taxpayer”; namely, that it was “formerly the San Joaquin Fruit Company” and “successor to San Joaquin Fruit Company through change of name only.” These statements accurately described what had actually occurred, and the respondent cannot now be heard to deny them. In this connection, illumination may be derived from the following statement by Mr. Justice Swayne, in Casey v. Galli, 94 U. S. 673, 680, 24 L. Ed. 168: “Parlies must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its effects and consequences, should be as if it were real, and the law properly so regards it.” In the instant ease, the liability of the respondent as “taxpayer” was, not only “apparent,” but “real”; for section 280 of the Revenue Act of 1926, 26 USCA § 1069 (a) (1), plainly provides: “(a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected and paid in the same maimer and subject to the same provisions and limitations as in the ease of a deficiency in a tax imposed by this chapter (including the provisions in ease of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds). “(1) The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this chapter or by any prior income, excess-profits, or War-Profits Tax Act.” In this ease, therefore, the San Joaquin Fruit & Investment Company was stating a “real” as well as an “apparent” situation when it described itself as the “taxpayer”; for, being the transferee of the San Joaquin Fruit Company, it was indeed charged with “the liability, at law or in equity” of the “taxpayer” that it has succeeded. It may be argued that any mistake of law or faet would not estop the respondent from interposing a meritorious defense to the claim. This objection would he valid, if applicable. But here we have a mistake neither of fact nor of law. The respondent, as far as its liability for the tax was concerned, was in truth the “taxpayer,” as it described itself. The omission of the designation “transferee” on the part of the respondent, as well as on the part'of the petitioner, when referring to the San Joaquin Fruit & Investment Company, cannot be called a mutual mistake of law. As far as the Commissioner is concerned, the failure so to label the admitted taxpayer is a procedural and administrative omission. The statutes do not require such a designation of the transferee. It does not seem to us to be indispensable, so far as the government’s right to collect taxes lawfully due to it is concerned. In Nauts v. Clymer (C. C. A.) 36 F.(2d) 207, 208, a deficiency assessment was made against “George H. Marsh, deceased, L. C. Morgan, Executor.” Deciding the’Case on other grounds, the Sixth Circuit Court “assumed” that “notice ‘to the taxpayer’ * * might reasonably be construed to include notice to an acting executor holding, assets of the estate.” Regarding section 280 as merely remedial, and not declaratory of any new tax-eollecting right possessed by the government, the Supreme Court of the United States,, in the recent case of Annie G. Phillips et al. v. Commissioner of Internal Revenue, 51 S. Ct. 608, 610, 75 L. Ed. 1289, decided May 25, 1931, has shown a disposition to construe this statute liberally in favor of the government’s “need promptly to secure its revenues.” While in that case, according to the findings of the United States Board of Tax Appeals (15 B. T. A. 1218, 1219), the taxpayer sought to be held was indeed designated as transferee, the court decided the suit on other grounds. . In reaching its decision, however, the Supreme Court used language strongly indicative of its general attitude toward the construction of a statute of this remedial character. Mr. Justice Brandeis, who delivered the opinion, said: “Section 280 (a) (1) [of the Revenue Act of 1926, 26 USCA § 1069] provides the United States with a new remedy for enforcing the existing ‘liability, at law or in equity.’ The quoted words are employed in the statute to describe the hind of liability to which the new remedy is to be applied and to define the extent of such liability. The obligation to be enforced is the liability) for the tax. Russell v. United States, 278 U. S. 181, 186, 49 S. Ct. 121, 73 L. Ed. 255; United States v. Updike, 281 U. S. 489, 493, 494, 50 S. Ct. 367, 74 L. Ed. 984. The proceeding is one to collect the revenue. That Congress deemed the section necessary in order to make the tax-collecting system more effective is established, not only by the fact of enactment, but Etlso by the reports of the committees.” The Supreme Court then paints in the background for this particular statute, in the following footnote: “Conference Report to accompany H. R. 1, H. Rep. No. 356, 69th Cong., 1st Sess., February 22, 1926, p. 44, states that the section ‘makes the procedure for the collection of the amount of the liability of transferees conform to the procedure for the collection of taxes * * • for procedurcA purposes the transferee is treated as a taxpayer would he treated.’ [Italics our own.] Compare H. Rep. No. 2, 70th Cong., 1st Sess., December 7, 1927, pp. 31-32: ‘Section 280 of the 1926 Act has proved a very effective and necessary method of stopping tax evasion through the various favorite methods recognized by every one prior to the 1926 Act. The enforcement of the liability through court process had been ineffective and the amount of revenue lost through mala fide transfers or through corporate distribution of assets was admittedly large.’ ” In the instant ease the transferee, the taxpayer in fact and in law, received the notice of deficiency in the tax of the transferee’s predecessor. The transferee’s own pleadings clearly show that such notice conveyed the necessary information; namely, a deficiency in the tax, for which the transferee was sought to be held liable, and was in fact sind in law liable. The mei’e failure so to designate the transferee is not fatal, nor does it deprive the Board of Tax Appeals of its jurisdiction over the proceedings and to determine the issues there involved. In view of the Supreme Court’s liberal attitude toward this statute as a remedial measure, we do not .feel inclined to deny the Government its right to collect its taxes merely because it failed to label the transferee as such. To apply to such a statute the strict rules of construction of common-law pleading would scarcely be appropriate. Particularly is this true when we remember that not even the statute itself requires that the transferee shall- be so designated in the notice of deficiency. It is only by strained inference that this requirement can be read into the law. The decision of the Board of Tax Appeals is affirmed as to the years 1918 and 1919, and reversed as to the years 1920 and 1921. WILBUR, Circuit Judge, concurs. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_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. Elmer Glenn MILLER, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Ohio Penitentiary, Respondent-Appellee. No. 21011. United States Court of Appeals, Sixth Circuit. Sept. 10, 1971. Elwood B. Hain, Jr., Detroit, Mich. (Court Appointed), for appellant. Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, on the brief, for appellee. Before EDWARDS and MILLER, Circuit Judges, and MeALLISTER, Senior Circuit Judge. MeALLISTER, Senior Circuit Judge. This is an appeal from an order denying a writ of habeas corpus by the District Court. On May 5, 1963, Emma Austing, a widow past seventy-six years of age, lived, and had been living for many years, on her farm near Loveland, in Hamilton County, Ohio. Her husband, Joe Austing, had died about twenty-five years before. Although she managed her farm, employed help, made plans to reconstruct buildings on the farm and supervised such work, sold property and collected rentals, — meeting many different people in the course of her business — she was mortally fearful of being alone at night and took unusual precautions for her safety. In her bedroom she kept a German police dog, and a large Shepherd dog, vicious toward strangers. Mrs. Austing also kept a loaded pistol on her dining-room table for protection against anyone who might break into the house at night. On the night of May 5, 1963, the fears that had so long assailed this active, capable and intelligent elderly woman became a terrible reality. On the next morning of May 6, 1963, Mr. Isham Ward, who worked for Mrs. Austing, arrived at the farm to milk the cows. As he went by the house, he noticed the doors of the sun porch were standing open. He stopped, glanced into the main part of the house and saw a disarray of overturned furniture, drawers pulled out, and rugs thrown back. He immediately returned home, asked his wife to call the police and to inform Mr. Reuben Chambers, who also worked for Mrs. Austing. Mr. Ward then returned to the scene and when Mr. Chambers arrived, they entered the house. They saw blood on the floor of the living room, and blood on the wall near the telephone, as well as blood on the telephone itself. There was blood in the east bedroom and in the west bedroom, and in the bathroom. Both of the watchdogs had been badly beaten and lay on the floor. In one of the bedrooms, Mr. Ward and Mr. Chambers could see a form on the bed under the bed clothes, and when Mr. Chambers drew them back, they then saw Mrs. Austing. Her face and body down to her waist, were covered with blood. Her left eye was swollen shut. There was a big “knot” on her left forehead. In the blood on her chest was the mark of a heel and sole of a shoe. She was still alive but could not speak. She had put up a brave and terrible struggle against her assailants. Battered and bloody, she had fought them off, trying to get to the telephone to summon help, finally getting the telephone in her hands — all to no avail because somebody had cut the telephone wires on the outside of the house. Deputy Sheriff Schulte, who arrived in a police cruiser shortly afterward, said that when he looked at Mrs. Aus-ting, he could hardly tell that she was a human being. Her face looked like a piece of raw beefsteak. An ambulance soon arrived and Mrs. Austing was placed on a stretcher and rushed to Our Lady of Mercy Hospital, where it became evident that her throat was swollen to such an extent that an emergency tracheotomy became necessary. Two weeks later, she died of a massive pulmonary embolism. The state’s proofs showed that the beating received by Mrs. Austing on the night of May 5, 1963, was the cause of her death. As soon as the police started to investigate, immediately after Mrs. Aus-ting was taken to the hospital, they made some important discoveries. They learned that about six o’clock on the evening of the day on which Mrs. Aus-ting was fatally beaten, she had two visitors — both men. Mrs. Anna Ward, who worked for Mrs. Austing performing such services as preparing her noonday meals, as well as general cooking and housework, had been asked to come with her husband and children for Sunday dinner about 1:30, which they had done. Mrs. Ward remained with her for the afternoon, and about 6:00 or 6:30 in the evening, appellant Elmer Glenn Miller, whom she knew, and another man, whom she did not know, came to the door and asked if Mrs. Austing were at home. Mrs. Ward told him to wait a moment but, when she turned and went in to ask Mrs. Austing whether she wanted to see them, appellant Miller and the other man followed her into the living room. When she told Mrs. Austing that Miller wanted to see her, she said, “Well, all right.” Appellant Miller started talking to Mrs. Austing and he argued with her about buying a house from her. His voice kept getting louder. He said he wanted to pay her $500 in cash. The other man sat in a chair saying nothing. Some of the points of the argument of appellant Miller and Mrs. Austing are unclear, but she replied to this statement that he had $500 in cash to pay her, by saying: “I got a permit to get the property fixed up.” Whereupon, Miller said in a voice getting louder and louder, “Well, I don’t believe you.” Mrs. Ward then intervened and said, “Well, she has got the permits because my husband went and got them.” Miller then said to Mrs. Ward, “Why don’t you shut your goddam mouth? It is none of your business.” Mrs. Ward replied, “Well, she is an old lady.” At that time the telephone rang and Mrs. Ward went to answer it. Appellant Miller still remained in the living room, talking so loud that it interfered with Mrs. Ward’s conversation. When she had to end it, because she couldn’t hear, Miller and the other man were leaving and, as they went out, Miller was mumbling to himself. Mrs. Ward left Mrs. Austing’s home about 7:30 in the evening. Mrs. Ward was later asked whether she knew that Mrs. Austing had a safe, and she replied that she did, and that it was kept in the closet of her bedroom. Mrs. Ward also testified that she had known appellant Miller previously, because he had lived near the Wards for about two years, and she had seen him often; but she had never before seen the man who came that day to Mrs. Austing’s house with Miller, and who afterward proved to be Lester Swiger. Some days after the fatal beating of Mrs. Austing, the police received word that a safe had been located in a ravine on Ibold Road, some distance from Mrs. Austing’s home. They found the safe in the ravine, together with a pair of wooden shoes that had been taken from the Austing house. They also found a wedge. The safe had been charred by fire. Addison Crofton testified that about midnight on May 5, 1963, appellant Miller, whom he knew, came to his home on Newton Road, knocked on the door, woke him up, and Crofton then led him into the house. Miller told him he wanted to borrow a sledge hammer and a couple of wedges. Crofton had these tools for splitting logs when he worked in the woods. Miller told him that he wanted the sledge and the wedges for “some chunks he wanted to bust up.” Crofton had them in a little building; he went out, got them, and let Miller have them, telling him that he might start back cutting wood and logs again, and to be sure not to lose them. Miller told Crofton he would bring them back the next day; but Crofton never got them back. The wedge that the police found in the ravine with the safe was identified by Crofton as one of the wedges Miller borrowed from him that night. Appellant Miller took the witness stand in his own defense on the charge of murder of Mrs. Austing in his trial in the Common Pleas Court of Hamilton County, Ohio. He testified that on May 5, 1963, the day of the fatal beating of Mrs. Austing, he was with Lester Swig-er the entire day. He stated that he drove his car over to Mrs. Austing’s that afternoon; that Swiger was with him; that Mrs. Ward came to the door when he knocked; that he and Swiger went into the house; that he had a talk with Mrs. Austing about buying a little house nearby, and that Mrs. Austing told him she would consider what he offered for the place and would let him know in a few days. Appellant Miller testified that after this conversation with Mrs. Austing, he and Swiger left, and he drove back toward Milford; that, later, after dark, he saw Curtis Bellamy in Milford; that Bellamy got into the car; and that Miller, driving his car with Swiger and Bellamy, drove back to Mrs. Austing’s house. Appellant Miller further testified that Swiger had seen a number of saddles when he and Swiger first went to the Austing house; that, at the time, Mr. Ward was carrying them into the barn; that Mrs. Austing had the saddles for the ponies and horses in a corral, where people could come and ride; that Swig-er wanted to steal the saddles; that they drove the car down to a trailer where the saddles were; that at the time they went to the Austing house, appellant had the idea that they were going to take the saddles; that they were going to steal them; that appellant, himself, “grabbed the saddles, maybe two or three bridles or halters,” and threw them on the back floor or the seat; that Swiger and Bellamy went inside the Austing house while appellant Miller remained outside; that later appellant saw the safe of Mrs. Austing just outside the door of her house; that appellant then helped Swiger and Bellamy move the safe over to his ear, and helped lift the safe into the back of the car. Appellant said he then drove back on the highway with the safe in the back end of the car. The safe, he said, was later rolled out of the car into a ravine. One of the other two men with appellant thought he knew somebody who might have a blow torch. As appellant testified: “Well, the party he thought had the torch, didn’t have the torch, so the next thing was to come up with something to open the safe.” Appellant then drove over to Newtown where he knew Addison Crofton, and he got a sledge hammer and two wedges from him. Then they drove back to where they had left the safe. The safe had cast iron hinges. Appellant said he and Swiger changed off, one holding the wedge and the other, swinging the sledge hammer. It was easy to knock off the hinges. He finally knocked off the door of the safe. Bellamy, Swiger and appellant then went through the safe, and found about twenty-four to twenty-five hundred dollars. They “supposedly” split it three ways. The first counted out was $700, which apparently was given to Bellamy. Before they left the safe in the ravine, they poured gasoline or kerosene over it, and left it flaming. When appellant was asked whether the gasoline was poured on the safe and ignited so that “it would take any fingerprints off of the safe,” he answered: “It wasn’t an idea of mine to do it.” Appellant stated he “couldn’t say” whether the gasoline had come from the tank of his automobile, but “I did have a can in the car.” He said that as he was “pulling away,” he saw the flames; and he then drove out of town with Bellamy and Swiger in his automobile. However, when they had driven some distance, Bellamy said he wanted to get out and go back to Milford, and so appellant stopped the car and let Bellamy out. Appellant and Swiger then drove on, and got to Chilli-cothe the next day, and spent some time drinking there. From Chillieothe, they drove across the river into West Virginia that evening. They had the saddles and a rifle and pistol which they had stolen from the Austing home, in the back of the car. Appellant had kinfolk in West Virginia, and they sold the saddles there. Appellant testified that he hid the pistol which they took from the Austing house, in the woods belonging to one of his relatives; and that Swiger bought a gun from one of his relatives for $10.00. Appellant and Swiger then drove into the State of Virginia, near Washington, D. C.; then through Baltimore and to Philadelphia, where they headed west on the Pennsylvania Turnpike, arriving about two weeks later in California, where they were arrested on a routine check-up by the Los Angeles Police Force. Appellant claimed he was not in Mrs. Austing’s house at the time of the robbery, and had no knowledge of what took place inside the house at that time. On cross-examination, appellant admitted he knew Mrs. Austing before the fatal night; that he had lived in one of her cottages and had worked for her in 1960, 1961, and 1962, shingling two houses for her, and helping to tear down two other houses, and working as a carpenter for her during those years. Appellant claims that, although he drove the car on the fatal night, accompanied by Swiger and Bellamy, he was so drunk that he was not aware of anything except taking the saddles, then falling asleep and, afterward, waking up, helping lift the safe into the car, going to get the sledge hammer and wedges, knocking the door off the safe, getting the money in the safe, dividing it, and then driving to Chillieothe where he and Swiger continued drinking. Appellant Miller’s entire contention that he did not know anything about the fatal beating of Mrs. Austing was based on the claim that he was so drunk he could not recall every incident and “had no business driving that car.” It is here to be observed that, regardless of his claimed stuporous drunkenness, appellant admitted that he had driven Swi-ger and Bellamy to Mrs. Austing’s home; that he, together with the others, had intended to steal the saddles and did steal them; that he saw the safe on the concrete slab just outside the door of Mrs. Austing’s house sometime before midnight; that he helped to lift the safe into the back of his car, and then drove with Swiger and Bellamy to the ravine where they left the safe; that he, alone, drove over to Addison Crofton’s house about midnight to borrow a sledge hammer and wedges in order to smash the hinges of the safe door and break it open; that he drove back to the ravine where he and Swiger used the sledge hammer and wedges to break open the safe; that they got about $2,500 in cash from the safe; that they divided it among them; and that appellant and Swiger, after letting Bellamy out, drove to Chillieothe; that from Chillieothe they drove to West Virginia, where they sold the saddles, and then drove on eventually to the Pennsylvania Turnpike and to California. Whether, in the light of the foregoing, appellant was so drunk that he did not know that Swiger and Bellamy made their way into Mrs. Austing’s house near midnight, and did not know of, or hear of, anything that happened in the house during the fatal assault on Mrs. Austing, was, under the circumstances, a question for the members of the jury to determine, and a question that could well arouse their misgiving or disbelief. In addition to appellant’s own testimony, there was further evidence of the complicity of appellant and Swiger in the crime. After Swiger and appellant Miller had been arrested by the Los Angeles police, Lieutenant Herbert Vogel of the Sheriff's Office, and Detective Ernie Taylor of the Prosecutor’s Office of Hamilton County, Ohio, went to Los An-geles, and, after an interview with Swi-ger and appellant Miller, which will be discussed hereafter, the officers brought Swiger and Miller back to Ohio. Lieutenant Vogel testified that when he and appellant Miller were en route from Los Angeles to Cincinnati, before changing planes in Chicago, appellant became quite talkative after their meal, and stated to Vogel that “he intended to get the money off this woman,” but, he said, “I didn’t want those guys to kill her.” And he said, “What we got out of it, it wasn’t worth taking this lady’s life.” Lieutenant Vogel’s testimony continued: “And I asked him how he got rid of the saddles so fast, and he said: ‘Well, they were all friends of mine up in West Virginia.’ He said, ‘I just went to my cousin’s house.’ I think he said, ‘Orvie Powell’s house; and he arranged for us to dispose of these saddles so that we could get the best price for them;’ and he also stated that he thought they got $75.00 for one saddle and $50.00 for another; and then he said he was glad it was all over. It was on his mind. It was worrying him, and he told me how he was picked up in Los Angeles, what circumstances came about causing his arrest in Los Angeles. “Q. That was on the plane? “A. That was on the plane; yes, sir.” On arrival at headquarters in Hamilton County, Ohio, Lieutenant Vogel stated that he and Mr. Taylor from the Prosecutor’s Office, had a conversation with appellant Miller, Swiger, and Bellamy. It was the first time appellant had seen Bellamy since the night of the robbery and fatal assault. On cross-examination, Lt. Vogel was asked: “Q. And Miller said to Bellamy, ‘You might as well tell them. They know all about it’ Or words to that effect? “A. Or words to that effect.” In addition, Detective Jerry Taylor of the Office of the Prosecuting Attorney for Hamilton County, Ohio, testified that on May 31, 1963, he saw appellant Miller, Swiger and Bellamy at Police Headquarters in Ohio, on'Hamilton Avenue; that he had a conversation with Miller about the saddles; that Miller stated he had gone to Kingswood, West Virginia, and sold some of the saddles there; that he also sold some of the saddles at Brewston Mills, and had left a 22-calibre revolver with Ray Everly at Ashburn, Virginia; that one of the saddles was left with Or-vie Powell in Kingswood, and a saddle was sold to Ben Chidister; that there was a saddle and a rifle with a bayonet left at Roy Real’s home in Auburn, Virginia. Detective Jerry Taylor then testified that he and Detective Ernest Taylor went to Kingswood, West Virginia, where they recovered a saddle from Orvie Powell, and another saddle from Ben Chidister; and that they then went to Brewston Mills and talked to Ray Everly, who gave them the rifle with a bayonet, which he had kept in his feed store. This rifle with bayonet was just like the one which had hung outside Mrs. Austing’s kitchen door; that the two detectives then went to Ashburn, Virginia, where they talked to Roy Real, and he turned over to them a 22-calibre revolver. This 22-calibre revolver was the very gun which Mrs. Austing always kept on her dining-room table for protection against robbers. On June 4, 1963, when Detective Taylor saw appellant Miller, Swiger and Bellamy, he showed the items to all of them, and Miller identified two of the saddles and the hand gun as those sold to Ray Everly, as well as Mrs. Austing’s gun which Miller had left at Roy Real’s house in Ashburn, Virginia. In Miller’s own testmony, he said that he had hid Mrs. Austing’s gun in the woods near the home of one of his relatives. We proceed, then, to the question upon which appellant most strongly relies. After Swiger and appellant Miller had been arrested by the Los Angeles police, Lt. Herbert Vogel of the Sheriff’s Office, and Detective Ernie Taylor, of the Prosecutor’s Office of Hamilton County, Ohio, went to Los Angeles and on May 29, 1963, interviewed both Swiger and appellant. It is this interview, the manner in which it was taken by recording, and its admission into evidence during his trial, that form the bases of appellant’s claim that he was convicted in the court of Hamilton County, Ohio, by improperly admitted hearsay evidence and was deprived of his right, under the Sixth Amendment, to confront witnesses against him, and of his Fourteenth Amendment right to due process. The recording was a statement, made in appellant’s presence, by his co-defendant, Lester Swiger, (who was tried separately) to Lt. Vogel and Detective Taylor. Appellant had been advised of his right to maintain silence, and also that anything said by him could be used against him. However, the statement by Swiger was orally ratified by appellant, as appears from the recording. The trial of appellant, subsequent to the recorded statement, took place, and was concluded by his sentence on June 3, 1964. The rule relating to custodial interrogation in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, applied to trials after June 22, 1964, and the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applied to trials after June 13, 1966; so that neither the standards in Escobedo nor Miranda are applicable to the instant case. The following is the recording insofar as is pertinent to the issue raised by appellant : “This is an interview being conducted on May 29, 1963, in the Los Angeles, California, Police Department. “I am Ernest Taylor, Special Investigator for the Hamilton County, Ohio, Prosecutor’s Office. “Also present is Lt. Herb Vogel of the Hamilton County Sheriff’s Office. “Also present at the interview is: “Taylor: Talk into the mike and tell us your name. “Miller: Elmer Glen Miller. “Taylor: How old are you, Mr. Miller? “Miller: 46. “Taylor: And where do you live? “Miller: 8531 Wooster Pike. “Taylor: And will you talk into the mike and tell us your name? “Swiger: Lester Eugene Swiger. “Taylor: And how old are you, Mr. Swiger? “Swiger: 28 years old. R. R. 1, Ba-tavia, Ohio. “Taylor: I call your attention to an incident that occurred at the residence of Mrs. Emma Austing on or about May 5, 1963, at her residence. Will you tell us about that? “Swiger: Yes. I went to drinking that morning and I went to this woman’s house — I don’t know her name— and, with Elmer Glen Miller, and he was talking about buying a cottage, and this woman wouldn’t agree to it right there. So we went out and we got to drinking more and we picked up another boy and went back. “Taylor: You say you picked up another boy? “Swiger: Yes. “Taylor: Where did you meet this other boy? “Swiger: In Milford, Ohio. “Taylor: What is his name? “Swiger: Curt. “Taylor: Do you know his last name? “Swiger: No. Then we went back to the woman’s house; we went into the woman’s house and— “Taylor: Why did you go back to the woman’s house? “Swiger: To get a safe. “Taylor: Was this arranged? Did someone know about that safe? “Swiger: Yes. “Taylor: Who? “Swiger: Elmer Miller knew the safe was there. “Taylor: O. K. Go ahead. “Swiger: Then we, me and Curt went in the house and Elmer stayed out of the house. We got in and then he come into the kitchen later on. And this Curt told me to tell the woman to lie down on the floor. I told her to lie down on the floor. She wouldn’t do it, went screaming and fighting and ran running into the other room, and Curt grabbed her by the arm. The woman fell, I think; anyhow, I went on into the bedroom to find the safe. I found the safe and I come back out and this boy had a pistol. He told me he was trying to get the combination off this woman and she wouldn’t give it to him. He slung her up against the wall and she hit the floor. I run back in, tried to get the safe out. I got it out of the closet, pushed it to the front room, and then I — the woman was lying there in the room; I carried her into the front room and laid her down. I pushed the safe on to the door and me and this other boy threw a rug over and pushed it to the door. “Taylor: Did somebody try to tie her? “Swiger: Yes, tried to wrap a rope around her. I did, and then I pushed the safe out, me and this Curt pushed the safe out to the door where Elmer helped us load it in the ear and take the safe to the woods, and he went to borrow— “Taylor: When you say ‘he’ who do you mean? “Swiger: Elmer Glen went to borrow a chisel and a hammer and we opened the safe and got the money out of it. We went on the road and split the money. We split the money on the roadway.” The recording concluded as follows: “Taylor: * * * Mr. Miller, [appellant] this recording that you just heard Lester give us, is that all essentially true what he said? “Miller: As far as I know, as drunk as I was that night. I will say it that way. “Taylor: It is the truth? “Miller: As far as I know as drunk as I was. I don’t recall every little incident. No man would, and I was drunk and I had no business driving that car. “Taylor: But, essentially, I mean, everything he said is the true statement? “Miller: Yes.” Before proceeding to the discussion of the recorded statement of Lester Swi-ger, made in appellant’s presence, which appellant claimed was improperly admitted hearsay evidence, and which resulted in his conviction of murder, in derogation of his rights under the Sixth Amendment to confront witnesses against him, and of his right to due process under the Fourteenth Amendment it should be emphasized that appellant was the chief witness in his own defense in his trial for murder in the Hamilton County Court of Common Pleas. In reading and rereading the transcript of testimony, and considering the arguments of appellant and his counsel with regard to the claimed improper admission of hearsay evidence of the recording of Swiger’s statement, and appellant’s oral ratification of it, and appellant’s contention that such improperly admitted hearsay evidence resulted in his conviction of murder in derogation of his constitutional right of confrontation of witnesses against him, and of deprivation of due process, a strange air of unreality seems to pervade the case. Upon reflection, one realizes that this air of unreality results from a seeming forgetfulness on the part of counsel that appellant had actually been a witness in the case, as well as a forgetfulness of what his testimony was. Let us, then, at this point,' recapitulate what he said. Appellant’s testimony included the admission that he had known Mrs. Austing for some years; that he had lived in a cottage on her property; that he had worked for her as a carpenter for approximately three years — performing such work as shingling various houses for her, and “tearing down” other houses during approximately three years just prior to the robbery and fatal assault upon her; that he drove Swiger and Bellamy (who were also convicted of Mrs. Austing’s murder) over to the Austing home sometime before midnight on May 5, 1963; that he further admitted he and the others intended to steal the saddles which he and Swiger had seen when they were at the Austing farm earlier the same day; that appellant took the saddles and threw them into the back seat of his car; that he helped remove the safe from the slab outside the door of Mrs. Austing’s house; that he then helped to lift the safe into the back of the car; that he then drove the car, with Swiger and Bellamy beside him, over to a ravine where they left the safe; that appellant Miller, Swiger and Bellamy went to see a man that they thought had a blow torch, but they found the man did not have such a torch; that appellant then drove to Newtown about midnight, where he secured a sledge hammer and wedges from Addison Crofton on the pretense that he wanted to split some wood; that he brought the sledge hammer and wedges back to the ravine; that appellant and Swiger used the sledge hammer and wedges to knock off the hinges and break open the door of the safe; that appellant and the others ransacked the safe, finding approximately $2,500, which they divided; that they drove away, stopping to let Bellamy out; that they continued driving on to West Virginia where they sold the saddles; and then drove eventually to Los Angeles where they were arrested by the police. We come, then, to the claimed error in the admission in evidence of the recorded statement of Lester Swiger made in the presence of appellant Miller and ratified by appellant. Before the recording was admitted in evidence, the judge of the Court of Common Pleas hearing the case, after listening to the recording, instructed the jury as follows: “THE COURT: The State alleges that the defendant, Swiger, who was first named in this indictment, together with the defendant now here on trial, Elmer Glenn Miller, made certain statements to the police officers which were recorded, these statements being statements against interest with respect to both these persons. “Now, it appears that the defendant, codefendant here, Swiger, related this conversation or a great deal of it, so that his voice will be heard on this record. “Now, you are instructed and cautioned that whatever this codefendant, Lester Swiger, said is not evidence in this case in any way and must not be considered as evidence in this case against this defendant, because Swiger is not on trial. This defendant is on trial. “If you would take into consideration anything that Swiger said, standing alone, about what he or what this defendant did, that would be hearsay testimony and it is not competent testimony, and you would not consider it. “However, it is further alleged by the State that this defendant in connection with this same conversation approved or adopted in some way in his conversation, whatever was said or portions of what may have been said by Swiger, as his own statements. “Now, if you find that to be true, and I will instruct you further on this later on, that the law requires that I tell you now so that it is fresh in your memory, and you recognize the importance of it, if you find in any way as claimed by the State that Mr. Swiger did or that this defendant, Miller, did accept statements made at this time by Swiger as his own statements, approved of what Swiger said, or concurred in some way what Swiger said, so that you could find that he, himself, made those statements, then you have the right to accept it as evidence and give to it such weight as you feel it is entitled to receive at your hands when you come to consider this case with all the evidence before you, in determining finally whether this accused has been proven guilty beyond a reasonable doubt as the State contends. “Now, with that explanation and that instruction, this record will be played to you now.” The recorded statement of Lester Swi-ger, which was played to the jury, and which has heretofore been set forth, is in accord with appellant's own subsequent testimony, except in two instances. Swi-ger in his statement, in answer to the question: “Did someone know about the safe?” answered: “Elmer Miller [appellant] knew the safe was there.” Furthermore, Swiger, in telling how the robbers entered Mrs. Austing’s house that night, said: “Then we, me [Swiger] and Curt [Bellamy] went in the house and Elmer [appellant] stayed out of the house. We got in and then he come into the kitchen later on.” The kitchen was the first room, adjoining the sun porch, which one entered in going into the house. When appellant Miller heard the recorded statement by Swiger, Miller was asked by Detective Taylor: “Mr. Miller, this recording that you just heard Lester give us, is that all essentially true what he said?” Miller’s reply was: “As far as I know, as drunk as I was that night. I will say it that way.” “Taylor: It is the truth? “Miller: As far as I know as drunk as I was. I don’t recall every little incident. No man would, and I was drunk and I had no business driving that car. “Taylor: But, essentially, I mean, everything he said is the true statement? “Miller: Yes.” Later, Miller, in his testimony on his trial, stated that he did not know anything about Mrs. Austing’s safe, or where it was; and that he did not go into the house that night, after Swiger and Bellamy had gone in. Swiger’s statements with regard to appellant’s knowledge about the safe in Mrs. Austing’s home and that Miller had entered the Austing house that night, were not matters, the facts of which were affected by drunkenness. He admitted to Detective Taylor that what Swiger said concerning his knowing about the safe in Mrs. Austing’s house was true. He later said in his own testimony at the trial, that he did not know about the safe. This matter of the safe was not a detail that he could not remember because of drunkenness. To the same effect, was the question of appellant’s entering the Austing house that night. As counsel for the State says: “Anyone who can understand our language must find adequate basis in the first three lines of this statement to make it clear that Swiger and Curt (Bellamy) went into the house and Elmer (Miller) stayed out of the house. After they (Swiger and Curt) got in then he (Elmer) came into the house. This is the only interpretation reasonably to be placed on these words.” It was for the jury to determine the fact, which it did under proper instructions. The trial court exercised unusual precautions that appellant’s constitutional rights be safeguarded, and was guilty of no error in the admission of evidence. Much is made of the claim that appellant was deprived of his right to confront his co-defendant, Swiger. During his trial, appellant made no such contention, and this argument was raised for the first time on appeal before the Supreme Court of Ohio. In this regard, that court said that the recording was a voluntary confession and, as such, there can be no question raised as to confrontation. Appellant, as the Supreme Court of Ohio said, never denied that the admissions used against him were voluntary. In State v. Swiger, 5 Ohio St.2d 151, 160, 214 N.E.2d 417, 424, the court declared : “The voluntary confession of an accomplice made in the immediate presence of an accused is admissible as evidence against the accused even though the accomplice and the accused were under arrest, if the accused ratifies the confession or adopts it as his own. Whether there is such an adoption or ratification is a question of fact for the jury to determine after proper instructions from the court. The record shows that such instructions were correctly given and there is no error in the introduction of recording No. 1 into the record. * * •>!• “At no time during any of the proceedings did any of the defendants deny that the admissions used against them had actually been made as represented by the recordings. At no time during any of the proceedings did any of the defendants deny that the admissions used against them had been made voluntarily.” The court concluded that the record indisputably supported the view that the confessions involved were in fact made voluntarily. Appellant relies on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, as governing the voluntariness of appellant’s ratification (as a confession) of Swiger’s statement. However, on the trial, appellant’s counsel made no objection to it on the basis of voluntariness; and Jackson v. Denno applies only where the voluntariness of a confession is attacked ; and the Supreme Court of Ohio in State v. Swiger, supra, held that appellant had voluntarily ratified or adopted the statement of Swiger as his own. Appellant contended that the State has not met its burden in proving the purpose or intent required by Section 2901.01 Revised Code, which reads: “No person shall purposely * * * in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kill another.” 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_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Appellee, v. Raynard CARROLL, Appellant. No. 81-5176. United States Court of Appeals, Fourth Circuit. Argued March 4, 1982. Decided May 27, 1982. Joseph Kiel, Towson, Md., for appellant. Richard E. Dunne, III, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Baltimore, Md., on brief), for appel-lee. Before WINTER, Chief Judge, ERVIN, Circuit Judge, and YOUNG, District Judge. Honorable Joseph H. Young, United States District Judge for the District of Maryland, sitting by designation. HARRISON L. WINTER, Chief Judge: A jury found defendant guilty of bank robbery, bank larceny, and assault with a dangerous weapon during a bank robbery, in connection with the armed robbery at the Savings Bank of Baltimore in Baltimore, Maryland on October 24, 1980. In defendant’s appeal from the judgment entered on the verdict, the question presented is whether certain remarks made by the prosecutor during closing arguments to the jury constitute reversible error. We conclude that the remarks were improper and prejudicial, and that, under the facts of this case, the curative instructions given by the court were insufficient to dissipate the prejudice. Accordingly, we reverse and grant a new trial. I. The bank was robbed by three persons, two masked and one unmasked. The government sought to prove that the defendant was the unmasked robber. The government’s evidence included the bank surveillance photographs of the holdup; the testimony of three bank employees and two persons who saw the getaway car, which defendant stipulated was owned by him; and a surgical glove seized from defendant’s car. The photographs showed that one of the masked robbers wore a glove similar to the one found in defendant’s car. There was considerable uncertainty in the evidence identifying defendant as the unmasked robber. The bank manager described the unmasked robber as a black man with no facial hair, but could not identify the defendant at trial. One of the bank tellers made an out-of-court identification of the defendant from photographs as the one most resembling the unmasked robber, but could not identify him at trial. That teller described the robber as having had facial hair. Another teller made an in-court identification of the defendant after describing the robber as having had facial hair. She admitted that she had earlier identified him in two pictures which did not show facial hair, one of which was the surveillance photograph. Defendant’s mother testified that defendant had always worn facial hair and that he had a front gold tooth, which none of the identification witnesses had mentioned. One of the two persons who saw the getaway car could make no identification, and the other could identify only defendant’s “hair style.” The defendant did not testify. During closing arguments, the prosecutor noted that at one point during the trial defense counsel and defendant had, with the permission of the district court, approached and examined the blowups of the bank surveillance photographs. The prosecutor then stated: .. . and if you will recall, it was the defendant who was doing most of the pointing. It was the defendant who was explaining to his lawyer what the pictures were all about. It was the defendant who knew more about the pictures than the lawyer did. Now, I submit to you ... the reason he knew so much about those pictures is because he was in the bank there at the robbery. That’s the only reasonable explanation. If there was an explanation, an innocent explanation, as to why he knew more about the pictures than his lawyer did, I honestly don’t know what it is. In order to register an objection, defense counsel immediately asked to approach the bench, but the district judge denied the request. After the prosecutor concluded his closing argument, defense counsel again asked to approach the bench. The district judge again declined the request and, further, admonished defense counsel to restrain himself and apologized to the jury for the “outbreak.” In its instructions, which were given approximately thirty minutes after the challenged argument, the district court advised the jury to disregard the prosecutor’s comments on the defendant’s examination of the photographs, and explained to the jury that both defendant and defense counsel had been provided copies of the photographs prior to trial. II. It is clear that the prosecutor’s reference to the courtroom behavior of the defendant was improper. It impugned defendant’s Fifth and Sixth Amendment rights. Defendant had a Fifth Amendment right not to testify, and he elected to exercise that right. He also had a Fifth Amendment right not to be convicted except on the basis of evidence adduced against him. Defendant had not only a Sixth Amendment right to a trial by jury (and he elected to exercise that right also), but also the right to counsel, including the right to assist his counsel in his own defense. In tandem, defendant had the right to a jury trial at which, if he elected not to testify, the fact of his presence and his non-testimonial behavior in the courtroom could not be taken as evidence of his guilt. When, as here, the prosecutor describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor violates those rights. Moreover, he has introduced evidence of character — courtroom demeanor — solely to prove guilt. United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir.1973). But it is forbidden to introduce evidence of the character of the accused solely to prove guilt. Fed.R.Evid. 404(a). Therefore, the prosecutor erred in asking the jury to consider defendant’s examination of the photographs as evidence of his participation in the bank robbery. The prosecutor compounded the error of describing defendant’s courtroom behavior as evidence of guilt when he also told the jury that it was defendant who was “explaining to his lawyer what the pictures were all about.” The record is devoid of any evidence, aside from the prosecutor’s assertion, that the defendant knew more about the photographs than did his lawyer. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court reversed a conviction where the prosecutor claimed, without evidence in the record, that a particular witness knew the defendant, on the grounds that this statement contained “improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 632. Similarly, here, the argument that the defendant had been at the scene of the crime because he knew more about the photographs than did his lawyer was wholly improper since there was no evidence of the latter proposition. United States v. Corona, 551 F.2d 1386, 1389 (5 Cir. 1977). The government argues that the prosecutor’s remarks, even if improper, were cured by the district court’s instructions to the jury. We reject the argument. By allowing the prosecutor’s remarks to pass uncorrected, over defense counsel’s objection, for a not-inconsiderable period of time, the district court implied that the remarks were unobjectionable. This impression was reinforced by the district court’s admonition to defense counsel and its apology to the jury for the “outbreak.” We do not doubt that if an improper statement, not elicited by the government, is made during trial, and if the admissible evidence of guilt is “solid and convincing,” prompt and strong curative instructions may dissipate the error. United States v. Johnson, 610 F.2d 194, 196-197 (4 Cir. 1979). The same may be true when the improper statement is elicited by the government. But this is not such a case. The issue of identification was the central issue and the government had something less than an overwhelming case. The error was reinforced by the district court’s admonition to counsel and its apology to the jury, and the curative instruction did not immediately follow on the heels of the prosecutor’s improper argument. Accordingly, we think that, despite the curative instruction, there is more than a fair possibility that the improper argument contributed to defendant’s conviction. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). REVERSED AND REMANDED. 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_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, v. Frank Richard DEL PIANO and Charles Harrison Allen. Frank Richard Del Piano, Appellant. Frank R. DEL PIANO, Appellant, v. UNITED STATES of America. Nos. 16153, 16154. United States Court of Appeals Third Circuit. Argued Feb. 14, 1967. Decided Nov. 24, 1967. Rehearing Denied Jan. 4, 1968. Morris S. Finkel, Manchel, Lundy & Lessin, Philadelphia, Pa., for appellant. Robert St. Leger Goggin, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O’Keefe, U. S. Atty., Philadelphia, Pa., on the brief), for appellee. Before SMITH and SEITZ, Circuit Judges, and JOSEPH S- LORD, III, District Judge. OPINION OF THE COURT PER CURIAM. This case considers appeals from orders of the District Court denying motions to vacate sentence under 28 U.S.C.A. § 2255 and to set aside judgment of conviction and withdraw plea of guilty pursuant to Fed.Rules Cr.Proc. 32(d). Appellant was indicted for the armed robbery of a bank in violation of 18 U.S. C.A. § 2113(a) and (d). On December 16, 1963, he was brought before the District Court for arraignment, and after assignment of and consultation with counsel pleaded guilty to all counts of the indictment. The record reveals that the District Judge did not comply with Fed. Eules Cr. Proc. 11 which required the Court before accepting the guilty plea to determine “that the plea is made voluntarily with understanding of the nature of the charges.” At this time the Eules of Criminal Procedure were silent as to how the determination of understanding and voluntariness should be made. The cases however imposed a clear obligation on the court to conduct a thorough investigation before accepting the plea. See, e.g., Domenica v. United States, 292 F.2d 483, 485-486 (1st Cir. 1961) and United States v. Lester, 247 F.2d 496, 499-500 (2nd Cir. 1957). The record here discloses the total absence of any investigation. On May 26, 1965, appellant, pro se, filed a motion pursuant to 28 U.S.C.A. § 2255 alleging that his guilty plea was induced by promises made by agents of the Federal Bureau of Investigation that he would receive a maximum sentence of ten years. The denial of this motion, without hearing, was reversed by this Court and remanded for a hearing. Del Piano v. United States, 362 F.2d 931 (3rd Cir. 1966). The appeals in the instant case arise from proceedings held subsequent to this remand order. Appellant contends here that he is entitled to withdraw his guilty plea and have his conviction set aside because he did not understand the charges against him and because of the promises allegedly made by agents of the Federal Bureau of Investigation. If these contentions are sustained petitioner is entitled to relief. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Independently, it is urged that he is entitled to relief solely because of the trial judge’s failure to comply with Eule 11. This latter argument was raised in support of a motion under Eule 32(d) made by appellant’s present attorney who was assigned after the remand of the section 2255 motion by this Court. Counsel has made no effort to distinguish between grounds urged in support of the section 2255 motion and those in support of the Eule 32 (d) motion. Because of the manner in which we dispose of the case it is not necessary to consider whether relief is properly sought under both provisions. The District Court rejected appellant’s allegations that promises as to his sentence had been made and that he was not aware of the nature of the charges or the possible consequences of pleading guilty. The Court also rejected the contention that a violation of Eule 11 automatically required the granting of the relief sought. As to the factual determinations by the District Court we have carefully studied the record and have found that they are amply supported. They are not clearly erroneous and may not, therefore, be set aside. There remains for our consideration the consequences, if any, which should flow from the non-compliance with Eule 11. The courts are divided as to the consequences which should flow from non-compliance. Most have held that this does not per se require a vacation of sentence and plea. The inquiry is whether the plea was in fact voluntary. Such was the view adopted by the District Court in United States v. Miller, 243 F.Supp. 61 (E.D.Pa.1965), and aff’d by this Court in a per curiam opinion, 356 F.2d 515 (3rd Cir. 1966). Appellant’s counsel urges us to adopt the view that failure to comply with the rule as then formulated automatically required the District Court here to strike the plea. The answer is that this panel is not free to overrule the legal approach approved by this Court in United States v. Miller, above. We do emphasize, however, the importance of compliance with the rule to avoid the “after the fact” proceedings with all of its infirmities. The judgment of the District Court will be affirmed. WILLIAM F. SMITH, Circuit Judge, did not participate in the decision of this case because of illness. . The following is the transcript of what occurred at the time appellant’s plea was taken: “The Clerk: You and each of you are charged herein under Indictment No. 21591, five counts each, for conspiracy to rob and for bank robbery. How say you to each of these counts? “Defendant Del Piano: Guilty. “Defendant Allen: Guilty. “The Clerk: Guilty as to each defendant.” . An amendment to Rule 11, effective July 1, 1966, requires the trial judge to personally address the defendant before making the required determination. 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_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. JONES DAIRY FARM, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local 538, United Food and Commercial Workers Union, AFL-CIO-CLC, Intervening Respondent. Nos. 89-2512, 89-2821. United States Court of Appeals, Seventh Circuit. Argued April 10, 1990. Decided Aug. 7, 1990. Herbert P. Wiedemann, Foley & Lardner, Milwaukee, Wis., for petitioner/cross-respondent. Aileen A. Armstrong, N.L.R.B., Appellate Court — Enforcement Litigation, Joseph Oertel, Paul J. Spielberg, N.L.R.B., Washington, D.C., George F. Squillacote, N.L. R.B., Milwaukee, Wis., for respondent/cross-petitioner. Kenneth R. Loebel, Previant, Goldberg, Uelman, Gratz, Miller & Brueggeman, Milwaukee, Wis., for intervening respondent. Before CUDAHY, COFFEY and MANION, Circuit Judges. CUDAHY, Circuit Judge. On June 15, 1989, the National Labor Relations Board (the “Board,” the “NLRB”) ordered Jones Dairy Farm (“Jones”) to cease and desist from implementing a mandatory “work hardening” program. Jones asks us to review and set aside the Board’s order; the Board cross-petitions for enforcement of its order. Jones raises two points in its petition. First, Jones argues that the Wisconsin Worker’s Compensation Act, Wis.Stat. § 102.01 et seq., grants it a right to implement the program in order to reduce its disability payments to injured and ill employees. Second, Jones contends that the administrative law judge (the “AU”) and the NLRB violated its right to due process by deciding the case on the basis of a no-strike clause in the collective bargaining agreement (the “CBA”), despite the fact that Local 538 (the “Union”) did not prosecute its case on that theory. For the reasons discussed below, we deny Jones’s petition for review and grant the NLRB’s petition for enforcement of its order. I. BACKGROUND At the time the dispute arose over the work hardening program, Jones and the Union were parties to a CBA effective from November 9, 1985, to October 1, 1988. The CBA contained seniority and sick pay provisions. Article XI, the seniority clause, provided in material part: 11. In cases of proven disability, where an employee is not able to perform a job according to his seniority, the Company and the Union may deviate from the seniority provisions in order to place him on a job he can perform. General Counsel’s Exh. 2, at 34. Article XVI set out the sick pay provisions. It read: 1. Regular full-time employees with twelve (12) months or more of continuous service with the Company, who are absent because of physical disability due to sickness or accident (except where such disability is covered by the Workmen’s Compensation Law of Wisconsin), where such disability is supported by acceptable medical evidence, shall receive Sick Pay. 2. Subject to the other provision [sic] of this Article, Sick Pay shall be payable for each period the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation. 5. In cases of disability which would have been covered by this article but for the fact that they are covered by the Workmen’s Compensation Law of the State of Wisconsin, the employee, if eligible under this article, will receive the difference between what he received as compensation under said law and the amount he would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law. Id. at 43, 45-46. Further, the CBA contained a no-strike/no-lockout clause that read in part: 1. Since arbitration is provided for grievances, since the procedures of the National Labor Relations Board are available for claims of unfair labor practices, and since negotiation on matters not covered by this Agreement is to be deferred until the expiration of this Agreement, the Union will not call or sanction any strike, stoppage, slowdown or other interference with work during the term of this Agreement and the Company will not lock out any or all of its employees. Id. at 42 (emphasis added). Because of a high work-related accident rate, Jones and its worker’s compensation insurer, EBI, began studying methods to reduce the number and severity of acci-' dents and the cost of the company’s disability payments. Among the options explored by the company was a so-called “work hardening” program offered by Opportunities, Inc. (“OI”), an organization specializing in boosting the confidence and strength of temporarily partially disabled workers and preparing them to return to their regular jobs. OI provides light duty jobs in a factory setting to temporarily partially disabled employees of participating companies. The companies pay a service fee to OI and also pay wages to their own employees. Under the program, a participating company’s physician would examine a disabled employee and determine what, if any, work he could perform. An appropriate assignment would be made at OI, and the employee would work at the assigned position under the supervision and direction of OI. The employee would earn wages, which would be offset by a reduction in disability benefits. Jones proposed to pay its employees assigned to 01 an hourly wage of $4.00 — about one-third of the normal wages prescribed by the CBA. Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, Case No. 30-CA-9395, at 3 (June 23, 1987) (hereafter the “ALJ’s findings”). Jones asserts that even after state and federal taxes, the partially disabled employee would be no worse off than if he had remained on temporary total disability status. If the employee declines the limited duty work, however, his benefits are still reduced according to the formula, and he obviously does not receive any wages. On June 23, 1986, Jones first notified the Union that it was considering the work hardening program as well as several plans directed at accident prevention and injury and health counseling. Representatives of Jones, EBI and the Union toured OI’s facilities two days later, but when Jones again raised the proposal at a regular grievance meeting on July 14, the Union refused to give its consent. On September 29, 1986, Jones informed the Union that it intended to implement the 01 program unilaterally on October 15; at the Union’s request, Jones delayed action on the plan until it met with Union officials at a special meeting on October 17. At the meeting, the Union refused to consent to the work hardening program and specifically stated as its major concern the issue of bargaining unit employees working outside of Jones’s premises. On October 24, Jones advised the Union that it would unilaterally implement the program on November 3; the company sent letters to the same effect to all of its employees on October 31. On November 11, the Union filed a grievance protesting Jones’s unilateral implementation of the work hardening program, General Counsel’s Exh. 7, and on November 17, the Union filed its charge with the NLRB. The complaint issued by the General Counsel of the NLRB pursuant to the Union’s charge accuses Jones of engaging in unfair labor practices in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the “Act,” the “NLRA”), 29 U.S.C. §§ 158(a)(1) and (5), 158(d). Jones’s App. at 32-37. The complaint explicitly alleges that the work hardening program modified the seniority and sick pay provisions without the Union’s consent. The complaint mentions neither the no-strike clause nor the “management rights” clause contained in Article V of the CBA. General Counsel’s Exh. 2, at 9. Between November 1986 and April 1987 (when the parties presented their cases to the AU), Jones assigned seven of its employees to the 01 work hardening program. Four agreed to participate; three refused and suffered reduced disability compensation. AU’s findings at 5. The AU concluded that the work hardening program was encompassed within “wages, hours, and other terms and conditions of employment” and was therefore a mandatory subject of bargaining under section 8(d) of the NLRA. The AU further determined that the Wisconsin Worker’s Compensation Act was not preempted by the NLRA since the employer was not required to implement a light duty/rehabilitation program. Rather, according to the AU, the implementation of such a program was negotiable. The AU next addressed the Union’s contention that the program impermissibly expanded the bargaining unit. He concluded that “farming out” bargaining unit employees, AU’s findings at 12, was a permissible subject of bargaining that required the consent of both the Union and the employer. The AU then rejected Jones’s contention that the no-strike clause permitted it to take unilateral action on any subject (like the work hardening program) not covered by the CBA. The ALJ read the no-strike clause in a manner wholly contrary to Jones’s interpretation, concluding that, in fact, the clause mandated that the status quo be preserved during the term of the CBA with regard to any subjects not specifically addressed in the CBA. Consequently, the AU ordered Jones to cease and desist from implementing the work hardening program without the Union’s consent. Jones fared no better with the NLRB, although the NLRB did modify the AU’s findings in some respects. The NLRB agreed with the AU that the work hardening program was a mandatory bargaining subject under section 8(d) because worker’s compensation benefits, although provided by state law, are nevertheless “emoluments of value which accrue to employees out of their employment relationship.” Jones Dairy Farm and Local No. P-1236, United Food and Commercial Workers Union, AFL-CIO-CLC, 295 N.L.R.B. No. 20, at 7 (June 15, 1989) (citations omitted) (hereafter the “NLRB decision”). The Board rejected the AU's finding that the program was a permissive bargaining subject because it expanded the scope of the bargaining unit. However, the Board concluded that this aspect of the AU’s determination was not necessary to the resolution of the case, since the Board also agreed with the AU that the no-strike clause prohibited Jones from unilaterally implementing the OI program. II. JONES’S CLAIMED RIGHT TO IMPLEMENT THE OI PROGRAM UNILATERALLY Jones asserts, essentially, that its implementation of the work hardening program was authorized by state law and was none of the NLRB’s concern. In support of its position, Jones cites the Supreme Court’s decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Neither of these cases, however, removed the OI program from the purview of the NLRA and the regulatory jurisdiction of the Board. Although neither the AU nor the NLRB devoted much attention to the matter, we consider it important to inquire initially whether the Wisconsin Worker’s Compensation Act did in fact grant Jones a right to-impose a light duty rehabilitation program as a means of reducing its disability indemnity. None of the parties has directed us to a provision of the Worker’s Compensation Act that expressly vests an employer with such a right. The record, too, is ambiguous on this point. Jones relies in large measure on a decision in its favor rendered by an AU in the Worker’s Compensation Division of Wisconsin’s Department of Industry, Labor and Human Relations (the “DILHR”). Castenon v. Jones Dairy Farm, Nos. 87 64614 & 88 11916 (Mar. 20, 1989), reprinted in Jones’s App. at 38-46. The Casten-on decision, which explicitly declined to consider the applicability of federal labor law to the matter, referred to Wis.Stat. section 102.35(3), but then stated that the present matter was not a section 102.35(3) dispute. That section provides: (3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within .the employe’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern. (Emphasis added.) Section 102.35(3) is clearly concerned with the rights of recuperating employees. It may be that the Wisconsin AU in Castenon extrapolated from this provision to a corresponding right in employers to insist that temporarily partially disabled employees work up to their physical and mental capacities. Another section of the Worker’s Compensation Act that may apply is section 102.-43(2). That section provides that the weekly compensation schedule for partial disability is “such proportion of the weekly indemnity rate for total disability as the actual loss of the injured employe bears to his average weekly wage at the time of his injury.” Chris M. Faulhaber, Jr., Administrator of the Worker’s Compensation Division of the DILHR, referred to section 102.43(2) in a letter to the Union’s president and explained how benefits for partial disability are affected by earnings from part-time work. It could be inferred from Faul-haber’s letter — although the letter did not say so expressly — that the DILHR would require a healing worker to accept a position within his capabilities if such a position were offered by his employer. But the letter emphasized that any “part-time or limited employment must be employment with the employer for whom the employe was working when injured” and “should be within the parameters of the union contract in effect.” General Counsel’s Exh. 8. Jones cites another source in support of its claimed right — the Worker’s Compensation Handbook (1983 & Supp.1985) prepared by the Wisconsin Bar and reprinted in Jones’s Exhibit 8. The Handbook does say that an employee is required to take light duty work (to the extent of his capacities) if it is offered by his own employer; however, the Handbook does not address whether an employee must take light duty work, assuming he is able, with a different employer or on different terms of employment. Further, the Handbook makes no mention of the potential effect of a CBA on the recuperating employee’s obligation to return to light duty work. Finally, the Handbook asserts that its summary of employees’ obligation to take light duty work is based on the “long-standing construction of the [Worker’s Compensation] Statutes” by the DILHR and one unpublished opinion of the Wisconsin Circuit Court. Jones’s App. at 36-37. The Handbook cites as its sole authority an unpublished Wisconsin Circuit Court case — Gillette Well Drilling v. DILHR, Case No. 143-142 (Dane Co. Cir.Ct. April 7, 1975). Under Wisconsin Civil Procedure Rule 809.23(3), unpublished cases have no precedential value. It may be under Wisconsin law that employers do have a right to insist that their partially disabled employees accept positions they are capable of performing, if the employer has such a position and makes it available. The parties have cited no published case, nor has our own research uncovered any, that establishes such a right. The evidence of DILHR policy contained in the record is inconclusive. Nevertheless, for the purposes of resolving this matter, we will assume that an employer is entitled under Wisconsin law to recall a recovering employee to an appropriate job at the employer’s place of business. Jones attempts to equate its asserted right with rights guaranteed to workers under state laws prescribing, for example, minimum wages and maximum hours. Such laws predated the federal labor laws, and they form a floor for the negotiation of the substantive terms of a collective bargaining agreement. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S.Ct. 2211, 2222, 96 L.Ed.2d 1 (1987) (“[P]re-emption should not be lightly inferred in [the area of state regulation establishing minimum terms of employment], since the establishment of labor standards falls within the traditional police power of the State.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 757, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985) (“When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act.”). By comparing its asserted right, which it also labels an unqualified right, to minimum labor standards laws, Jones would require us to choose between recognizing its asserted right or declaring the Wisconsin Worker’s Compensation Act preempted. Such a choice is unnecessary. The Wisconsin statute has been drafted and interpreted to account for CBA provisions. Section 102.35(3) expressly defers to any applicable seniority provisions in a labor contract, and Faulhaber’s letter to the Union’s president emphasized that the employer’s recall of an employee is subject to the terms of a binding CBA. In our view, therefore, the NLRB persuasively argues that even if Jones had a right under Wisconsin law to insist that its injured workers accept employment up to their capacities, Jones was not required by state law to exercise that right. The right — if it indeed existed — was negotiable. The Board accepted the ALJ’s conclusion that the OI program was a mandatory subject of bargaining, since it clearly fell within the scope of “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). The Board’s findings of fact must be upheld if they are supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e); David R. Webb Co. v. NLRB, 888 F.2d 501, 503 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 743 (1990). Further, the Board’s legal conclusions should be accepted and enforced unless they are irrational or inconsistent with the act. NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012-13, 89 L.Ed.2d 151 (1986); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); David R. Webb Co., 888 F.2d at 503, 505; Maas & Feduska v. NLRB, 632 F.2d 714 (9th Cir.1979). In particular, we give substantial deference to the Board’s determinations about mandatory and permissive subjects of bargaining. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849; Jack Thompson Oldsmobile, Inc. v. NLRB, 684 F.2d 458, 461-62 (7th Cir.1982); Maas & Feduska, 632 F.2d at 718-19. The NLRB noted that the OI program affected temporarily disabled employees’ wages, hours, types of work and workloads. Further, the program would have reduced employees’ sick pay and disability benefits, and these welfare benefits are a mandatory subject of collective bargaining. See Metropolitan Life, 471 U.S. at 751-52, 105 S.Ct. at 2395-96 (citing Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159 & n. 1, 92 S.Ct. 383, 387 & n. 1, 30 L.Ed.2d 341 (1971)). Even if sick pay and disability benefits were not per se mandatory bargaining items, they became so by their inclusion in the CBA. Article XVI(2) clearly stated that sick pay “shall be payable for each period that the employee is prevented by such disability from performing any and every duty pertaining to the employee’s occupation.” (Emphasis added.) Subsection 5 of the same article required Jones to make up the difference, if any, between an employee’s state-mandated worker’s compensation benefits and “the amount [the employee] would have received under this article but for the exclusion of the disability because of his being covered by the Workmen’s Compensation Law.” Jones’s obligations under the CBA with regard to sick pay and disability benefits were explicit. Jones could not attempt to modify unilaterally those provisions during the term of the CBA without obtaining the Union’s consent or bargaining to impasse. 29 U.S.C. § 158(d). The NLRB’s conclusion that the OI program was a mandatory bargaining topic is, therefore, objectively reasonable and wholly supported. We accept that determination as conclusive in these circumstances. The Board did not reach the question, however, whether Jones had bargained with the Union over the OI program in good faith to impasse. Jones does not argue in its petition to us that impasse was reached, or even sought. In the alternative to its claim of an unqualified right to implement the OI program unilaterally, Jones maintained before the ALJ and the Board that the no-strike clause permitted it to take action unilaterally with respect to any item not covered by the CBA. Both the ALJ and the Board took the opposite view of the no-strike clause’s import, and the Board resolved the matter on the basis of its reading of that clause. We owe the Board no special deference in matters of contractual interpretation. Irvin H. Whitehouse & Sons Co. v. NLRB, 659 F.2d 830, 833 (7th Cir.1981); Local Union 1395, Int’l Bhd. of Electric Workers, AFL-CIO v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986). But we are, of course, mindful of the Board’s considerable experience in interpreting collective bargaining agreements. According to the Board, the no-strike clause was intended by the parties to preserve the status quo during the agreement’s term on mandatory bargaining matters not addressed by the CBA, “just as Section 8(d) [of the NLRA] preserves the status quo as to subjects covered by the agreement.” NLRB decision at 8. Thus, any alteration of the terms of employment during the life of the CBA required mutual assent, and it is undisputed that the Union withheld its consent here. The no-strike clause clearly evinced a desire by the parties to defer negotiation on mandatory items, not, as Jones argues, to waive it. Therefore, we agree with the NLRB and the ALJ that Jones was not free to implement the OI program during the term of the CBA without the Union’s consent; nor could Jones insist that the Union bargain to impasse on that subject. Jones’s unilateral implementation of the OI program therefore violated sections 8(a)(1) and (5) of the NLRA. The Board properly ordered Jones to cease and desist from unilaterally implementing the program and to make restitution to the affected employees. III. JONES’S DUE PROCESS CLAIM Having failed to convince the AU or the NLRB of its “right” to implement the OI program, Jones now claims that its due process rights were violated because the AU and the NLRB resolved the matter on the basis of the no-strike clause. Since the Union’s charge did not specifically allude to the no-strike clause, Jones complains that it did not receive fair notice of that theory and that it was consequently deprived of an opportunity to prepare an adequate defense. It is somewhat incongruous that Jones should charge the NLRB with a due process violation, since it was Jones that drew the AU’s and the Board’s attention to the no-strike clause in the first place. This clause was, indeed, a principal component of Jones’s defense in the administrative proceedings to the Union’s unfair labor practice charge. Jones is now dissatisfied with the intepretation of the clause rendered by the AU and accepted by the NLRB (and by this court). That the AU and Board disagreed with Jones over the meaning of the no-strike clause, however, is no basis for a claim that Jones was denied due process. Evidently, Jones hopes for a remand so that it can introduce some unspecified evidence from the bargaining history in support of its reading of the no-strike clause. But Jones has already been afforded two opportunities to marshall its evidence. We will not remand the case merely because Jones “assures” this court that such evidence exists, Jones’s Brief at 13, without making any effort to particularize the substance of its would-be proffer. Finally, Jones argues that, had it been apprised that the AU and NLRB would base their decisions on the no-strike clause, it would have defended its position by referring to a “management rights” clause in the CBA. Since Jones itself brought up the no-strike clause, it could have (and should have) drawn the NLRB’s attention to the management rights clause as support for its reading of the no-strike clause. Jones’s inexcusable failure to avail itself before the Board of all of its possible defenses, particularly after the adverse decision of the AU, deprives it of the right to have those arguments decided here. Jones’s claim that it was denied due process of law rings hollow. IV. CONCLUSION The NLRB concluded that “[n]othing in the management-rights, sick leave, no-strike/no-lockout provisions or any other section of the collective bargaining agreement permitted the Respondent to alter the status quo in the manner that it has in this case.” NLRB decision at 9-10. Because we agree with the Board’s reading of the CBA, Jones’s petition for review is Denied, and the NLRB’s order is Enforced. . In 1966, Jones recognized Local P-1236 of the United Food and Commercial Workers Union as the bargaining agent of its production and maintenance, employees. Local P-1236 merged with Local 538 during the pendency of this case. The parties do not dispute that Local 538 is the successor to Local P-1236. See NLRB’s Brief at 4 n. 3. . Jones gives the following example of the program's operation: Assume the employee’s regular wage is $8.00 per hour and he regularly works 40 hours per week. His average weekly earnings are $320 ($8.00 X 40 hours). His worker’s compensation indemnity for temporary total disability is $213.00 (Vi X $320.00) [sic] If he works 20 hours per week on a limited duty job he is paid $80.00 ($4.00 x 20 hours) for that work. His wage loss is thus reduced from $320.00 to $240.00, i.e., from 100% to 75% ($240.00 divided by $320.00). This, results in a worker’s compensation indemnity for partial disability of $159.75 (.75 X $213.00). He receives that indemnity, $159.75, plus the pay for the limited duty work, $80.00, for a total of $239.75, which is $26.75 more than the indemnity for temporary total disability. Jones’s Brief at 8-9. . Jones does not explain precisely how much of the employee’s wages from the limited duty work would be subject to federal and state taxes. Jones directs us to its Exhibit 13 in the administrative record, but that document expressly involves calculations based only on gross earnings. In light of our disposition of this case, however, the effect of taxes on the disability package is irrelevant. . The Union concedes that a temporarily partially disabled employee may be required to accept light duty work at Jones's plant. Subsection 11 of Article XI (the seniority provision of the CBA) nevertheless appears to require the consent of both the Union and Jones to place a recovering employee in a suitable position. . Shortly after implementing the program, Jones declared that it would not apply to employees whose sickness or disability was not work-related; Jones feared that subjecting such employees to the 01 program would violate the sick pay provisions of the CBA. Jones’s Brief at 5 n. 3. Jones does not explain, however, why application of the program to employees suffering from a work-related disability would not ¡also violate the CBA’s sick pay regimen. . We discuss the management rights clause below. . Hereafter, we follow the pagination of Jones’s Appendix when referring to the Castenon decision. . Indeed, the Labor and Industry Review Commission, to which Castenon and his fellow claimants appealed the state ALJ’s decision, reversed the state ALJ’s decision and declared the matter preempted in light of the NLRB’s decision and order in the present case. Intervenor's Motion to Supplement the Record filed Oct. 10, 1989, at 1-7. Whether a matter that may be governed by state law is preempted by an applicable federal law is, of course, a question of Congress’s intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978). For the reasons we give in this section, we agree with the NLRB that the NLRA and the Wisconsin Worker’s Compensation Act can "peacefully coexist.” NLRB decision at 6. . The Wisconsin AU who rendered the Casten-on decision testified before the NLRB that Cas-tenon reflects the DILHR’s interpretation of the Worker’s Compensation Act. Tr. at 94-112. . Unpublished opinions may be cited only "to support a claim of res judicata, collateral estop-pel or law of the case." Wis.Civ.P.R. 809.23(3). . Jones declares in its brief: “Even if the collective bargaining agreement in haec verba were to preclude Jones from providing limited duty work, a unilateral modification of the agreement to elimination [sic] that prohibition would not constitute a violation of section 8(d).” Jones's Brief at 19. Since we have some difficulty accepting Jones's argument that such a right exists at all, we have considerably more reservations about deeming the “right” absolute and independent of Jones's collective bargaining obligations. . As we noted above, the ALJ rested his decision on the determination that Jones’s "farming out” of bargaining unit employees to OI was a permissive subject of bargaining that could not be implemented without the Union’s consent. Although the Board disagreed with this aspect of the ALJ’s findings, the issue did not affect the outcome óf the case. Since we resolve the matter on other grounds, we do not reach the Union’s contention that the OI program illegally enlarged the scope of the bargaining unit. . In any event, it appears that the NLRB, which had the entire CBA before it as an exhibit, in fact considered whether the CBA gave Jones residual authority to take unilateral action in the furtherance of its business with respect to matters not covered by the CBA. NLRB decision at 9 n. 13. The Board found no such broad grant of authority in the CBA in this case. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_treat	G	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. KLPR TV, INC., and Coronado Corporation, Appellees, v. VISUAL ELECTRONICS CORPORATION, Appellant. NOARK BROADCASTING, INC., Appellee, v. L. J. (Jack) BEASLEY et al., Appellees. No. 71-1514. United States Court of Appeals, Eighth Circuit. Submitted April 10, 1972. Decided Aug. 10, 1972. C. Wayne Harris, Fort Smith, Ark., for appellant. E. J. Ball, Fayetteville, Ark., for ap-pellees. Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and STEPHENSON, Circuit Judges. VAN OOSTERHOUT, Senior Circuit Judge. This is an appeal by Visual Electronics Corporation (Visual) from final judgment denying recovery of unpaid balance on a lease purchase agreement of operating equipment for a UHF-TV station against KLPR TV, Inc., (KLPR), Coronado Corporation, L. M. Beasley, Omer Thompson, Noark Broadcasting, Inc., (hereinafter referred to as Noark), and Noark Investments, Inc. This case was tried to Judge Miller without a jury. Jurisdiction based upon diversity of citizenship and the jurisdictional amount is established. The complex pleadings and the issues as well as much of the factual detail are set out in Judge Miller’s opinion reported at 327 F.Supp. 315. The origin of this litigation was a suit commenced by KLPR for a declaratory judgment as to its rights and liabilities arising out of the transactions here involved. All parties heretofore named were ultimately made parties to the suit. With the proper object of minimizing the confusion, the case without objection was properly tried as an action by Visual for payments due it on its counterclaim with counterclaims and asserted defenses filed by KLPR, Coronado Corporation, Beasley, Thompson, Noark and Noark Investments, Inc. KLPR and Coronado are Oklahoma corporations controlled by Beasley and Thompson. KLPR was organized and licensed to operate a television station at Oklahoma City. Coronado, Beasley and Thompson have by written contracts assumed liability on the lease purchase contract entered into by KLPR and Visual and their rights and liabilities are dependent upon those of KLPR. For simplification, we will generally refer to such parties jointly as KLPR. KLPR with the consent of Visual but with reservation of all rights against the KLPR group assigned its interest under the lease purchase agreement to Noark, an Arkansas Corporation organized to operate a television station at Fayetteville, Arkansas. Noark Investments, Inc., an Arkansas corporation with the same stockholders as Noark, received an assignment of Noark’s rights in the lease. The issue of Noark Investments, Inc.’s liability is not reached unless Noark is found to be indebted to Visual. KLPR after soliciting and considering bids from various suppliers on August 31, 1965, entered into a written lease agreement with Visual covering operating equipment for a TV station, reciting a consideration of $343,125.00, due in sixty monthly installments of $5,718.75. The lease contains an option to purchase the equipment at the expiration of the lease for $30,500.00. KLPR received a construction permit for its station from FCC on February 6, 1966, and started broadcasting with the leased equipment in June 1966. KLPR became delinquent in its rental payments. On June 14, 1967, KLPR and Visual entered into a new lease agreement which among other things reduced the monthly payments due up to April 15, 1969, to $2,660.00. The payment schedule and other details of the new lease contract are set out at p. 319 of 327 F.Supp. Coronado, Beasley and Thompson guaranteed the payments due under the June 14, 1967, lease and Coronado exercised the option contained therein for the purchase of the leased equipment. KLPR made substantial payments on the revised lease. Its president testified that payments on the lease continued “as long as we had money in the bank.” KLPR discontinued operating its station early in 1968. KLPR assigned in _ writr ing its interest in the lease and the leased property to Noark with Noark assuming the obligations of the lease and agreeing to hold KLPR and its guarantors harmless on the lease obligations. KLPR also as part of the consideration for the transaction turned over to Noark some property items owned by- it not covered by the lease. Judge Miller’s statement of the issues before him is set out at p. 321 of 327 F. Supp. He entered final judgment on March 25, 1971, resolving such issues as follows: “It is Ordered and Adjudged: (1) That the cross-complaint of the defendant Visual Electronics Corporation against the plaintiffs, KLPR TV and Coronado Corporation, and the defendant Noark Broadcasting, Inc., be and it is dismissed, and that plaintiffs and Noark Broadcasting, Inc., recover from defendant and Visual Electronics Corporation their costs expended herein by reason of said cross-complaint ; (2) That the third-party complaint of Visual Electronics Corporation against third-party defendants, L. M. (Jack) Beasley, Omer Thompson, and Noark Investments, Inc., be and it is dismissed, and that said third-party defendants recover from Visual Electronics Corporation their costs herein expended by reason of said third-party complaint; (3) That the claim of the plaintiffs, KLPR TV, Inc., and Coronado Corporation for damages against Visual Electronics Corporation be and it is dismissed, without costs; and (4) That the defendant Noark Broadcasting, Inc., on its claim for damages herein shall have and recover of and from the defendant Visual Electronics Corporation the sum of $179,260.00, together with its costs expended on said claim.” Visual’s timely appeal is from such final judgment. No cross-appeal has been taken. KLPR has filed no brief with us. Visual presents three issues upon which it bases its right to a reversal, to wit: 1. Visual is entitled to receive the payments called for in its lease for goods sold, delivered and accepted as against all other parties to this action. 2. Findings of fact upon which the judgment is based are clearly erroneous. 3. Damages awarded to Noark are not based upon a proper measure of damages and are not supported by substantial evidence. Preliminary to reaching Visual’s contentions, we note that Visual is not here raising the issue which it urged in the trial court that the involved lease is not governed by the Uniform Commercial Code adopted in Arkansas. Upon this issue Judge Miller, citing Sawyer v. Pioneer Leasing Corp., 244 Ark. 943, 428 S.W.2d 46 and other cases, held that the lease transaction was at least analogous to a sale and that the Arkansas Uniform Commercial Code statutes applied to the lease transaction. We agree with such determination. We shall first consider whether KLPR has any express or implied warranty defense to Visual’s claim. We hold that KLPR lost any express or implied warranty rights it might have possessed by accepting the goods and by failing to give Visual notification of breach of warranty within a reasonable time as required by Arkansas Stat.Ann. §§ 85-2-607(3) (a) and 85-2-714(2). See Hudspeth Motors, Inc. v. Wilkinson, 238 Ark., 410, 382 S.W.2d 191, 192; Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142, 144. The trial court made no express finding that KLPR gave notice of the breach as required by § 85-2-607. Some complaints were made about particular parts of the leased equipment and adjustments were attempted with respect thereto. The goods were all delivered early in 1966 under the 1965 lease. After KLPR had used the equipment for over a year the June 14, 1967, novation contract was entered into which among other things expressly provides “lessee accepts possession and good working order of said equipment and any and all prior lease agreements by the parties hereto are hereby revoked and superseded by this instrument.” KLPR continued to make the required payments until it ran out of money in 1968. When sued for breach of payments in 1968, it raised no warranty defense and made the delinquent payments. In its declaratory judgment action which initiated this litigation, no breach of warranty was claimed. KLPR has no valid defense to its obligations under the lease. The court erred in dismissing the complaint against KLPR, Coronado Corporation, Beasley and Thompson. Noark in acquiring the assignment of the lease assumed primary liability for the lease payments. If Noark is entitled to an offset against Visual’s claim, liability of KLPR and its guarantors must be reduced to the extent of such offset. Noark argues that it received from Visual express and implied warranties as to suitability of its equipment for its intended use. It contends that by virtue of the assignment of the lease it acquired the express and implied warranties possessed by KLPR. Such claim lacks merit as we have heretofore held that KLPR held no warranty rights against Visual at the time of the assignment. Noark additionally claims that Visual made express and implied warranties to it on which it relied. On the express warranty issue, the trial court found: “On the question of whether a warranty existed, the evidence is clear that Noark was the beneficiary of an express warranty that the equipment would be put in ‘first class’ condition and would produce a quality television picture. As had been stated, the testimony is uncontradicted that Visual’s agent represented that the equipment would be placed in ‘first class’ condition and would be made to produce a quality picture. The statement was made before the assignment was executed. Noark relied upon the statement as Visual intended it to. Noark was entitled to rely upon such statement, and it amounts to a warranty that the goods were fit for the intended use. . . . ” 327 F.Supp. 315, 324. The evidence on express warranty made to Noark is conflicting. The trial court’s findings must be accepted unless clearly erroneous. On review, the evidence must be viewed in the light most favorable to the prevailing party. We hold that the court’s finding of express warranty by Visual to Noark is supported by substantial evidence and is not clearly erroneous. It is undisputed that the negotiations between KLPR and Noark for assignment of the lease broke down and that such negotiations were revived only after Visual’s treasurer Phillips came to Fayetteville and entered into negotiations with Noark officials. Noark’s evidence supports a warranty finding. Wilson, who represented Visual, was not offered as a witness to controvert Noark’s version of the agreement made. We agree with the trial court that the parol evidence rule creates no obstacle to the establishment of the warranty. No written contract existed between Noark and Visual. While the lease assignment was made by KLPR, Visual had a substantial interest in the transaction by reason of its interest in having payments on the lease resumed. It also retained a security interest in the leased property until the required payments were made. It was the manufacturer or distributor of the leased property. Our approval of the trial court’s determination that an express warranty existed makes it unnecessary to determine the more doubtful question of whether implied warranty arose out of Visual’s activities in the transfer of the property. The express and implied warranties urged cover substantially the same ground. Judge Miller found Noark had given Visual proper notice of breach of' warranty. Noark commenced broadcasting on February 8, 1969. Judge. Miller found Noark made constant complaints about the. equipment failing to comply with the warranty and that within two months after operations commenced it ceased making payments on the lease and informed Visual that no further payments would be made until the equipment was put in such condition that it would operate as warranted. On this issue the court states: “The court is convinced that Visual not only had reasonable notice but knew positively that the equipment was defective and would not produce a proper picture.” We agree. We now reach Visual’s contention that proper legal standards were not used in computing the damages awarded and that the damages awarded are not supported by substantial evidence. We agree with the trial court that damages due Noark are governed by Arkansas Statutes §§ 85-2-714 and 715 quoted in the trial court’s opinion. The amount of unpaid rent due Visual on the lease contract at the time it was assigned to Noark was $262,041.00, which obligation was assumed by Noark. In addition, Noark contracted to pay Visual $54,450.00 for financing and converting the leased equipment and additions thereto. In a pretrial order dated February 22, 1971, the court determined that Visual was entitled to recover the balance due it on the lease, stating: “KLPR-TV, Inc. and defendant Noark Broadcasting, Inc., are in default, and that the plaintiff Coronado Corporation and third-party defendants L. M. Jack) Beasley and Omar Thompson are absolutely liable to the defendant Visual Electronics Corporation for all damages or loss occasioned by the default of KLPR-TV, Inc., and NOARK Broadcasting, Inc. . . .” The court then notes that Noark asserts damages by reason of breach of warranty in the amount of $55,000.00 and that KLPR also relies on breach of warranty offset and states that final judgment should not be entered until the offsets, if any, are determined and that these should be determined by trial. In an amended pleading, Noark prays for recovery of $235,000.00 against Visual to the extent Visual establishes any claim of right to recover against it. Nowhere in the pleadings do we find any claim based on incidental or consequential damages. The court after trial on the issue of damages, on the basis of the difference at the time and place of acceptance between the value of the goods accepted and the value which they would have had as warranted, awarded Noark $23,940.00 which was the amount of payments it had made on the lease. Visual was allowed nothing by way of recovery on the lease and no mention is made of the pretrial determination. No express explanation is made on the basis of the determination but it would appear from the opinion as a whole that the trial court based its determination on a finding that the leased goods had no value. It seems clear to us that such a finding of no value is clearly erroneous. Under the controlling statute, the value should be determined as of the time and place of acceptance. Language in the court’s opinion indicates that reliance is placed on the value at the time of trial, which was nearly three years after delivery of the equipment. Moreover, the value to be considered is the reasonable market value of the goods delivered, not the value of the goods to a particular purchaser or for a particular purpose. See Dailey v. Holiday Distributing Corp., 260 Iowa, 859, 151 N.W.2d 477, 489. The trial court found Stamps, who represented Noark, was experienced in the operation of television. Stamps prior to the purchase had examined the equipment in Oklahoma and had been advised of KLPR’s experience with the equipment by Beasley. He initially rejected a deal because the transmitter could not be used without considerable modification. The fact that Stamps went ahead with the deal is strong evidence that the goods involved were not worthless. Noark made no effort to rescind its purchase contract and it continued to use the equipment and was still using it at the time of the trial. There is no substantial evidentiary support for the court’s determination that the leased property was worthless at the time of its acceptance. The trial court in addition to denying Visual any recovery on the $262,041.00 balance due on its lease and the $54,450.00 advanced for cost of converting the transmitter and other equipment, and allowing Noark judgment for recovery of $29,260.00 which it had paid on rent due under the lease, awarded Noark $150,000.00 consequential damages. The record on the consequential claim of damage is extremely unsatisfactory. A careful search of the pleadings contained in the record before us fails to indicate that Noark at any time made any claim for consequential damages. The court did during the course of the trial state that the pleadings would be considered amended to conform to the evidence. We feel that consideration of a large claim of this size should be supported by an appropriate pleading setting out the basis of the claim. The judgment of consequential damages appears to be largely based on financial statements showing that Noark operated at a substantial loss, particularly an April 1970 statement reflecting an accumulated loss of $247,188.00. The trial court recognized that a loss could be proximately caused by many other things than faulty equipment. The court, without any adequate explanation or finding, determined that Noark suffered consequential damages in the amount of $150,000.00. Moreover, such judgment appears to be based in part on delay in furnishing equipment in time to permit the station to open prior to the 1968 election and thus obtain political advertising. We find nothing in the record to support a finding that Visual warranted or guaranteed that the equipment would be in operating order prior to the election, and we discover no finding to that effect in the trial court’s opinion. By reason of lack of appropriate pleadings and findings, we are unable to determine the period covered by the consequential damage award. A party is required to take reasonable steps to minimize damages and under such principle, Noark cannot continue to use rejected equipment indefinitely and build up consequential damages thereby. We find no substantial evidentiary 'support for the award of $150,000.00 for consequential damages. For the reasons above stated, the damages awarded Noark appear to be induced by an erroneous view of the law, and the findings as to the amount of damages are not supported by substantial evidence. Visual is entitled to a new trial on the damage issue with respect to Noark. Prior to re-trial Noark should be required to file an amended pleading clearly stating the damages it claims and the basis of such claim. There are indications in the record that Noark assigned its contract interest to Noark Investments, Inc., but the record fails to show the nature of the assignment. The court made no determination as to the nature and extent of the rights and liabilities of Noark Investments, Inc., with respect to this controversy and such issues remain open for adjudication upon re-trial. By reason of the complexity of this litigation, we deem it appropriate to summarize our holdings: 1. The trial court awarded no money judgment in favor of or against Visual with respect to KLPR and its guarantors, Coronado Corporation, Beasley and Thompson. We hold that KLPR by the terms of the novation contract of June 14, 1967, waived and relinquished any express or implied warranty that it may have originally held. KLPR and its guarantors by assignment of the lease to Noark secured an assumption of pay-merits due from Noark and are entitled to the benefit of any credit upon the lease payments that Noark is able to establish up to the extent of any unpaid balance due from KLPR to Visual on the lease. Visual is entitled to judgment for the unpaid balance due on the lease to the extent that such balance exceeds offsets established by Noark. 2. The trial court’s determination that Visual expressly warranted the leased equipment to Noark, and that Noark gave Visual timely and adequate notice of breach of warranty is affirmed. The judgment is reversed and remanded for a new trial on the issue of damages, if any, due Noark from Visual with any award made to be offset against the amount due Visual on the lease contract. 3. No appeal has been taken from paragraph (3) of the court’s order dismissing the claim of KLPR against Visual for cost of equipment it gave Noark to promote the assignment of the lease and consequently such portion of the judgment remains in effect. Affirmed in part, reversed in part, and remanded for new trial on the issue of Noark’s claim for damages. . Visual has filed a petition for arrangements in the Southern District of New York under Chapter XI of the Bankruptcy Act and lias been authorized by the Referee in Bankruptcy to continue this litigation. 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_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. COREY v. UNITED STATES. No. 31. Argued October 17, 1963. —Decided December 9, 1963. Russell Morton Brown argued the cause for petitioner. With him on the brief was Maurice C. Goodpasture. Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky. Leon B. Polsky filed a brief for the Legal Aid Society, as amicus curiae, urging reversal. Mr. Justice Stewart delivered the opinion of the Court. The petitioner was convicted by a jury in the United States District Court in Massachusetts upon a 75-count indictment for making false claims against the Government in violation of 18 U. S. C. § 287. The trial judge, after preliminary sentencing hearings, came to the conclusion that it would be helpful “for the Court to know something more about the defendant than I have seen or heard up to date.” Accordingly, the court entered an order committing the petitioner “to the custody of the Attorney General of the United States under Title 18, United States Code, 4208 (b).” More than three months later, after considering the report which the Bureau of Prisons had submitted in accordance with § 4208 (b), the trial judge, in a proceeding at which the petitioner and his counsel were present, entered an order suspending imposition of sentence and placing the petitioner on probation for two years. Three days later the petitioner filed a notice of appeal. Upon motion of the Government the appeal was dismissed as untimely, on the ground that the period for appeal had expired 10 days after entry of the trial court’s initial order committing the petitioner for study under 18 U. S. C. § 4208 (b). Pointing out that § 4208 (b) provides that such a commitment “shall be deemed to be for the maximum sentence of imprisonment prescribed by law,” the Court of Appeals reasoned that “at this point the defendant was on notice as to the extent of his punishment. If he desired to appeal, this was the time that he should have acted.” 307 F. 2d 839, 840. We granted certiorari, 371 U. S. 966, to consider questions which have arisen in the District Courts and Courts of Appeals in the application of 18 U. S. C. § 4208 (b). The procedural rules governing the usual course of criminal appeals in the federal judicial system are well settled. After a plea or finding of guilty, sentence is to be imposed “without unreasonable delay.” A judgment of conviction setting forth the sentence is then entered, and a notice of appeal must be filed within 10 days thereafter. The record is filed with the Court of Appeals and the appeal docketed within 40 days thereafter, and the appeal is heard “as soon ... as the state of the calendar will permit.” Pending disposition of the appeal, the sentence is stayed unless the defendant elects otherwise, and the defendant may be released on bail. The dominant philosophy embodied in these rules reflects the twin concerns that criminal appeals be disposed of as expeditiously as the fair and orderly administration of justice may permit, and that the imposition of actual punishment be avoided pending disposition of an appeal. In the ordinary criminal case, where the imposition of a sentence follows promptly upon a determination of guilt, no problem arises in the application of these appellate rules or in the effectuation of the policies which they reflect. An appeal may not be taken until after the pronouncement of sentence, and must be taken promptly after sentence is imposed. But under the provisions of 18 U. S. C. § 4208 (b) the trial judge sentences a convicted defendant not once, but twice. The judge first imposes a sentence of imprisonment “deemed to be” the maximum prescribed by the law, and then, after the defendant has been imprisoned for three or six months, the judge fixes a new sentence which may be quite different from the one originally imposed. The present case illustrates the problem which then arises. That problem, simply stated, is how, in cases where trial judges have utilized the sentencing provisions authorized by 18 U. S. C. § 4208 (b), the rules governing criminal appeals are to be applied so as neither to frustrate their purpose nor to impair the efficacy of the flexible sentencing procedure which Congress devised in enacting 18 U. S. C. § 4208 (b). We have concluded that in such cases an appeal may be taken within the time provided by Rule 37 (a)(2), Fed. Rules Crim. Proc., after either the first or the second sentence under § 4208 (b), at the option of the convicted defendant. It would obviously contravene the basic policies of the criminal appellate rules to require a defendant sentenced under § 4208 (b) to defer his appeal until after he had submitted to the three or six months of incarceration and diagnostic study prescribed by the statute. Such a requirement would not only forestall any opportunity of a prompt appeal from an underlying criminal conviction, but would deprive a convicted defendant of the substantial right to be enlarged on bail while his appeal was pending. Indeed, the imposition of such a mandatory three- or six-month term of imprisonment before the defendant could file an appeal might raise constitutional problems of significant proportions. But we need not consider such problems, because a § 4208 (b) commitment is clearly not lacking in sufficient “finality” to support an immediate appeal, and there is nothing to indicate that Congress intended that the right of appeal be mandatorily suspended in cases where the provisions of § 4208 (b) are utilized. The provisions of § 4208 (b) are invoked only after “a judgment of conviction.” The defendant is committed under § 4208 (b) “to the custody of the Attorney General” as in the case of all sentenced prisoners. It is provided that the term of the final sentence “shall run from date of original commitment under this section.” A sentence under these provisions, which is imposed only after the whole process of the criminal trial and determination of guilt has been completed, sufficiently satisfies conventional requirements of finality for purposes of appeal. The litigation is complete as to the fundamental matter at issue — -“the right to convict the accused of the crime charged in the indictment.” Heike v. United States, 217 U. S. 423, 429. “Final judgment in a criminal case,” the Court has said, “means sentence. The sentence is the judgment.” Berman v. United States, 302 U. S. 211, 212. This concept was later explained and amplified in words of complete applicability here: “The 'sentence is judgment’ phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. . . . But certainly when discipline has been imposed, the defendant is entitled to review.” Korematsu v. United States, 319 U. S. 432, 434. For these reasons it is clear to us that the petitioner in the present case could have appealed his conviction within 10 days after the entry of the original commitment order under § 4208 (b). Had he done so, the Court of Appeals could have reviewed all claims of error in the trial proceedings, and its determination would have been final, subject only to discretionary review by this Court. It does not follow, however, simply because a defendant could have sought review of his conviction after the initial commitment under § 4208 (b), that Congress intended to deny altogether the right of appeal to a defendant who chose to adopt the course followed by the petitioner in the present case. While an initial commitment under § 4208 (b) is, as we have pointed out, freighted with sufficiently substantial indicia of finality to support an appeal, the fact remains that the proceedings in the trial court are not actually terminated until after the period of diagnostic study, review of the same by the district judge, and final sentence. Cf. United States v. Behrens, ante, p. 162. There might be many reasons why a convicted defendant or his counsel would prefer to await final termination of the trial court proceedings before taking an appeal. For instance, a defendant might think, rightly or wrongly, that the trial court’s knowledge that an appeal had already been taken might adversely influence the court’s discretion in imposing final sentence. Moreover, if every defendant initially committed under § 4208 (b) to the maximum prison term prescribed by law were faced with the choice of then and there seeking review of his conviction or forever losing the right of appeal, he might well feel obliged to take an appeal because of his very ignorance of what his sentence was eventually going to turn out to be. As a practical matter, the severity of the sentence actually imposed might in any case be a major factor in determining whether an appeal is to be taken. Long-accepted and conventional principles of federal appellate procedure require recognition of the defendant’s right to await the imposition of final sentence before seeking review of the conviction. That is the general rule. Miller v. Aderhold, 288 U. S. 206; Berman v. United States, 302 U. S. 211; Cobbledick v. United States, 309 U. S. 323; Rule 37 (a), Fed. Rules Crim. Proc. We find nothing to indicate that Congress intended to depart from that rule in enacting § 4208 (b). Reversed 18 U. S. C. § 4208 (b) provides: “If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” See note 1, supra. Since the petitioner was convicted upon each of 75 counts under 18 U. S. C. § 287, and since each offense under that statute is punishable by a prison term of up to five years, “the extent of his punishment,” if it was the “maximum sentence of imprisonment prescribed by law,” was 375 years in prison. Such a sentence, if actually imposed for the substantive offenses in question, would obviously raise a serious issue under the Eighth Amendment of the Constitution. In Behrens v. United States, 312 F. 2d 223 (1962), certiorari granted, 373 U. S. 902, the Court of Appeals for the Seventh Circuit, holding that the defendant and his counsel must be present when sentence is imposed following receipt of the Bureau of Prisons report, apparently considered that proceeding — rather than the earlier commitment order — as the one from which the time for appeal would begin to run. On the question of the right of the defendant and his counsel to then be present, we have today affirmed that decision. United States v. Behrens, ante, p. 162. See also United States v. Johnson, 315 F. 2d 714 (C. A. 2d Cir. 1963). Rule 32 (a), Fed. Rules Crim. Proc. Rule 32 (b), Fed. Rules Crim. Proc. Rule 37 (a)(2), Fed. Rules Crim. Proc. Rule 39 (c), Fed. Rules Crim. Proc. Rule 39 (d), Fed. Rules Crim. Proc. Rule 38 (a)(2), Fed. Rules Crim. Proc. Rule 46 (a)(2), Fed. Rules Crim. Proc. Section 4208 (b) was enacted in 1958 as part of broad legislation to improve sentencing practices in the federal courts. See 28 U. S. C. § 334 (providing for judicial sentencing institutes to be held in the various circuits); 18 U. S. C. § 4209 (extending the application of the Federal Youth Corrections Act to offenders between 22 and 26); 18 U. S. C. § 4208 (a) (authorizing a sentencing judge to delegate wide discretion to the Parole Board). 18 U. S. C. §4208 (a) begins: “Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may ...” While these words are not repeated in subsection (b), it is plain that they serve as an introduction to all of §4208. See 18 U. S. C. § 4082. Only the final sentence which was later imposed would still have been open, under accepted procedures, to attack in the trial court and review on appeal, e. g., for failure to accord the defendant and his counsel the right to be present and to be heard at the final sentencing proceeding. See United, States v. Behrens, ante, p. 162. If a defendant appeals after a preliminary commitment under § 4208 (b) and is enlarged on bail pending appeal, the further procedures under § 4208 (b) (including the pronouncement of final sentence) will necessarily be postponed until the appeal is determined (and eliminated entirely if the conviction is reversed), because the diagnostic study by the Bureau of Prisons cannot be carried out if the defendant is not incarcerated. On the other hand, if a defendant taking an appeal after an initial commitment under § 4208 (b) does not seek bail but elects to commence service of his sentence, there is no reason why the diagnostic study contemplated by the statute should not proceed. Modifications of sentences have in fact been made under § 4208 (b) while cases were on appeal. See Armstrong v. United States, 306 F. 2d 520, 521, n. 1 (C. A. 10th Cir. 1962); United States v. Varner, 283 F. 2d 900, 901 (C. A. 7th Cir. 1961). Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_respond2_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". ASSOCIATED STATIONS, INC., a Virginia corporation, and USCO, Inc., a Virginia corporation, Appellees, v. CEDARS REALTY AND DEVELOPMENT CORPORATION, a Mississippi corporation, and Magnolia Homes Manufacturing Corporation, a Mississippi corporation, Appellants. No. 71-1476. United States Court of Appeals, Fourth Circuit. Argued Nov. 2, 1971. Decided Jan. 17, 1972. Thomas H. Atkins, Richmond, Va. (G. Kenneth Miller, and May, Garrett & Miller, Richmond, Va., on brief), for appellants. George C. Rawlings, Jr., Fredericks-burg, Va., for appellees. Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges. WINTER, Circuit Judge: Associated Stations, Inc. (Associated), a Virginia corporation, leased certain property to Cedars Realty and Development Corporation (Cedars), a Mississippi corporation engaged in the manufacturing of mobile homes. After the lease expired, Associated sued to recover for damages to its property. Finding Cedars liable, the district court gave judgment in the amount of $42,858.00. We agree with the district court’s conclusion that Cedars was liable to Associated for damages to the leasehold; however, we conclude that the district court erred in using the “cost of restoration” standard in assessing damages. Therefore, we vacate the judgment and remand the case to the district court for a redetermination of damages. I In the fall of 1964, Associated leased to Cedars 32.46 acres, improved by two large quonset type buildings suitable for manufacturing as well as offices and storage areas, located at Doswell, Virginia. The term of the lease was from November 30, 1964 to November 30, 1967, with rent payable in monthly installments of $1,150.00. The lease provided, inter alia, that Cedars was to maintain the premises in good repair and upon termination of the lease to leave the premises in good repair, to remove all rubbish, and to return the keys to Associated. In the latter months of 1966, Cedars decided to move its operations to Georgia and to discontinue all business at the Doswell site. This fact was known in the community because of its effect on jobs and because of two auctions held by Cedars to sell certain property. Although Cedars never formally communicated to Associated its intention to vacate the premises, Associated was aware of Cedars’ plans to discontinue its operations in Virginia. Cedars’ closing operations occurred over a number of months. Regular production personnel were still on the site two days before Christmas, in 1966, and various supplies and materials, including a forklift truck, were still on the property in the early months of 1967. Despite the fact that Cedars claims that it intended to cease all operations, no effort was made to clear the property of rubbish, return the keys to Associated, or to restore the buildings which had been modified for Cedars’ operations to their former condition. Additionally, Cedars continued to pay the monthly rent, the checks being sent to Associated from Cedars’ office in Georgia. Sometime around the end of January or the beginning of February, 1967, an employee of Cedars returned to the Dos-well property to retrieve the forklift truck. He noticed that an air-conditioning unit was missing from one of the buildings. He reported this fact to his superior, but this information was never conveyed to Associated. In March, of 1967, Mr. George Thomas, the president of Associated, visited the property and found that a considerable amount of vandalism had occurred. Windows, doors, and wiring, as well as plumbing and electrical fixtures, had been damaged. Holes were found in the roof and several of the heating motors and electrical switches required replacement. In addition, the special heavy-duty wiring which had been used by a previous tenant in the midfifties had been torn out and removed. Mr. Thomas made several more visits to the property and on each successive occasion he found more damage, but this damage was minor in comparison to what was originally found. The district court found that the bulk of the damage had occurred prior to Thomas’ March, 1967 visit. After Associated regained possession of the property, it repaired some of the damage and made certain modifications of the facilities to accommodate a new tenant, Fiberlay Corporation, to which the property was let in May, 1968. Thereafter, Associated instituted this suit in the district court to recover $47,620.00 which it alleged would be the aggregate cost of restoring the property to its former condition. Of this sum, $11,900.00 was actually expended by Associated, including $2,800.00 for modifications for the new tenant. The remaining $35,720.00 was never spent. This figure included $27,500.00 to replace and repair the special heavy-duty electrical wiring required by Cedars’ predecessor. In 1970, Fiberlay Corporation purchased the property for $152,-000.00. The district court found that Cedars was liable for the damage caused by the vandalism and awarded Associated '$43,858.00. It arrived at this sum by taking Associated’s estimated cost of repairs ($47,620.00) and reducing it by 10%. Cedars thereupon appealed. II Cedars contends that Associated, knowing that the property had been vacated and that vandalism was occurring, had a duty to protect the property from further damage and that having failed to do so, is barred from holding Cedars responsible for damages. Cedars’ argument need not detain us long. The district court found that Associated had not accepted a surrender of the property and that the property had not been abandoned. Even after all manufacturing had ceased, Cedars continued to use the property for storage in the early part of 1967. Cedars made no effort to comply with the provisions in the lease with respect to surrender and, throughout the period in question, it continued to pay the monthly rental. Manifestly, the district court was not clearly erroneous in finding neither an abandonment nor a surrender. It follows that Cedars was not relieved of its responsibility to protect the property. Nor do we think that under the facts of this case Associated was required to reenter the property in order to prevent further vandalism. Where an injured party is in a position to prevent further loss to himself by a reasonable expenditure of money or effort, he is required to do so. Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281 (1948); Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 73 S.E. 257 (1912). But, in determining what is reasonable, regard must be had for all the circumstances. In the present case, Cedars concedes that the property was difficult to secure. Presumably, this difficulty was as great for Associated as Cedars. In any event, there is nothing to suggest that by a “trifling inconvenience,” or even a reasonable effort, Associated could have prevented the damages. See Haywood v. Massie, supra, 49 S.E.2d at 284. Moreover, it was not until the great majority of the damage had been done that Associated was aware of the situation. We agree with the district court that Cedars has failed to demonstrate that by a reasonable effort Associated could have prevented the loss. Ill In assessing damages, the district court used the “cost of restoration” standard. Damages were based on the amount it would have cost to restore the property to the condition it had been in when the property was leased to Cedars. This is the general rule for determining damages to leasehold property in Virginia. See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 167 S.E.2d 334 (1969); Vaughan v. Mayo Milling Co., 127 Va. 148, 102 S.E. 597 (1920); Moses v. Old Dominion Iron and Nail Works Co., 75 Va. 95 (1880). In none of these cases, however, was there any contention that the cost of restoring the property to its former condition greatly exceeded any benefit to the market value of the property. Cedars has made this very assertion — that the cost of repair does exceed any benefit to the value of the property — and thus we have no controlling Virginia ruling on this point.® The object of damages in a contract case is to restore the plaintiff to the position he would have been in had the contract not been breached. The “cost of restoration” method is one convenient way of determining the amount of damages to be awarded the plaintiff where a breach had occurred. There are, however, certain situations where this method of computing damages does not restore the plaintiff to the position he would have been in had the contract not been breached, but rather places him in a better position, thus providing him with a windfall. In those cases, courts have resorted to alternative methods of computing damages in order to insure that, as far as possible, the plaintiff neither loses nor benefits from the breach. As the court in Crystal Concrete Corp. v. Town of Braintree, 309 Mass. 463, 35 N.E.2d 672 (1941), stated: [T]he plaintiff is not to be put in a better position than it would have been if the defendant had performed the terms of the lease. The location and character of the demised premises must be considered; and the reasonable cost of repairs, in some instances, would furnish the proper measure of damages while, in other instances, the value of the premises may be such that the incurrence of the expense for repairs would not be a reasonable, practical or economical method of dealing with the property. Such expense might greatly exceed any diminution of the fair market value of the land that was caused by the defendant’s nonperformance of the provisions of the lease. Id. at 675. We think the present case is similar to Bowes v. Saks & Company, 397 F.2d 113 (7 Cir. 1968). In Bowes, the lease provided that on its termination the property was to be returned to the landlords in the same condition that it had been when it was let to the lessees. The tenants in that case altered the property by building a bridge across an alley; and, at the expiration of the lease, the landlords sought to recover $115,000.00, which they claimed was the cost of removing the bridge and restoring the wall in the building where the bridge had been connected. During the term of the lease, the landlords sold the property, with settlement to be made two days after the expiration of the lease. Prior to the expiration of the lease, the tenant entered into a three-year lease with the new purchaser and thus its interest in the building continued. No effort was made by the new purchaser either to have the building restored or to recover part of the purchase price from the original landlords because of the lack of restoration. In a suit by the original landlords to recover damages for breach of the covenant to restore the premises, the court declined to permit the landlord to recover the cost of restoration because the value of the building was not diminished by the tenant’s failure to restore it, and, therefore, the landlords suffered no loss from the breach. Bowes v. Saks & Company, supra, 397 F.2d at 117; accord Dodge Street Building Corp. v. United States, 341 F.2d 641, 169 Ct.Cl. 496 (1965); Crystal Concrete Corp. v. Town of Braintree, supra. In the absence of any controlling Virginia precedent, we think that the rule set forth in Bowes and the cases cited therein is the most appropriate for application in the present case. Included in Associated’s estimate for the cost of repairing the property was $27,500.00 to replace special heavy-duty electrical wiring which had been used last by a former tenant in the fifties. Expert testimony was to the effect that the value of the property at the expiration of the lease in 1967, assuming no vandalism, was $116,945.00, and that in 1970 when the property was sold it was valued at $134,700.00. The expert testimony was also that had the special heavy-duty wiring been replaced, its replacement would not have affected the market value of the property either in 1967 or in 1970. Thus, Associated expended $9,665.00 and was successful in selling property worth $134,700.00 for $152,-000.00, realizing thereby a profit of $7,635.00. If Associated were to recover also $27,500.00 as the estimated cost of replacement of the electrical wiring which Associated has no intention of replacing and which would have no effect on the market value of the property, Associated would realize a windfall of $27,500.00. Since, in this case, the use of the “cost of restoration” method of determining damages would probably do more than place Associated in the position it would have been in had Cedars not breached its agreement, we think the use of this method inappropriate. Rather, Associated should be permitted to recover the cost of restoration or the diminution in market value, whichever is less. In the event that diminution in market value is less, and so becomes the measure of recovery, Associated should also be permitted to recover the salvage value, if any, of the property removed by Cedars or others and not replaced by Cedars. Under this formula, Associated will not realize unjust enrichment, but it will be fully protected from any actual loss. We have referred to the expert testimony with regard to the market value of the subject property in 1967 and in 1970. And, at one stage of the proceedings, the district court purportedly found the market value to be $131,950.00 as of an undisclosed date. But our study of the record discloses that the case was tried as to damages on the basis that Virginia law required damages to be assessed by the “cost of restoration” standard in all events without recognition of the exceptional case in which slavish devotion to the doctrine will result in unjust enrichment. Although we have concluded this case is in the latter category, we recognize that the evidence as to market value may not have been as fully developed, nor the finding of the district court as fully considered, had the relevance of market value been recognized at the outset. In remanding to the district court for reassessment of damages in the light of this opinion, we direct that the parties be given a reasonable opportunity to present additional evidence of market value, the district court being free to make findings in this regard anew. Vacated and remanded. . The original lessors were USCO, Inc. and Dixie Trailer Equipment Manufacturing. The name of USCO, Inc. has been changed to Usry Investment Corporation and Associated Stations, Ine. has succeeded to Dixie’s interest. Magnolia Homes Manufacturing Corporation, the parent of Cedars, was also joined as a defendant. . The term was later amended to run from January 1, 1965 to December 30, 1967. . Paragraphs 5 and 6 of the lease provide as follows: 5. Lessee will comply with all lawful requirements of local and state health boards, police and fire departments, County, Municipal, State and Federal authorities, and the Board of Fire Underwriters respecting the use of the premises and will make any improvements not of a structural nature required by said authorities. Lessee will keep and maintain the premises in good condition and repair; keej) in good running order all heating and air conditioning systems, electric wiring, toilets, water pipes, water, gas and electric fixtures; replace all locks, trimmings, glass and plate glass broken during the term of this lease; unstop all water fixtures that may become choked and repair all water pipes and plumbing that may burst. Lessee will not make any alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations of, additions to or changes in the premises, except after first obtaining the written consent of Lessors, and all alterations, changes and improvements, by whomsoever made, shall be the property of Lessors. The foregoing shall not apply to any equipment used in Lessee’s business which may be attached to the premises and Lessee may remove such equipment at the termination of this lease. It shall, however, repair and replace any and all damage done to the premises by such removal. 6. Lessee covenants to leave the premises in good repair, damages by fire, act of God, or other casualty excepted, and upon surrender of possession will have all rubbish removed, the premises thoroughly cleaned, and will deliver to Lessors all keys to the premises. . The president had made an earlier visit to the property. On that occasion lie found that all operations had ceased, but that Cedars’ materials -were still on the property, . Under Virginia law, mitigation of damages is an affirmative defense, and the burden of proof rests entirely on the party breaching the contract. See Foreman v. E. Caligari and Company, Inc., 204 Va. 284, 130 S.E.2d 447 (1903). 6. Green v. Burkholder, 208 Va. 708, 160 S.E.2d 765 (1968), cited by Associated for the proposition that the “cost of restoration” standard still applies, is distinguishable. In Green, the parties assumed that damages were to be determined by the cost of restoration method and thus all the evidence went to the issue of how much it would cost the plaintiff to perform the breached contract. No evidence was submitted to show the present market value of the property or the effect the restoration might have on that market value. Nevertheless, the trial judge refused to permit the issue of damages to go to the jury because the plaintiff had not demonstrated that defendant’s breach adversely affected the value of his property. The Supreme Court of Appeals reversed the trial court, holding that since the case was tried on the cost of repair theory and not the market value theory, “it [was too] late for the defendants to say that the proper measure of damages was the difference between the before and after value of the property.” Id. at 767. Although the court did apply the cost of restoration rule, nothing in the opinion suggests that this rule should be applied exclusively in all situations. Indeed, the court indicated that its application in that case was proper because the damages to be awarded under the rule would not be grossly disproportionate to the harm suffered and would not involve economic waste. The view we take of the instant case is consistent with the latter statement. . Although the instrument in this case is a lease, the lease itself contains mutual covenants which are subject to contract principles. See generally, 3A Corbin, Corbin on Contracts, § 686 (1960). . This sum was part of a larger sum of $35,720.00 which Associated never spent. By referring only to the $27,500.00 we do not mean to imply that Associated can recover the balance of the larger sum. Indeed, we do not decide what damages are to be recovered. We refer to the electrical wiring and its costs only by way of example since it was an item of considerable cost but having little or no relation to market value of the property. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_lcdisposition	D	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. APPLE INC., Petitioner v. Robert PEPPER, et al. No. 17-204. Supreme Court of the United States. Argued November 26, 2018 Decided May 13, 2019 Daniel M. Wall, San Francisco, CA, for the petitioner. Solicitor General Noel J. Francisco for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. David C. Frederick, Washington, D.C., for the respondents. J. Scott Ballenger, Latham & Watkins LLP, Washington, DC, Daniel M. Wall, Christopher S. Yates, Sadik Huseny, Aaron T. Chiu, Latham & Watkins LLP, San Francisco, CA, for petitioner Apple Inc. Mark C. Rifkin, Matthew M. Guiney, Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY, Rachele R. Byrd, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, CA, David C. Frederick, Aaron M. Panner, Gregory G. Rapawy, Benjamin S. Softness, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C., for respondents. Justice KAVANAUGH delivered the opinion of the Court. In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where iPhone owners can purchase iPhone applications from Apple. Those "apps" enable iPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. "There's an app for that" has become part of the 21st-century American lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sale of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not "direct purchasers" from Apple under our decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, 745-746, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). We disagree. The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs' antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U.S. Court of Appeals for the Ninth Circuit. I In 2007, Apple began selling iPhones. In July 2008, Apple started the App Store. The App Store now contains about 2 million apps that iPhone owners can download. By contract and through technological limitations, the App Store is the only place where iPhone owners may lawfully buy apps. For the most part, Apple does not itself create apps. Rather, independent app developers create apps. Those independent app developers then contract with Apple to make the apps available to iPhone owners in the App Store. Through the App Store, Apple sells the apps directly to iPhone owners. To sell an app in the App Store, app developers must pay Apple a $ 99 annual membership fee. Apple requires that the retail sales price end in $ 0.99, but otherwise allows the app developers to set the retail price. Apple keeps 30 percent of the sales price, no matter what the sales price might be. In other words, Apple pockets a 30 percent commission on every app sale. In 2011, four iPhone owners sued Apple. They allege that Apple has unlawfully monopolized "the iPhone apps aftermarket." App. to Pet. for Cert. 53a. The plaintiffs allege that, via the App Store, Apple locks iPhone owners "into buying apps only from Apple and paying Apple's 30% fee, even if" the iPhone owners wish "to buy apps elsewhere or pay less." Id., at 45a. According to the complaint, that 30 percent commission is "pure profit" for Apple and, in a competitive environment with other retailers, "Apple would be under considerable pressure to substantially lower its 30% profit margin." Id., at 54a-55a. The plaintiffs allege that in a competitive market, they would be able to "choose between Apple's high-priced App Store and less costly alternatives." Id., at 55a. And they allege that they have "paid more for their iPhone apps than they would have paid in a competitive market." Id., at 53a. Apple moved to dismiss the complaint, arguing that the iPhone owners were not direct purchasers from Apple and therefore may not sue. In Illinois Brick, this Court held that direct purchasers may sue antitrust violators, but also ruled that indirect purchasers may not sue. The District Court agreed with Apple and dismissed the complaint. According to the District Court, the iPhone owners were not direct purchasers from Apple because the app developers, not Apple, set the consumers' purchase price. The Ninth Circuit reversed. The Ninth Circuit concluded that the iPhone owners were direct purchasers under Illinois Brick because the iPhone owners purchased apps directly from Apple. According to the Ninth Circuit, Illinois Brick means that a consumer may not sue an alleged monopolist who is two or more steps removed from the consumer in a vertical distribution chain. See In re Apple iPhone Antitrust Litig., 846 F. 3d 313, 323 (2017). Here, however, the consumers purchased directly from Apple, the alleged monopolist. Therefore, the Ninth Circuit held that the iPhone owners could sue Apple for allegedly monopolizing the sale of iPhone apps and charging higher-than-competitive prices. Id., at 324. We granted certiorari. 585 U.S. ----, 138 S.Ct. 2647, 201 L.Ed.2d 1049 (2018). II A The plaintiffs' allegations boil down to one straightforward claim: that Apple exercises monopoly power in the retail market for the sale of apps and has unlawfully used its monopoly power to force iPhone owners to pay Apple higher-than-competitive prices for apps. According to the plaintiffs, when iPhone owners want to purchase an app, they have only two options: (1) buy the app from Apple's App Store at a higher-than-competitive price or (2) do not buy the app at all. Any iPhone owners who are dissatisfied with the selection of apps available in the App Store or with the price of the apps available in the App Store are out of luck, or so the plaintiffs allege. The sole question presented at this early stage of the case is whether these consumers are proper plaintiffs for this kind of antitrust suit-in particular, our precedents ask, whether the consumers were "direct purchasers" from Apple. Illinois Brick, 431 U.S. at 745-746, 97 S.Ct. 2061. It is undisputed that the iPhone owners bought the apps directly from Apple. Therefore, under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. That straightforward conclusion follows from the text of the antitrust laws and from our precedents. First is text: Section 2 of the Sherman Act makes it unlawful for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations." 26 Stat. 209, 15 U.S.C. § 2. Section 4 of the Clayton Act in turn provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue... the defendant... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 38 Stat. 731, 15 U.S.C. § 15(a) (emphasis added). The broad text of § 4-"any person" who has been "injured" by an antitrust violator may sue-readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Second is precedent: Applying § 4, we have consistently stated that "the immediate buyers from the alleged antitrust violators" may maintain a suit against the antitrust violators. Kansas v. UtiliCorp United Inc., 497 U.S. 199, 207, 110 S.Ct. 2807, 111 L.Ed.2d 169 (1990) ; see also Illinois Brick, 431 U.S. at 745-746, 97 S.Ct. 2061. At the same time, incorporating principles of proximate cause into § 4, we have ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers. Id., at 746, 97 S.Ct. 2061. The facts of Illinois Brick illustrate the rule. Illinois Brick Company manufactured and distributed concrete blocks. Illinois Brick sold the blocks primarily to masonry contractors, and those contractors in turn sold masonry structures to general contractors. Those general contractors in turn sold their services for larger construction projects to the State of Illinois, the ultimate consumer of the blocks. The consumer State of Illinois sued the manufacturer Illinois Brick. The State alleged that Illinois Brick had engaged in a conspiracy to fix the price of concrete blocks. According to the complaint, the State paid more for the concrete blocks than it would have paid absent the price-fixing conspiracy. The monopoly overcharge allegedly flowed all the way down the distribution chain to the ultimate consumer, who was the State of Illinois. This Court ruled that the State could not bring an antitrust action against Illinois Brick, the alleged violator, because the State had not purchased concrete blocks directly from Illinois Brick. The proper plaintiff to bring that claim against Illinois Brick, the Court stated, would be an entity that had purchased directly from Illinois Brick. Ibid. The bright-line rule of Illinois Brick, as articulated in that case and as we reiterated in UtiliCorp, means that indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue. By contrast, direct purchasers-that is, those who are "the immediate buyers from the alleged antitrust violators"-may sue. UtiliCorp, 497 U.S. at 207, 110 S.Ct. 2807. For example, if manufacturer A sells to retailer B, and retailer B sells to consumer C, then C may not sue A. But B may sue A if A is an antitrust violator. And C may sue B if B is an antitrust violator. That is the straightforward rule of Illinois Brick. See Loeb Industries, Inc. v. Sumitomo Corp., 306 F.3d 469, 481-482 (C.A.7 2002) (Wood, J.). In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit. B All of that seems simple enough. But Apple argues strenuously against that seemingly simple conclusion, and we address its arguments carefully. For this kind of retailer case, Apple's theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple. We see three main problems with Apple's "who sets the price" theory. First, Apple's theory contradicts statutory text and precedent. As we explained above, the text of § 4 broadly affords injured parties a right to sue under the antitrust laws. And our precedent in Illinois Brick established a bright-line rule where direct purchasers such as the consumers here may sue antitrust violators from whom they purchased a good or service. Illinois Brick, as we read the opinion, was not based on an economic theory about who set the price. Rather, Illinois Brick sought to ensure an effective and efficient litigation scheme in antitrust cases. To do so, the Court drew a bright line that allowed direct purchasers to sue but barred indirect purchasers from suing. When there is no intermediary between the purchaser and the antitrust violator, the purchaser may sue. The Illinois Brick bright-line rule is grounded on the "belief that simplified administration improves antitrust enforcement." 2A P. Areeda, H. Hovenkamp, R. Blair, & C. Durrance, Antitrust Law ¶346e, p. 194 (4th ed. 2014) (Areeda & Hovenkamp). Apple's theory would require us to rewrite the rationale of Illinois Brick and to gut the longstanding bright-line rule. To the extent that Illinois Brick leaves any ambiguity about whether a direct purchaser may sue an antitrust violator, we should resolve that ambiguity in the direction of the statutory text. And under the text, direct purchasers from monopolistic retailers are proper plaintiffs to sue those retailers. Second, in addition to deviating from statutory text and precedent, Apple's proposed rule is not persuasive economically or legally. Apple's effort to transform Illinois Brick from a direct-purchaser rule to a "who sets the price" rule would draw an arbitrary and unprincipled line among retailers based on retailers' financial arrangements with their manufacturers or suppliers. In the retail context, the price charged by a retailer to a consumer is often a result (at least in part) of the price charged by the manufacturer or supplier to the retailer, or of negotiations between the manufacturer or supplier and the retailer. Those agreements between manufacturer or supplier and retailer may take myriad forms, including for example a markup pricing model or a commission pricing model. In a traditional markup pricing model, a hypothetical monopolistic retailer might pay $ 6 to the manufacturer and then sell the product for $ 10, keeping $ 4 for itself. In a commission pricing model, the retailer might pay nothing to the manufacturer; agree with the manufacturer that the retailer will sell the product for $ 10 and keep 40 percent of the sales price; and then sell the product for $ 10, send $ 6 back to the manufacturer, and keep $ 4. In those two different pricing scenarios, everything turns out to be economically the same for the manufacturer, retailer, and consumer. Yet Apple's proposed rule would allow a consumer to sue the monopolistic retailer in the former situation but not the latter. In other words, under Apple's rule a consumer could sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service. But a consumer could not sue a monopolistic retailer when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Apple's line-drawing does not make a lot of sense, other than as a way to gerrymander Apple out of this and similar lawsuits. In particular, we fail to see why the form of the upstream arrangement between the manufacturer or supplier and the retailer should determine whether a monopolistic retailer can be sued by a downstream consumer who has purchased a good or service directly from the retailer and has paid a higher-than-competitive price because of the retailer's unlawful monopolistic conduct. As the Court of Appeals aptly stated, "the distinction between a markup and a commission is immaterial." 846 F. 3d at 324. A leading antitrust treatise likewise states: "Denying standing because 'title' never passes to a broker is an overly lawyered approach that ignores the reality that a distribution system that relies on brokerage is economically indistinguishable from one that relies on purchaser-resellers." 2A Areeda & Hovenkamp ¶345, at 183. If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier-whether, for example, the retailer employed a markup or kept a commission. To be sure, if the monopolistic retailer's conduct has not caused the consumer to pay a higher-than-competitive price, then the plaintiff's damages will be zero. Here, for example, if the competitive commission rate were 10 percent rather than 30 percent but Apple could prove that app developers in a 10 percent commission system would always set a higher price such that consumers would pay the same retail price regardless of whether Apple's commission was 10 percent or 30 percent, then the consumers' damages would presumably be zero. But we cannot assume in all cases-as Apple would necessarily have us do-that a monopolistic retailer who keeps a commission does not ever cause the consumer to pay a higher-than-competitive price. We find no persuasive legal or economic basis for such a blanket assertion. In short, we do not understand the relevance of the upstream market structure in deciding whether a downstream consumer may sue a monopolistic retailer. Apple's rule would elevate form (what is the precise arrangement between manufacturers or suppliers and retailers?) over substance (is the consumer paying a higher price because of the monopolistic retailer's actions?). If the retailer's unlawful monopolistic conduct caused a consumer to pay the retailer a higher-than-competitive price, the consumer is entitled to sue the retailer under the antitrust laws. Third, if accepted, Apple's theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. Consider a traditional supplier-retailer relationship, in which the retailer purchases a product from the supplier and sells the product with a markup to consumers. Under Apple's proposed rule, a retailer, instead of buying the product from the supplier, could arrange to sell the product for the supplier without purchasing it from the supplier. In other words, rather than paying the supplier a certain price for the product and then marking up the price to sell the product to consumers, the retailer could collect the price of the product from consumers and remit only a fraction of that price to the supplier. That restructuring would allow a monopolistic retailer to insulate itself from antitrust suits by consumers, even in situations where a monopolistic retailer is using its monopoly to charge higher-than-competitive prices to consumers. We decline to green-light monopolistic retailers to exploit their market position in that way. We refuse to rubber-stamp such a blatant evasion of statutory text and judicial precedent. In sum, Apple's theory would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws. C In arguing that the Court should transform the direct-purchaser rule into a "who sets the price" rule, Apple insists that the three reasons that the Court identified in Illinois Brick for adopting the direct-purchaser rule apply to this case-even though the consumers here (unlike in Illinois Brick ) were direct purchasers from the alleged monopolist. The Illinois Brick Court listed three reasons for barring indirect-purchaser suits: (1) facilitating more effective enforcement of antitrust laws; (2) avoiding complicated damages calculations; and (3) eliminating duplicative damages against antitrust defendants. As we said in UtiliCorp, however, the bright-line rule of Illinois Brick means that there is no reason to ask whether the rationales of Illinois Brick "apply with equal force" in every individual case. 497 U.S. at 216, 110 S.Ct. 2807. We should not engage in "an unwarranted and counterproductive exercise to litigate a series of exceptions." Id., at 217, 110 S.Ct. 2807. But even if we engage with this argument, we conclude that the three Illinois Brick rationales-whether considered individually or together-cut strongly in the plaintiffs' favor here, not Apple's. First, Apple argues that barring the iPhone owners from suing Apple will better promote effective enforcement of the antitrust laws. Apple posits that allowing only the upstream app developers-and not the downstream consumers-to sue Apple would mean more effective enforcement of the antitrust laws. We do not agree. Leaving consumers at the mercy of monopolistic retailers simply because upstream suppliers could also sue the retailers makes little sense and would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. It is true that it may be hard to determine what the retailer would have charged in a competitive market. Expert testimony will often be necessary. But that is hardly unusual in antitrust cases. Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Illinois Brick surely did not wipe out consumer antitrust suits against monopolistic retailers from whom the consumers purchased goods or services at higher-than-competitive prices. Moreover, the damages calculation may be just as complicated in a retailer markup case as it is in a retailer commission case. Yet Apple apparently accepts consumers suing monopolistic retailers in a retailer markup case. If Apple accepts that kind of suit, then Apple should also accept consumers suing monopolistic retailers in a retailer commission case. Third, Apple claims that allowing consumers to sue will result in "conflicting claims to a common fund-the amount of the alleged overcharge." Illinois Brick, 431 U.S. at 737, 97 S.Ct. 2061. Apple is incorrect. This is not a case where multiple parties at different levels of a distribution chain are trying to all recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain. Cf. id., at 726-727, 97 S.Ct. 2061 ; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 483-484, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). If the iPhone owners prevail, they will be entitled to the full amount of the unlawful overcharge that they paid to Apple. The overcharge has not been passed on by anyone to anyone. Unlike in Illinois Brick, there will be no need to "trace the effect of the overcharge through each step in the distribution chain." 431 U.S. at 741, 97 S.Ct. 2061. It is true that Apple's alleged anticompetitive conduct may leave Apple subject to multiple suits by different plaintiffs. But Illinois Brick did not purport to bar multiple liability that is unrelated to passing an overcharge down a chain of distribution. Basic antitrust law tells us that the "mere fact that an antitrust violation produces two different classes of victims hardly entails that their injuries are duplicative of one another." 2A Areeda & Hovenkamp ¶339d, at 136. Multiple suits are not atypical when the intermediary in a distribution chain is a bottleneck monopolist or monopsonist (or both) between the manufacturer on the one end and the consumer on the other end. A retailer who is both a monopolist and a monopsonist may be liable to different classes of plaintiffs-both to downstream consumers and to upstream suppliers-when the retailer's unlawful conduct affects both the downstream and upstream markets. Here, some downstream iPhone consumers have sued Apple on a monopoly theory. And it could be that some upstream app developers will also sue Apple on a monopsony theory. In this instance, the two suits would rely on fundamentally different theories of harm and would not assert dueling claims to a "common fund," as that term was used in Illinois Brick. The consumers seek damages based on the difference between the price they paid and the competitive price. The app developers would seek lost profits that they could have earned in a competitive retail market. Illinois Brick does not bar either category of suit. In short, the three Illinois Brick rationales do not persuade us to remake Illinois Brick and to bar direct-purchaser suits against monopolistic retailers who employ commissions rather than markups. The plaintiffs seek to hold retailers to account if the retailers engage in unlawful anticompetitive conduct that harms consumers who purchase from those retailers. That is why we have antitrust law. * * * Ever since Congress overwhelmingly passed and President Benjamin Harrison signed the Sherman Act in 1890, "protecting consumers from monopoly prices" has been "the central concern of antitrust." 2A Areeda & Hovenkamp ¶345, at 179. The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices. Our decision in Illinois Brick does not bar the consumers from suing Apple for Apple's allegedly monopolistic conduct. We affirm the judgment of the U.S. Court of Appeals for the Ninth Circuit. It is so ordered. Justice GORSUCH, with whom THE CHIEF JUSTICE, Justice THOMAS, and Justice ALITO join, dissenting. More than 40 years ago, in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), this Court held that an antitrust plaintiff can't sue a defendant for overcharging someone else who might (or might not) have passed on all (or some) of the overcharge to him. Illinois Brick held that these convoluted "pass on" theories of damages violate traditional principles of proximate causation and that the right plaintiff to bring suit is the one on whom the overcharge immediately and surely fell. Yet today the Court lets a pass-on case proceed. It does so by recasting Illinois Brick as a rule forbidding only suits where the plaintiff does not contract directly with the defendant. This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That's not how antitrust law is supposed to work, and it's an uncharitable way of treating a precedent which-whatever its flaws-is far more sensible than the rule the Court installs in its place. I To understand Illinois Brick, it helps to start with the case that paved the way for that decision: Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). Hanover sued United, a company that supplied machinery Hanover used to make shoes. Hanover alleged that United's illegal monopoly in the shoe-making-machinery market had allowed it to charge supracompetitive prices. As damages, Hanover sought to recover the amount it had overpaid United for machinery. United replied that Hanover hadn't been damaged at all because, United asserted, Hanover had not absorbed the supposedly "illegal overcharge" but had "passed the cost on to its customers" by raising the prices it charged for shoes. Id., at 487-488, and n. 6, 88 S.Ct. 2224. This Court called United's argument a " 'passing-on' defense" because it suggested that a court should consider whether an antitrust plaintiff had "passed on" the defendant's overcharge to its own customers when assessing if and to what degree the plaintiff was injured by the defendant's anticompetitive conduct. Id., at 488, 88 S.Ct. 2224. This Court rejected that defense. While § 4 of the Clayton Act allows private suits for those injured by antitrust violations, we have long interpreted this language against the backdrop of the common law. See, e.g., Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 529-531, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). And under ancient rules of proximate causation, the " 'general tendency of the law, in regard to damages at least, is not to go beyond the first step.' " Hanover Shoe, 392 U.S. at 490, n. 8, 88 S.Ct. 2224 (quoting Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533, 38 S.Ct. 186, 62 L.Ed. 451 (1918) ). In Hanover Shoe, the first step was United's overcharging of Hanover. To proceed beyond that and inquire whether Hanover had passed on the overcharge to its customers, the Court held, would risk the sort of problems traditional principles of proximate cause were designed to avoid. "[N]early insuperable" questions would follow about whether Hanover had the capacity and incentive to pass on to its customers in the shoe-making market United's alleged monopoly rent from the separate shoe-making-machinery market. 392 U.S. at 493, 88 S.Ct. 2224. Resolving those questions would, in turn, necessitate a trial within a trial about Hanover's power and conduct in its own market, with the attendant risk that proceedings would become "long and complicated" and would "involv[e] massive evidence and complicated theories." Ibid. Illinois Brick was just the other side of the coin. With Hanover Shoe having held that an antitrust defendant could not rely on a pass-on theory to avoid damages, Illinois Brick addressed whether an antitrust plaintiff could rely on a pass-on theory to recover damages. The State of Illinois had sued several manufacturers of concrete blocks, alleging that the defendants' price-fixing conspiracy had enabled them to overcharge building contractors, who in turn had passed on those charges to their customers, including the State. Recognizing that Hanover Shoe had already prohibited antitrust violators from using a "pass-on theory" defensively, the Court declined to "permit offensive use of a pass-on theory against an alleged violator that could not use the same theory as a defense." 431 U.S. at 735, 97 S.Ct. 2061. "Permitting the use of pass-on theories under § 4," the Court reasoned, would require determining how much of the manufacturer's monopoly rent was absorbed by intermediary building contractors and how much they were able and chose to pass on to their customers like the State. Id., at 737, 97 S.Ct. 2061. Allowing pass-on theories would, as well, allow "plaintiffs at each level in the distribution chain" to "assert conflicting claims to a common fund," which would require "massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge-from direct purchasers to middlemen to ultimate consumers." Ibid. Better again, the Court decided, to adhere to traditional rules of proximate causation and allow only the first affected customers-the building contractors-to sue for the monopoly rents they had directly paid. There is nothing surprising in any of this. Unless Congress provides otherwise, this Court generally reads statutory causes of action as "limited to plaintiffs whose injuries are proximately caused by violations of the statute." Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). That proximate cause requirement typically bars suits for injuries that are "derivative of misfortunes visited upon a third person by the defendant's acts." Id., at 133, 134 S.Ct. 1377 (internal quotation marks omitted). So, for example, if a defendant's false advertising causes harm to one of its competitors, the competitor can sue the false advertiser under the Lanham Act. But if the competitor is unable to pay its rent as a result, the competitor's landlord can't sue the false advertiser, because the landlord's harm derives from the harm to the competitor. Id., at 134, 134 S.Ct. 1377 ; see also, e.g., Bank of America Corp. v. Miami, 581 U.S. ----, ---- - ----, 137 S.Ct. 1296, 1304-1306, 197 L.Ed.2d 678 (2017) ; Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) ; Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268-270, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). This Court has long understood Illinois Brick as simply applying these traditional proximate cause principles in the antitrust context. See Associated Gen. Contractors, 459 U.S. at 532-535, 544-545, 103 S.Ct. 897. II The lawsuit before us depends on just the sort of pass-on theory that Illinois Brick forbids. The plaintiffs bought apps from third-party app developers (or manufacturers) in Apple's retail Internet App Store, at prices set by the developers. The lawsuit alleges that Apple is a monopolist retailer and that the 30% commission it charges developers for the right to sell through its platform represents an anticompetitive price. The problem is that the 30% commission falls initially on the developers. So if the commission is in fact a monopolistic overcharge, the developers are the parties who are directly injured by it. Plaintiffs can be injured only if the developers are able and choose to pass on the overcharge to them in the form of higher app prices that the developers alone control. Plaintiffs admitted as much in the district court, where they described their theory of injury this way: "[I]f Apple tells the developer... we're going to take this 30 percent commission... what's the developer going to do? The developer is going to increase its price to cover Apple's... demanded profit." App. 143. Because this is exactly the kind of "pass-on theory" Illinois Brick rejected, it should come as no surprise that the concerns animating that decision are also implicated. Like other pass-on theories, plaintiffs' theory will necessitate a complex inquiry into how Apple's conduct affected third-party pricing decisions. And it will raise difficult questions about apportionment of damages between app developers and their customers, along with the risk of duplicative damages awards. If anything, plaintiffs' claims present these difficulties even more starkly than did the claims at issue in Illinois Brick. Consider first the question of causation. To determine if Apple's conduct damaged plaintiffs at all (and if so, the magnitude of their damages), a court will first have to explore whether and to what extent each individual app developer was able-and then opted-to pass on the 30% commission to its consumers in the form of higher app prices. Sorting this out, if it can be done at all, will entail wrestling with " 'complicated theories' " about "how the relevant market variables would have behaved had there been no overcharge." Illinois Brick, 431 U.S. at 741-743, 97 S.Ct. 2061. Will the court hear testimony to determine the market power of each app developer, how each set its prices, and what it might have charged consumers for apps if Apple's commission had been lower? Will the court also consider expert testimony analyzing how market factors might have influenced developers' capacity and willingness to pass on Apple's alleged monopoly overcharge? And will the court then somehow extrapolate its findings to all of the tens of thousands of developers who sold apps through the App Store at different prices and times over the course of years? This causation inquiry will be complicated further by Apple's requirement that all app prices end in $ 0.99. As plaintiffs acknowledge, this rule has caused prices for the "vast majority" of apps to "cluster" at exactly $ 0.99. Brief for Respondents 44. And a developer charging $ 0.99 for its app can't raise its price by just enough to recover the 30-cent commission. Instead, if the developer wants to pass on the commission to consumers, it has to more than double its price to $ 1.99 (doubling the commission in the process), which could significantly affect its sales. In short, because Apple's 99-cent rule creates a strong disincentive for developers to raise their prices, it makes plaintiffs' pass-on theory of 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_applfrom	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). UNITED STATES of America ex rel. Philip ORLANDO, Relator-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee. No. 500, Docket 29542. United States Court of Appeals Second Circuit. Argued May 26, 1965. Decided Sept. 23, 1965. Myron L. Shapiro, New York City (Richard J. Burke and Burke & Shapiro, New York City, on the brief), for relator-appellant. Joel Lewittes, Asst. Atty. Gen. State of New York (Louis J. Lefkowitz, Atty, Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Iris Steel, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee. Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges. LUMBARD, Chief Judge: Philip Orlando attacks, by petition for a writ of habeas corpus filed in the Southern District of New York in October 1963, his 1950 New York State conviction and thirty-to-sixty year sentence for robbery in the first degree, grand larceny first degree and assault second degree. He alleges that he was denied a public trial because the state trial court excluded the public from the courtroom during most of the trial. State remedies having been exhausted, Judge Sugar-man held a hearing and denied the application. We agree with his conclusion that there has been no deprivation of Orlando’s constitutional rights. Orlando’s trial opened in Kings County Court on October 24, 1950 before Judge Goldstein. On the first full day of trial, October 26th, Orlando interrupted an identification of him by the victim by exclaiming, “You never saw me before,” “You liar,” and “This man is not supposed to say that, your Honor,” and was strongly admonished by the court. The next day of trial, October 30th, the prosecution disclosed, out of the presence of the jury, that one prosecution witness had been threatened by two members of the electrical union to which Orlando belonged with loss of his job if he testified against Orlando, and that another prosecution witness had avoided what might have been a similar situation by telling the man who accosted her in a suspicious manner that she was someone else. In the absence of the jury, Judge Goldstein admonished all those present, saying: “Whoever is responsible for this kind of conduct toward the People’s witnesses, and if I find out who it is, I will hold an investigation on that after this trial is over. I do want to say as a warning, that if there is anybody doing this dirty work and trying to intimidate the witnesses here, they are going to be dealt with according to law; and I again want to issue a warning, that if there is anybody in this court-room, that is interested in this defendant, or in this Electrical Union, that is taking advantage of the fact that they are spectators, and gain information and then use it on the outside to abuse these witnesses, that come here, they will find themselves in a very serious situation. We will go on with the case now.” But Judge Goldstein’s troubles had not ended, for later in the afternoon, the record discloses the following: “Q. You had used the name ‘Orlando.’ Do you see the man who came into your apartment on March 10, 1950, who was armed with a gun with Lorenzo? Do you see him in Court here ? A. Yes, sir. Q. From your chair will you pick him out? A. Yes, sir, that is him right there. Q. Where is he ? A. Right over there (indicating). Mr. De Meo: Indicating this defendant. The Defendant: Do you want me to stand up? The Court: Will you keep quiet. The Defendant: Do you want me to stand up? The Court: Look here, you keep quiet. The Defendant: The witnesses are all lying, your Honor. The Court: I will hold you in contempt of court if you continue in this manner. Do you understand that? You are not out on the street. You are in a court-room. At least you ought to show some respect for the court. A woman [admittedly defendant’s mother, who was a spectator at the trial] : May I say something ? He is my boy. Listen to what they say. The Court: I will clear the courtroom of all spectators. Do not leave anybody in this court-room after this, except the witnesses when they are needed. Do you understand that?” About one half hour after Judge Gold-stein had excluded the spectators, during the testimony of a co-defendant who was testifying for the prosecution, the defense first moved to readmit the public. Judge Goldstein denied this motion except to the extent of admitting the press and members of the bar. In ruling that no one else be admitted, the court stated: “In view of the exhibition that took place this morning among the spectators, who were apparently interested in the defendant, who made the statement ‘That is not so’ * * * I think I will exclude the audience * * * except the press and the lawyers.” Still later the same day Orlando interrupted the testimony of a prosecution witness by exclaiming “That is a lie,” and he was again admonished by Judge Goldstein. Judge Sugarman rejected Orlando’s contention that the exclusion of the spectators was itself a violation of due process by reason of the Sixth Amendment guarantee of a “public trial.” However, he directed a hearing on the claim that the exclusion order had made it impossible for Orlando to secure evidence to support his claim that he was at work at a certain time, contrary to the testimony of one of the state’s principal witnesses. After a hearing, the district court ruled that Orlando had failed to sustain his burden of showing that his defense had been improperly hampered by exclusion of the spectators. In our view, the record amply supports the conclusion that Orlando’s right to a public trial was not denied. The trial judge had good reason to believe that many persons in the courtroom were acting so as to interfere with the orderly conduct of the trial. There was good reason for the judge to believe that the defendant’s family and friends, including members of his union, at the behest and for the benefit of the defense, were attempting to intimidate and harass witnesses and otherwise to disrupt the proceedings. Under such circumstances the trial judge must exercise his power to exclude those who so act and those who appear to be acting in concert with them lest it be impossible for the trial to proceed and for the jury to pass upon the charges. As we conclude that the defendant was accorded a public trial in any event, we need not examine Orlando’s assertion of a Sixth Amendment right and his claim that Gaines v. State of Washington, 277 U.S. 81, 85, 48 S.Ct. 468, 72 L.Ed. 793 (1928), which held that the Sixth Amendment guarantee of a public trial was not directly applicable to state trials, is to be re-examined in the light of recent Supreme Court decisions which incorporate some of the Sixth Amendment rights into the Fourteenth Amendment. ,[2-4] The Sixth Amendment provision that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * * ” has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom. Were this not so a public trial might mean no trial at all at the option of the defendant and his sympathizers. . See Davis v. United States, 247 F.394, 395 (8 Cir. 1917). Thus, the public trial requirement is subject to the trial judge’s power to prevent offensive evidence from being exhibited to the public, Lancaster v. United States, 110 U.S.App.D.C. 331, 293 F.2d 519 (1961), to prevent unnecessary pressures or embarrassment to a witness or a victim as in the rape of a young child, Geise v. United States, 262 F.2d 151 (9 Cir. 1958), or to prevent young persons from attending a trial of a scandalous nature, United States v. Kobi, 172 F.2d 919, 924 (3 Cir. 1949). And where, as in Orlando’s trial, there is reason to believe that unrestricted admission of the defendant’s sympathizers to the courtroom has made it possible for such sympathizers to see the witnesses and then threaten and intimidate them, and there is reason to believe that this might continue unless such persons are not permitted to see the witnesses, the trial judge has the power to bar access to the courtroom to such persons. Judge Goldstein’s order to bar the public, except for members of the press and the bar, was not an unreasonable method of meeting the emergency situation which confronted him when it became apparent that both in and out of the courtroom the defendant and his sympathizers were attempting to prevent the orderly presentation of the case. Since the order still permitted access to the press and the bar the trial would in nowise be a secret trial, and the general public could be informed if need be regarding any irregularity or unfairness in the proceedings. Mr. Justice Black, writing for the majority in In re Oliver, 333 U.S. 257, 266-272, 68 S.Ct. 499, 92 L.Ed. 682 (1948), pointed out that the incorporation of the “public trial” protection in the Bill of Rights was primarily a reaction to the gross abuses in the secret proceedings of the English Star Chamber, the Spanish Inquisition and the use of the French lettre de cachet. See also, Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, 546, 548 (1965); Ashcraft v. State of Tennessee, 322 U.S. 143, 154-155 n. 10, 64 S.Ct. 921, 88 L.Ed. 1192 (1944). Judge Goldstein’s ruling struck an acceptable balance between the requirement that the actions of the courts be open to public scrutiny and the need to have the trial proceed in an orderly manner. The guarantee of a public trial does not mean that all of the public is entitled under all circumstances to be present during the trial. It means only that the public must be freely admitted so long as those persons and groups who make up the public remain silent and behave in an orderly fashion so that the trial may continue. When the trial judge has reason to believe that any persons or any groups of spectators are disorderly and may continue to be so he may exclude individuals or groups as the occasion requires. Judge Goldstein’s action excluded those who had created the disorder and the danger of tampering with witnesses and, within a few minutes thereafter, upon the defense’s first objection, permitted the entry of the press and the bar. ■ Unfortunately, Judge Goldstein died prior to the hearing before Judge Sugarman in October 1964. Doubtless he could have given additional reasons for his action and could have explained in further detail the actions of the spectators and also the circumstances surrounding the trial which required him to have the corridors on the floor on which the courtroom was located cleared of all spectators at the time of the verdict and to have the police riot squad come to the court house on the day when Orlando was sentenced. It seems obvious that the situation which the trial judge faced was not fully reflected in the black and white of the stenographer’s minutes. We think it proper to give some weight to the fact that it was thirteen years after the conviction before Orlando petitioned the federal court. Orlando argues further that the exclusion of spectators, except for the press and the bar, prejudiced the conduct of his defense. See Reagan v. United States, 202 F. 488 (9 Cir. 1913). He asserts that he was precluded from producing evidence to refute part of the testimony of a co-defendant, Cirincione, who was called as a prosecution witness. On cross-examination, Cirincione testified that he, Orlando and Lorenzo, another co-defendant, met at 4:00 P.M. on March 10, 1950, the date of the crime. Lorenzo, also called by the state, testified on cross-examination that he and Orlando had been together on the day of the crime from noon until after the commission of the crime at about 9:00 P. M., and that Cirincione had been with them from noon to 6:00 P.M. The defense called Diane Botton, bookkeeper for Orlando’s employer, in an attempt to establish that Orlando had been at work from 8:30 A.M. until 3:30 P.M. that day. Her testimony was ruled inadmissible because of the lack of personal knowledge. Orlando maintains that the exclusion of his family and union associates from the courtroom during this testimony prevented their finding witnesses who would testify to the same effect as Miss Botton’s excluded testimony. The district court found, and we agree, that no prejudice resulted. As soon as Miss Botton’s testimony was stricken from the record, Orlando’s trial counsel relayed this information to Orlando’s father, who was immediately outside the courtroom together with Orlando’s sister and brothers. Orlando did not request an adjournment. At the hearing before the district court, Orlando’s trial counsel testified that Orlando’s father had in fact made unsuccessful attempts to locate a witness who would testify that Orlando worked until 3.30 P.M. Even if this testimony had been produced, and there is no suggestion that such evidence ever was available, it would have merely impeached Lorenzo’s credibility. It would not have directly contradicted the testimony relating to the commission of the robbery which took place at approximately 9:00 P.M. The testimony of Lorenzo and Cirincione differed on the time when the three co-defendants first met on the day of the crime. Apart from this inconsistency, their testimonies relating to the commission of the crime were virtually identical, and the jury by its verdict believed them. We conclude that no violation of due process occurred as Orlando has made no showing that he was prejudiced by the trial judge’s exclusion of the spectators. Thus we conclude that the trial judge’s exclusion of the public, except for those participating in the trial, and the press and the bar, was not a denial of due process of law. Affirmed. J. JOSEPH SMITH, Circuit Judge (dissenting): I dissent. Whether or not the remark of defendant’s mother and the alleged out of court conduct of some members of the electrical union justified their exclusion for the balance of the trial, there is no need apparent on the record for exclusion of all the public except for the press and bar. . Orlando’s conviction was affirmed without opinion by the New York State appellate courts, 279 App.Div. 664, 108 N.Y.S.2d 979 (2d Dept. 1951), 304 N.Y. 805, 109 N.E.2d 345 (1952), reargument denied, 308 N.Y. 943, 127 N.E.2d 93, motion to amend remittitur denied, 308 N.Y. 1007, 127 N.E.2d 854 (1955), motion for reargument denied, 9 N.Y.2d 1015, 218 N.Y.S.2d 1025, 176 N.E.2d 594 (1961), cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962). The issues raised in this proceeding were raised in the state courts. . The record does not disclose whether representatives of these groups were present at the trial, or whether anyone other than Orlando’s family and members of the electrical union were present at the trial or sought admittance after the exclusion of spectators. . “Q. And isn’t it a fact that at that time you turned over to the detective this watch, People’s Exhibit 2? The Defendant: That is a lie. The Oourt: Mr. Rosenthal. Mr. Rosenthal: Yes, Your Honor. The Oourt: There ought to be some means of keeping this man subdued, and I do not want these outbreaks on his part, or acting on his part. It is about time you brought him to his senses, and stop his fooling around in this fashion. He has had experience. He ought to know better than that. * % * * * I instruct the Jury to disregard that remark. I want the court attendants to subdue him if he tries to get up, or makes any outbreak at any time. That is what you are there for, to use physical force if necessary to put him back in his seat.” . See, Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (confrontation of witnesses) ; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (same); see also, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (incorporation of the Fifth Amendment privilege against self-incrimination) . . Orlando’s father and brothers were members of the electrical union to which Orlando belonged. 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_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. Curtis JACKSON, W. C. McClendon, Lige Scretchen, Nathaniel Cooper and W. E. Parker, Plaintiffs-Appellees, Cross-Appellants, v. SEABOARD COAST LINE RAILROAD COMPANY, Defendant, Brotherhood Railway Carmen of the United States and Canada, Defendant-Appellant, Cross-Appellee. Curtis JACKSON, W. C. McClendon, Lige Scretchen, et al., Plaintiffs-Appellees, v. SEABOARD COAST LINE RAILROAD, CO., Defendant, Brotherhood Railway Carmen of the United States and Canada, Defendant-Appellant. Nos. 80-7846, 80-7965. United States Court of Appeals, Eleventh Circuit. June 17, 1982. Mulholland & Hickey, Thomas A. Wood-ley, Edward J. Hickey, Jr., Washington, D. C., Oliver, Maner & Gray, Savannah, Ga., for Brotherhood of Ry. Carmen. Fletcher Farrington, Savannah, Ga., for Curtis Jackson et al. Before VANCE, KRAVITCH and CLARK, Circuit Judges. KRAVITCH, Circuit Judge: The Brotherhood Railway Carmen of the United States and Canada [Brotherhood] appeals from the district court’s finding that the union violated Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 253, as amended (codified at 42 U.S.C. § 2000e et seq. (1976)), by participating in racially discriminatory promotion practices. Appellant urges us to reverse the judgment on the grounds that the district court 1) lacked jurisdiction over the plaintiffs’ Title VII claims; 2) erred in not finding that the alleged discrimination resulted from a bona fide seniority system protected from attack under § 703(h) of the Civil Rights Act of 1964; 3) applied the wrong legal standards in finding that the Brotherhood violated Title VII; 4) resolved issues of material fact on summary judgment and 5) improperly refused to permit a Brotherhood witness to testify. In addition, the Brotherhood appeals from the district court’s denial of its motion under Fed. R.Civ.P. 60(b) to set aside the back pay award, arguing that the court abused its discretion in denying its motion. Appellees cross-appeal from a jury verdict for the Brotherhood on their claims brought under 42 U.S.C. § 1981, on the ground that the district court erred in not directing a partial verdict for the appellees. Finding the parties’ contentions without merit, we affirm the decisions of the district court. I. Factual Background Since the 1940’s, the Brotherhood Railway Carmen of the United States and Canada has represented those employees at Seaboard Coast Line Railroad’s [SCL’s] Way cross, Georgia Car Department, whose task is to maintain and repair the railroad’s rolling stock. Craft members include car-men, carman apprentices, helper apprentices, and carman helpers. Carmen are the highest paid members of the craft. The only promotion as of right to the carman position accrues to carman apprentices and helper apprentices. Carman apprentices are hired under a formal apprenticeship agreement, which contemplates a four year training period. Helper apprentices serve two years as carman helpers and then enter the carman apprenticeship program with one year of credit toward satisfying the apprenticeship requirements. Carman helpers assist carmen and carman apprentices and receive no credit toward becoming car-men, regardless of their length of service. A carman helper can qualify for the car-men’s roster by serving 8320 hours, approximately four work years, as a temporary— “set-up” — carman. Appellees, all of whom were black, were hired by the Atlantic Coast Line Railroad [ACL], SCL’s predecessor, in the early 1940’s and have for the most part served as carman helpers since 1950. When appel-lees were first hired as carman helpers, blacks could not obtain jobs as carmen, car-man apprentices, or helper apprentices. Although both blacks and whites were employed as carman helpers, only the white carman helpers were admitted into the helper apprenticeship program. In other words, blacks could obtain jobs in the car-man craft only as carman helpers — the position of lowest standing in the craft and the only position offering no opportunity for advancement. Nevertheless, in the early 1950’s a few black carman helpers were promoted to the position of carman at the insistence of Roy P. Osborne, chairman of the grievance committee of the local union, who believed it unfair that qualified blacks were not permitted to join the carmen’s roster. After Osborne retired from that position, the union never again requested the railroad to promote black carman helpers to carmen. In 1955, the railroad ceased hiring car-man helpers. By 1960, all of the white carman helpers who so desired had been promoted, leaving the job of carman helper to the exclusive dominion of black employees — the appellees and a few others. The district court found that as of 1960, each appellee was qualified to serve as a carman. In 1955, when business was booming, all of the appellees except Parker were set-up to carmen and performed satisfactorily until demoted to their carman helper positions when work slowed down. Appellee Parker learned the carman’s trade during the decade from 1950-60 while working as a car-man helper. Thus, appellees were not relegated to the position of carman helper because they were unqualified. In 1960, all of the appellees except Scret-chen were laid-off from their positions as carman helpers and except for Cooper and McClendon remained furloughed throughout the decade. See note 3 supra. During the decade, however, two events significant to this action occurred. First, in 1965, in response to the Civil Rights Act of 1964, the railroad began hiring blacks into its carman apprenticeship program. The Brotherhood asserts that the appellees were offered the opportunity to become apprentices; however, the appellees testified at trial that they had received no such offers. Second, in 1967, the Atlantic Coast Line Railroad merged with the Seaboard Airline Railroad to form the Seaboard Coast Line Railroad. Shortly thereafter the Brotherhood and SCL entered into a new collective bargaining agreement, effective 1968, which contained many provisions similar to those in collective bargaining agreements between the union and SCL’s predecessors. See note 2 supra. For example, Appendix F detailed the scheme for advancement to the position of carman as described above, as well as the manner in which shortages in the carman position were to be filled. It provided for the continued automatic promotion of car-man apprentices and helper apprentices to the position of carman and retained the requirement that carman helpers serve 8320 hours as set-up carmen before qualifying for the carmen’s roster. This latter requirement affected only black employees, including appellees, all of whom were hired as carman helpers prior to 1952. It also effectively precluded appellees from advancing to carmen even though they were qualified to serve in that position. A union official testified that the Brotherhood could have negotiated to modify the existing promotion system to permit qualified carman helpers to advance to the ranks of carmen without first serving 8320 hours as set-up carmen but did not. In fact, in negotiating Appendix F, the Brotherhood insisted on a new promotion provision that gave the union more control over the railroad’s decisions regarding the promotion and demotion of employees. As the 1960’s came to a close, the appel-lees began to return to their positions as carman helpers. Appellee Cooper returned to his position in 1966, McClendon returned in 1969 and the remaining appellees returned in 1971. In 1971, the appellees were temporarily set-up to carmen and performed satisfactorily. Soon thereafter they began to inquire whether they would ever be promoted. By 1971 some of the plaintiffs had been with the railroad for thirty years and all had been there twenty years. Nevertheless, they were told that they could be promoted only after serving 8320 hours as set-up carmen as required by the collective bargaining agreement. Prompted by the promotion of three white employees to carmen in late February of 1973, appellee Jackson wrote a letter March 12, 1973, to the Equal Employment Opportunity Commission [EEOC], complaining that he had “been discriminated against ever since 1955 in reference to promotion.” On April 6, 1973, Jackson wrote Shop Superintendent O. G. Wood, asking for “favorable consideration to my request that I be promoted to carman,” and that same day filed a formal charge with the EEOC, alleging that Seaboard Coast Line Railroad and “BRC of A Local No. 508” had discriminated against him by “upgrading other employees (white) with less experience or seniority.” Jackson timely filed this action in federal district court after receiving a right-to-sue letter from the EEOC. Originally, the suit was brought as a class action under Title VII against the SCL and the Brotherhood, alleging in essence that the promotion provisions contained in the 1967 collective bargaining agreement, as well as in predecessor agreements, have served to perpetuate past employment discrimination against black carman helpers and have continuously discriminated against them by depriving them of advancement to the position of carman. Jackson subsequently amended the original complaint: he deleted the railroad as a primary defendant, dropped the class action allegations, joined as named plaintiffs W. C. McClendon, Lige Scretchen, Nathanial Cooper, and W. E. Parker, who were initially members of the class, and added additional claims for relief under 42 U.S.C. § 1981. After discovery was completed, the appellees and the appellant filed motions for summary judgment, which the district court denied. Following a three day trial, the jury returned a verdict on the § 1981 claims in favor of the Brotherhood. Nine months later, on May 15, 1980, the district court issued its order on the Title VII claims, finding for the appellees. The court reinstated the railroad as a defendant for the purpose of providing full relief to the appellees and ordered the SCL and the Brotherhood to admit the appellees to the carmen’s roster, giving each appellee the seniority date of July 2, 1965, in the order of his hire in relation to the other appellees. The court did not resolve the issue of back pay at that time, however; instead, it encouraged the parties to reach an accord within forty-five days, after which time the appellees could apply for a hearing or ruling on any disputed issue of law or fact. The parties were unable to reach an agreement, and on August 12, 1980 the appellees filed for summary judgment on the issue of back pay, requesting $43,133.14. A month later, on September 23, 1980, having received no response from the Brotherhood to the appellees’ motion, the court granted summary judgment for the appellees. The Brotherhood moved to vacate the back pay award under Rule 60(b), Fed.R.Civ.P. The district court denied the motion. These appeals followed. II. Title VII Jurisdiction Before instituting a Title VII suit in federal district court, a private plaintiff must file an EEOC complaint against the discriminating party within 180 days of the alleged discrimination and must receive statutory notice of the right to sue the respondent named in the charge. Alexan der v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); Nilsen v. City of Moss Point, Mississippi, 621 F.2d 117 (5th Cir. 1980); Crawford v. Western Electric Co., 614 F.2d 1300 (5th Cir. 1980); Cutliff v. Greyhound Lines, Inc., 558 F.2d 803 (5th Cir. 1977). Appellant claims that appellees failed to satisfy these requirements and that their Title VII claims must therefore be dismissed for want of subject matter jurisdiction. More specifically, appellant argues that 1) the Brotherhood was never named as a respondent in the EEOC charge filed by Jackson or in the right-to-sue letter received by the appellees; 2) the appellees failed to demonstrate at trial that Jackson filed his EEOC charge within 180 days after an act of discrimination committed by the Brotherhood; and 3) the EEOC charge filed by Jackson cannot be used by the non-filing plaintiffs to pursue their Title VII claims against the Brotherhood. For the following reasons we reject these contentions and find that the district court properly exercised jurisdiction over the Title VII claims against the appellant. A. Conditions Precedent or Jurisdictional Prerequisites? Appellant did not assert that appellees’ Title VII claim should be dismissed on the grounds that appellant was not named as a respondent in the EEOC charge and that the EEOC charge was not filed within 180 days of an alleged discriminatory act until after trial in its motion to vacate the judgment and dismiss the action for lack of subject matter jurisdiction. If the conditions precedent to a Title VII action constitute jurisdictional prerequisites, then the appellant could properly raise these contentions after trial pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. The jurisdiction of a court over the subject matter of a claim involves the court’s competency to consider a given type of case and cannot be waived or otherwise conferred upon the court by the parties. E.g., People’s Bank v. Calhoun, 102 U.S. 256, 260-61, 26 L.Ed. 101 (1880). Otherwise, a party could “work a wrongful extension of federal jurisdiction and give district courts power the Congress denied them.” American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1950). If, however, the failure to satisfy the preconditions to a Title VII action does not deprive courts of subject matter jurisdiction, then the appellant waived its right to assert ap-pellees’ nonfulfillment of conditions precedent by failing to raise that issue in a timely manner. The courts in recent years have struggled with the question whether or not the conditions precedent to a Title VII action are jurisdictional. After carefully considering the statutory language, legislative history, and case law, we conclude that Congress did not intend Title VII’s procedural requirements to be jurisdictional prerequisites, which if not satisfied deprive federal courts of subject matter jurisdiction. A court’s function in interpreting a statute “is to construe the language so as to give effect to the intent of Congress,” and the most persuasive evidence of Congressional intent is the wording of the statute. United States v. American Trucking Ass’n, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1939). See Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977). 42 U.S.C. § 2000e-5(f)(3), the statutory provision conferring jurisdiction over Title VII suits to federal district courts, provides that “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions under this subchapter.” This provision unconditionally confers jurisdiction over claims arising under Title VII to federal district courts. Nothing in the express language of section 2000e-5(f)(3) suggests that the subject matter jurisdiction of the federal courts is conditioned upon the fulfillment of other procedural requirements for pursuing a Title VII claim. See Zipes v. Trans World Airlines, Inc.,-U.S.-,-, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc). Nor do any of the provisions that detail the prerequisites to filing a Title VII action contain language qualifying section 2000e-5(f)(3). See, eg., note 7 supra. We cannot conclude that Congress’ omission of such qualifying language was inadvertent. The preconditions to filing a Title VII action and the jurisdictional provision are found in the same subsection of Title VII, 42 U.S.C. § 2000e-5, and if Congress had wanted to limit the jurisdiction of federal district courts over Title VII claims brought under section 2000e-5(f)(3), it certainly knew how to do it. In conferring jurisdiction on federal district courts over “pattern or practice” suits instituted by the Attorney General under Title VII, Congress specifically limited federal court jurisdiction to “proceedings instituted pursuant to this section.... ” 42 U.S.C. § 2000e-6(b). But Congress chose not to limit the jurisdiction of federal courts over suits brought by private parties, the EEOC, or the Attorney General under section 2000e-5 in this manner; instead Congress conferred jurisdiction on federal district courts over “actions brought under this title [Title VII],” without special reference to § 2000e-5 and its procedural requirements. See Equal Employment Opportunity Act, Pub.L. No. 92-261, 86 Stat. 103, § 706(f)(3) (codified at 42 U.S.C. § 2000e-5(f)(3) (1976)). Thus, the plain language of the statute indicates that Congress did not intend the conditions precedent to a Title VII action to constitute jurisdictional prerequisites. Nor does the legislative history of Title VII suggest that Congress intended the statute to be read otherwise. Congress never specifically addressed this issue and never mentioned the interplay between procedural requirements for filing suit and federal court jurisdiction, even though in 1972 Congress amended several of the conditions precedent and vigorously debated whether or not to alter Title VII’s enforcement scheme by giving the EEOC authority to hold hearings and issue cease and desist orders, restricting the jurisdiction of federal district courts. If the legislative history of the conditions precedent and jurisdictional provision provides any insight into this question, it suggests that Congress did not intend the conditions precedent to limit the jurisdiction of the federal courts. The legislative history indicates that Congress considered Title VII’s preconditions to be analogous to procedural requirements, which do not limit the jurisdiction of federal courts in other contexts. For example, Congress considered Title VIPs filing periods to operate as statutes of limitations. Final Conference Committee section-by-section analysis of H.R. 1745, The Equal Employment Opportunity Act of 1972, 118 Cong.Rec. 7166, 7177; 110 Cong.Rec. 7243 (remarks of Sen. Case); 110 Cong.Rec. 12712 (remarks of Sen. Humphrey). See Zipes v. Trans World Airlines, Inc., supra,-U.S. at-, 102 S.Ct. at 1132; Coke v. General Adjustment Bureau, Inc., supra at 593-94 & n. 18. The failure to satisfy statutes of limitations, conditions precedent, in personam jurisdiction, and other procedural requirements similar to Title VII’s preconditions does not deprive federal courts of subject matter jurisdiction over actions brought under jurisdictional provisions similar to § 2000e-5(f)(3). Thus, although Congress never expressly addressed this issue, we find some support in the legislative history for our reading of Title VII as providing federal district courts with subject matter jurisdiction over claims brought under § 2000e-5(f)(3), unqualified by the procedural requirements found in other subsections of section 2000e-5. The case law also supports our conclusion that the conditions precedent to filing a Title VII suit are not jurisdictional prerequisites. Neither the Supreme Court nor this court has expressly decided that none of the conditions precedent are jurisdictional; however, both courts have held that particular conditions precedent are not jurisdictional, e.g., Zipes v. Trans World Airlines, Inc., supra; Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981), and have interpreted and applied other conditions precedent in a manner that is inconsistent with their being jurisdictional. For example, in Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Supreme Court considered whether Title VII relief is available to members of a class action who not only failed to satisfy such conditions precedent as the timely filing of an EEOC complaint within 180 days of the alleged discrimination, timely filing of a Title VII action within 90 days after receiving a right to sue letter, or naming of a defendant as a respondent in the EEOC charge, but who did not file an EEOC complaint at all. Relying on the decisions of the courts of appeals and the legislative history of the Equal Employment Opportunity Act of 1972, the Court concluded that relief under Title VII “may be awarded on a class basis... without exhaustion of administrative procedures by the unnamed class members.” Id. at 414 n.8. See United Air Lines, Inc. v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2468, 53 L.Ed.2d 423 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976). The Court’s treatment of class members who failed to satisfy Title VII’s filing requirement stands in stark contrast to its treatment of class members who failed to fulfill the $10,000 jurisdictional amount requirement of 28 U.S.C. § 1331. In the latter instance, the Court has barred participation in a class action by potential class members not satisfying the $10,000 requirement. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). “If the timely filing of an administrative claim is truly a jurisdictional prerequisite, then each class member should be required to file a claim before participating in a Title VII class action, just as each class member must satisfy the jurisdictional amount in other class actions. The fact that they do not is an indication that the Court does not consider the filing requirement to be jurisdictional.” Coke v. General Adjustment Bureau, Inc., supra at 589. See Zipes v. Trans World Airlines, Inc., supra - U.S. at -, 102 S.Ct. at 1133; Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1298 (5th Cir. 1979). Prior to the Supreme Court’s holding in Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the former Fifth Circuit in Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969) held that non-filing parties can be joined as members of a class in Title VII suits. In so deciding, it rejected the district court’s reasoning that since the filing of a charge with the EEOC is a jurisdictional prerequisite, an individual who has not filed charges with the Commission cannot entertain a civil action as a class member. The court explained that “[t]he fallacy of the district court’s reasoning is that the matter is primarily procedural rather than substantive and thus the question is one of simple expediency. In this posture, it is perfectly clear that no procedural purpose could be served by requiring scores of substantially identical grievances to be processed through the EEOC when a single charge would be sufficient to effectuate both the letter and the spirit of Title VII.” Id. at 285 (emphasis added). Extending this rationale to non-filing plaintiffs in a multiple-plaintiff, non-class action, the court in Crawford v. United States Steel Corp., 660 F.2d 663 (5th Cir. 1981) held that “in an action involving claims of several persons arising out of similar discriminatory treatment, not all of them need to have filed EEOC charges as long as one or more of the plaintiffs had satisfied the requirement.” Id. at 665; Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982); Wheeler v. American Home Products Corp., 582 F.2d 891, 897 (5th Cir. 1977); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968). The clear implication of these decisions is that the filing of an EEOC charge is not a jurisdictional prerequisite. If it were, neither the Supreme Court nor the former Fifth Circuit could have permitted federal district courts to consider claims of non-filing plaintiffs, regardless of how similar the claims of such plaintiffs were to those raised by plaintiffs who had fulfilled the jurisdictional requirements. Only Congress — not the judiciary — can modify those requirements that must be satisfied to enable lower federal courts to exercise dominion over a cause of action. See Emco Machine Works Co., supra at 1298; Miller v. International Paper Co., supra at 285. If a party’s failure to file an EEOC charge and consequently receive a right-to-sue letter does not deprive the courts of subject matter jurisdiction, then certainly the technicalities of filing an EEOC charge or a Title VII suit cannot constitute jurisdictional prerequisites. The Supreme Court’s treatment of Title VII’s time limitations for filing an EEOC charge, 42 U.S.C. § 2000e-5(e) and for bringing a civil action, 42 U.S.C. § 2000e-5(f)(1), confirms our conclusion. In Zipes v. Trans World Airlines, Inc., supra, the Court expressly addressed for the first time whether or not a condition precedent to a Title VII action constitutes a jurisdictional prerequisite. The issue before the Court was whether the requirement that an EEOC charge be timely filed, 42 U.S.C. § 2000e-5(e), is a jurisdictional prerequisite, which if not satisfied deprives federal district courts of subject matter jurisdiction over Title VII claims, or whether the requirement is more akin to a statute of limitations, which is not jurisdictional and thus may be subject to equitable modification. In a well-reasoned opinion, the Court held “that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., supra,-U.S. at-, 102 S.Ct. at 1132. First, the Court observed that the provision granting jurisdiction to district courts, section 2000e-5(f)(3), “does not limit jurisdiction to those cases in which there has been a timely filing with the EEOC,” and that “[t]he provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Id. Second, the Court noted that the legislative history was sparse but that it indicated that Congress intended the filing limitation to operate like a statute of limitations rather than a jurisdictional prerequisite. Id. Third, the Court found that prior case law was inconsistent with treating the filing requirement as limiting the jurisdiction of the district court. It noted that to hold the filing requirement to be a jurisdictional prerequisite would be inconsistent with Albermarle Paper Co. v. Moody, supra, and Franks v. Bowman Transportation Co., supra, which, as discussed above, held that relief under Title VII may be awarded to class members who have not exhausted administrative remedies before the EEOC, and with the reasoning of other Supreme Court decisions, which treated the filing requirement as non-jurisdictional without expressly so holding. Id. -U.S. at-, 102 S.Ct. at 1133. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976). And, finally, the Court reasoned that “[b]y holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.” Id. - U.S. at -, 102 S.Ct. at 1133. In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court also made clear that the requirement that a party file a Title VII action within 90 days after receiving a right-to-sue letter, 42 U.S.C. § 2000e-5(f)(1), is not a jurisdictional prerequisite. Before reaching the merits, the Court noted that the action had not been timely filed. But rather than dismissing the action sua sponte as it would have done had it considered the requirement a jurisdictional prerequisite, the Court considered the ease properly before it because the “[pjetitioner did not assert respondent’s failure to file the action within 90 days as a defense.” Id. at 811 n.9, 100 S.Ct. at 2489 n.9. In so doing, the Court held by implication that Title VIPs 90 day filing requirement is not a jurisdictional prerequisite. See Zipes v. Trans World Airlines, Inc., supra-U.S. at-, 102 S.Ct. at 1133. The former Fifth Circuit also has concluded that Title VIPs filing periods are not jurisdictional. In Chappell v. Emco Machine Works Co., supra, the court addressed whether the 180 day limitation for filing an EEOC complaint, 42 U.S.C. § 2000e-5(e), is subject to equitable delay or interruption. See also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). Confronted with prior decisions of the Fifth Circuit and the Supreme Court that loosely referred to the timely filing of an EEOC complaint as a “jurisdictional prerequisite,” the court acknowledged that “[i]t is illogical to designate a particular fact as necessary to the court’s jurisdiction, yet, in its absence, allow the court to adjudicate whether equities indicate that the jurisdictional defect should be ignored.” Id. at 1298. After carefully analyzing the relevant precedent, the court concluded that even though some holdings characterized the filing period as jurisdictional, they “do not preclude equitable modification of its requirements.” Id. at 1302. In Coke v. General Adjustment Bureau, Inc., supra, the former Fifth Circuit, en banc, reaffirmed its holding in Chappell and made clear that while the 180 day filing requirement under Title VII is a condition precedent to filing suit in district court, it is not related to the court’s subject matter jurisdiction. Id. at 587-95. See Allen v. United States Steel Corp., 665 F.2d 689, 695 n.2 (5th Cir. 1982). Similarly, in Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981), the court held that the 90 day limitation for filing a Title VII suit is not a jurisdictional prerequisite. “After the right-to-sue letter is issued, the timeliness of the suit in federal court does not involve the court’s jurisdiction but whether the litigant has fulfilled the statutory conditions.” Id. at 1070. See Whatley v. Department of Education, 673 F.2d 873, 879 n.5 (5th Cir. 1982). See also Page v. U. S. Industries, Inc., 556 F.2d 346, 350-51 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). Thus, both the Supreme Court and former Fifth Circuit have concluded that Title VIPs time limitations are not jurisdictional prerequisites. The former Fifth Circuit has also treated other Title VII conditions precedent in a manner inconsistent with their being jurisdictional. In White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978) (en banc), the court considered whether the district court properly dismissed the appellant’s Title VII suit for want of subject matter jurisdiction because the plaintiff failed to pursue her claim of employment discrimination in an appropriate state agency before filing a charge with the EEOC as required by 42 U.S.C. § 2000e-5(c). Although the court found that the Texas statute in question was sufficient to trigger the requirements of 42 U.S.C. § 2000e-5(c), it nevertheless held that the district court erred in dismissing the suit because the EEOC substantially misled the plaintiff and “their mistakes should not redound to her detriment.” Id. at 562. As the court later noted in Coke v. General Adjustment Bureau, Inc., supra, “[a]lthough we expressly declined to decide whether the provision was a ‘jurisdictional prerequisite,’ we necessarily held that the equitable consideration of the misleading EEOC letters excused Mrs. White’s failure to file with the state agency.” Id. at 592. See Chappell v. Emco Machine Works Co., supra at 1300. The court could not have excused the plaintiff from filing a complaint with the appropriate state agency if the satisfaction of the precondition was necessary to the court’s jurisdiction. In EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976), the court again interpreted a specific precondition to filing a Title VII suit in light of equitable considerations. The issue there was whether the district court properly granted summary judgment for the defendants on the ground that the EEOC failed to comply with 42 U.S.C. § 2000e-5(b), which requires the Commission to serve notice of a charge to the alleged violator within ten days after the charge is filed. After an evidentiary hearing, the district court concluded that the notice of the charge was mailed within the ten day period but that it was not received by the defendant until nine months after the charge was filed. Nevertheless, the former Fifth Circuit was “unwilling to hold that in the present situation — where there has been virtual compliance with all the statutory procedural steps, and where there has been no clear showing of substantial prejudice to Airguide — there has been a showing of a denial of due process sufficient to bar EEOC from bringing suit.” Id. at 1042. Accordingly, the court reversed and remanded the cause to the district court for a determination of the prejudice suffered by defendant Airguide because of the lack of timely notice of the charge. Again, the court in EEOC v. Airguide Corp., supra, could not have equitably modified the condition precedent if the failure to satisfy the precondition deprived the court of subject matter jurisdiction. Finally, a line of former Fifth Circuit cases explicitly treats the preconditions to filing a Title VII action as conditions precedent under Fed.R.Civ.P. 9(c). EEOC v. Klingler Electric Corp., 636 F.2d 104, 106 (5th Cir. 1981); EEOC v. The Times-Picayune Publishing Corp., 500 F.2d 392 (5th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975); EEOC v. Standard Forge and Axle Co., 496 F.2d 1392 (5th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975). Rule 9(e) provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance shall be made specifically and with particularity.” Under this rule, if a party disagrees with a general averment that the conditions precedent have been met, that party may raise the issue with a specific and particular denial. If the party does not deny the satisfaction of the conditions precedent specifically and with particularity, however, 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_two_issues	A	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. Warjina S. Sarkis BOTHYO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 85-2639. United States Court of Appeals, Seventh Circuit. Argued Nov. 6, 1985. Decided Jan. 31, 1986. Mark Thomas, Anton & Fink, Chicago, Ill., for petitioner. Mary Reed, Office of Immigration Litigation, Civil Div., Washington, D.C., for respondent. Before FLAUM and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge. The Honorable Hubert L. Will, Senior District Judge of the Northern District of Illinois, is sitting by designation. WILL, Senior District Judge. The petitioner, Warjina S. Sarkis Bothyo, asks us to review the Board of Immigration Appeals’ allegedly “effective denial” of her motion to reopen her deportation proceedings. Because we find that Bothyo has not exhausted her administrative remedies as required by 8 U.S.C. § 1105a(c), we dismiss the appeal for lack of jurisdiction. Rather than reiterate the facts set forth in this Court’s previous opinion, we refer the reader to Bothyo v. Moyer, 772 F.2d 353 (7th Cir.1985). There, the Court held (1) that the district director of the Immigration and Naturalization Service (“INS”) had not abused his discretion by denying Bothyo’s request for a stay of deportation prior to decisions by the immigration judge and the Board of Immigration Appeals (“Board”) as to whether her deportation case should be reopened; and (2) that the district court’s dismissal of Bothyo’s habeas corpus petition prior to her appeal to the Board did not amount to a denial of her due process rights. Id. at 357. When this Court's previous ruling was rendered, the district court’s order staying deportation during the pendency of the appeal expired by its terms. On September 22, 1985, Bothyo was arrested and taken into custody. Based on her attorney’s representations that a petition for rehearing would be filed, this Court issued a new stay. When the period for filing a petition for rehearing terminated with no petition having been filed, that stay expired by its terms. Bothyo then filed the present petition for review, calling into effect the automatic stay provisions of 8 U.S.C. § 1105a(a)(3). Bothyo now asks us to overturn the Board’s allegedly “effective denial” of her motion to reopen the deportation proceedings. In order to reach the merits of her case, we must first be persuaded that she has exhausted her administrative remedies. 8 U.S.C. § 1105a(c). It is undisputed that the Board has not passed upon the merits of Bothyo’s appeal and formally denied her motion to reopen. The only record we have of the proceedings below is the immigration judge’s four-page opinion denying the motion to reopen and the Board’s order refusing to stay deportation during the pendency of her appeal to the Board. The immigration judge’s decision is obviously not appealable directly to this Court, since Bothyo still has an administrative appeal to the Board available. 8 C.F.R. § 242.21. Nor is the Board’s refusal to stay deportation appealable, since a denial of a stay is not a “final order of deportation” under 8 U.S.C. § 1105a(a). Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir.), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983). This leaves two jurisdictional questions: (1) whether Bothyo in fact filed an appeal to the Board, and (2) whether the Board’s failure to act upon the appeal eleven months after its supposed filing constitutes an “effective denial”. In the previous opinion, the Court assumed, based upon representations of counsel, that an appeal to the Board had been filed. Id. at 355. Indeed, the entire analysis contained in the opinion is premised upon the pendency of the appeal. The government now argues for the first time that the appeal to the Board was never properly perfected. As usual, the record is unclear. An affidavit of the docket clerk of the United States Immigration Court indicates that, so far as agency records can show, no appeal was filed. Bothyo’s attorney has produced a receipt for the filing fee but no proof that an I-290A form (notice of appeal) was served on the Immigration Court or the INS trial attorney. At oral argument, Bothyo’s attorney maintained that he had complied with all the procedural requisites and had even filed an opening brief (of which he kept no copies) with the Board. Any ambiguities in the record, he contends, are due to administrative errors for which his client cannot be faulted. Regardless of whether the government is responsible for any record-keeping errors, it most certainly is responsible for the failure to raise this question during the previous appeal. In any event, our disposition of the case does not require us to resolve this question. Under these circumstances, we think it is appropriate to assume, as did the panel that decided the previous case, that the appeal was properly perfected on December 19, 1984. The second aspect of Bothyo’s jurisdictional argument is that the Board’s failure to act upon her appeal for eleven months (measured at the time of oral argument on November 6, 1985) was an “effective denial” of her motion to reopen. Bothyo relies on the Third Circuit’s decision in Dabone v. Karn, 763 F.2d 593 (3d Cir.1985). In Dabone, the alien filed a motion to reopen exclusion proceedings before the Board. As in the present case, the Board denied a stay of deportation pending its ruling on the merits. The alien then filed a petition for a writ of habeas corpus in the district court, which denied the writ but granted a stay pending appeal. When the case reached the court of appeals, the motion to reopen was still pending before the Board eleven months after its filing. Rejecting the government’s argument that the court’s jurisdiction was limited to review of the denial of a stay and did not reach the merits of the motion to reopen, the court relied on three factors: (1) prompt action was necessary since the alien was unable to obtain a stay of deportation; (2) the government conceded that the Board’s delay was “entirely the fault” of the Board and was “not at all attributable” to the alien; and (3) the length of the delay. 763 F.2d at 597 n. 2. “Under these circumstances,” the court concluded, “we may treat the Board’s unjustified failure to act within a reasonable period as an effective denial of the motion to reopen.” Id. Dabone is distinguishable from the present case in two respects. First, and most important, Dabone was an exclusion case. When appeals are taken to the court of appeals in such cases, there is no automatic stay. To extend Dabone to deportation proceedings would mean that every alien with an appeal pending before the Board would have a powerful incentive to invoke the automatic stay by filing with a court of appeals a petition for review of the Board’s “effective denial”. The Third Circuit recognized as much in Reid v. INS, 766 F.2d 113 (3d Cir.1985), a decision rendered shortly after Dabone, in which the court noted that “concern about abusive delay [by the alien] is not nearly as substantial in exclusion cases [as in deportation cases].” Id. at 116 n. 8. Moreover, this Court’s decision in the first Bothyo case made clear that the granting of a stay of deportation while a motion to reopen is pending is not a matter of right, but is reserved for administrative discretion. Bothyo, 772 F.2d at 356. This holding, and the regulations on which it is based, would be severely undercut were we now to hold that an appeal to this Court could be taken, and an automatic stay under section 1105a(a)(3) secured, during the pendency of an appeal to the Board. Second, in Dabone the delay was “entirely the fault” of the government and was “not at all attributable” to the alien. Although we have assumed that Bothyo properly filed an appeal to the Board, we have no basis for assuming that the government is responsible for the ensuing delay. Bothyo concedes that neither she nor her attorney took any action (with the possible exception of filing a brief) to prosecute the appeal to the Board. No inquiries were made or motions presented to urge the Board to set a briefing schedule or otherwise take action in the case. Rather, Bothyo did nothing until this Court rendered its previous decision and the stay that had been in effect expired. Although an alien has no general duty to monitor the progress of an appeal to the Board, absent some action being taken by the alien we cannot assume that the delay is entirely the fault of the government. In short, given the record, we cannot say the delay in this case was unwarranted. See INS v. Miranda, 459 U.S. 14, 18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982). We need not decide under what circumstances inaction by the Board may confer jurisdiction upon this Court. Since in this case the delay was not unreasonable, we need only hold that a reasonable period of delay by the Board in acting on an appeal from the immigration judge’s denial of a motion to reopen deportation proceedings is not an effective denial of administrative remedies. It follows that the requirement of 8 U.S.C. § 1105a(c) that the alien exhaust available administrative remedies prior to bringing an appeal to this Court was not satisfied. The petition for review is dismissed for lack of jurisdiction. Question: Are there two issues in the case? A. no B. yes Answer:
sc_declarationuncon	B	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. PEPPER v. UNITED STATES No. 09-6822. Argued December 6, 2010 Decided March 2, 2011 Alfredo Parrish, by appointment of the Court, post, p. 821, argued the cause for petitioner. With him on the briefs was Leon F. Spies. Acting Deputy Solicitor General McLeese argued the cause for the United States in support of petitioner. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General Breuer, Jeffrey B. Wall, William C. Brown, and Nina Goodman. Adam G. Ciongoli, by invitation of the Court, 561 U. S. 1042, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief were William A. Burck and Lisa R. Eskow. Briefs of amici curiae urging reversal were filed for Families Against Mandatory Mínimums by Mary Price and Margaret Colgate Love; for the Federal Public and Community Defenders et al. by Amy Baron-Evans, Jennifer Niles Coffin, and Frances H. Pratt; and for the National Association of Criminal Defense Lawyers by Matthew M. Shors and Jonathan D. Hacker. Justice Sotomayor delivered the opinion of the Court. This Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U. S. 241, 246-247 (1949). Congress codified this principle at 18 U. S. C. §3661, which provides that “[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including “the history and characteristics of the defendant,” § 3553(a)(1). The United States Court of Appeals for the Eighth Circuit concluded in this case that the District Court, when resentencing petitioner after his initial sentence had been set aside on appeal, could not consider evidence of petitioner’s rehabilitation since his initial sentencing. That conclusion conflicts with longstanding principles of federal sentencing law and Congress’ express directives in §§3661 and 3553(a). Although a separate statutory provision, § 3742(g)(2), prohibits a district court at resentencing from imposing a sentence outside the Federal Sentencing Guidelines range except upon a ground it relied upon at the prior sentencing — thus effectively precluding the court from considering postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence — that provision did not survive our holding in United States v. Booker, 543 U. S. 220 (2005), and we expressly invalidate it today. We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing. I In October 2003, petitioner Jason Pepper was arrested and charged with conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U. S. C. §846. After pleading guilty, Pepper appeared for sentencing before then-Chief Judge Mark W. Bennett of the U. S. District Court for the Northern District of Iowa. Pepper’s sentencing range under the Guidelines was 97 to 121 months. The Government moved for a downward departure pursuant to USSG § 5K1.1 based on Pepper’s substantial assistance and recommended a 15-percent downward departure. The District Court, however, sentenced Pepper to a 24-month prison term, resulting in an approximately 75-percent downward departure from the low end of the Guidelines range, to be followed by five years of supervised release. The Government appealed Pepper’s sentence, and in June 2005, the Court of Appeals for the Eighth Circuit reversed and remanded for resentencing in light of our intervening decision in Booker (and for another reason not relevant here). See United States v. Pepper, 412 F. 3d 995, 999 (Pepper I). Pepper completed his 24-month sentence three days after Pepper I was issued and began serving his term of supervised release. In May 2006, the District Court conducted a resentencing hearing and heard from three witnesses. In his testimony, Pepper first recounted that while he had previously been a drug addict, he successfully completed a 500-hour drug treatment program while in prison and he no longer used any drugs. App. 104-105. Pepper then explained that since his release from prison, he had enrolled at a local community college as a full-time student and had earned A’s in all of his classes in the prior semester. Id., at 106-107. Pepper also testified that he had obtained employment within a few weeks after being released from custody and was continuing to work part time while attending school. Id., at 106-110. Pepper confirmed that he was in compliance with all the conditions of his supervised release and described his changed attitude since his arrest. See id., at 111 (“[M]y life was basically headed to either where — I guess where I ended up, in prison, or death. Now I have some optimism about my life, about what I can do with my life. I’m glad that I got this chance to try again I guess you could say at a decent life.... My life was going nowhere before, and I think that it’s going somewhere now”). Pepper’s father testified that he had virtually no contact with Pepper during the 5-year period leading up to his arrest. Id., at 117. Pepper’s drug treatment program, according to his father, “truly sobered him up” and “made his way of thinking change.” Id., at 121. He explained that Pepper was now “much more mature” and “serious in terms of planning for the future,” id., at 119, and that as a consequence, he had reestablished a relationship with his son, id., at 118-119. Finally, Pepper’s probation officer testified that, in his view, a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low risk of recidivism. Id., at 126-131. The probation officer also prepared a sentencing memorandum that further set forth the reasons supporting his recommendation for a 24-month sentence. The District Court adopted as its findings of fact the testimony of the three witnesses and the probation officer’s sentencing memorandum. The court granted a 40-percent downward departure based on Pepper’s substantial assistance, reducing the bottom of the Guidelines range from 97 to 58 months. The court then granted a further 59-percent downward variance based on, inter alia, Pepper’s rehabilitation since his initial sentencing. Id., at 143-148. The court sentenced Pepper to 24 months of imprisonment, concluding that “it would [not] advance any purpose of federal sentencing policy or any other policy behind the federal sentencing guidelines to send this defendant back to prison.” Id., at 149-150. The Government again appealed Pepper’s sentence, and the Court of Appeals again reversed and remanded for re-sentencing. See United States v. Pepper, 486 F. 3d 408, 410, 413 (CA8 2007) (Pepper II). The court concluded that, while it was “a close call, [it could not] say the district court abused its discretion” by granting the 40-percent downward departure for substantial assistance. Id., at 411. The court found the further 59-percent downward variance, however, to be an abuse of discretion. Id., at 412-413. In doing so, the court held that Pepper’s “post-sentencing rehabilitation was an impermissible factor to consider in granting a downward variance.” Id., at 413. The court stated that evidence of postsenteneing rehabilitation “ ‘is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing,’” and permitting courts to consider postsenteneing rehabilitation at resentencing “would create unwarranted sentencing disparities and inject.blatant inequities into the sentencing process.” Ibid. The Court of Appeals directed that the case be assigned to a different district judge for resentencing. Ibid. After the Court of Appeals’ mandate issued, Pepper’s case was reassigned on remand to Chief Judge Linda R. Reade. In July 2007, Chief Judge Reade issued an order on the scope of the remand from Pepper II, stating that “[t]he court will not consider itself bound to reduce [Pepper’s] advisory Sentencing Guidelines range by 40% pursuant to USSG §5K1.1.” United States v. Pepper, No. 03-CR-4113-LRR, 2007 WL 2076041, *4 (ND Iowa). In the meantime, Pepper petitioned this Court for a writ of certiorari, and in January 2008, we granted the petition, vacated the judgment in Pepper II, and remanded the case to the Court of Appeals for further consideration in light of Gall v. United States, 552 U. S. 38 (2007). See Pepper v. United States, 552 U. S. 1089 (2008). On remand, the Court of Appeals held that Gall did not alter its prior conclusion that “post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance.” 518 F. 3d 949, 953 (CA8 2008) (Pepper III). The court again reversed the sentence and remanded for resentencing. In October 2008, Chief Judge Reade convened Pepper’s second' resentencing hearing: Pepper informed the court that he was still attending school and was now working as a supervisor for the night crew at a warehouse retailer, where he was recently selected by management as “associate of the year” and was likely to be promoted the following January. App. 320, 323. Pepper also stated that he had recently married and was now supporting his wife and her daughter. Id., at 321. Pepper’s father reiterated that Pepper was moving forward in both his career and his family life and that he remained in close touch with his son. See id., at 300-304. In December 2008, Chief Judge Reade issued a sentencing memorandum. Noting that the remand language of Pepper III was nearly identical to the language in Pepper II, the court again observed that it was “not bound to reduce [Pepper’s] advisory Sentencing Guidelines range by 40%” for substantial assistance and concluded that Pepper was entitled only to a 20-percent downward departure because the assistance was “timely, helpful and important” but “in no way extraordinary.” Sealed Sentencing Memorandum in No. 03-CR-4113-LRR (ND Iowa), Record, Doc. 198, pp. 7, 10. The court also rejected Pepper’s request for a downward variance based on, inter alia, his postsentencing rehabilitation. Id., at 16. The District Court reconvened Pepper’s resentencing hearing in January 2009. The court’s decision to grant a 20-percent downward departure for substantial assistance resulted in an advisory Guidelines range of 77 to 97 months. The court also granted the Government’s motion under Rule 35(b) of the Federal Rules of Criminal Procedure to account for investigative assistance Pepper provided after he was initially sentenced. The court imposed a 65-month term of imprisonment, to be followed by 12 months of supervised release. The Court of Appeals affirmed Pepper’s 65-month sentence. 570 F. 3d 958 (CA8 2009) (Pepper IV). As relevant here, the Court of Appeals rejected Pepper’s argument that the District Court erred in refusing to consider his postsen-teneing rehabilitation. The court acknowledged that “Pepper made significant progress during and following his initial period of imprisonment” and “commend[ed] Pepper on the positive changes he has made in his life,” but concluded that Pepper’s argument was foreclosed by Circuit precedent holding that “post-sentencing rehabilitation is not a permissible factor to consider in granting a downward variance.” Id., at 964-965 (citing United States v. Jenners, 473 F. 3d 894, 899 (CA8 2007); United States v. McMannus, 496 F. 3d 846, 852, n. 4 (CA8 2007)). The Court of Appeals also rejected Pepper’s claim that the scope of the remand and the law of the case from Pepper II and Pepper III required the District Court to reduce the applicable Guidelines range by at least 40 percent pursuant to USSG §5K1.1. The court noted that its remand orders in Pepper II and Pepper III were “general remand[s] for resentencing,” which “did not place any limitations on the discretion of the newly assigned district court judge in re-sentencing.” 570 F. 3d, at 963. The court further noted that, although issues decided by an appellate court become law of the case on remand to the sentencing court, its earlier decisions merely held that a 40-percent downward departure for substantial assistance was not an abuse of discretion, not that the District Court would be bound by the 40-percent departure previously granted. Id., at 963-964. We granted Pepper’s petition for a writ of certiorari, 561 U. S. 1024 (2010), to decide two questions: (1) whether a district court, after a defendant’s sentence has been set aside on appeal,, may consider evidence of a defendant’s postsen-tencing rehabilitation to support a downward variance when resentencing the defendant, a question that has divided the Courts of Appeals; and (2) whether the resentencing court was required, under the law of the ease doctrine, to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at Pepper’s prior sentencing. Because the United States has confessed error in the Court of Appeals’ ruling on the first question, we appointed an amicus curiae to defend the Court of Appeals’ judgment. We now vacate the Eighth Circuit’s ruling on the first question and affirm its ruling on the second. II A “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U. S. 81, 113 (1996). Underlying this tradition is the principle that “the punishment should fit the offender and not merely the crime.” Williams, 337 U. S., at 247; see also Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937) (“For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender”). Consistent with this principle, we have observed that “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.” Williams, 337 U. S., at 246. In particular, we have emphasized that “[hjighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id., at 247. Permitting sentencing courts to consider the widest possible breadth of information about a defendant “ensures that the punishment will suit not merely the offense but the individual defendant.” Wasman v. United States, 468 U. S. 559, 564 (1984). In 1970, Congress codified the “longstanding principle that sentencing courts have broad discretion to consider various kinds of information” at 18 U. S. C. § 3577 (1970 ed.). United States v. Watts, 519 U. S. 148, 151 (1997) (per curiam). Section 3577 provided: “No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” (Emphasis added.) In the Sentencing Reform Act of 1984 (SRA), 18 U. S. C. §3551 et seq., Congress effected fundamental changes to federal sentencing by creating the Federal Sentencing Commission and introducing the Guidelines scheme. In doing so, however, Congress recodified §3577 without change at §3661. The Sentencing Commission, moreover, expressly incorporated § 3661 in the Guidelines: “In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U. S. C. § 3661.” USSG § 1B1.4 (Nov. 2010) (emphasis added). Both Congress and the Sentencing Commission thus expressly preserved the traditional discretion of sentencing courts to “conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972). The SRA did constrain sentencing courts’ discretion in important respects, most notably by making the Guidelines mandatory, see 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV), and by specifying various factors that courts must consider in exercising their discretion, see § 3553(a). In our seminal decision in Booker, we held that where facts found by a judge by a preponderance of the evidence increased the applicable Guidelines range, treating the Guidelines as mandatory in those circumstances violated the Sixth Amendment right of criminal defendants to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. 543 U. S., at 243-244. Our remedial opinion in Booker invalidated two offending provisions in the SRA, see id., at 245 (invalidating 18 U. S. C. §§ 3553(b)(1), 3742(e)), and instructed the district courts to treat the Guidelines as “effectively advisory,” 543 U. S., at 245. Our post-Booker opinions make clear that, although a sentencing court must “give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well.” Kimbrough v. United States, 552 U. S. 85, 101 (2007) (internal quotation marks and citation omitted). Accordingly, although the “Guidelines should be the starting point and the initial benchmark,” district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in § 3553(a), subject to appellate review for “reasonableness.” Gall, 552 U. S., at 49-51. This sentencing framework applies both at a defendant’s initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal. See 18 U. S. C. § 3742(g) (“A district court to which a case is remanded... shall resen-tenee a defendant in accordance with section 3553”); see also Dillon v. United States, 560 U. S. 817, 828, 827 (2010) (distinguishing between “sentence-modification proceedings” under 18 U. S. C. § 3582(c)(2), which “do not implicate the interests identified in Booker,” and “plenary resentencing proceedings,” which do). B In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside oh appeal and his case remanded for resen-tencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range. Preliminarily, Congress could not have been clearer in directing that “[n]o limitation... be placed on the information concerning the background, character, and conduct” of a defendant that a district court may “receive and consider for the purpose of imposing an appropriate sentence.” 18 U. S. C. §3661. The plain language of §3661 makes no distinction between a defendant’s initial sentencing and a subsequent resentencing after a prior sentence has been set aside on appeal. We have recognized that “the broad language of § 3661” does not provide “any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing.” Watts, 519 U. S., at 152. A categorical bar on the consideration of postsentencing rehabilitation evidence would directly contravene Congress’ expressed intent in § 3661. In addition, evidence of postsentencing rehabilitation may be highly relevant to several of the § 3553(a) factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” § 3553(a)(1). Such evidence may also be pertinent to “the need for the sentence imposed” to serve the general purposes of sentencing set forth in § 3553(a)(2) — in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from farther crimes of the defendant,” and “provide the defendant with needed educational or vocational training... or other correctional treatment in the most effective manner.” §§ 3553(a)(2)(B)-(D); see McMannus, 496 F. 3d, at 853 (Melloy, J., concurring) (“In assessing... deterrence, protection of the public and rehabilitation, 18 U.S. C. § 3553(a)(2)(B)(C) & (D), there would seem to be no better evidence than a defendant’s post-incarceration conduct”). Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under § 3553(a) to “impose a sentence sufficient, but not greater than necessary,” to comply with the sentencing purposes set forth in § 3553(a)(2). As the original sentencing judge recognized, the extensive evidence of Pepper’s rehabilitation since his initial sentencing is clearly relevant to the selection of an appropriate sen-tenee in this case. Most fundamentally, evidence of Pepper’s conduct since his release from custody in June 2005 provides the most up-to-date picture of Pepper’s “history and characteristics.” § 3553(a)(1); see United States v. Bryson, 229 F. 3d 425, 426 (CA2 2000) (per curiam) (“[A] court’s duty is. always to sentence the defendant as he stands before the court on the day of sentencing”). At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addiet who was unemployed, estranged from his family, and had recently sold drugs as part of a methamphetamine conspiracy. By the time of his second resentencing in 2009, Pepper had been drug free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had reestablished a relationship with his father, and was married and supporting his wife’s daughter. There is no question that this evidence of Pepper’s conduct since his initial sentencing constitutes a critical part of the “history and characteristics” of a defendant that Congress intended sentencing courts to consider. § 3553(a). Pepper’s postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence. See §§3553(a)(2)(B)-(C); Gall, 552 U. S., at 59 (“Gall’s self-motivated rehabilitation... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§ 3553(a)(2)(B)-(C))). As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocational training... or other correctional treatment.” § 3553(a)(2)(D). Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” Ashe, 302 U. S., at 55. Accordingly, evidence of Pepper’s postsen-tencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary,” to serve' the purposes of sentencing. § 3553(a). In sum, the Court of Appeals’ ruling prohibiting the District Court from considering any evidence of Pepper’s postsentencing rehabilitation at resentencing conflicts with longstanding principles of federal sentencing law and contravenes Congress’ directives in §§3661 and 3553(a). C Amicus nevertheless advances two principal arguments in defense of the Court of Appeals’ ruling: (1) 18 U. S. C. § 3742(g)(2), which restricts the discretion of a resentencing court on remand to impose a non-Guidelines sentence, effectively forecloses consideration of a defendant’s postsentenc-ing rehabilitation; and (2) permitting district courts to consider postsentencing rehabilitation would defeat Congress’ objectives under § 3553(a). We are not persuaded. 1 Amicus’ main argument relies on 18 U. S. C. § 3742(g)(2), a provision that the Court of Appeals did not cite below. That provision states that when a sentence is set aside on appeal, the district court to which the case is remanded: “shall not impose a sentence outside the applicable guidelines range except upon a ground that— “(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and “(B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.” In operation, § 3742(g)(2) restricts the discretion of a district court on remand by precluding the court from imposing a sentence outside the Guidelines range except upon a “ground of departure” that was expressly relied upon in the prior sentencing and upheld on appeal. Amicus thus correctly contends that, on its face, § 3742(g)(2) effectively forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence because, as a practical matter, such evidence did not exist at the time of the prior sentencing. As the Government concedes, however, § 3742(g)(2) is invalid after Booker. As we have explained, Booker held that where judicial factfinding increases a defendant’s applicable Sentencing Guidelines range, treating the Guidelines as mandatory in those circumstances would violate the defendant’s Sixth Amendment right to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. See supra, at 489-490. We recognized in Booker that, although the SRA permitted departures from the applicable Guidelines range in limited circumstances, “departures are not available in every case, and in fact are unavailable in most.” 543 U. S., at 234. Because in those instances, “the judge is bound to impose a sentence within the Guidelines range,” we concluded that the availability of departures in certain circumstances “does not avoid the constitutional issue.” Ibid. To remedy the constitutional problem, we rendered the Guidelines effectively advisory by invalidating two provisions of the SRA: 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV), which generally required sentencing courts to impose a sentence within the applicable Guidelines range, and § 3742(e) (2000 ed. and Supp. IV), which prescribed the standard of appellate review, including de novo review of Guidelines departures. 543 U. S., at 259. We invalidated these provisions even though we recognized that mandatory application of the Guidelines would not always result in a Sixth Amendment violation. Indeed, although the Government suggested in Booker that we render the Guidelines advisory only in cases in which the Constitution prohibits judicial fact-finding, we rejected that two-track proposal, reasoning that “Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others, given the administrative complexities that such a system would create.” Id., at 266; see Dillon, 560 U. S., at 829-830 (“The incomplete remedy we rejected in Booker would have required courts to treat the Guidelines differently in similar proceedings, leading potentially to unfair results and considerable administrative challenges”). We did not expressly mention § 3742(g)(2) in Booker, but the rationale we set forth in that opinion for invalidating §§ 3553(b)(1) and 3742(e) applies equally to § 3742(g)(2). As with those provisions, § 3742(g)(2) requires district courts effectively to treat the Guidelines as mandatory in an entire set of cases. Specifically, § 3742(g)(2) precludes a district court on remand from imposing a sentence “outside the applicable guidelines range” except upon a “ground of departure” that was expressly relied upon by the court at the prior sentencing and upheld by the court of appeals. In circumstances in which the district court did not rely upon such a departure ground at the prior sentencing, § 3742(g)(2) would require the court on remand to impose a sentence within the applicable Guidelines range, thus rendering the Guidelines effectively mandatory. Because in a large set of cases, judicial factfinding will increase the applicable Guidelines range beyond that supported solely by the facts established by the jury verdict (or guilty plea), requiring a sentencing judge on remand to apply the Guidelines range, as § 3742(g)(2) does, will often result in a Sixth Amendment violation for the reasons we explained in Booker. Accordingly, as with the provisions in Booker, the proper remedy here is to invalidate § 3742(g)(2). The sentencing proceeding at issue in Booker itself illustrates why § 3742(g)(2) cannot withstand Sixth Amendment scrutiny. The District Court in Booker increased the defendant's then-mandatory Guidelines range based on a drug-quantity finding that it, rather than the jury, made. 543 U. S., at 227. After we held that the Guidelines must be treated as advisory, we remanded the case for resentencing. Id., at 267. Had § 3742(g)(2) remained valid after Booker, the District Court on remand would have been required to sentence within the Guidelines range because it did not depart from the Guidelines at the original sentencing. Accordingly, the resentencing judge in Booker would have been required under § 3742(g)(2) to impose a Guidelines sentence based on judge-found facts concerning drug quantity, the precise result that Booker forbids. The same result would occur in any sentencing in which a district court erroneously refuses to impose a sentence outside the Guidelines range “based on a misunderstanding of its authority to depart under or vary from the Guidelines.” Reply Brief for United States 16. For example, if § 3742(g)(2) remained valid, there would be no remedy at re-sentencing if a district court erroneously believed the Guidelines were presumptively reasonable, see Nelson v. United States, 555 U. S. 350, 352 (2009) (per curiam), or if it mistakenly thought that a non-Guidelines sentence required extraordinary circumstances, see Gall, 552 U. S., at 47, or if it incorrectly concluded that it could not vary from the Guidelines based on a policy disagreement with their disparate treatment of crack and powder cocaine, see Kimbrough, 552 U. S., at 101. In such cases, the district court at the initial sentencing proceeding will necessarily have imposed a sentence within the Guidelines range, and thus § 3742(g)(2) would require the imposition of a Guidelines sentence on remand. See Reply Brief for Petitioner 3-5 (describing further categories of cases where “the Booker remedy would be entirely unavailable if § 3742(g)(2) were valid”). To be sure, applying § 3742(g)(2) at resentencing would not always result in a Sixth Amendment violation. For example, where the applicable Guidelines range rests solely on facts found by a jury beyond a reasonable doubt, application of § 3742(g)(2) at resentencing would not render the sentence constitutionally infirm. But, as explained above, that possibility was equally true with respect to the sentencing provisions we invalidated in Booker. See supra, at 495. As with those provisions, “we cannot assume that Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many other instances as possible.” 543 U. S., at 248. Just as we rejected a two-track system in Booker that would have made the Guidelines mandatory in some cases and advisory in others, we reject a partial invalidation of § 3742(g)(2) that would leave us with the same result. The fact that § 3742(g)(2) permits a resentencing court on remand to impose a non-Guidelines sentence in cases where the prior sentence expressly relied upon a departure upheld by the court of appeals also does not cure the constitutional infirmity. As explained above, we observed in Booker that the availability of departures from the applicable Guidelines ranges in specified circumstances “does not avoid the constitutional issue.” Id., at 234. Because “departures are not available in every case, and in fact are unavailable in most,” ibid., we held that remedying the Sixth Amendment problem required invalidation of § 3553(b)(1). That same remedial approach requires us to invalidate § 3742(g)(2). Amicus contends that any constitutional infirmity in § 3742(g)(2) can be remedied by invalidating §3742(j)(1)(B) rather than § 3742(g)(2). Brief for Amicus Curiae in Support of Judgment Below 21-22. Section 3742(j)(1)(B) provides that a “ground of departure” is “permissible” for purposes of § 3742(g)(2)(B) only if it is, inter alia, “authorized under section 3553(b).” In Booker, we noted that “statutory cross-references” to the SEA provisions we invalidated were also constitutionally infirm. 543 U. S., at 259. Because § 3742(j)(1)(B) incorporates a cross-reference to § 3553(b)(1), one of the provisions we invalidated in Booker, amicus suggests that invalidating § 3742(j)(1)(B) would cure any constitutional defect in § 3742(g)(2)(B). As the Government explains, however, even if § 3742(j)(1)(B) were invalidated and a district court could depart on any ground at an initial sentencing, the district court would not be able to depart on any new ground at resentencing so long as § 3742(g)(2) remains in force. Because amicus’ proposed solution would still result in the Guidelines being effectively mandatory at re-sentencing in an entire set of eases, it fails to remedy the fundamental constitutional defect of § 3742(g)(2). 2 Amicus’ next cluster of arguments focuses on Congress’ sentencing objectives under § 3553(a). Preliminarily, ami-cus contends that even if § 3742(g)(2) is constitutionally invalid, that provision reflects a congressional policy determination that only information available at the time of original sentencing should be considered, and that this policy determination should inform our analysis of whether § 3553(a) permits consideration of postsentencing rehabilitation evidence. This argument, however, is based on a faulty premise. Contrary to amicus’ contention, § 3742(g)(2) does not reflect a congressional purpose to preclude consideration of evidence of postsentencing rehabilitation at resentencing. To be sure, § 3742(g)(2) has the incidental effect of limiting the weight a sentencing court may place on postsentencing rehabilitation by precluding the court from resentencing outside the Guidelines range on a “ground of departure” on which it did not previously rely. But on its face, nothing in § 3742(g)(2) prohibits a district court from considering post-sentencing developments — including postsentencing rehabilitation — in selecting Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:
sc_lcdisposition	K	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. UNITED STATES v. WITTEK. No. 473. Argued April 20-21, 1949. Decided June 13, 1949. Assistant Attorney General Vanech argued the cause for the United States. With him on the brief were Solicitor General Perlman, Philip Elman, Roger P. Marquis, Fred W. Smith and. Floyd L. France. Ward B. McCarthy argued the cause and filed a brief for respondent. Mr. Justice Burton delivered the opinion of the Court. The. question presented is whether the United States, as the owner of Bellevue Houses, a defense-housing project in the District of Columbia, is a “landlord” within the meaning of the District of Columbia Emergency Rent Act, with particular reference to rights of occupancy and rates of rental. For the reasons to be stated, we hold that it is not. The United States of America, petitioner herein, filed its amended complaint in the Municipal Court for the District of Columbia against Wittek, the respondent, seeking possession of the premises occupied by him in the defense-housing project in the District of Columbia known 'as Bellevue Houses. The complaint alleged that the. premises were owned by the United States and that the housing accommodations had been constructed by the Navy Department under authority of § 201 of the Second Supplemental National Defense Appropriation Act. 1941. This summary proceeding was brought under § 20, 31 Stat.' 1193, 41 Stat. 555, D. C. Code (1940) § 11-735. The respondent’s tenancy had been terminated by notice to quit, served upon him February 28, 1946, as required by § 1219, 31 Stat. 1382, D. C. Code (1940) § 45-902, and the United States claimed that he no longer had any right to possession. The respondent’s defense, now before us, is that the United States did not establish any of the additional facts which the District of Columbia Emergency Rent Act required a landlord to establish as a condition of such landlord’s recovery of possession of housing accommodations to which the Act applied. The. parties agreed that the cause be disposed of by the Municipal Court upon the pleadings, pretrial stipulations and certain exhibits. That court found that it had jurisdiction, that the Emergency Rent Act did not apply to the United States as the landlord of the premises in question and it ordered possession of the premises to be given to the • United States. The Municipal Court of Appeals for the District of Columbia affirmed the judgment. The United States Court of Appeals for the District of Columbia Circuit allowed an appeal, iimited to two questions. It disposed of one by sustaining the jurisdiction of the Municipal Court. It answered the other by holding that the District of Columbia Emergency Rent Act did apply to the United States as the landlord in this proceeding. It ordered the judgment reversed and the cause remanded to the Municipal Court of Appeals. 83 U. S. App. D. C. 377, 171 F. 2d 8. We granted certiorari because of the substantial importance of the decision to the administration of Government-owned, low-rent housing, as well as to Government-owned, defense housing, in the District of Columbia. 336 U. S. 931. I. If the District of Columbia Emergency Rent Act is now applied to Government-owned, defense housing in the District, such as Bellevue Houses, we are warned that we soon may be compelled to hold the same interpretation applicable to' Government-owned, low-rent housing in the.District. When the circumstances are appreciated, it is practically inconceivable that. Congress would have subjected its Government-owned, low-rent housing program in the District of Columbia to the additional control prescribed by the District of Columbia.Emergency Rent Act. Yet the interpretation by which the court below held that Act applicable to the United States as a landlord of defense housing might make the Act equally applicable to the United States as a landlord of all other housing accommodations, including its low-rent housing. The District of Columbia Emergency Rent Act came beforé Congress, late in 1941, through and with- the support of the Congressional Committees on the District of Columbia in the House of Representatives and the Senate. It was- designed as a model, prewar, temporary, emergency measure to forestall the skyrocketing of rentals of housing accommodations for defense workers then concentrating in the "district of Columbia. Obviously, it was directed, at least primarily, at private landlords. It sought to stabilize housing rentals at about the level of January 1, 1941, •which it selected as “a level fixed (so far as practicable) by free competition;....” Congress traditionally has relied heavily upon its Committees on the District of Columbia in District matters. Through them it must have seen this measure in the light of its own long-term, low-rent housing program for the District. In appraising the attitude of these Committees and of Congress toward Government-owned, low-rent housing as a substitute for substandard housing in the District, it is impossible to overemphasize either the seriousness of the need or the long-standing concern of Congress about that need, The substandard housing in the District has been a frequent subject of congressional debate, study and legislation since the Civil War. The narrow alleys in the interior of 200 or more of the large downtown city blocks of the District, although unfit for habitation, have been notoriously congested with a large population for -which adequate housing never has existed. This condition has been widely publicized and only partial success has been attained through the efforts to improve it. Out of this need there has evolved a long-term congressional program to eliminate these substandard dwellings. Due to an obvious lack of suitable private housing, this program has led to the construction of a number of Government-built, owned and operated low-rent housing accommodations. In 1934, Congress enacted the District of Columbia Alley Dwelling Act, 48 Stat. 930, D. C. Code (1940) § 5-103, et seq. It authorized the President to acquire land adjacent to the inhabited alleys in the District, erect buildings thereon and rent them “upon such terms and conditions as he may determine:....” Pursuant to this Act, he designated the Chairman (officially entitled the President) of the Board of Commissioners of the District of Columbia, the Executive Officer (later the Director) of the National Capital Park and Planning Commission and the Director of Housing of the Federal Emergency Administration of Public Works to carry out its purposes. He named the group The Alley Dwelling Authority. In 1938, he substituted the Architect of the Capitol for the third official constituting the Authority, and, in 1943, he changed its name to that of the National Capital Housing Authority. It' is this presidentially designated Authority that has operated, for the United States, all of its low-rent housing projects in the District. It is this Authority that has fixed the rentals and passed upon the respective rights of tenants to occupy premises in those projects. Its composition, including two United States officials and the President of the Board of Commissioners of the District, demonstrates the incongruity of an attempt, such as is here suggested, to subject it to the control of the District’s Administrator of Rent Control, himself appointed by the Board of Commissioners of the District. The recognized responsibility of this Authority as a federal, housing agency further appears from the fact that, in due course, it was chosen by the Government to be the operating lessee of more than 5,000 Government-owned, defense-housing, dwelling units, which were built by the United States in or near the District, including the Bellevue Houses. The issue before us does not turn upon what particular agency is operating the Bellevue Houses or the other Government-owned housing of the United States. The issue is'whether the-United States, through whatever agency it operates, is to be controlled in its rental policies by the District Administrator of Rent Control. In determining the meaning of the District of Columbia Emergency Rent Act, approved December 2, 1941, which created the District Administrator of Rent Control, it therefore is material to note that the United States, in 1941, already was acting as a landlord of much Government-owned housing in the District and that, in each instance, it had placed those operations in the control of a.national or presir dentially designated authority or official with authorization fitted to the particular and varied purposes of that housing. This fact is of crucial significance in connection with the low-rent housing in the District which had been in operation for several years. Its distinctly social welfare and relief purposes already were in the hands of The Alley Dwelling Authority. Beginning in 1934, The Alley Dwelling Authority built and put into operation five Government-owned, low-rent housing projects (including 112 dwelling units) and three commercial properties. In 1938, Title II was added to the District of Columbia AJley Dwelling Act, 52 Stat. 1188, D. C. Code (1940) §’5-\|112, et seq.,.and the Authority was designated also- as $, public housing agency to carry out the purposes of the United States Housing Act.of 1937, 50 Stat. 888, et seq. See 42 U. S. C. (1940 ed.) § 14Q1, et seq. This enabled it. to secure loans to build low-rent, housing accommodations and its program promptly expanded. By the end of 1941 it had completed, under Title II, six more low-rent projects, including 1,613- dwelling units, and the Government’s brief in the instant case states that, it is now managing, under that Title, 3,147 such dwellings. The character of these dwellings is plain from the definition of “low-rent housing” in the Housing Act. This was prewar, poor-relief, low-rent housing, rather than defense housing. These projects were subsidized. The rentals were keyed to the inadequacy of the income of the respective tenants. The rentals did not purport to equal the- level of those fixed by free competition for comparable privately owned housing. It was an important feature of the operating policy of these projects that a tenant be dispossessed, or “graduated” as the Authority termed it, whenever that tenant’s financial needs no longer entitled him to the subsidized privileges. The inappropriateness of applying to such projects rentals based upon levels fixed by free com-. petition as of January 1, 1941, under the District of Columbia Emergency Rent Act, is evident. That Act’s policy of rent control fostered the continuance of tenancies regardless of 'the financial status of the individual tenant. If applied to low-rent housing it would give vested rights to relief clients once installed, rather than to new clients in greater need.. In the absence of an express statement by Congress, it is not conceivable that Congress, with its familiarity with these relief operations of the United States, as the landlord of such low-rent, relief housing, would subject The Alley Dwelling Authority in. the rental policy of such housing to the control of a local Administrator of Rent Control under an Act designed to meet the problems of employed war workers rather than the problems of indigent families, already wholly or partially dependent upon public support. Such a subjection, however, apparently would follow-from the reasoning of the court below that the use by Congress of the general term “landlord,” in the District of Columbia Emergency Rent Act, must subject the United- States, as the landlord of Government-owned, defense-housing accommodations, to the provisions of that Act. The District of Columbia Emergency Rent Act makes no distinction between the United States as a landlord'of low-rent housing and as a landlord of defense housing. If the Act applies to the Bellevue Houses, it apparently may be applied equally tb all of the activities of the United States as a landlord. Therefore, while the complaint in the instant case does riot seek.to dispossess a tenant of a Government-owned, low-rent housing unit, v¡e note the warning of Government counsel that, if we hold that the District of Columbia Emergency Rent Act is applicable in the instant case, we soon may be compelled to hold it-applicable also to the United States as the landlord of low-rent housing. II. The District of Columbia Emergency Rent Act does ■ not apply to Government-owned, defense housing in the District) such as the Bellevue Houses. A. The Act contains no express reference to the United SfatÉS as a landlord or to the application of the Act to Government-owned housing of any kind. A general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect. The text, surrounding circumstances and legislative history of this District Act neither express nor imply a change in the authority already vested in permanent federal agencies in their management of the Government-owned housing in the District. The District of Columbia Emergency Rent Act thus appears to have been enacted as a temporary measure supplementing, rather than superseding, the contribution already being made by the permanent federal housing authorities toward meeting the housing crisis. We find no evidence that Congress believed that the managers of any of its housing projects in the District would be “tempted •... to demand exorbitant rentals” or engage in the “rent-gouging practices...” against which the new Act was directed. It seems obvious that the need for District rent control was not in the operation of Government-owned housing, where the Federal Government already had complete control over the rentals, but was in the operation of privately owned housing, where neither the Federal nor District. Government had any control.. B. Government-owned, defense housing did not require the new rental control, in the District, that Congress imposed upon privately owned housing by the District of Columbia Emergency Rent Act. The increasing number of Government-owned, defense-housing units testified to the satisfaction of Congress and of.the Administration with such projects. Rental rates in them were under complete governmental control. At the time of the enactment of the District of Columbia Emergency Rent Act, December 2, 1941, defense housing could be constructed in the District, and elsewhere, under § 201 of the Sécond Supplemental National Defense Appropriation Act, 1941, approved September 9, 1940, 54 Stat. 872, 883, or. under the Lanham Act, approved October 14, 1940, 54 Stat. 1125. Bellevue Houses were built by the Navy under the first of those Acts. The rent control of defense housing under that Act was, in the first instance, expressly vested in the discretion of the Secretary of War or of the Navy, and the tenants were restricted to war workers. This provision was amended, June 28, 1941, so as to give to the agencies administering that housing the same powers and" duties as had been given to the Federal Works Administrator as to defense housing constructed under the Lanham Act. The rental policy under the Lanham Act, at that time, provided: “That the [Federal Works] Administrator shall fix fair rentals, on projects developed pursuant to this Act, which shall be within the financial» reach of persons engaged in national defense:....” (Emphasis supplied.) § 7, 54 Stat. 1127, renumbered § 304> 55 Stat. 363. This rental policy was thus expressly fitted to the purposes of the defense housing. Those purposes did not call for its further subordination to the control of a District Administrator of. Rent Control under other statutory standards fitted to private landlords. This special defense-housing rental policy was further expressly emphasized by Congress in another amendment made applicable to the Lanham Act defense housing January 21, 1942. Therefore, whether or not these further provisions were also to be applicable to Bellevue Houses, which had been constructed under an earlier Act, they became applicable to the many Government-owned, defense-housing units constructed in the District under the Lanham Act. Congress thus evidenced its purpose to insist upon special standards of rentals for its defense housing. It is significant that it did so by Acts approved June 28, 1941, and January. 21, 1942. One was enacted before, and the other after, the enactment of the District of Columbia Emergency Rent Act on December 2, 1941. This emphasis was repeated on April 10, 1942, in a manner which demonstrated still fürther that Congress, in its consideration of the Lanham Act, had'not overlooked the substantial extent to which that Act related to the construction of defense housing in the District of Columbia. On that date Congress amended the Lanham Act with special reference to' operations in the District. It added Title IV. This authorized a $30,000,000 appropriation “to provide housing in or near the District of Columbia (including living quarters for single persons and for families) for employees of the United States whose duties are determined by the National Housing Administrator to be essential to national defense and to require them to reside in or near the District of Columbia.” 56 Stat. 212, 42 U. S. C. (1946 ed.) § 1561. The rental control provisions amended on January 21, 1942 (see note 21, supra), already were applicable to such housing. The very § 304 which contained those amended rental control provisions was further amended so as expressly to in elude, the District of Columbia in the term “local municipalities” to which land could be conveyed for street or other public use incidental to a project. See 54 Stat. 1127, 55 Stat. 363, 56 Stat, 212, 42 U. S. C. (1946 ed.) § 1544... In the light of the foregoing express provisions for the control of rents in the public interest on Government-owned, defense-housing projects, there is no ground for implication that the District of Columbia Emergency Rent Act conflicts with it. III. The National Emergency Price Control Act of 19J¡.2 emphasizes the conclusion that the District of Columbia Emergency Rent Act does not apply to Government-owned housing, in the District. Although the National Emergency Price Control Act of 1942, approved January 30, 1942, expressly empowered the National Price Administrator, under certain limitations, to establish maximum rentals in so-called defense-rental areas, he never did so in the District of Columbia. That Act, therefore, does not have a direct application to the issue in this case. However, the language of that Act and its policy toward the rent control of Government-owned, housing accommodations, both inside and outside of the District of Columbia, has a bearing upon the proper construction of the District of Columbia Emergency Rent Act. The National Act is not only consistent with our interpretation of the District Act but it lends support to that interpretation. The National Act left the control over rent to local authorities, except where the National Price Administrator found it necessary to intervene. The decision of the National Price Administrator not to intervene in the District of Columbia was an especial compliment to the existing controls, because the District of Columbia.was a typical area calling for competent rent control and, in fact, had been declared by the statute itself to be a “defense-rental area....” § 302 (d), 56 Stat. 36, 50 U. S. C. App. (1946 ed.) § 942 (d). His satisfaction with the conditions in the District indicates that the local practice followed by the District Administrator of Rent Control, in not attempting to fix the rentals in Government-owned housing, had produced no conditions which seemed to the National Price Administrator to call for federal intervention. A still more significant point is that, if he had intervened, under the National Act, he, and not the District Administrator of Rent, Control, would have been the 'one vested with control over the rental policy of the Government-owned/ housing accommodations. In contrast to the omission, in the District of Columbia Emergency Rent Act, of any express reference to the United States as a landlord, the National Act expressly included the United States as a “person” to whom it applied. Thus, within two months after the omission of the United States from such a definition in the District of Columbia Emergency Rent Act, Congress demonstrated that, when it sought to include control of Government-owned housing under conditions where the éstablished procedures and local controls might fail to meet the needs of the times, it expressly said so. The same section provided that the punishments prescribed for private violators did not apply to the United States. The National Price Administrator, however, never published any regulations even potentially applicable to the District of Columbia. On the other hand, he did publish regulations stating his general policy as to Government-owned, housing accommodations elsewhere which might come under his control. Such regulations stated that, for housing constructed and owned by the United States, a state or any political subdivision of either, the maximum rents were to be those generally prevailing for comparable housing accommodations on the maximum rent date “as determined by the ownér of such accommodations:....” Similarly, for housing accommodations rented to Army or Navy personnel, including civilian employees of the War and Navy Departments, for which rent, is fixed by the national rent schedule of the War or Navy Departments, the maximum rents were. to be those established by such rent schedule. Later, when Congress enacted the Housing and Rent Act of 1947, 61 Stat. 193-201, 50 U. S. C. App. (1946 ed., Supp. I) '§§ 1881-1901, it expressly excluded the District of Columbia from the Act and struck out the previous express inclusion of the United States as a “person” subject to the Act. The effect of the National Emergency Price Control Act, therefore, is to emphasize, both in its form and its practical operation, that Congress did not seek by the District of Columbia Emergency Rent Act to place Government-owned housing under a local rent administrator. IV. The District Administrator of Rent Control has not taken part in this proceeding and there is no evidence before us that at any time he has sought to exercise jurisdiction over the United States as a landlord of ■ either low-rent housing or defense housing. The District of Columbia Emergency Rent Act has been in effect since 1941 and the United States as landlord has owned and operated several thousand housing units in the District. There is nothing in the Rules and Regulations or the General Orders of the Office of the Administrator of Rent Control suggesting the application of the Act to the United States as a landlord of Government-owned housing. The absence of evidence of asserted control by the District official, coupled with the absence of complaint by the National Price Administrator during the life of the National Emergency Price Control Act, is thoroughly. consistent with a widely accepted interpretation of the local Act in accordance with the conclusion which we have found to be fully justified by the language of Congress. The judgment accordingly is reversed and the cause is remanded to the Court of Appeals for the District of Columbia Circuit for further proceedings consistent with this opinion. It is so ordered. The District, of Columbia Emergency Rent Act was approved December 2, 1941, 55 Stat. 788, D. C. Code (1940, Supp. VI) §§ 45-1601 to 45-1611. It took effect January 1, 1942, and was to terminate December 31, 1945. Id. §§ 2(1), 1 (b); § 45-1602 (1); and see § 45-1601 (b). Its life, however, was extended to December 31, 1946, 59 Stat. 592; to December 31, 1947, 60 Stat. 340; to March 31, 1948, 61 Stat. 713; to April 30, 1948, 62 Stat. 100; to March 31, 1949, 62 Stat. 205; to April 30, 1949, 63 Stat. 30; to June 30, 1950,, 63 Stat. 48. It has been amended in a few other provisions, none of which are material here. Approved September 9, 1940, 54 Stat. 883-884. The management and administration of Bellevue Houses were transferred by the Navy Department to the National Housing Administration under authorization of this section and also under § 7 of the Lanham Act. approved October 14,-1940, 54 Stat. 1125, 1127,42 U. S. C. (1946 ed.) § 1544, and Executive Order No. 9070, 3 C. F. R. Cum. Supp. 1095, 50 U. S. C. App. (1946 ed.) § 601 note, p. 5711. The authority to operate and manage Bellevue Houses later was delegated, by lease, to the National Capital Housing Authority, which was responsible for the rental of the premises involved in the instant case at the time of this proceeding. In making, this delegation, the United States relied upon the same Acts, together with § 5 of the Act of June 28,1941, 55 Stat. 363, and amendments made to the Lanham Act by the Act of January 21,1942,56 Stat. 11, et seq. The amended complaint, the proceedings and- the opinions below refer also-to allegations, stipulations-and evidence to the effect that the United States had rented the premises in question to the respondent for $38.20 a month, including gas heating and other utility services, but that it had increased such rental to $43 a month, beginning February 1, 1946. The United States claimed that this increase was essential m order for it to meet a substantial rise in operating expenses, due to the necessary substitution of commercial gas to be used for space heating purposes in place of surplus sludge gas supplied by the District of Columbia free or at nominal cost.'The United States also alleged that the respondent refused to execute a new lease and refused to pay rent at the increased rate, with the result that, on February 28, 1946, it served its 30-day notice terminating the respondent’s tenancy. It further alleged that this increase in rent had been made under its previously cited authority to operate the project and without reference to the District of Columbia Emergency Rent Act. This increase in rent presents (under §§ 2’ to 4 of that Act, D. C. Code (1940, Supp. VI) §§,45-1602 to 45-1604) the same issue, based upon the • applicability of the'Act to the United States as a'landlord, as is presented (under §5 (b), D. C. Code (1940, Supp. VI) §45-1605 (b)). by the maintenance of this proceeding for possession of the premises in question without making any of the additional allegations called for. by that Act. We deal with the issue as presented under § 5 (b) because- it is there less involved in factual controversy than it is under §§ 2 to 4. “Sec. 5. Prohibitions. —... “(b) No action or proceeding to recover possession of housing accommodations shall be maintainable by any landlord against any tenant, notwithstanding that the tenant.has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled, 'unless— “(1) The tenant is (a) violating an obligation of his tenancy (other than arf obligation to pay rent higher than rent permitted under this Act or any regulation or order thereunder applicable to' the housing accommodations involved or an obligation to surrender possession of such accommodations) or (b) is committing a nuisance or using the housing accommodations for an immoral or illegal purpose or for other than living or dwelling purposes, or “ (2) The landlord seeks in- good faith to recover possession of the property for his immediate and personal use and occupancy as a dwelling, or “(3) The landlord has mr-good faith contracted in writing to sell -the property for immediate and personal use and occupancy as a dwelling by the purchaser and that the contract of sale contains a representation by the purchaser that the property is being purchased by him for Such immediate and personal use and occupancy, or “(4) The landlord seeks in good faith to recover possession for the immediate purpose of substantially altering, remodeling, or demolishing the property and replacing it with new construction, the plans for which altered, remodeled, or new construction having been filed with and approved by the Commissioners of the District of Columbia, or “(5) The housing accommodations are nonhousekeeping, furnished, accommodations located within a single dwelling unit not used as a rooming or boarding house as defined by this Act and the remaining portion of which dwelling unit is occupied by the lessor or his immediate family, or “(6) The landlord, being a recognized school or an accredited nonprofit university, has a bona fide need for the premises for educational, research', administrativé, or dormitory use.” 55 Stat. 791, 56 Stat. 759, 61 Stat.- 721, D. C. Code (1940, Supp. VI) §45-1605 (b). Wittek v. United States, 54 A. 2d 747. For an earlier.proceeding in the same case, see United States v. Wittek, 48 A. 2d 805. Appeal was taken under 56 Stat. 196, D. C. Code (1940, Supp. VI) § 11-773. The question now before us was stated as follows: “Whether the conditions imposed by the District of Columbia Emergency Rent Act on suits for possession apply where such a suit is brought by the United States as landlord.” Wittek v. United States, 83. U. S. App. D. C. 377, 378, 171 F. 2d 8, 9. "Section 1. Purposes, Time Limit. — (a) It is hereby found that'the national emergency and the national-defense program (1) have aggravated the congested situation with regard to housing accommodations existing at the seat of government; (2) have led or will lead to profiteering and other speculative and manipulative practices by some owners of housing accommodations; (3) have rendered or will render ineffective the normal operations of a free market in housing accommodations; and (4) are making it increasingly difficult for persons whose duties or obligations require them to live or work in the District of Columbia to obtain such accommodations. Whereupon it is the purpose of this Act and the policy of the Congress during the existing emergency to prevent undue rent increases and any other practices relating to housing accommodations in the District of Columbia which may tend to increase the cost of living or otherwise impede the national-defense program. “(b) The provisions of this Act, and all regulations, orders, and requirements thereunder, shall terminate on December 31,1945';..'..” (Emphasis supplied.) 55 Stat. 788, D. C. Code (1940, Supp. VI) § 45-1601. In seven steps the termination date has been extended to June 30* 1950. See note 1, supra. The Committee Reports refer by implication to private landlords, rather than to the United States — either as the established landlord of the widespread, low-rent housing in the District or as the landlord of the future defense housing then being developed in the District., by the United States as an additional means of combating the housing shortage. “With a population influx at a higher rate than ever before in it's history, the Nation’s Capital today is faced with a demand, for housing accommodations which threatens to create a situation more serious than that existing during the last war. The present demand for living quarters on the part of those whom the defense effort requires to live, and work in Washington, has tempted some owners and managers of rental properties to demand exorbitant rentals. It is true, and gratifying to note, that a large majority of owners and managers have refrained from.taking advantage of the rental situation created by the national emergency as it affects the Nation’s Capital. This bill is designed to protect this group as well as present and future tenants in the District of Columbia, from the rent-gouging practices of a minority of landlords. “The most appropriate regulation of. rental properties to meet the present emergency-situation is regulation designed to stabilize the rent level at a level fixed (so far as practicable) by free competition; _ competition before it was seriously affected by an acute housing shortage and by restrictions on new construction caused by shortages in certain, building materials' required by the military needs of the-' Nation. “It is particularly appropriate that the Congress immediately enact legislation of this type for the Nation's Capital — legislation that may serve as a model for enactments by States which may desire control for those areas within their borders suffering from similar rental housing dislocations caused, by- the national emergency and the national-defense program.” (Emphasis, supplied.) H. R. Rep. No. 1317,77th Cong., 1st Sess. 2, 6 (1941). And see S. Rep. No. 827, 77th Cong., 1st Sess. 3 (1941). See Iso, discussion of the bill on the floor of the House of Representatives by Representative Randolph of West Virginia, Chairman of the Committee on the District of Columbia, 87 Cong. Rec., Pt. 8, 8447-8454-(194I). The nature of the need was reflected in the original statement of the purpose of the Act. “..'. to enable the President, in the interest of public health, comfort, morals, safety, and welfare, to provide for the discontinuance of the use as dwellings of buildings situated in alleys and to eliminate the hidden communities in inhabited alleys of the District of Columbia, and to carry out the policy declared in the Act approved May 16, 1918, as amended, of caring for the alley population of' the District of Columbia, the President is hereby authorized and empowered,... —■. “(a) To purchase, or acquire by condemnation or gift, any land, buildings, or structures, or any interest therein, situated in or adjacent to any inhabited alley in the District of Columbia,... ; • “(b)... to demolish, move, or alter any buildings or structures situated thereon and erect such buildings or structures thereon as deemed advisable:... ; “(c) To lease, rent, maintain, equip, manage, exchange, sell, or convey any such lands, buildings, or structures upon such terms and conditions as he may determine:....” (Emphasis supplied.) 48 Stat. 930-931. See also, 52 Stat. 1186, D. C. Code (1940) § 5-103. Executive Order No. 6868, October 9, 1934 (published in,Report of the National Capital Housing Authority for the Ten-Year Period 1934-1944, p. 3), and see Executive Order No. 8033, 3 C. F. R. Cum. Supp. 443. This was pursuant to the authorization contained in 48 Stat. 931, D. C. Code (1940) §5-104.'' Executive Order No. 7784-A, 3 Fed. Reg. 51 (1938). Executive Order No. 9344, 3 C. F. R. Cum. Supp. 1279. For» this and the other.factual material.relating to this Authority, see Report of the National Capital Housing Authority for the TenYéar Period 1934H944, submitted by.it to the President December 28, 1944, and by him to Congress March Í, 1945, 91 Cong. Rec., Pt. 2, 1597 (1945). See also, the-Annual Reports of this Authority to the President,.all required by § 5 (a) and (b) of the District of Columbia' Alley Dwelling Act, 48 Stat. 932, D. C. Code (1940) § 5-107 (a) and (b). “Sec. 2. When used in this Act— “(1) The term ‘low-rent housing’ means decent, safe, and sanitary-dwellings within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy, and stability, and embraces all necessary appurtenances thereto. The dwellings in low-rent, housing as defined in this Act shall be available solely for families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat,.light, water, and cooking fuel) of the dwellings to be furnished such faijiilies, except that in the case of families with three or more minor dependents, such ratio shall hot exceed', six to one.” (Emphasis supplied.) 50 Stat. 888, 42 U. 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_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Appellee, v. Rupert GORDON, Defendant-Appellant. No. 261 Docket 92-1264. United States Court of Appeals, Second Circuit. Argued Oct. 19, 1992. Decided March 4, 1993. Judith Lieb, Asst. U.S. Atty., Brooklyn, NY (Andrew J. Maloney, U.S. Atty., for E.D.N.Y., Susan Corkery, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellee. Henry H. Rossbacher, Los Angeles, CA (Harry C. Batchelder, Jr., New York City, on the brief), for defendant-appellant. Before: KEARSE and MINER, Circuit Judges, and POLLAK, District Judge. Honorable Louis H. Poliak, of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. KEARSE, Circuit Judge: Defendant Rupert Gordon appeals from a judgment entered in the United States District Court for the Eastern District of New York, following a jury trial before I. Leo Glasser, Judge, convicting him of conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963 (1988); importing cocaine, in violation of 21 U.S.C. § 952(a) (1988) and 18 U.S.C. § 2 (1988); and possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1988) and 18 U.S.C. § 2. He was sentenced principally to 63 months’ imprisonment to be followed by a five-year term of supervised release. On appeal, Gordon contends chiefly that the evidence was insufficient to support his convictions and that the district court abused its discretion in admitting evidence that he had previously possessed crack cocaine. For the reasons below, we conclude that the evidence was sufficient but that the other-act evidence was improperly admitted, and we therefore vacate the conviction and remand for a new trial. I. BACKGROUND The present prosecution arises out of Gordon’s arrival at New York’s JFK International Airport (“JFK”) in August 1991 to pick up one Vernon Ghullkie, who had arrived on an international flight carrying cocaine and marijuana. The government’s proof at trial was presented principally through the testimony of Ghullkie, three government agents, and Jay Edwards, a Greensboro, North Carolina police detective. Taken in the light most favorable to the government, the evidence revealed the following. A. The Events Ghullkie was a Guyanan citizen who had lived in the United States since 1985. In the summer of 1991, he met Carlotta Sandi-ford, who offered him $2,000 if he would smuggle drugs from Guyana into the United States. Ghullkie agreed, and Sandiford acquired two airline tickets so that they could travel to Guyana together. On August 4, 1991, Ghullkie and Sandiford met at JFK; Sandiford was accompanied by Gordon, whom she introduced as her husband. After Ghullkie and Sandiford were unable to get seats on that day’s flight to Guyana, Gordon and Sandiford drove Ghullkie home. On August 7, Ghullkie again met Sandi-ford and Gordon at JFK, and this time Ghullkie and Sandiford were able to fly to Guyana. After they arrived in Guyana, Sandiford gave Ghullkie $250 and told him he would return to the United States the following week. While in Guyana, Ghullk-ie twice asked Sandiford for additional money, but she replied that Gordon had not sent her any money. In fact, on August 9, Gordon sent Sandiford $300. Before Ghullkie’s return to the United States, Sandiford brought him a girdle and tights to wear, and she hid cocaine in the tights. She also gave Ghullkie a plaque, which she said contained marijuana. Sandiford told Ghullkie that Gordon would meet him at JFK. Ghullkie was to deliver the drugs to Gordon, and Gordon would pay him. When Ghullkie arrived at JFK on August 16, a United States Customs Service inspector noticed that Ghullkie’s body shape was odd and that he was sweating profusely, and found that he was unable to answer questions. The inspector searched Ghullk-ie and found 1,493 grams of 90% pure cocaine, which had a wholesale value of approximately $40-$45,000. The inspector also found marijuana in the plaque in his suitcase. Ghullkie was arrested and promptly agreed to cooperate. He said he was to deliver the drugs to Gordon, whom he described, and he agreed to wear a hidden recording device for the delivery. Wearing a wire, Ghullkie went to the lobby of the International Arrivals Building and saw Gordon, who approached him. Ghullkie testified that he said to Gordon, “I got the cocaine, you got the money?” and that Gordon “shook his head and said yes, but he got to go talk to his brother-in-law.” This conversation was not recorded because Ghullkie’s wire picked up only background noise from the lobby, but a government agent saw Gordon nod his head in an affirmative manner. Gordon left the building without Ghullk-ie, walked several blocks, turned around, and walked back to a pay telephone across the street from the building. After he appeared to make a pay telephone call, he was arrested. After being given his Miranda warnings, Gordon told the agents that earlier that day he had received a telephone call from a friend named Mike James in Guyana who asked him to pick up Ghullkie at JFK. Gordon said he had never seen Ghullkie before but had been given his name and description. Gordon gave the agents a telephone number for James’s beeper, but when agents tried the number, they reached what appeared to be only a fax machine. At the time of his arrest, Gordon was carrying, inter alia, a business card of the travel agent who had issued airplane tickets to Ghullkie and Sandiford. Ghullkie’s name, address, and telephone number were written on the back of the card in Gordon’s handwriting. Several days after the arrests, in the detention center where they were being held, Gordon told Ghullkie that Ghullkie was “the only man that could set him free.” Gordon said that if Ghullkie did not “finger him,” Gordon could sue the government for false arrest, “and we could get a lot of money.” B. The Challenged Evidence of Gordon’s Prior Arrest Gordon was indicted on one count of importing cocaine, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2, one count of conspiring to do so, in violation of 21 U.S.C. § 963, and one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Prior to trial, he objected to the government’s proposed introduction of evidence that he had been arrested in April 1990 while in possession of crack cocaine. The district court ruled that the evidence was relevant to the issue of knowledge and that its probative value would outweigh any prejudice to Gordon. At trial, Edwards testified that he had arrested Gordon in Greensboro, North Carolina, in April 1990; at the time, Gordon was carrying 3.8 grams of crack cocaine. A search of his house revealed a triple-beam scale, which is often used by narcotics distributors. Edwards testified that Gordon was suspected of being a crack supplier. The district court painstakingly and repeatedly instructed the jury that the detective’s testimony was not admitted to show Gordon’s character or that he had a propensity to act in a certain way, but only to show that he had knowledge with regard to cocaine and the August 16 events with which he was charged and that his role in those events was not the result of accident or mistake. The jury found Gordon guilty on all three counts. He was sentenced as indicated above, and this appeal followed. II. DISCUSSION On appeal, Gordon contends principally that the proof was insufficient to support his convictions and that the evidence of his April 1990 crack possession was improperly admitted. Because we believe the latter contention has merit, we vacate the judgment of conviction and remand for a new trial. A. Sufficiency of the Evidence Gordon challenges the sufficiency of the evidence to support his convictions, arguing that the evidence established only that he was present at JFK when Ghullkie was arrested and that he knew Sandiford. His challenge has no merit. The general principles governing review of a challenge to the sufficiency of the evidence to support a conviction are well established. We are to view the evidence, whether direct or circumstantial, in the light most favorable to the government, crediting every inference that could have been drawn in its favor, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991); United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see United States v. Skowronski, 968 F.2d 242, 247 (2d Cir.1992); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. See United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See United States v. Skowronski, 968 F.2d at 247; United States v. Parker, 903 F.2d at 97; United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). Thus, the defendant who makes a sufficiency challenge bears a heavy burden. Gordon has not carried that burden with respect to either the conspiracy count or the substantive counts. In order to prove a conspiracy, the government “need not present evidence of an explicit agreement; proof of a tacit understanding will suffice.” United States v. Skowronski, 968 F.2d at 247; see United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). Further, a defendant’s knowledge of the conspiracy and his participation in it with criminal intent may be established through circumstantial evidence. See United States v. Skowronski, 968 F.2d at 247; United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990). Such circumstantial evidence may include acts that exhibit a consciousness of guilt, such as false exculpatory statements, see, e.g., United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992), and attempts to influence the testimony of a witness, see, e.g., United States v. Macklin, 927 F.2d 1272, 1279 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). Gordon, in support of his argument that there was insufficient evidence that he was a member of the conspiracy to import cocaine, relies principally on United States v. Nusraty, 867 F.2d 759 (2d Cir.1989). His reliance is misplaced, for Nusraty is easily distinguishable. There, one Detrich was arrested at JFK after arriving from India with luggage containing a suit in which packets of heroin had been secreted. Det-rich told the government agents that he was unaware of the heroin and that a friend had asked him to bring the suit to the United States for the friend’s brother, the defendant Nusraty, for Nusraty’s imminent wedding. Nusraty, however, gave no indication that he knew anything whatever about the suit or the heroin. When Detrich tried to make a controlled delivery of the suit, he first mentioned to Nusraty that he had heard Nusraty was to be married soon; Nusraty said that he was not getting married. Detrich then said that he had a suit to give Nusraty for his wedding. Again, Nusraty said that he was not getting married. Detrich then asked if [Nusraty’s brother] had not told the appellant that Detrich was bringing him a suit. Nusraty replied in the negative. Finally, Detrich asked whether the appellant would drive him to LaGuardia Airport, as [the brother] had promised. The appellant refused; instead, he pointed Detrich towards the line of waiting taxis, and began to walk away. Id. at 761. We concluded that the only facts proven against Nusraty were that he had appeared at the airport to meet Detrich and had falsely stated that the meeting was a coincidence, and we held that those facts were insufficient to support a conviction for narcotics possession, importation, and conspiracy. The evidence in the present case, though not overwhelming, was considerably more substantial than that in Nusraty. Taken in the light most favorable to the government, the record included evidence that Gordon had brought coconspirator Sandi-ford to the airport for the trip to Guyana; that Sandiford had specified to Ghullkie that upon his return from Guyana, Gordon was to receive the narcotics smuggled in by Ghullkie, and was to pay Ghullkie for the latter’s role; and that Gordon came to the airport at the appointed time and approached Ghullkie in the lobby. When Ghullkie said he had the cocaine and asked whether Gordon had the money, Gordon, unlike the defendant in Nusraty, did not refuse to accept the drugs or profess any surprise or lack of understanding. Rather, Gordon, inter alia, gave an affirmative nod and “said yes.” Further, after his arrest, Gordon falsely stated that he had never met Ghullkie before; he gave the agents an unverifiable and implausible explanation for having met Ghullkie at the airport; and a few days later, he suggested to Ghullkie that Ghullkie could profit financially by not identifying Gordon. This evidence was sufficient to permit a rational juror to find beyond a reasonable doubt that Gordon was a member of the conspiracy to import narcotics. Gordon’s challenges to the sufficiency of the evidence to support his convictions on the substantive counts must likewise be rejected. A defendant may be found guilty of a substantive crime on an aiding and abetting theory if he joined the criminal venture, shared in it, and contributed to its success. See, e.g., United States v. Aiello, 864 F.2d 257, 263 (2d Cir.1988); United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir.1985). The evidence that, inter alia, Gordon was at the airport with Ghullkie and Sandiford on each occasion pertinent to the narcotics-related trip, that he wired money to Sandi-ford in Guyana, that he went to JFK to meet Ghullkie and get the narcotics, and that he was supposed to pay Ghullkie was, at the very least, sufficient to demonstrate that Gordon aided and abetted Sandiford and Ghullkie in possessing and importing the cocaine. In sum, there was sufficient evidence to support Gordon’s conviction on all counts. B. The Admission of Gordon’s Prior Possession of Narcotics Gordon’s contention that the district court erred in admitting evidence of his April 1990 crack possession is more persuasive. Under Fed.R.Evid. 404(b), evidence of “other crimes, wrongs, or acts,” though inadmissible to prove character or criminal propensity, may be admitted at trial to show that a defendant who claims that his conduct had an innocent explanation had the knowledge or intent necessary to commit the charged offense. See, e.g., Huddleston v. United States, 485 U.S. 681, 687-88, 108 S.Ct. 1496, 1499-500, 99 L.Ed.2d 771 (1988); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir.1992); United States v. Mills, 895 F.2d 897, 907 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990); United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989). In considering whether to admit other-act evidence offered to show knowledge, the court must determine whether or not the evidence is relevant to that issue, see Fed. R.Evid. 401, 402, and whether or not its probative value is substantially outweighed by the danger of unfair prejudice, see Fed. R.Evid. 403. See, e.g., Huddleston v. United States, 485 U.S. at 687-88, 108 S.Ct. at 1499-500; United States v. Gilan, 967 F.2d 776, 780 (2d Cir.1992); United States v. Colon, 880 F.2d at 656. The decision to admit evidence pursuant to Rules 404(b) and 403 is reviewable only for abuse of discretion. See United States v. Gilan, 967 F.2d at 780; United States v. Pitre, 960 F.2d at 1119; United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990). The inquiry into the relevance of the evidence to the issue requires scrutiny of its probative value. Rule 404(b) does not authorize the admission of any and every sort of other-act evidence simply because a defendant proffers an innocent explanation for the charged conduct. See, e.g., United States v. Corey, 566 F.2d 429, 431 (2d Cir.1977). To the contrary, evidence of another act should not be admitted to show knowledge unless the other act is “sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge inference advocated by the proponent of the evidence.” United States v. Peterson, 808 F.2d 969, 974 (2d Cir.1987). “Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charged. There is no necessity for synonymity but there must be substantial relevancy....” United States v. Kasouris, 474 F.2d 689, 692 (5th Cir.1973) (emphasis in original)_ If the other-act evidence does not provide a reasonable basis for inferring knowledge, its offer for that purpose should be rejected on the grounds of relevance. United States v. Afjehei, 869 F.2d 670, 674 (2d Cir.1989). Thus, the probative value of the proffered evidence depends largely on whether or not there is a “ ‘close parallel’ between the crime charged and the acts shown.” United States v. Corey, 566 F.2d at 431 (quoting United States v. Chestnut, 533 F.2d 40, 49 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976)). For example, evidence that the defendants had previously participated in similar drug transactions with the same coconspirators is properly admitted to show that the defendants had knowledge of the conspiracy charged. See United States v. Pitre, 960 F.2d at 1117, 1119. Evidence that the defendant had a prior conviction for nearly identical counterfeiting activity was admissible to rebut his claim that he had not known that he received counterfeit money. See United States v. Mills, 895 F.2d 897, 907-08 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990). And evidence that the defendant had previously attempted to import large quantities of narcotics was admissible to rebut his claim that he did not intend to involve himself in his business associate’s narcotics importation operation. See United States v. Ramirez-Amaya, 812 F.2d 813, 817 (2d Cir.1987). On the other hand, it is an abuse of discretion for the trial court to admit other-act evidence “if the other act or acts are not sufficiently similar to the conduct at issue.” United States v. Afjehei, 869 F.2d at 674; see United States v. Peterson, 808 F.2d at 974. For example, in Afjehei, the defendant was arrested in December 1987 as he entered the United States carrying a bag in which heroin had been secreted; he claimed to have been given the bag by a friend and to be ignorant of its unlawful contents. The court allowed the government to introduce evidence that prior to December 1987 Afjehei had made several trips abroad, as proof that he had knowledge that the suitcase he carried in December 1987 contained heroin. We reversed because since the government had not shown that the prior trips involved narcotics, those trips could not logically show that Afjehei knew the bag with which he was arrested contained narcotics. In the present case, Gordon admitted that he intended to pick up Ghullkie at JFK, but he denied any knowledge that Ghullkie was importing narcotics. Though there was other evidence to contradict that claim, the April 1990 crack possession itself did virtually nothing to prove that Gordon knew Ghullkie was importing narcotics. Gordon’s April 1990 possession did not involve Ghullkie; according to Ghullkie, the two had never met until shortly before the August 1991 trip. Though cocaine was involved on both occasions, the amount involved in the 1990 possession, i.e., less than 4 grams, was not at all similar to the quantity Ghullkie brought in, i.e., 1.5 kilograms. Nor was there any indication that Gordon’s 1990 possession resulted either from his own importation activities or from importation activities of which he had knowledge. We conclude (a) that Gordon’s possession 16 months earlier of a modest amount of crack and a triple-beam scale had so little value to prove his knowledge that Ghullkie, whom he had met only recently, was importing a large quantity of cocaine and marijuana that it was inadmissible under Rule 404(b); and (b) that in any event, the probative value of the crack possession was easily outweighed by its potential for unfair prejudice and the evidence therefore should have been excluded under Rule 403. Accordingly, we conclude that admission of that 1990 possession was an abuse of discretion. As indicated in Part II.A. above, the government’s admissible evidence against Gordon, while sufficient to support the verdict, was not overwhelming. Its case rested largely on the testimony of Ghullkie, a cooperating witness whose credibility was a seriously contested matter at trial. The government urged the jury to consider Gordon’s possession of the 3.8 grams of crack and the triple-beam scale both in its main summation and its rebuttal summation. We can hardly conclude that the crack-possession evidence was “unimportant in relation to everything else the jury considered,” Yates v. Evatt, — U.S. -, -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991), overruled on other grounds, Estelle v. McGuire, — U.S. -,-n. 4, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991), or that the jury’s “ ‘judgment was not substantially swayed by the error.’ ” United States v. Ruffin, 575 F.2d 346, 359 (2d Cir.1978) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)). Accordingly, the error was not harmless, and Gordon is entitled to a new trial at which evidence of his April 1990 possession is excluded. CONCLUSION The judgment of conviction is vacated and the matter remanded for further proceedings not inconsistent with this opinion. 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_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. HIDALGO & CAMERON COUNTIES WATER CONTROL & IMPROVEMENT DIST. NO. 9 v. AMERICAN RIO GRANDE LAND & IRRIGATION CO. et al. AMERICAN RIO GRANDE LAND & IRRIGATION CO. et al. v. HIDALGO & CAMERON COUNTIES WATER CONTROL & IMPROVEMENT DIST. NO. 9. No. 8703. Circuit Court of Appeals, Fifth Circuit. April 3, 1939. Rehearing Denied April 25, 1939. F. L. Andrews and R. II. Kelley, both of Houston, Tex., and Robt. E. Kirkpatrick, of Mercedes, Tex., for Hidalgo and Cameron Counties Water Control and Improvement Dist. No. 9. Robert Allan Ritchie and James Ralph Wood, both of Dallas, Tex., and Joel II. Berry, of Houston, Tex., for American Rio Grande Land & Irrigation Co. Before SIBLEY, HOLMES, and McCORD, Circuit Judges. SIBLEY, Circuit Judge. American Rio Grande Land & Irrigation Company, herein called the Land Company, filed its petition for reorganization under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. Hidalgo & Cameron Counties Water Control & Improvement Company, which will be referred to as the Water Company, filed a claim against the Land Company of $2,750 as charges for water furnished m the years 1930 to 1936 inclusive, and $99,929.-65 for flat rate assessments against the lands per acre for maintenance of the irrigation system for the same years. A statutory lien against the lands was asserted. The debtor denied there was a lien, and asserted that the items over two years old were barred by limitation. The court held there was no lien against the lands, and no bar by limitation, and allowed the claim as unsecured. Both sides appeal from the j’adgment. The Water Company contends that the charges and assessments are taxes, and as such have a lien and escape limitation by reason of statutes relating to taxes; but if not taxes, that a lien is given and limitation is excluded by a part of Section 77a added to the reclamation district laws of Texas by Chapter 280 of Acts of 1929, Vernon’s Ann.Civ.St.Tex. art. 7880 — 77a. The Land Company denies that the charges and assessments are taxes, and asserts that the provision of the Act of 1929 about a lien and limitation is unconstitutional because not covered by the title of the Act. Less obvious contentions are that the provision in the Constitution of Texas for conservation and reclamation districts creates a lien, and that the Reclamation District Act of 1925 does so. It is also contended that the charges and assessments are' taxes under Section 64 of the Bankruptcy Act, 11 U.S.C.A. § 104, and have priority as such. Article 16, Sect. 59, of the Constitution of Texas, Vernon’s Ann.St.Tex., in providing for the creation of reclamation districts declares: “The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment, and all such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as may be prescribed by law and shall also, authorize the levy and collection within such districts of all such taxes, equitably distributed, as may be necessary for the payment of the interest and the creation of a sinking fund for the payment of such bonds; and also for the maintenance of such districts and improvements, and such indebtedness shall be a lien upon the property assessed for the payment thereof; provided the Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified property tax-paying voters of such district and the proposition adopted.” The lien thus declared against the property assessed secures “such indebtedness.” It is not indebtedness due to the district but indebtedness against it that has the lien. The assessment against the property in the district which is referred to is that for taxes to pay this indebtedness. The indebtedness against the district may be represented by bonds or otherwise, but can be authorized by the Legislature only pursuant to a vote in the district. The charges and assessments which the district lays on landowners and lands within it are indebtedness to the district and not against it, they are not required to be authorized, by an election under the Constitution and are not the indebtedness which is the subject matter of the long sentence above quoted. They take no lien thereunder. These charges and assessments are not taxes within the meaning of the Texas tax statutes. The lengthy statutes relating to reclamation districts are collected in Revised Statutes of Texas, Art. 7880 — 1 et seq. Chapter 25 of the Act of 1925 was the main Act. An extensive amendment was made by Chapter 280 of the Act of 1929, Vernon’s Ann.Civ.St.Tex. art. 7880 — 1 et seq. An analysis of these shows that the income of the district may be derived from general taxation, from charges for water actually furnished to irrigate lands, and from assessments on each irrigable acre (whether irrigated or not') levied to maintain and operate the irrigation enterprise. We find that in general and almost uniformly when taxes are mentioned in these laws there is reference to the assessments according to value, or according to benefit, to pay the bonded or other indebtedness against the district incurred pursuant to the Constitution. These taxes unquestionably have a lien. They are not here involved. What is here involved are “operation charges” for the water furnished and service rendered which by Sect. 106 of the Act of 1925 the district may establish and collect, and “assessment against all irrigable lands within the district, pro rata per acre” authorized by Sect. 109 to supplement the “operation charges.” These assessments are by Sect. 109 given a lien on the crops grown, and are made the personal debts of the land-owners, collectible by suit. We find no clear provision in the Act of 1925 that they have a lien on the lands assessed. The Act of 1929 very clearly gives a lien to, and also exempts from limitation, both the charges under Sect. 106 and the flat-rate assessments under Sect. 109 in these words taken from Section 77a (b): “All taxes, or charges, or assessments, imposed by a district, as provided by Sections 106, 107, 108 and 109 of said Chapter 25, for the maintenance and operation of works, facilities and services of such district, shall be and constitute a lien against the lands as to which such taxes, or charges, or assessments, have been established; and, no law applying to a limitation against actions for debt shall apply thereto; same shall not be barred by limitation.” The Land Company says the provision is void under Art. 3, § 35 of the Texas Constitution which declares: “No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act sha.ll be void only as to so much thereof, as shall not be so expressed.” The Supreme Court of Texas has often pointed out that it is the subject of the bill and not its object or objects, or the means of attaining the latter, that must be expressed in the title, and that everything which is fairly germane to the subject named is included. International & G. N. R. Co. v. Smith County, 54 Tex. 1; Stone v. Brown, 54 Tex. 330; Dodge v. Youngblood, Tex.Civ. App., 202 S.W. 116; Consolidated Underwriters v. Kirby Lumber Co., Tex.Com. App., 267 S.W. 703. The purpose of the constitutional provision is to prevent combining several unrelated subjects into one bill to get support for it which the several subjects might not separately command; and to prevent surreptitious introduction of legislation not indicated by the title. The Act of 1929 is a quite extensive overhauling of the statutes touching reclamation districts. Its title alone covers five printed pages. It begins: “An Act to clarify and make adequate the law regulating Water Control and Improvement Districts, and to cause the same to comport with Section 59 of Art. XVI of the Constitution of Texas.” The subject oí legislation thus expressed is broad enough to cover all that the Act embraces, and the provision in controversy is certainly germane to it, for it clarifies and makes more adequate the law touching charges and assessments, which previously had no lien save on the crops, if any. The title then proceeds: “An Act to amend Chapter 25 of the [Act of 1925]”, and several other statutes, and states that the amendments are more particularly indicated as follows, among them “(9) amending said Chapter 25 by adding thereto Section 77a, providing that taxes to conduct preliminary surveys shall be on the ad valorem plan; Also providing the time and manner in which a district shall, or may, adopt a plan of taxation; Also, setting out the respective plans, or composite of plans, which may be adopted by a district, in order to enable districts to at all times equitably distribute the taxes of the district.” It is not stated that 77a will attempt to fix a lien or abolish limitation as respects charges and assessments due the district, so that if the Act had no title save that last quoted the provision of subsection (b) would not be fairly expressed therein. We have found no authority which we regard as deciding that the broad subject first expressed is to be nullified by a defect in a separate supplementary statement of details. The Act has stood unchallenged in court or Legislature for ten years. Indulgence was doubtless extended to this Land Company, and to many others similarly situated, on the faith of it. A court should hesitate to declare that an enactment thus acquiesced in by many subsequent legislatures is void as contrary to such a provision of the State Constitution unless the invalidity is plain. We are not convinced that the sub-section in dispute is null. Montclair Township v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391, 27 L.Ed. 431; 59 C.J., Statutes § 372 and cases cited. We therefore hold the entire claim of the Water Company to be unbarred, and to have a lien on the lands against which the respective items were established. It is a secured claim, and it is unnecessary to consider whether or not it has priority under Section 64 of the Bankruptcy Act, 11 U.S.C.A. § 104. The judgment is accordingly reversed upon the main appeal and affirmed upon the cross-appeal, with costs accordingly. 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_bank_app2	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. Your task is to determine whether or not the second listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt. FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, Appellee, v. VIRGINIA CROSSINGS PARTNERSHIP, a Minnesota general partnership, Leo W. Lund and David Stewart, Appellants. No. 89-5463MN. United States Court of Appeals, Eighth Circuit. Argued June 15, 1990. Decided July 18, 1990. Christopher A. Elliott, St. Paul, Minn. (Gary F. Albrecht, and Christoffel & Elliott, P.A., St. Paul, Minn., on the brief), for appellants Virginia Crossings Partnership, et al. John Paul Martin, Minneapolis, Minn. (Peterson, Tews & Squires, Minneapolis, Minn., John Douglas, Mark Rosen, Ann, S. DuRoss and Jaclyn C. Tañer, Washington, D.C., on the brief), for appellee Federal Deposit Ins. Corp. Before LAY, Chief Judge, JOHN R. GIBSON and TIMBERS, Circuit Judges. Of the Second Circuit, sitting by designation. TIMBERS, Circuit Judge: Appellants in this action are Virginia Crossings Partnership (“Virginia Crossings” or “Partnership”), a general partnership, and Leo W. Lund and David Stewart, the general partners. Appellee is the Federal Deposit Insurance Corporation (“FDIC”), in its corporate capacity as the purchaser of certain assets of the Guaranty State Bank of St. Paul, Minnesota (“Bank”). Appellants appeal from a summary judgment entered July 5,1989, in the District of Minnesota, Robert G. Renner, District Judge, in favor of the FDIC. The FDIC commenced this action to collect on two promissory notes executed by Virginia Crossings in favor of the Bank and guaranteed by the general partners, Lund and Stewart. Appellants interposed various defenses, including fraud on the part of the Bank and termination of the guarantees. The district court held that these defenses were barred by 12 U.S.C. § 1823(e) (1988), which protects the FDIC from agreements tending to defeat or diminish its interest in assets held in its corporate capacity. On appeal, appellants assert that, since there are genuine issues of material fact, summary judgment was improper. Specifically, they contend that (1) the documents that they offered to confirm the terms of the loan agreement satisfy the requirements of § 1823(e); (2) the district court abused its discretion in refusing to permit additional discovery regarding minutes of meetings of the Bank’s board of directors; and (3) their defenses of fraud and termination of the guarantees fall outside the ambit of § 1823(e). For the reasons which follow, we affirm the judgment of the district court. I. We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. Since this is an appeal from a summary judgment in favor of the FDIC, we review the facts in the light most favorable to appellants. This action arises from a rental housing project in St. Paul, for which the Guaranty State Bank provided construction financing. Construction was completed in 1983. The original owner of the project was Virginia Crossings Limited Partnership. Prior to completion of the project, the Bank determined that the owner would not be able to meet its loan obligations. To avoid foreclosure, the Bank sought another borrower to replace the limited partnership. On March 24, 1983, the Bank offered ownership of the project to a customer, Dwayne Janikula. The terms of that offer were outlined in a memorandum from the Bank’s president, Harry Jensen (the “Jani-kula memorandum”). The terms included interest-only payments and a limited personal liability of $42,000. Janikula turned down the offer. In May 1983, representatives of the Bank approached David Stewart and Leo W. Lund. The Bank proposed that they acquire the project in accordance with the terms outlined in the Janikula memorandum. The Bank also informed Stewart and Lund that an application for tax exempt financing of the project had been made to the St. Paul Housing and Redevelopment Authority (“HRA”). ■ Stewart and Lund accepted the Bank’s offer. They formed a general partnership known as “Virginia Crossings Partnership” which entered into a purchase agreement on June 15, 1983 to acquire the project from its first owner. The HRA and appellants were scheduled to close on the tax exempt bonds on or before July 1, 1983. There were delays, however, in processing the application. In the interim, the Bank made a proposal to provide “bridge” financing to Stewart and Lund until the HRA proceeds became available. In a memorandum to appellants dated July 7, 1983, Jensen set forth the terms of this short-term loan (the “Jensen memorandum”). He stated that the loan would be structured according to the terms of the Janikula memorandum. This short-term financing arrangement closed on July 19, 1983. Stewart and Lund executed and delivered to the Bank their personal guarantees the next day. Each appellant guaranteed, “absolutely and unconditionally”, the prompt payment when due of any and all existing and future debt of Virginia Crossings to the Bank, up to $210,000. These guarantees continued until notice of written termination by appellants. In a letter accompanying the guarantees (the “Lund letter”), Lund stated that it was his understanding that, upon obtaining the permanent tax exempt financing from HRA, the limited guarantees of $210,000 would be replaced with a joint guarantee of $42,000. On December 30, 1983, Jensen delivered the tax exempt financing documents to Stewart and Lund. According to Stewart’s affidavit, Jensen asked them to execute the documents immediately “in order to assure tax-exempt treatment of the transaction and [to allow] the Bank [to] ‘book’ the loan in 1983.” On that same day, appellants signed the documents in the places marked by Jensen and returned them to bond counsel. The documents signed by appellants did not contain the proposed financing terms outlined in the Janikula memorandum. Instead, the secured and unsecured notes provided for payments of principal and interest, and made no reference to the $42,000 limit on the personal guarantees of Stewart and Lund. The limited guarantees of $210,000 executed by Stewart and Lund on July 19, 1983 were not returned to them, nor were they replaced by a joint guarantee limited to $42,000. Beginning February 1, 1984, the Partnership began making interest-only payments to the Bank-on the notes in accordance with the Janikula memorandum. On July 19, 1984, the Minnesota Commissioner of Commerce declared the Bank insolvent, closed the Bank, and appointed the FDIC as receiver. Subsequently, pursuant to 12 U.S.C. § 1823(c)(2)(A), the FDIC, in its corporate capacity, purchased from the receiver the assets here involved, including the notes, appellants’ guarantees of July 19, 1983, and other related documents. On March 14, 1988, the FDIC declared the secured and unsecured notes in default, since the Partnership had made no payments of principal as required by the loan agreement. On May 19, 1988, the FDIC commenced the instant action to collect on the notes and the personal guarantees executed by appellants and to foreclose on the mortgage. Appellants asserted various defenses, including fraud on the part of the Bank and termination of the guarantees. They claimed that the Bank committed fraud in obtaining their signatures on the loan documents by misrepresenting the terms of those documents which they thought contained the terms outlined in the Janikula memorandum. They also claimed that Lund’s letter of July 20, 1983 to the Bank terminated prospectively their $210,-000 limited guarantees upon expiration of the “bridge” loan. On June 7, 1989, the FDIC moved for summary judgment on all claims on the ground that the defenses interposed by appellants were barred by § 1823(e) and federal common law under D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942). At a hearing held the same day, the district court determined that § 1823(e) controlled, and granted the FDIC’s motion. Judgment was entered on July 5, 1989. This appeal followed. II. Our standard of review of the district court’s grant of summary judgment is well-settled. Under Fed.R.Civ.P. 56(c), a motion for summary judgment should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In making this determination, we must review the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. FDIC v. Kratz, 898 F.2d 669, 670 (8th Cir.1990); AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). III. With the foregoing in mind, we turn first to appellants’ contention that there are genuine issues of material fact as to whether the Janikula and Jensen memoranda meet the specific requirements of § 1823(e). Appellants claim that the Janikula and Jensen memoranda confirm the terms' of the loan agreement between the parties, including interest-only payments and limited personal liabilities of $42,000, and are valid defenses to the instant action. We disagree. Since the memoranda do not meet the contemporaneous execution requirement of § 1823(e), we hold that those documents are not valid against the FDIC. The controlling statute here involved, 12 U.S.C. § 1823(e), provides: “No agreement which tends to diminish or defeat the interest of the [Federal Deposit Insurance] Corporation in any asset acquired by it ... either as security for a loan or by purchase ... shall be valid against the Corporation unless such agreement (1) is in writing, (2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) was approved by the board of directors of the depository institution or- its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) has been, continuously, from the time of its execution, an official record of the depository institution.” Congressional intent requires our determination of whether the Janikula and Jensen memoranda meet the requirements of § 1823(e). See Langley v. FDIC, 484 U.S. 86 (1987). In Langley, the Court explained that the statute was designed with two purposes in mind: first, “to allow federal and state bank examiners to rely on a bank’s records in evaluating the worth of the bank’s assets”; and, second, “[to] ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure.” 484 U.S. at 91-92. In enacting this “categorical recording scheme,” Congress “opted for the certainty of the requirements set forth in § 1823(e).” Id. at 95. We hold that at least one of these requirements has not been met. The plain language of § 1823(e) requires that an agreement, to be effective against the FDIC, must be executed by the bank and the obligor contemporaneously with the making of the note. The Janikula and Jensen memoranda clearly do not meet that requirement. These documents were, dated well in advance of the making of the notes on December ■ 30, 1983. Moreover, the memoranda, which were prepared by the Bank, were never executed by appellants. Appellants urge us to overlook these obvious infirmities, contending that each memoranda “complies with the purpose of the requirement.” They assert that, “where the parties sufficiently evidence their awareness and acceptance of the written terms of a ‘side’ agreement at a time prior to approval by senior bank officials and execution of the final documents, the purpose of mutual contemporaneous execution is met.” In view of the “categorical” requirements of § 1823(e), we are constrained to reject this assertion. See Lang ley, supra, 484 U.S. at 94 (refusing to “engraft an equitable exception upon the plain terms of the statute”); FDIC v. Cardinal Well Services Co., 837 F.2d 1369, 1372 (5th Cir.1988) (“Congress erected a stout barrier in 12 U.S.C. § 1823(e)”). The Sixth Circuit’s decision in FDIC v. Cremona Co., 832 F.2d 959 (6th Cir.1987), cert. dismissed, 485 U.S. 1017 (1988), does not change our analysis, as appellants assert. There the court held that, where a document was prepared by the bank, the congressional purpose behind the requirement of contemporaneous execution by the bank is satisfied. Id. at 963. It was undisputed that the document was presented to and signed by the obligor at the same time as the making of the note. Id. The Cre-mona court concluded, therefore, that the document was executed by the bank and the obligor contemporaneously with the acquisition of the asset by the bank. In contrast, in the instant case, the Janikula and Jensen memoranda (dated respectively March 24, 1983 and July 7, 1983) were prepared by the Bank several months before the December 30, 1983 loan transaction, and were never executed by appellants. To allow appellants to use these documents against the FDIC would undermine the legislative purpose behind § 1823(e). We hold that, since the Janikula and Jensen memoranda do not satisfy the contemporaneous execution requirement of § 1823(e), they have no validity against the FDIC. In light of our holding, we need not address appellants’ contention that summary judgment was improperly granted on the ground that the FDIC “has thwarted [their] efforts to establish compliance with Section 1823(e) by failing to produce minutes from board of directors meetings.” Even if we assume arguendo that the Jani-kula and Jensen memoranda met the other three requirements of § 1823(e), including approval by the board of directors or the loan committee as reflected in the minutes, appellants have not established compliance with the statutory requirements in full. IV. We turn next to appellants’ contention that their fraud claim is not barred by § 1823(e) and therefore is a valid defense against the FDIC. According to appellants, the alleged fraud is “fraud in the factum”, a defense that falls outside the scope of § 1823(e). The FDIC in turn asserts that appellants’ allegations, even if true, merely establish “fraud in the inducement”. We agree with the FDIC and hold that appellants’ fraud defense falls squarely within the ambit of § 1823(e). The crux of appellants’ fraud defense is that the two notes here involved were procured by Jensen’s misrepresentations that the loan agreement included the terms stated in the Janikula memorandum, when in fact it did not. Appellants alleged that, although Jensen knew they were relying on the terms outlined in the Jensen and Jani-kula memoranda and he knew that the terms of the HRA documents differed materially from the agreed upon terms, Jensen remained silent about the difference when presenting the documents for their signatures. Moreover, appellants claim that Jensen encouraged immediate execution in order to prevent them from discovering the difference, while offering a plausible explanation for the urgency. In advancing their fraud defense, appellants contend that they are not asserting the validity of the terms of the Janikula and Jensen memoranda, but are offering the documents as extrinsic evidence of what the terms of the loan were meant to be. . We find, however, that appellants’ fraud allegations amount to precisely the type of defense barred by § 1823(e), i.e., fraud in the inducement. Langley, supra, 484 U.S. at 93. In the instant case, the FDIC commenced this action against appellants seeking to collect on facially unqualified notes. Appellants, in order to vary the terms of the loan agreement, are attempting to assert side agreements and understandings with the Bank that do not comply with the stringent requirements of § 1823(e). As we have held, the defense of fraud in the inducement is unavailing “unless the representation was in writing, contemporaneously made with the guaranty, approved by the bank’s board of directors, and made part of the bank’s records continuously since the guaranty was made.” FDIC v. Kratz, supra, 898 F.2d at 671. Appellants assert, however, that “if the fraud defense is based on a misrepresentation of fact as opposed to a separate, unrecorded promise by the bank, Section 1823(e) is inapplicable.” We disagree. In Langley, the Supreme Court held that under § 1823(e) the defense of fraud in the inducement, whether based on a misrepresentation of an existing fact or an express promise to perform an act in the future, cannot be asserted against the FDIC. 484 U.S. at 90-93. The Court explained that “one who signs a facially unqualified note subject to an unwritten and unrecorded condition upon its repayment has lent himself to a scheme or arrangement that is likely to mislead the banking authorities, whether the condition consists of performance of a counterpromise ... or of the truthfulness of a warranted fact.” Id. at 93 (emphasis added); see also D’Oench, Duhme & Co., supra, 315 U.S. at 460 (federal common law). In reaching its decision, the Langley Court suggested that “the real defense of fraud in the factum — that is, the sort of fraud that procures a party’s signature to an instrument without knowledge of its true nature or contents ... would take the instrument out of § 1823(e), because it would render the instrument entirely void.” 484 U.S. at 93 (citing U.C.C. § 3-305(2)(c), comment 7). To establish fraud in the fac-tum, appellants must have shown not only that they were induced to sign the loan documents by the Bank’s misrepresentations without knowledge of their character or essential terms, but also that they had no reasonable. opportunity to obtain such knowledge. Minn.Stat. § 336.3-305(2)(c). Appellants have failed to establish the latter requirement. In determining whether a party had a reasonable opportunity to obtain knowledge of the true nature of an instrument, all relevant factors are to be taken into account, including the age of the party, his intelligence, education and business experience, his ability to read and to understand English, the party’s reason to rely on the representations or to have confidence in the party making them, and the apparent necessity for acting swiftly. U.C.C. § 3-305(2)(c), comment 7; see also FDIC v. Turner, 869 F.2d 270, 273 (6th Cir.1989). Applying these factors, the district court correctly held that appellants’ allegations are insufficient as a matter of law to establish fraud in the factum. As the court observed, appellants had the loan documents in their possession prior to execution and had every opportunity to read and analyze them, but simply failed to do so. Appellants argue, however, that they justifiably relied on Jensen's misrepresentations and that they did not examine the documents because Jensen urged them to sign quickly. This argument is meritless. The court found that appellants are educated, experienced businessmen who had no special reason to rely on the statements of a bank representative. Under the circumstances of the instant case, we agree with the district court that the mere fact that Jensen encouraged appellants to sign the documents quickly is insufficient to establish fraud in the factum. As the court properly concluded, appellants’ fraud claim constitutes “precisely the kind of case ... that 1823(e) was created to cover. The [appellants] signed the notes without reading their terms, despite the fact they had every opportunity to do so.” We hold that appellants’ fraud claim amounts to fraud in the inducement and therefore is barred by § 1823(e). We also hold that, since appellants had a reasonable opportunity to obtain knowledge of the true nature of the loan documents prior to execution, they have failed to establish fraud in the factum. V. This brings us to appellants’ final argument, namely, that Lund’s letter of July 20, 1983 to the Bank terminated prospectively their limited guarantees of $210,000 upon expiration of the short-term loan. We find this argument to be unavailing. We agree with the district court that § 1823(e) bars any defense based on the Lund letter. The limited guarantees executed by appellants on July 19, 1983 provided in relevant part: “This guaranty is made and shall continue as to any and all such indebtedness and liability of [Virginia Crossings] to the Bank incurred or arising prior to receipt by the Bank of written notice o.f the termination hereof from the undersigned ... In an attempt to avoid liability on the guarantees, appellants claim that “the guarantees were terminated in writing as required by their own terms.” They assert that Lund's letter to the Bank's president "constituted notice of termination effective upon the occurrence of a condition subsequent, namely, the completion of the HRA financing.” In that letter, Lund wrote: “Upon execution of the mortgage note, you [Jensen] agree to return to Dave and me our limited guarantees of $210,000.00 each, to be replaced by a joint guarantee of $42,000.00 as you stated in your 3/24/83 letter to Janikula.” Relying on this letter, appellants claim that their personal guarantees terminated upon execution of the mortgage note on December 30, 1983, and were replaced with a joint guaranty of $42,-000. The FDIC counters that the Lund letter is subject to the requirements of § 1823(e) and cannot be used to defeat its interest in the facially valid guarantees. We agree. As the district court correctly ruled, the guarantees clearly are assets of the FDIC within the meaning of § 1823(e). Any agreement therefore tending to defeat or diminish the FDIC’s interest in the guarantees must comply with the demanding requirements of the statute. Contrary to appellants’ contention, their defense to liability on the guarantees is predicated on an undisclosed side agreement which would defeat the FDIC’s interest in its assets. Consequently, we hold that the Lund letter has no validity against the FDIC since it does not comply with the statutory requirements. See FDIC v. Galloway, 856 F.2d 112, 116 (10th Cir.1988) (“under Langley’s broad construction of the term ’agreement' in 12 U.S.C. § 1823(e), that section protects the FDIC from being bound by any side agreements, understandings or representations limiting the scope of a continuing guaranty unless they have been put in writing and kept as official bank records”); see also Templin v. Weisgram, 867 F.2d 240, 242 (5th Cir.) (“Where ... an instrument’s invalidity can be established only by reference to- a side agreement in which all parties voluntarily participated, the reasoning and legislative intent underlying section 1823(e) apply with full force.”), cert. denied, 110 S.Ct. 63 (1989). As we have recognized, “the FDIC must be able to rely on the records of the failed bank”, and “[t]his process would be frustrated if ‘seemingly unqualified notes [were] subject to undisclosed conditions.’ ” FDIC v. Newhart, 892 F.2d 47, 50 (8th Cir.1989).(quoting Langley, supra, 484 U.S. at 92). In an attempt to circumvent the broad reach of § 1823(e), appellants contend that, since the guarantees expressly provide for termination by written notice, their defense of termination arises from the face of the agreements that the FDIC is seeking to enforce. Relying principally on Howell v. Continental Credit Corp., 655 F.2d 743 (7th Cir.1981), and Riverside Park Realty Co. v. FDIC, 465 F.Supp. 305 (M.D.Tenn.1978), appellants urge that § 1823(e) does not apply to the Lund letter. We disagree. Initially, we observe that, even when examined in the light most favorable to appellants, the evidence indicates that the Lund letter did not comply with the termination provision of the guarantees. As the FDIC points out, and we agree, the Lund letter, at best, simply reflects appellants’ intention to terminate and replace the guarantees sometime in the future. It is undisputed that, when the HRA financing came through, appellants failed to follow through on their understandings with the Bank by terminating the guarantees in writing and replacing them with a joint guarantee limited to $42,000. The guarantees of $210,000 were not returned to appellants, but were in the Bank’s files when the FDIC purchased them. Moreover, appellants’ reliance on Howell, supra, and Riverside Park Realty, supra, is misplaced. None of those cases involved an undisclosed side agreement such as that in the instant case. In Howell, the issue before the court was whether the FDIC purchased leases subject to the borrower’s defense that the original lessor failed to provide adequate consideration. The court held that the FDIC was bound by the terms of the leases because § 1823(e) is inapplicable “where the document the FDIC seeks to enforce is one, such as the leases here, which facially manifests bilateral obligations and serves as the basis of the lessee’s defense.” 655 F.2d at 746 (emphasis in original). The court observed that the leases directly set forth the bilateral nature of the lessee’s and lessor’s rights and obligations. It found that the borrower’s defense “arises directly and explicitly from the provisions of the leases which were in the bank’s files and which the FDIC now seeks to enforce.” Id. at 747. In Riverside Park Realty, the FDIC attempted to foreclose under a deed of trust on real property owned by plaintiffs. Plaintiffs sought to enjoin the foreclosure, asserting a breach of the loan agreement on the part of the FDIC’s assignors, the mortgage company and a bank. The FDIC contended that this defense was barred by § 1823(e). The court disagreed and held: “When ... the asset upon which the FDIC is attempting to recover is the very same agreement that the makers allege has been breached by the FDIC’s assignors, § 1823(e) does not apply. None of the policies that favor the invocation of this statute are present in such cases because the terms of the agreement that tend to diminish the rights of the FDIC appear in writing on the face of the agreement that the FDIC seeks to enforce.” Riverside Park Realty, supra, 465 F.Supp. at 313 (emphasis in original). The court stressed that the deed of trust upon which the FDIC sought to foreclose incorporated by reference the terms of the loan agreement and that the deed of trust note, which in essence was the asset the FDIC sought to enforce, contained those very terms. Id. Unlike in Howell and Riverside Park, appellants’ defense here does not arise “directly and explicitly” from the face of the agreements that the FDIC is seeking to enforce, but must be proven by resort to an undisclosed side agreement altering the terms of those agreements. The terms of the Lund letter which appellants are attempting to assert against the FDIC are not apparent from the face of the guarantees, but are contained in a separate agreement. And unless that separate agreement satisfies the requirements of § 1823(e), it cannot be asserted against the FDIC. Cf. FDIC v. O’Neil, 809 F.2d 350, 354 (7th Cir.1987) (the mere fact that the side agreement — rather than its conditions— was referred to in the asset the FDIC sought to enforce did not preclude the application of § 1823(e)). ■ We hold that appellants’ defense to liability on their guarantees based on the Lund letter is barred by § 1823(e). VI. To summarize: We hold that, because the Janikula and Jensen memoranda fail to comply fully with the requirements of § 1823(e), those documents cannot be used against the FDIC. 'We also hold that appellants’ fraud and termination defenses are barred by § 1823(e). Accordingly, we hold that the district court properly granted summary judgment in favor of the FDIC. Affirmed. Question: Is the second listed appellant bankrupt? A. Yes B. No Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. Jackie Hosang LAWSON and Jonathan M. Zang, Petitioners v. FMR LLC et al. No. 12-3. Supreme Court of the United States Argued Nov. 12, 2013. Decided March 4, 2014. Syllabus* To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress passed the Sarbanes-Oxley Act of 2002. One of the Act's provisions protects whistleblowers; at the time relevant here, that provision instructed: "No [public] company..., or any... contractor [or] subcontractor... of such company, may discharge, demote, suspend, threaten, harass, or... discriminate against an employee in the terms and conditions of employment because of [whistleblowing activity]." 18 U.S.C. § 1514A(a). Plaintiffs below, petitioners here, are former employees of respondents (collectively FMR), private companies that contract to advise or manage mutual funds. As is common in the industry, the mutual funds served by FMR are public companies with no employees. Both plaintiffs allege that they blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered retaliation by FMR. Each commenced suit in federal court. Moving to dismiss the suits, FMR argued that the plaintiffs could state no claim under § 1514A, for that provision protects only employees of public companies, and not employees of private companies that contract with public companies. On interlocutory appeal from the District Court's denial of FMR's motion to dismiss, the First Circuit reversed, concluding that the term "an employee" in § 1514A(a) refers only to employees of public companies. Held : The judgment is reversed and the case is remanded. 670 F.3d 61, reversed and remanded. Justice GINSBURG delivered the opinion of the Court, concluding that § 1514A's whistleblower protection includes employees of a public company's private contractors and subcontractors. Pp. 1165 - 1176. (a) This reading of § 1514A is supported by the provision's text. Pp. 1165 - 1169. (1) The Court looks first to the ordinary meaning of the provision's language. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449. As relevant here, § 1514A(a) provides that "no... contractor... may discharge... an employee." The ordinary meaning of "an employee" in this proscription is the contractor's own employee. FMR's "narrower construction" requires inserting "of a public company" after "an employee," but where Congress meant "an employee of a public company," it said so. The provision as a whole supports this reading. The prohibited retaliatory measures enumerated in § 1514A(a)-discharge, demotion, suspension, threats, harassment, or discrimination in employment terms and conditions-are actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR's interpretation of § 1514A, therefore, would shrink to insignificance the provision's ban on retaliation by contractors. The protected activity covered by § 1514A, and the provision's enforcement procedures and remedies, also indicate that Congress presumed an employer-employee relationship between the retaliator and the whistleblowing employee. Pp. 1165 - 1168. (2) FMR's textual arguments are unpersuasive. It urges that "an employee" must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. This concern appears more theoretical than real and, in any event, is outweighed by the compelling arguments opposing FMR's reading of § 1514A. FMR also urges that its reading is supported by the provision's statutory headings, but those headings are "not meant to take the place of the detailed provisions of the text." Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528, 67 S.Ct. 1387, 91 L.Ed. 1646. Pp. 1168 - 1169. (b) Other considerations support the Court's textual analysis. Pp. 1169 - 1175. (1) The Court's reading fits § 1514A's aim to ward off another Enron debacle. The legislative record shows Congress' understanding that outside professionals bear significant responsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employees of Enron's contractors. Sarbanes-Oxley contains numerous provisions designed to control the conduct of accountants, auditors, and lawyers who work with public companies, but only § 1514A affords such employees protection from retaliation by their employers for complying with the Act's reporting requirements. Pp. 1169 - 1171. (2) This Court's reading of § 1514A avoids insulating the entire mutual fund industry from § 1514A. Virtually all mutual funds are structured so that they have no employees of their own; they are managed, instead, by independent investment advisors. Accordingly, the "narrower construction" endorsed by FMR would leave § 1514A with no application to mutual funds. The Court's reading of § 1514A, in contrast, protects the employees of investment advisors, who are often the only firsthand witnesses to shareholder fraud involving mutual funds. Pp. 1171 - 1172. (3) There is scant evidence that today's decision will open any floodgates for whistleblowing suits outside § 1514A's purposes. The Department of Labor's regulations have interpreted § 1514A as protecting contractor employees for almost a decade, yet FMR is unable to identify a single case in which the employee of a private contractor has asserted a § 1514A claim based on allegations unrelated to shareholder fraud. Plaintiffs and the Solicitor General suggest various limiting principles to dispel any overbreadth problems. This Court need not determine § 1514A's bounds here, however, because, if plaintiffs' allegations prove true, plaintiffs are precisely the "firsthand witnesses to [the shareholder] fraud" Congress anticipated § 1514A would protect. S.Rep. No. 107-146, p. 10. Pp. 1172 - 1174. (4) The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act does not affect this Court's task of determining whether Congress in 2002 afforded protection to whistleblowing contractor employees. Pp. 1173 - 1175. (c) AIR 21's whistleblower protection provision has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statutory texts and whistleblower protective aims, the Court reads the words "an employee" in AIR 21 and in § 1514A to have similar import. Pp. 1175 - 1176. Justice SCALIA, joined by Justice THOMAS, relying only on 18 U.S.C. § 1514A's text and broader context, agreed that § 1514A protects employees of private contractors from retaliation when they report covered forms of fraud. Pp. 1176 - 1177. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER and KAGAN, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in principal part. SCALIA, J., filed an opinion concurring in principal part and concurring in the judgment, in which THOMAS, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined. Eric Schnapper, Seattle, WA, for the petitioners. Nicole A. Saharsky, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners. Mark A. Perry, Washington, DC, for the respondents. Eric Schnapper, Counsel of Record, Seattle, WA, Indira Talwani, Segal Roitman, LLP, Boston, MA, Kevin G. Powers, Rodgers, Powers & Schwartz, LLP, Boston, MA, Counsel for Petitioners. Stephen M. Shapiro, Timothy S. Bishop, Mayer Brown LLP, Chicago, IL, Mark A. Perry, Counsel of Record, Porter N. Wilkinson, Geoffrey C. Weien, Gibson, Dunn & Crutcher LLP, Washington, DC, Rachel S. Brass, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Counsel for Respondents. Justice GINSBURG delivered the opinion of the Court. To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745. See S.Rep. No. 107-146, pp. 2-11 (2002). A provision of the Act, 18 U.S.C. § 1514A, protects whistleblowers. Section 1514A, at the time here relevant, instructed: "No [public] company..., or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity]." § 1514A(a) (2006 ed.). This case concerns the definition of the protected class: Does § 1514A shield only those employed by the public company itself, or does it shield as well employees of privately held contractors and subcontractors-for example, investment advisers, law firms, accounting enterprises-who perform work for the public company? We hold, based on the text of § 1514A, the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shelters employees of the public company served by the contractors and subcontractors. We first summarize our principal reasons, then describe this controversy and explain our decision more comprehensively. Plaintiffs below, petitioners here, are former employees of private companies that contract to advise or manage mutual funds. The mutual funds themselves are public companies that have no employees. Hence, if the whistle is to be blown on fraud detrimental to mutual fund investors, the whistleblowing employee must be on another company's payroll, most likely, the payroll of the mutual fund's investment adviser or manager. Taking the allegations of the complaint as true, both plaintiffs blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered adverse action by their employers. Plaintiffs read § 1514A to convey that "[n]o... contractor... may... discriminate against [its own] employee [for whistleblowing]." We find that reading consistent with the text of the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else's workers. Moreover, we resist attributing to Congress a purpose to stop a contractor from retaliating against whistleblowers employed by the public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. In the Enron scandal that prompted the Sarbanes-Oxley Act, contractors and subcontractors, including the accounting firm Arthur Andersen, participated in Enron's fraud and its coverup. When employees of those contractors attempted to bring misconduct to light, they encountered retaliation by their employers. The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. See, e.g., 116 Stat. 750-765, 773-774, 784, §§ 101-107, 203-206, 307. Given Congress' concern about contractor conduct of the kind that contributed to Enron's collapse, we regard with suspicion construction of § 1514A to protect whistleblowers only when they are employed by a public company, and not when they work for the public company's contractor. Congress borrowed § 1514A's prohibition against retaliation from the wording of the 2000 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121. That Act provides: "No air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment" when the employee provides information regarding violations "relating to air carrier safety" to his or her employer or federal authorities. § 42121(a)(1). AIR 21 has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statutory texts and whistleblower protective aims, we read the words "an employee" in AIR 21 and in § 1514A to have similar import. I A The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act) aims to "prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions." S.Rep. No. 107-146, p. 2 (2002) (hereinafter S. Rep.).1 Of particular concern to Congress was abundant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a "corporate code of silence"; that code, Congress found, "discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally." Id., at 4-5 (internal quotation marks omitted). When employees of Enron and its accounting firm, Arthur Andersen, attempted to report corporate misconduct, Congress learned, they faced retaliation, including discharge. As outside counsel advised company officials at the time, Enron's efforts to "quiet" whistleblowers generally were not proscribed under then-existing law. Id., at 5, 10. Congress identified the lack of whistleblower protection as "a significant deficiency" in the law, for in complex securities fraud investigations, employees "are [often] the only firsthand witnesses to the fraud." Id., at 10. Section 806 of Sarbanes-Oxley addresses this concern. Titled "Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud," § 806 added a new provision to Title 18 of the United States Code, 18 U.S.C. § 1514A, which reads in relevant part: "Civil action to protect against retaliation in fraud cases "(a) Whistleblower Protection for Employees of Publicly Traded Companies.-No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 78 l ), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78 o (d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee- "(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by [a federal agency, Congress, or supervisor]...." § 806, 116 Stat. 802.2 Congress has assigned whistleblower protection largely to the Department of Labor (DOL), which administers some 20 United States Code incorporated whistleblower protection provisions. See 78 Fed.Reg. 3918 (2013). The Secretary has delegated investigatory and initial adjudicatory responsibility over claims under a number of these provisions, including § 1514A, to DOL's Occupational Safety and Health Administration (OSHA). Ibid. OSHA's order may be appealed to an administrative law judge, and then to DOL's Administrative Review Board (ARB). 29 CFR §§ 1980.104 to 1980.110 (2011). In common with other whistleblower protection provisions enforced by DOL, see 77 Fed.Reg. 3912 (2012), the ARB's determination on a § 1514A claim constitutes the agency's final decision and is reviewable in federal court under the standards stated in the Administrative Procedure Act, 5 U.S.C. § 706. If, however, the ARB does not issue a final decision within 180 days of the filing of the complaint, and the delay is not due to bad faith on the claimant's part, the claimant may proceed to federal district court for de novo review. 18 U.S.C. § 1514A(b). An employee prevailing in a proceeding under § 1514A is entitled to "all relief necessary to make the employee whole," including "reinstatement with the same seniority status that the employee would have had, but for the discrimination," backpay with interest, and compensation for litigation costs. § 1514A(c). Congress modeled § 1514A on the anti-retaliation provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121, a measure enacted two years earlier. See S. Rep., at 30 (corporate whistleblower protections "track [AIR 21's] protections as closely as possible"). Section 1514A incorporates by cross-reference AIR 21's administrative enforcement procedures. 18 U.S.C. § 1514A(b)(2). B Petitioners Jackie Hosang Lawson and Jonathan M. Zang (plaintiffs) separately initiated proceedings under § 1514A against their former employers, privately held companies that provide advisory and management services to the Fidelity family of mutual funds. The Fidelity funds are not parties to either case; as is common in the mutual fund industry, the Fidelity funds themselves have no employees. Instead, they contract with investment advisers like respondents to handle their day-to-day operations, which include making investment decisions, preparing reports for shareholders, and filing reports with the Securities and Exchange Commission (SEC). Lawson was employed by Fidelity Brokerage Services, LLC, a subsidiary of FMR Corp., which was succeeded by FMR LLC. Zang was employed by a different FMR LLC subsidiary, Fidelity Management & Research Co., and later by one of that company's subsidiaries, FMR Co., Inc. For convenience, we refer to respondents collectively as FMR. Lawson worked for FMR for 14 years, eventually serving as a Senior Director of Finance. She alleges that, after she raised concerns about certain cost accounting methodologies, believing that they overstated expenses associated with operating the mutual funds, she suffered a series of adverse actions, ultimately amounting to constructive discharge. Zang was employed by FMR for eight years, most recently as a portfolio manager for several of the funds. He alleges that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC registration statement concerning certain Fidelity funds. Lawson and Zang separately filed administrative complaints alleging retaliation proscribed by § 1514A. After expiration of the 180-day period specified in § 1514A(b)(1), Lawson and Zang each filed suit in the U.S. District Court for the District of Massachusetts. FMR moved to dismiss the suits, arguing, as relevant, that neither plaintiff has a claim for relief under § 1514A. FMR is privately held, and maintained that § 1514A protects only employees of public companies- i.e., companies that either have "a class of securities registered under section 12 of the Securities Exchange Act of 1934," or that are "required to file reports under section 15(d)" of that Act. § 1514A(a).3 In a joint order, the District Court rejected FMR's interpretation of § 1514A and denied the dismissal motions in both suits. 724 F.Supp.2d 141 (Mass.2010). On interlocutory appeal, a divided panel of the First Circuit reversed. 670 F.3d 61 (2012). The Court of Appeals majority acknowledged that FMR is a "contractor" 4 within the meaning of § 1514A(a), and thus among the actors prohibited from retaliating against "an employee" who engages in protected activity. The majority agreed with FMR, however, that "an employee" refers only to employees of public companies and does not cover a contractor's own employees. Id., at 68-80. Judge Thompson dissented. In her view, the majority had "impose[d] an unwarranted restriction on the intentionally broad language of the Sarbanes-Oxley Act" and "bar[red] a significant class of potential securities-fraud whistleblowers from any legal protection." Id., at 83. Several months later, the ARB issued a decision in an unrelated case, Spinner v. David Landau & Assoc., LLC, No. 10-111 etc., ALJ No. 2010-SOX-029 (May 31, 2012),5 disagreeing with the Court of Appeals' interpretation of § 1514A. In a comprehensive opinion, the ARB explained its position that § 1514A affords whistleblower protection to employees of privately held contractors that render services to public companies. Ibid.6 We granted certiorari, 569 U.S. ----, 133 S.Ct. 2387, 185 L.Ed.2d 1103 (2013), to resolve the division of opinion on whether § 1514A extends whistleblower protection to employees of privately held contractors who perform work for public companies. II A In determining the meaning of a statutory provision, "we look first to its language, giving the words used their ordinary meaning." Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (citation and internal quotation marks omitted). As Judge Thompson observed in her dissent from the Court of Appeals' judgment, "boiling [§ 1514A(a) ] down to its relevant syntactic elements, it provides that 'no... contractor... may discharge... an employee.' " 670 F.3d, at 84 (quoting § 1514A(a)). The ordinary meaning of "an employee" in this proscription is the contractor's own employee. FMR's interpretation of the text requires insertion of "of a public company" after "an employee." But where Congress meant "an employee of a public company," it said so: With respect to the actors governed by § 1514A, the provision's interdictions run to the officers, employees, contractors, subcontractors, and agents "of such company," i.e., a public company. § 1514A(a). Another anti-retaliation provision in Sarbanes-Oxley provides: "[A] broker or dealer and persons employed by a broker or dealer who are involved with investment banking activities may not, directly or indirectly, retaliate against or threaten to retaliate against any securities analyst employed by that broker or dealer or its affiliates...." 15 U.S.C. § 78 o-6(a)(1)(C) (emphasis added). In contrast, nothing in § 1514A's language confines the class of employees protected to those of a designated employer. Absent any textual qualification, we presume the operative language means what it appears to mean: A contractor may not retaliate against its own employee for engaging in protected whistleblowing activity.7 Section 1514A's application to contractor employees is confirmed when we enlarge our view from the term "an employee" to the provision as a whole. The prohibited retaliatory measures enumerated in § 1514A(a)-discharge, demotion, suspension, threats, harassment, or discrimination in the terms and conditions of employment-are commonly actions an employer takes against its own employees. Contractors are not ordinarily positioned to take adverse actions against employees of the public company with whom they contract. FMR's interpretation of § 1514A, therefore, would shrink to insignificance the provision's ban on retaliation by contractors. The dissent embraces FMR's "narrower" construction. See post, at 1178, 1178 - 1179, 1179, 1180 - 1181. FMR urges that Congress included contractors in § 1514A's list of governed actors simply to prevent public companies from avoiding liability by employing contractors to effectuate retaliatory discharges. FMR describes such a contractor as an "ax-wielding specialist," illustrated by George Clooney's character in the movie Up in the Air.8 Brief for Respondents 24-25 (internal quotation marks omitted). As portrayed by Clooney, an ax-wielding specialist is a contractor engaged only as the bearer of the bad news that the employee has been fired; he plays no role in deciding who to terminate. If the company employing the ax-wielder chose the recipients of the bad tidings for retaliatory reasons, the § 1514A claim would properly be directed at the company. Hiring the ax-wielder would not insulate the company from liability. Moreover, we see no indication that retaliatory ax-wielding specialists are the real-world problem that prompted Congress to add contractors to § 1514A. 9 Moving further through § 1514A to the protected activity described in subsection (a)(1), we find further reason to believe that Congress presumed an employer-employee relationship between the retaliator and the whistleblower. Employees gain protection for furnishing information to a federal agency, Congress, or "a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct)." § 1514A(a)(1) (emphasis added). And under § 1514A(a)(2), employees are protected from retaliation for assisting "in a proceeding filed or about to be filed ( with any knowledge of the employer ) relating to an alleged violation" of any of the enumerated fraud provisions, securities regulations, or other federal law relating to shareholder fraud. § 1514A(a)(2) (emphasis added). The reference to employer knowledge is an additional indicator of Congress' expectation that the retaliator typically will be the employee's employer, not another entity less likely to know of whistleblower complaints filed or about to be filed. Section 1514A's enforcement procedures and remedies similarly contemplate that the whistleblower is an employee of the retaliator. As earlier noted, see supra, at 1163 - 1164, § 1514A(b)(2)(A) provides that a claim under § 1514A "shall be governed under the rules and procedures set forth in section 42121(b) of title 49," i.e., AIR 21's anti-retaliation provision. Throughout § 42121(b), the respondent is referred to as "the employer." See 49 U.S.C. § 42121(b)(2)(B)(ii) (The Secretary shall not conduct an investigation into a retaliation claim "if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior."); § 42121(b)(2)(B)(iv) ("Relief may not be ordered... if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior."). Regarding remedies, § 1514A(c)(2) states that a successful claimant shall be entitled to "reinstatement with the same seniority status that the employee would have had, but for the discrimination," as well as "the amount of back pay, with interest." As the Solicitor General, for the United States as amicus curiae, observed, "It is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company." Brief for United States as Amicus Curiae 15. The most sensible reading of § 1514A's numerous references to an employer-employee relationship between the respondent and the claimant is that the provision's protections run between contractors and their own employees. Remarkably, the dissent attributes to Congress a strange design. Under the dissent's "narrower" construction, post, at 1178, 1178 - 1179, 1179, 1180 - 1181, a public company's contractor may not retaliate against a public company's employees, academic here because the public company has no employees. According to the dissent, this coverage is necessary to prevent "a gaping hole" that would allow public companies to "evade § 1514A simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not." Post, at 1182. This cannot be right-even if Congress had omitted any reference to contractors, subcontractors, or agents in § 1514A, the remaining language surely would prohibit a public company from directing someone else to engage in retaliatory conduct against the public company's employees; hiring an ax-wielder to announce an employee's demotion does not change the fact that the public company is the entity commanding the demotion. Under the dissent's reading of § 1514A, the inclusion of contractors as covered employers does no more than make the contractor secondarily liable for complying with such marching orders-hardly a hole at all.10 There would be a huge hole, on the other hand, were the dissent's view of § 1514A's reach to prevail: Contractors' employees would be disarmed; they would be vulnerable to retaliation by their employers for blowing the whistle on a scheme to defraud the public company's investors, even a scheme engineered entirely by the contractor. Not only would mutual fund advisers and managers escape § 1514A's control. Legions of accountants and lawyers would be denied § 1514A's protections. See infra, at 1170 - 1172. Instead of indulging in fanciful visions of whistleblowing babysitters and the like, post, at 1177 - 1178, 1180, 1183 - 1184, 1187 - 1188, the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whistleblower protection countless professionals equipped to bring fraud on investors to a halt. B We turn next to two textual arguments made by FMR. First, FMR urges that "an employee" must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. See Brief for Respondents 19-20; post, at 1177 - 1178, 1180, 1183 - 1184, 1187 - 1188. Plaintiffs and the Solicitor General do not defend § 1514A's application to personal employees. They argue, instead, that the prohibition against an "officer" or "employee" retaliating against "an employee" may be read as imposing personal liability only on officers and employees who retaliate against other public company employees. Brief for Petitioners 12; Brief for United States as Amicus Curiae 16.11 FMR calls this reading "bizarre," for it would ascribe to the words "an employee" in § 1514A(a) "one meaning if the respondent is an 'officer' and a different meaning if the respondent is a 'contractor.' " Brief for Respondents 20-21. We agree with FMR that plaintiffs and the Solicitor General offer an interpretation at odds with the text Congress enacted. If, as we hold, "an employee" includes employees of contractors, then grammatically, the term also includes employees of public company officers and employees. Nothing suggests Congress' attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few housekeepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer's complicity in fraud. In any event, FMR's point is outweighed by the compelling arguments opposing FMR's contention that "an employee" refers simply and only to public company employees. See supra, at 1165 - 1168. See also infra, at 1172 - 1174 (limiting principles may serve as check against overbroad applications). Second, FMR argues that the statutory headings support the exclusion of contractor employees from § 1514A's protections. Although § 1514A's own heading is broad ("Civil action to protect against retaliation in fraud cases"), subsection (a) is captioned "Whistleblower Protection for Employees of Publicly Traded Companies." Similarly, the relevant public law section, § 806 of Sarbanes-Oxley, is captioned "Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud." 116 Stat. 802. The Court of Appeals described the latter two headings as "explicit guides" limiting protection under § 1514A to employees of public companies. 670 F.3d, at 69. This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947), we explained that where, as here, "the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner." Id., at 528, 67 S.Ct. 1387. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employees of companies that file reports with the SEC pursuant to § 15(d) of the 1934 Act, even when such companies are not "publicly traded." And the activity protected under § 1514A is not limited to "provid[ing] evidence of fraud"; it also includes reporting violations of SEC rules or regulations. § 1514A(a)(1). As in Trainmen, the headings here are "but a short-hand reference to the general subject matter" of the provision, "not meant to take the place of the detailed provisions of the text." 331 U.S., at 528, 67 S.Ct. 1387.Section 1514A is attended by numerous indicators that the statute's prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to "undo or limit" those signals. Id., at 529, 67 S.Ct. 1387.12 III A Our textual analysis of § 1514A fits the provision's purpose. It is common ground that Congress installed whistleblower protection in the Sarbanes-Oxley Act as one means to ward off another Enron debacle. S. Rep., at 2-11. And, as the ARB observed in Spinner, "Congress plainly recognized that outside professionals-accountants, law firms, contractors, agents, and the like-were complicit in, if not integral to, the shareholder fraud and subsequent cover-up [Enron] officers... perpetrated." ALJ No. 2010-SOX-029, pp. 12-13. Indeed, the Senate Report demonstrates that Congress was as focused on the role of Enron's outside contractors in facilitating the fraud as it was on the actions of Enron's own officers. See, e.g., S. Rep., at 3 (fraud "occurred with extensive participation and structuring advice from Arthur Andersen... which was simultaneously serving as both consultant and independent auditor for Enron" (internal quotation marks and brackets omitted)); id., at 4 ("professionals from accounting firms, law firms and business consulting firms, who were paid millions to advise Enron on these practices, assured others that Enron was a solid investment"); id., at 4-5 (team of Andersen employees were tasked with destroying "physical evidence and documents" relating to Enron's fraud); id., at 5 ("Enron and Andersen were taking advantage of a system that allowed them to behave in an apparently fraudulent manner"); id., at 11 (Enron's fraud partly attributable to "the well-paid professionals who helped create, carry out, and cover up the complicated corporate ruse when they should have been raising concerns"); id., at 20-21 ("Enron's accountants and lawyers brought all their skills and Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_casetyp2_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. There are two main issues in this case. The first issue is labor relations - unfair labor practices. Your task is to determine the second issue in the case. 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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEAMSTERS AND CHAUFFEURS UNION, LOCAL 627, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent. No. 11720. United States Court of Appeals Seventh Circuit. Feb. 27, 1957. Winthrop A. Johns, sel, Julius G. Serot, At' Washington, D. C., for Ásst. Gen. Coun;y„ N. L. R. B., petitioner, Mozart G. Ratner, hieago, 111., for respondent. Before MAJOR, FlNNEGAN and LINDLEY, Circuit Judges. MAJOR, Circuit Judge The National Labor Relations Boardfiled a peti- ■ (referred to as the Board) tion in which Teamsters and Chauffeurs Union, Local 627, International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America, AFL-CIO (referred to ¡ as the Union) was named as respondent, which sought an adjudication of coiitempt of court against the Union for disobeying, failing and refusing to comply with, and continuing to disobey aind to refuse to comply with a decree of this court entered herein on April 20, 1956. In response to a show cause order, the Union filed an answer requesting dismissal of the petition. Subsequently, the Board filed a response to the Union’s answer and the Union a reply thereto. In our view, the matter can be disposed of without the taking of testimony inasmuch as the pleadings raise no dispute as to any material issue of fact. Our decree of April 20, 1956 recites that it is entered “pursuant to a settlement agreement of the parties dated November 17, 1955, and the parties having consented to the entry of a decree of this court enforcing the order.” As the decree is bottomed upon a settlement agreement, it appears pertinent to give a brief résumé of the proceedings which culminated in its entry. The case was initiated upon charges filed with the Board by Standard Oil Company, which alleged that the Union had violated Sec. 8(b) (4) (A) and (B) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (4) (A) and (B). On July 27, 1955, the Board filed in the United States District Court for the Southern District of Illinois, Northern Division, a petition under Sec. 10 (i) of the Act, alleging that the Board upon investigation had reasonable cause to believe that the Union, contrary to the terms of the Act, was picketing the gasoline station of one Wm. T. Martin for the purpose of requiring him to bargain with the Union, and was picketing the premises of Standard Oil Company for the purpose of inducing it to cease doing business with Martin. The Union by answer denied there was reasonable cause to believe that the object of the picketing was as charged and affirmatively alleged that the purpose of picketing Martin was to induce his employees to join the Union, and the purpose of picketing Standard was to protest Standard’s assignment of supervisory personnel to perform work which Standard, by contract with the Union, had agreed to assign only to rank and file production workers represented by the Union. Following a hearing, the District Court granted the temporary injunction based upon the finding that the Board had “reasonable cause to believe” that the object of the Union’s picketing was as alleged by the Board. The temporary injunction enjoined the Union from committing the acts alleged in the petition as constituting unfair labor practices. Subsequently, the Board issued a complaint which reiterated the unfair labor practice charges alleged in the petition for temporary injunction, to which the Union entered its denial and made substantially the same affirmative allegations as it had in its answer to the petition for temporary injunction. Thereafter, negotiations took place between the Board and the Union with a view of disposing of the issues in dispute without litigation, which culminated in the settlement agreement of November 17,1955. Standard Oil, the charging party, vigorously opposed the settlement agreement and any and all orders issued pursuant thereto. At all times the Union denied that it had committed the unfair labor practices with which it was charged, and agreed to the disposition of the matter without litigation only upon condition that there be no finding against it of an unfair labor practice or, in other words, that there be no adjudication of those issues. As a result of the position of the Union in this respect, the settlement agreement incorporated the Board’s complaint containing the alleged unfair labor practices and the Union’s denial thereof, and also provided, “All parties hereto expressly waive hearing, * * * the making of findings of fact or conclusions of law by the Board * * The settlement agreement provided for the entry of an order by the Board which subsequently, in substance, became the decree of this court. This decree provided that the Union “cease and desist from” certain specified activities which were substantially those alleged in the original complaint as constituting unfair labor practices. The Union, by the terms of the settlement agreement, the Board’s order and the decree of this court, was directed to post at specified places and send to its members and to certain named employers signed copies of a notice attached to the decree and, also, to send to said employers a signed copy of a letter also attached to the decree. The essence of the contemptuous conduct charged in the Board’s petition is as follows: “Respondent has disobeyed and failed and refused to comply with, and continues to disobey and fail and refuse to comply with, the said decree in that, although posting and mailing the notice and letter specified in the decree, respondent contemporaneously posted alongside said notice and mailed with said letter, other letters which in material and substantial respects altered the notice and letter required by the decree and destroyed their effectiveness.” On or about May 8, 1956, the Union, in compliance with the provisions of the decree, posted at proper places and mailed to its members and the named employers signed copies of the notice and letter, as required by the decree (also as required by the Board’s order and the settlement agreement). There is no question but that this constituted a literal compliance by the Union with the notice and letter requirements of the decree. However, the Union simultaneously posted in connection with said notices copy of a letter which it had mailed to its members. The Union also enclosed with the notice sent to its members a copy of such letter, written on its own official stationery. Further, it wrote a letter to the employers named in the decree and enclosed a copy of such letter with the notice which it was required to send to such employers. The Board relies solely upon the posting and mailing of these letters in support of its contempt charge. The two letters are so similar in substance that it is sufficient, so we think, to set forth only the one which was posted in connection with the official notices and sent to Union members. It follows: “To Our Members: “Enclosed please find a letter which we agreed to send you as part of the settlement agreement we made with the National Labor Relations Board in order to avoid incurring further costs of litigation in the proceeding which Standard Oil brought against us under the Taft-Hartley Act. We have consistently maintained that we did not violate the Act and the settlement agreement specifically so states. All we would possibly gain by continuing the legal baitle was to avoid sending you this notice. That did not seem worthwhile since the terms of the settlement agreement with the NLRB under Which this notice is posted plainly reserves to us all the legal rights, including the right to strike and to picket in labor disputes with Standard Oil, to which we are entitled under the Taft-Hartley Act.” The Board in its petii ion alleges: “By posting and aforesaid additional' ent materially altered and qualified, in a manner tending to render ineffective, the notice and letter required to be posted and mailed by the decree.” d mailing the letters, respond- The Union contends that there is nothing in the letters which detracts from, alters or impinges upon the terms of the decree and that itj had a right to inform interested parties, particularly its own members, not only as to the terms and conditions of the settlement agreement but the reasons for its becoming a party thereto. Fus tends that the statem the letters are either sent an expression which is permissible I of the United States rthermore, it consents contained in factual or repre-sf opinion, all of under Amendment Constitution. It is hardly open tp question but that the decree requirement as to the sending of the letters was based upon the settlement agreement, fhat the Union, as shown by such agreément, at all times took the position that it was not in violation of the Act, and that it retained all rights which it had under the Taft-Hartley Act. Certainly there is no statement in the letter which directly contradicts or impinges upon the terms of the decree, and the Board does not so contend, but it argues that by implication such result was produced. We think the position of the Board is picayunish and supported neither by logic nor authority. A case strikingly similar to the instant situation is Budd Mfg. Co. v. National Labor Relations Board, 3 Cir., 142 F.2d 922, wherein a rule to show cause why the respondent should not be held in contempt was discharged. In that case, as here, the Board relied entirely upon two letters written by the employer to its employees. (The decree alleged to have been violated and the letters asserted to be contemptuous are set forth commencing at page 929.) A reading of those letters readily discloses that the Board’s position there was much stronger than it is here. Even so, the court stated, at page 926: “We fail to see how the letter and enclosure standing alone can be thought to violate anything contained in the decree. Certainly, there is no direct prohibition in the decree purporting to restrain the employer or its officers or agents from entertaining opinions on labor matters or on any other subject or from giving such opinions free expression. Nor could the decree validly contain any such prohibition. * # * “It can hardly be questioned that the constitutional guaranty protects the employer and the employee alike. Thus, to make known the facts of a labor dispute has been recognized as a constitutionally protected right of a member of a union. [Citing cases.]” The court further stated, at page 928: “In passing, it is of no distinguishing moment that Budd’s letter and enclosure went out contemporaneously with the Company’s posting of the notices of compliance. The contempt charge could as well have been based upon an utterance at any time subsequent to the employer’s submission to the decree. The right to free speech in the future is not to be forfeited because of misconduct in the past.” The court held that the right of free expression was privileged and, at page 929, “that the privilege was not lost through any threat or act of discrimination, coercion or intimidation by either of the respondents in violation of the employees’ rights under the Act.” In National Labor Relations Board v. M. E. Blatt Co., 3 Cir., 143 F.2d 268, the employer sent out notices contemporaneously with those which the Board had ordered. The court, referring thereto, stated, at page 275: “We think that the contents of this notice, standing alone, cannot be deemed to constitute such an interference with, such a restraint or coercion of the respondent’s employees in the exercise of the rights guaranteed to them by the Act as to constitute an unfair labor practice.” The Board contends that West Texas Utilities Co., Inc. v. National Labor Relations Board, 92 U.S.App.D.C. 224, 206 F.2d 442, rather than the Budd case, 142 F.2d 922, is controlling here. The Board appears to ignore the marked factual distinction between the instant case and West Texas. About the only similarity is that a so-called second notice is involved in each case. In West Texas, the employer, by decree, was required to and did notify its employees that it would recognize and bargain with a certain designated union as the exclusive representative of its employees. Subsequently, it sent a second notice to its employees which amounted to a repudiation of the obligation imposed upon it by the decree. See notice set forth, at page 445 of the opinion. More than that, the employer proceeded to negotiate and enter into an agreement with a third party concerning wages to be paid its employees. True, the court held that the second notice violated the terms of the decree, which we think was a correct holding under the circumstances. It should not be overlooked, however, that the court was not concerned merely with a second notice, as are we in the instant situation. There was the additional and determinative factor that the employer violated the decree by entering into a bargaining agreement with a party other than the one specified. .In other words, the employer was in contempt either with or without the so-called second notice. Consistent with the privileges which stem from the first amendment, the Labor Act itself recognizes the right to express views, argument or opinion or the dissemination thereof in whatever form, providing such expression “contains no threat of reprisal or force or promise of benefit.” Title 29 U.S.C.A. § 158(c). Certainly there is no basis for a finding or conclusion that the letters contained any threat of reprisal or force or promise of benefit. The Union asserts as a fact, not disputed by the Board, that it complied with the temporary injunction issued by the District Court and to the present day has refrained from the activities alleged in the Board’s complaint as constituting unfair labor practices. More than that, the Union asserts that it does not intend or propose to engage in such activities in the future. We are not unmindful, of course, that we are here concerned with the charge of a violation of a court decree rather than an unfair labor practice under the. Taft-Hartley Act. Even so, we think the privilege of free speech or free expression must be recognized. Whether in connection with a decree or an unfair labor practice, a limitation upon the privilege can be tolerated only where such speech or expression is intended or calculated to produce some result illegal under the Act, such as- restraint or coercion. .... . The conclusion: which we have reached makes-it'unnecessary.-to discuss other questions argued by the parties. The burden is upon the Board to establish the charges made in its petition. This it has failed to is dismissed and the i\|ule to show cause discharged. Question: What is the second general issue in the case, other than labor relations - unfair labor practices? 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_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. Shirley HUDDLESTON, Plaintiff-Appellant, v. ROGER DEAN CHEVROLET, INC., Defendant-Appellee. No. 86-5086. United States Court of Appeals, Eleventh Circuit. May 20, 1988. Mark A. Cullen, Cullen & Szymoniak, P.A., Lake Worth, Fla., Michael Masinter, Ft. Lauderdale, Fla., for plaintiff-appellant. Terrence F. Dytrych, Slawson & Bur-man, Garry Russo, North Palm Beach, Fla., for defendant-appellee. Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and HENDERSON, Senior Circuit Judge. PER CURIAM: Shirley Huddleston appeals from the judgment of the United States District Court for the Southern District of Florida in favor of Roger Dean Chevrolet, Inc. (“RDC”) after a trial on the merits in this sexual harassment action brought pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Huddleston’s complaint alleged that she was the victim of sexual harassment while employed at RDC, that such sexual harassment caused her constructive discharge and that she suffered disparate treatment with respect to promotions, salary, job assignments and hours, disciplinary measures, vacation time and other benefits because of her sex. We affirm in part, and reverse and remand in part. Huddleston worked for RDC, a car dealership in West Palm Beach, Florida, as a sales representative from August, 1978 through October, 1981. She was the first woman to work in new car sales at RDC. The new car showroom operated on an “open floor” system, which allowed the first salesperson to reach the customer to make the sale. The district court observed that this system created an extremely competitive environment and earned RDC the reputation of being a “shark tank.” Shortly after Huddleston began working at RDC, Philip Geraci, a fellow sales representative, asked her if she thought he was good lookhjg'. When Huddleston replied ‘¡bat she djd not date men with whom she worked, geraci said, “We’ll get together and box you out. You’re going to be hurt.” “Boxing” occurs when salesmen cover every door to the showroom floor and prevent a new salesperson from meeting customers. Geraci and other salesmen engaged in this practice on several occasions. In addition to the “boxing,” Geraci and several other salesmen found other ways to interfere with Huddleston’s sales efforts. They expelled gas in her presence during her sales presentations. Additionally, Ger-aci and his “cronies” made derogatory comments to Huddleston, sometimes in the presence of customers, which included calling her a bitch and a whore. Huddleston’s appearance also was the subject of her coworkers’ ridicule. They teased her about her wig, threatening to pull it off and called her a “bald-headed woman with a wig.” Although RDC’s dress code required women to wear dresses or skirts, Huddleston obtained permission to wear slacks. This situation prompted the salesmen to remark, “We’re going to take your pants off and put a skirt on you,” and “we’re going to take your clothes off to see if you are real.” Ken Rummel, the sales manager, was present at sales meetings when these comments were made. There is some evidence that Gary Massey, the general manager, knew of these remarks as well. Huddleston complained to Massey about Geraci’s conduct at least twice. After the second complaint, Massey threatened to fire both Geraci and Huddleston if the problems continued. Geraci laughed at Massey’s warning. Rummel also talked with Geraci about his bickering with the appellant. During this discussion, Rummel indicated that he would fire Geraci the next time Huddleston complained, even if she was wrong. Eventually, RDC terminated Geraci’s employment. Geraci’s discharge, however, was not related to his conflict with the appellant. Rummel and Huddleston also experienced difficulties while employed at RDC. The evidence at the trial revealed that Rummel yelled at the appellant in front of other employees almost daily. He also grabbed her by the arm once and forcibly moved her a few feet. On one occasion Rummel suspended Huddleston for three days because she failed to “T.O.” a customer. “T.O.ing” requires a sales representative to bring a customer to the sales manager after the receipt of a signed buyer’s order and deposit. The district court found that this suspension was proper, given the importance of the procedure in the automobile business. The district court also observed that Rummel, because of his “sergeant-type” personality, yelled at everyone and frequently disciplined employees in an effort to maximize sales. Because of his problems with Huddle-ston, Rummel, according to his testimony, left RDC and accepted a job with a different dealership. After Rummel left RDC, Huddleston telephoned him to discuss renting his townhouse and to seek his advice on the merits of purchasing an ice cream truck for her daughter’s use in business. Huddleston testified that “things calmed down” at RDC after the departures of Ger-aci and Rummel. In 1981, the appellant, with the assistance of fellow sales representative William Foster, picked out an ice cream truck for her daughter. Foster’s wife was involved in a similar business. Apparently, the route Huddleston chose for her daughter overlapped the route utilized by Foster’s wife to some extent. Soon after the appellant purchased the truck, it was vandalized, and Huddleston received several threatening phone calls. During the trial, Huddle-ston testified that she believed Foster made these anonymous calls. A few weeks later, in October, 1981, Huddleston took a few days of sick leave to recover from a sinus infection. After three or four days away from the job, she was told to turn in her demonstrator. In the new car sales business, according to the unrebutted testimony, the taking of a demonstrator without replacement is tantamount to discharge. Although the appellant sought an explanation for this decision from Roger Dean, Massey and Richard Blanchard, the sales manager at that time, she received no response. Huddleston and Massey both testified that the appellant feared that, unless she resigned, Foster would be sent to tow her demonstrator, would damage it and she would be liable for the damage. Huddle-ston’s handwritten resignation letter, however, stated: “For mine and my daughter’s security (and safety) I respectfully submit my resignation, terminating my employment at Roger Dean Chevrolet. [Signed] Shirley Huddleston.” Although Massey did not ask her to stay, he testified that Huddleston could have remained if she had wished. After exhausting her administrative remedies, Huddleston filed this action in district court on April 3, 1983. The case was tried on December 3 and 4, 1984. The district court held that Huddleston failed to prove a prima facie case of sexual harassment. Alternatively, the district court concluded that even if the plaintiff had proved a prima facie case, she had not been constructively discharged; rather, she quit her job because of a private dispute with a fellow employee. The district court first held that Huddleston failed to establish a prima facie case of sexual discrimination based on sexual harassment. To establish a prima facie case under this theory, the plaintiff must prove that (1) she is a member of the protected group, (2) was the subject of unwelcome sexual harassment, (3) the harassment occurred because of her sex, (4) the harassment affected a “term, condition, or privilege” of her employment and (5) the employer knew, or should have known, of the harassment and failed to take remedial action. Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982). Although the district court determined that Huddleston made out a prima facie case on the first four Henson elements, it concluded that the appellant failed to prove the fifth, the respondeat superior requirement. Generally, to prove respondeat superior in a hostile work environment sexual harassment case, the plaintiff must demonstrate that the employer knew or should have known of the harassment and failed to take prompt action to remedy the violation. Henson, 682 F.2d at 905. The employee can show that the employer had knowledge of the harassment by proving that she complained to higher management of the problem or by demonstrating that the harassment was so pervasive that an inference of constructive knowledge arises. Id. In the instant case, the district court found that when Huddleston complained to Massey about Geraci’s behavior, RDC had notice of the harassment and was under a duty to take prompt remedial action. The district court concluded that RDC did take such remedial measures because both Massey and Rummel threatened to fire Geraci. Huddleston insists that this conclusion is erroneous because Massey threatened to fire her as well as Geraci if the bickering continued. Although we note that Massey’s response is problematic, Rummel’s admonition — that he would fire Geraci if Huddleston complained again, even if she was wrong — constitutes prompt remedial action for the harassment perpetrated by Geraci. The district court also found that Rummel, Huddleston’s supervisor, participated in and was aware of other harassment. This court has held recently that when a plaintiff’s alleged harasser acts as an agent of the employer, then the harasser is the employer for purposes of Title VII. Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1557-59 (11th Cir.1987). The decision in Sparks followed the Supreme Court’s endorsement of the application of common law agency principles in analyzing employer liability in sexual harassment cases. Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49, 63 (1986). In Sparks, the plaintiff’s supervisor, who had “actual and apparent authority to alter [the plaintiff’s] employment status — including authority to fire her,” sexually harassed the plaintiff. 830 F.2d at 1560. Under such circumstances, the plaintiff did not have to prove that the employer knew or should have known of the conduct: “This liability is direct; the employer cannot find shelter in the claim that it neither had notice of or approved of the unlawful conduct.” Id. at 1559, citing Vinson, 477 U.S. at 71, 106 U.S. at 2408, 91 L.Ed.2d at 63. Rummel’s participation in the sexual harassment of Huddleston was in the course of “exercispng] the authority delegated to him by his employer.” Sparks, 830 F.2d at 1559. When Rummel grabbed Huddleston by the arm and physically moved her a few feet, he berated her for her job performance. The district court concluded that this action created a hostile working environment and that it would not have occurred but for Huddleston’s sex. The district court also found that Rummel was present at sales, meetings when employees other than Geraci made derogatory comments about Huddleston that carried sexual connotations. Rummel supervised 20-40 employees and possessed the authority to fire Huddleston or otherwise alter her employment status. Thus, Sparks controls, and Huddleston made out a prima facie case against RDC for the sexual harassment attributable to Rummel. The district court held alternatively that, even if Huddleston proved a prima facie case of sexual harassment, she still could not prevail because she failed to prove that the discrimination caused her constructive discharge. As our following discussion demonstrates, the district court’s conclusion that Huddleston was not constructively discharged was not clearly erroneous. However, we disagree with the district court’s determination that, absent a showing of constructive discharge, the appellant is not entitled to relief under Title VII. It is well settled that a plaintiff who alleges discrimination by sexual harassment does not have to demonstrate a “tangible loss” of an “economic character” in order to prove a violation of Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-66, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49, 58 (1986); Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir.1982). Assuming the other Henson factors are satisfied, a plaintiff need only show that the pattern of sexual harassment subjects her to disparate treatment with respect to terms, conditions or privileges of employment. Henson, 682 F.2d at 902. The district court concluded that Huddleston made such a showing in this case. Huddleston does not seek reinstatement. Further, the district court correctly held that her evidence of lost commissions was too vague to provide a basis for the award of backpay. The prima facie case for sexual harassment attributable to Rummel, however, may entitle her to recover nominal damages and, thus, she could become eligible for an award of attorneys fees. Henson, 682 F.2d at 905. Accordingly, we must remand for proceedings on the question of damages resulting from Rummel’s participation in the harassment while he acted as an agent of RDC. Huddleston also claims that the sexual harassment she experienced at RDC became so intolerable that her resignation amounted to a constructive discharge. The dealership responds that Huddleston’s resignation resulted from a private dispute with Foster over the ice cream truck. A constructive discharge can result when “the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation....” Young v. Southwestern Savings & Loan Assoc., 509 F.2d 140, 144 (5th Cir.1975). If the intolerable working conditions are the result of a hostile environment caused by sexual harassment, then the constructive discharge violates Title VII. Henson v. City of Dundee, 682 F.2d 897, 907 (11th Cir.1982). Constructive discharge is a question of fact, which we review under the clearly erroneous standard. Wardwell v. School Bd. of Palm Beach Co., Fla., 786 F.2d 1554, 1557 (11th Cir.1986). The evidence before the district court supports its conclusion that Huddleston’s resignation was not the result of a constructive discharge. First, the appellant’s notice of resignation stated that she was quitting because she feared for her own and her daughter’s safety. Second, ample evidence supports the district court’s finding that Huddleston’s fears stemmed from the ice cream truck dispute. Huddleston testified that she thought that Foster made threatening telephone calls about the ice cream truck. Foster had participated in the harassment led by Geraci, so Huddleston’s decision to resign did have some connection to her employment. Still, the district court’s finding that the resignation was due primarily to the ice cream truck incident is a plausible interpretation supported by substantial evidence and is not clearly erroneous. See Baylor v. Jefferson Co. Bd. of Education, 733 F.2d 1527, 1532 (11th Cir.1984) (trial court’s finding, which constituted a choice between different interpretations that were each supported by the evidence, was not clearly erroneous). Huddleston maintains also that the recall of her demonstrator was tantamount to a notice of discharge. The record contains unrebutted testimony that, in the new car sales business, the retaking of an employee’s demonstrator is the equivalent of firing that employee. The appellant insists that RDC’s request that she turn in the demonstrator created intolerable working conditions that forced her to resign. See Young, 509 F.2d at 144. Although the retaking of the demonstrator could have been construed as an indication that Hud-dleston was no longer welcome at RDC, the district court properly reached the opposite conclusion. Huddleston’s resignation letter did not mention the retaking of the demonstrator as a reason for her decision; rather, it addressed only Huddleston’s concern for her daughter’s and her own safety. Given this substantial evidence and the trial court’s refusal to credit the appellant’s testimony that she resigned because of the sexual harassment, we cannot say that the district court clearly erred in determining that Huddleston was not constructively discharged. Finally, Huddleston alleges disparate treatment concerning promotions, salary, job assignments and shift hours, disciplinary measures, vacation time and other benefits. After carefully reviewing the record and the relevant law, we conclude that the district court did not err in finding these charges to be without merit. AFFIRMED in part, REVERSED in part and REMANDED for further proceedings not inconsistent with this opinion. . The record indicates that failure to T.O. was grounds for dismissal at another local dealership. . In a footnote, the district court observed that the demonstrator policies of two other local dealerships indicate that there are other reasons for a recall, for example, the sale of the demonstrator. . Title 42 U.S.C. § 2000e(b) provides in pertinent part: (b) the term employer means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.... (Emphasis added.) . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981. . The district court made this credibility choice because Huddleston’s principal antagonists, Rummel and Geraci, had left RDC several months before her resignation. 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_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 Frederick K. MOORE, Petitioner-Appellant, v. P. G. SMITH, Warden, U. S. Penitentiary, Terre Haute, Indiana, et al., Respondents-Appellees. No. 17246. United States Court of Appeals Seventh Circuit. June 16, 1969. Rehearing Denied July 14, 1969. Frederick K. Moore, pro se. K. Edwin Applegate, U. S. Atty., David L. Casterline, Asst. U. S. Atty., Indianapolis, Ind., for appellee. Before CUMMINGS and KERNER, Circuit Judges, and HOFFMAN, District Judge. . Judge Hoffman is sitting by designation from the United States District Court for the Northern District of Illinois. CUMMINGS, Circuit Judge. Petitioner’s application for habeas corpus raises various questions concerning the validity, timeliness and efficacy of a mandatory release violator’s warrant issued by the United States Board of Parole. In an unreported memorandum opinion, the district court held that petitioner was not entitled to relief and therefore granted the Government’s motion for summary judgment. Petitioner’s pro se appellate briefs evidence a thoughtful attempt to present the relevant judicial authorities in á complex area of statutory regulation. Unfortunately, the opposing brief has chosen not to meet the significant questions raised by this appeal. On January 16, 1959, petitioner received consecutive 5- and 3-year sentences after pleading guilty to two counts of an indictment charging him with having conspired to transport counterfeit securities, in violation of 18 U.S.C. §§ 371 and 2314. In April 1964, after five years and three months’ imprisonment, he was given a so-called “mandatory release” pursuant to 18 U.S.C. § 4163, thus making him the equivalent of a parolee under 18 U.S.C. § 4164. On November 30, 1965, petitioner was arrested and arraigned before the United States Commissioner in Cleveland for violating 18 U.S.C. § 2314 by transporting counterfeit securities. Fourteen days after his arrest, a mandatory release violator’s warrant was issued by the United States Board of Parole, commanding that the warrant be executed by taking petitioner into custody “until he has been afforded a preliminary interview with a person designated by the Board of Parole and until authorized to transport him as ordered.” The reason given for the issuance of the warrant was that “reliable information has been presented to the undersigned Member of this Board that said prisoner named in this warrant has violated the conditions of release.” According to its face, the warrant was received by the United States Marshal in Cleveland on December 15, 1965. Early in January 1966, petitioner was released on bond for the November 1965 offense. He remained under the supervision of the local Parole Office until March 31, 1966, when a two-count indictment was returned and the bond raised and he was placed in the custody of the United States Marshal and detained in the Cuyahoga County jail in Cleveland. On October 31, 1966, petitioner pled guilty to violating 18 U.S.C. § 2314 and the general conspiracy provision (18 U.S.C. § 371), was sentenced to three-year concurrent sentences on these two counts and commenced serving those sentences. One day later, the district court found, the mandatory release violator’s warrant was returned to the United States Board of Parole unexecut-ed. The court also found that on February 6, 1967, the warrant was lodged as a de-tainer at the Federal Penitentiary at Terre Haute, Indiana, where petitioner was serving the 1966 sentences. According to his briefs in this Court, this was the first time that petitioner was informed that such a warrant had issued. The warrant was executed on April 21, 1968, when petitioner’s 1966 sentences expired. Petitioner thereupon commenced serving a new term of 1011 days under the 1959 sentences. On June 4, 1968, after the customary hearing, his 1964 parole was revoked. The district court held that where, as here, a mandatory release violator’s warrant was issued because of a “parolee’s” arrest for a crime, it need not contain a statement of the reasons for seeking parole violation. The court also held that the warrant was timely issued and that there was no undue delay in holding the parole revocation hearing. Since no factual matters were controverted, summary judgment was entered for the Government. Petitioner asserts that the failure to execute the concededly timely issued warrant prior to the expiration of the 1966 sentences on April 21, 1968, deprived the Parole Board of jurisdiction over him by reason of the intervening expiration of the maximum term of his 1959 sentences. He alternatively asserts that the delay in execution of the warrant deprived him of due process by requiring him to serve the remainder of his 1959 sentences consecutively to the 1966 sentences. However, 18 U.S.C. § 4205 requires only that issuance take place within the maximum term of the sentence, and therefore the Courts of Appeals have uniformly held that as long as a mandatory release violator’s warrant is issued prior to the expiration of the maximum sentence from which the violator was released under Í8 U.S. C. § 4163, the execution of the warrant may take place after the expiration of the maximum sentence. Here the warrant was issued on December 14, 1965, which was long prior to the July 19, 1966 date on which petitioner contends his 1959 sentences expired. Even if we were to agree that the period during which petitioner was free on bond pending disposition of the 1965 charges should be counted in determining whether the maximum term of his 1959 sentences had expired, it is clear that upon his return to the Cuyahoga County jail on March 31, 1966, he was incarcerated by reason of the intervening 1965 offense and not by reason of the violation of the terms of his release from the earlier sentences. The effect of such incarceration was to toll the running of the maximum term of the 1959 sentences. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. This rule is reinforced by 18 U.S.C. § 4205, which makes clear that the unexpired term of imprisonment of a mandatory release violator runs from the date he is returned to the custody of the Attorney General “under said warrant.” Here the petitioner was not deprived of his liberty by reason of the violator’s warrant until the warrant was executed upon the expiration of the intervening prison term. To avoid the thrust of the authorities collected in note 4, petitioner asserts that the delay in execution of the warrant constituted a waiver of jurisdiction or a confession that no violation had in fact occurred. He argues from this that summary judgment was improper and that he is entitled to a hearing on this question of fact. But the settled administrative practice of lodging a warrant as a detainer following the conviction and commitment to prison for a crime committed while on release rather than interfering with the orderly procedure of trial by executing the violator’s warrant, negatives any inference of intentional waiver or confession of error. It is fanciful to suppose that by allowing the suspected parole violation to ripen into a criminal conviction with all the safeguards such proceedings entail, the Parole Board can be held to have waived its authority to impose a penalty for violation of the terms of release. As Mr. Justice Black has noted: “Unless a parole violator can be required to serve some time sometime in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified.” Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S.Ct. 872, 874, 82 L.Ed. 1399. The delay caused by the Board’s preference for basing a parole revocation on a criminal conviction rather than on its own finding that a crime has been committed does not connote an admission that no ground existed for believing a violation had occurred prior to the issuance of the warrant. Petitioner complains that the lack of notice of the existence of the warrant until February 1967 disabled him from bringing to the sentencing judge’s attention the likelihood that he would be returned to prison to serve the balance of his prior sentence, thus foreclosing the judge from providing that the new sentence should run concurrently with the balance of the prior sentence. However, the Parole Board has sole authority to determine whether the balance of the prior sentence should be served as a penalty for the violation on release. Zerbst v. Kidwell, supra. It would thus be beyond the power of the district judge to revive the prior sentence and require that it be served concurrently with the new sentence. Tippitt v. Wood, 78 U.S.App.D.C. 332, 140 F.2d 689, 692 (1944); United States ex rel. Quinn v. Hunter, 162 F.2d 644, 648 (7th Cir. 1947). Nor does the Parole Board have any obligation to execute its warrant during the term of a subsequent sentence so as to make the two terms concurrent. Neal v. Hunter, 172 F.2d 660 (10th Cir. 1949). It is true that the sentencing judge, if apprised of the pendency of the violator’s warrant, could have chosen to shorten the new sentence to take account of the balance of the prior sentence remaining to be served. But since petitioner received a much shorter sentence for the same type of offense in 1966 than he had in 1959 and since the total sentence imposed in 1966 was only slightly longer than the 1011 days remaining to be served on the 1959 sentence, it seems highly unlikely that the sentencing judge could have been persuaded to reduce the length of the new sentence. Indeed, the record does not disclose whether the sentencing judge was even aware of the fact that this was petitioner’s second offense, a fact which might have weighed against petitioner in the sentencing process rather than in his favor. In any event, such questions of reduction of sentence were for the sentencing court rather than for court in which habeas corpus is sought. See Mock v. United States Board of Parole, 120 U.S.App.D.C. 248, 345 F.2d 737, 739 (1965). The record reveals no attempt by petitioner to bring the existence of the warrant to the attention of the sentencing court by way of a motion for reduction of sentence, and if such a motion was made, that would in itself undercut petitioner’s claim of prejudice. In addition, the Regulations clearly provide that upon the lodging of a detainer the prisoner shall be advised that he may communicate with the Board relative to the disposition of the warrant. 28 C.F.R. § 2.37(c). In view of the pleas of guilty which petitioner entered to the 1965 charges, he is not in the position of the petitioners in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963) (en banc), certiorari denied, Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316, who were charged with unspecified parole violations other than crimes and complained of the absence of an opportunity to receive a hearing on the nature and truth of the charges before being returned to prison. Petitioner cannot sleep on his administrative remedies for fear that he has no case and then claim prejudice by reason of the passage of time. No claim is made here that upon execution of the warrant the Parole Board did not promptly convene a hearing on the revocation of petitioner’s release. Relying on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963) (en banc), certiorari denied, Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316, petitioner next argues that the warrant was invalid on its face for want of a specific statement of the facts which formed the basis for its issuance. Of course, as the district court noted, the obvious reason for the issuance of the warrant was petitioner’s arrest two weeks beforehand for a fresh violation of the statute prohibiting transportation of counterfeit securities. Petitioner asserts that the validity of the warrant must be judged as of the time it was issued and cannot be sustained by reference to the fact that petitioner subsequently pled guilty to the crimes for which he was arrested. This argument was rejected by this Court in Starnes v. Markley, 343 F.2d 535 (7th Cir. 1965), certiorari denied, 382 U.S. 908, 86 S.Ct. 246, 15 L.Ed.2d 160, where parole violations other than crimes were admitted by the petitioner after the warrant had been issued and executed. The Court noted that the requirement in Hyser v. Reed, that the warrant contain a statement of the basis for its issuance would not apply strictly to situations where the violations were admitted or evidenced by a criminal conviction. See Mock v. United States Board of Parole, 120 U.S.App.D.C. 248, 345 F.2d 737, 738 (1965). We note the statement of Judge Burger in the Hyser case that in regard to the administrative warrants employed by the Parole Board “Congress evinced no intent to require precisely the same formalities and safeguards as to those contained in the Constitution for criminal arrests.” 318 F.2d at 241. We hold only that in view of the facts that the warrant in the present case was lodged as a detainer after petitioner’s guilty pleas and conviction for crimes committed while on release from his previous sentence and that the warrant was executed only after the expiration of the intervening sentence, petitioner sustained no prejudice by the failure of the warrant to name the intervening crime as the cause for issuance of a violator’s warrant. On the special facts of this case we do not find prejudicial error in the deficiencies in the warrant, although it would seem that in the normal case due process would require (and the Parole Board would be well advised to insure) that a parolee, probationer, or mandatory releasee be given notice in the warrant of the nature of the alleged violation and of the “reliable information” upon which issuance of the warrant was based. See Hyser v. Reed, supra, at pp. 243, 245. Petitioner’s remaining contention that 18 U.S.C. § 4205 is unconstitutional insofar as it requires him to reserve the time spent on release was pre- viously rejected by this Court in Dolan v. Swope, 138 F.2d 301 (7th Cir. 1943), and we see no reason or intervening change in the law requiring us to depart therefrom. See Weathers v. Willingham, 356 F.2d 421 (10th Cir. 1966); O’Callahan v. Attorney General of United States, 351 F.2d 43 (1st Cir. 1965) (per curiam), certiorari denied, 382 U.S. 1017, 86 S.Ct. 632, 15 L.Ed.2d 531. Affirmed. . Apparently because of an ambiguous assertion on p. 3 of the habeas corpus petition, the district court found that petitioner first learned of the existence of the warrant “in February of 1968.” . 18 U.S.C. § 4205 provides that a prisoner’s unexpired term shall begin to run from the date he is returned to custody under a mandatory release violator’s warrant. According to this statute, his time on parole does not diminish the time he was sentenced to serve. . See Shelton v. United States Board of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567, 570-571 (1967); Castillo v. United States, 391 F.2d 710 (2 Cir. 1968); Stockton v. Massey, 34 F.2d 96 (4th Cir. 1929); Tirado v. Blackwell, 379 F.2d 619 (5th Cir. 1967), certiorari denied, 390 U.S. 992, 88 S.Ct. 1186, 19 L.Ed.2d 1301; United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6th Cir. 1944), certiorari denied, 322 U.S. 751, 64 S.Ct. 1262, 88 L.Ed. 1581; Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967); Schiffman v. Wilkinson, 216 F.2d 589 (9th Cir. 1954), certiorari denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719; Robinson v. Willingham, 369 F.2d 688 (10th Cir. 1966). Consistently with these cases, the Parole Board, as here, may follow the procedure of lodging a detainer and executing the warrant after the expiration of the new sentence being served by the prisoner. See Mock v. United States Board of Parole, 345 F.2d 737, 739 (1965), and 28 C.F.R. §§ 2.37 and 2.38. Taylor v. Simpson, 292 F.2d 69S (10th Cir. 1961), on which petitioner relies, does not require early execution of the warrant. . This date accords with the petitioner’s contention that by virtue of 18 U.S.C. § 4205, read in conjunction with 18 U.S.C. § 4164, the Board of Parole has no jurisdiction to issue a violator’s warrant during the last 180 days of the mandatory release period. This view was accepted in Birch v. Anderson, 123 U.S.App.D.C. 153, 120 U.S.App.D.C. 248, 358 F.2d 520 (1965), and rejected in Schiffman v. Wilkinson, 216 F.2d 589 (9th Cir. 1954), certiorari denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719. In view of the fact that the warrant in the present case was issued more than 180 days prior to the expiration of the maximum 1959 sentences and our holding that incarceration for the 1965 offense tolled the running of the period during which the warrant could be executed, we need not intimate any view on this conflict of authority. See Castillo v. United States, 391 F.2d 710, 711, note 3 (2d Cir. 1968). 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_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. Richard ROMANI, Plaintiff, Appellant, v. SHEARSON LEHMAN HUTTON, et al., Defendants, Appellees. No. 90-2101. United States Court of Appeals, First Circuit. Heard March 4, 1991. Decided April 8, 1991. Edward Manchur with whom David Pastor, Kenneth Gilman, and Gilman and Pastor were on brief, for plaintiff, appellant. John J. Kenney with whom Jay S. Hand-lin, Simpson Thacher & Bartlett, Gerald F. Rath, and Bingham Dana & Gould were on brief, for defendants, appellees, Shearson Lehman Hutton, Inc., Shearson Lehman Bros. Partnership Services, Inc. and Lana Lobell Income Partners II. Richard M. Goldstein, with whom Shea & Gould, Mark A. Michelson, Sarah Chapin Columbia and Choate, Hall & Stewart, were on brief, for Touche Ross & Co. Before CAMPBELL and CYR, Circuit Judges, and COFFIN, Senior Circuit Judge. COFFIN, Senior Circuit Judge. Appellant Richard Romani brought this securities fraud action on behalf of himself and a class of persons consisting of all similarly situated investors in a horsebreed-ing limited partnership. Romani alleged that the defendants — varied individuals and entities responsible for the partnership’s public offering — fraudulently induced investments through misrepresentations and omissions in the offering materials that falsely inflated the partnership’s financial potential. The district court dismissed one federal claim on statute of limitations grounds and another for failure to plead with sufficient particularity under Rule 9(b) of the Federal Rules of Civil Procedure. Having rejected both federal claims, the court concluded that the pendent state claims also should be dismissed. Romani appeals only the Rule 9(b) dismissal of his claim asserted under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder, and the concomitant dismissal of his state law claims. He further argues that he should have been granted leave to amend his dismissed complaint. We conclude that the district court correctly decided these issues, and therefore affirm. I. Background Lana Lobell Income Partners II Limited Partnership (“Lana Lobell II” or the “partnership”) was formed in 1986 to allow interested individuals to invest in the stan-dardbred horsebreeding business. The partnership planned to buy standardbred horses with the funds contributed by limited partners and eventually to distribute profits from the later sale of the horses. The partnership was to be directed by two individual managing general partners, defendants Alan J. Leavitt and Jack E. Ro-senfeld, and was to conduct business through the facilities of defendant Lana Lobell Farms, Inc., the horse farm owned by Leavitt and Rosenfeld. On April 24,1986, Lana Lobell II publicly offered for sale 9,700 limited partnership units pursuant to a Registration Statement and Prospectus. Defendant Shearson Lehman Hutton, Inc., was the exclusive selling agent for the public offering and defendant Shearson Lehman Brothers Partnership Services, Inc. was the associate general partner of the partnership. Defendant Touche Ross & Company, a public accounting firm, prepared a report that was included in the offering materials. Plaintiff bought five partnership units on May 7, 1986, at $1,000 per unit. In July 1986, a brief prospectus supplement was published stating that as of August 1, 1986, the day after the offering closing date, Rosenfeld would be withdrawing “from ownership and management of the operations of Lana Lobell Farms.” The supplement further stated, however, that Rosenfeld would “continue as a Managing General Partner of the Partnership” and that “his departure should not impact the day to day operations” of Lana Lobell Farms or the partnership. Appellant’s return on his investment did not meet the predictions made in the offering materials. Instead of expected cash distributions in excess of 13%, the yields in 1987 and 1988 were approximately to 3%. In March 1989, the limited partners were told that an affiliate of Lana Lobell Farms (that partially owned some of the partnership horses) recently had filed for protection under Chapter 11 of the Bankruptcy Code following two years of cash flow problems. As a result of this poor financial performance, on July 31, 1989, Romani filed the instant action. Before defendants responded to the original complaint, he filed an amended version. Count I of that amended complaint alleged that the defendants’ false and incomplete statements regarding the partnership constituted intentional securities fraud in violation of section 10(b) of the Securities Exchange Act and its associated regulation, Rule 10b-5. Counts II and III, which are not involved in this appeal, alleged additional violations of federal law. Counts IY through YII alleged pendent state claims for common law fraud and deceit, breach of fiduciary duty and gross negligence. In numerous paragraphs of the amended complaint, plaintiff refers to statements from the offering materials that depict in glowing terms the goals and financial potential of the partnership and the qualifications of the managing general partners, Leavitt, Rosenfeld and Lana Lobell Farms. According to plaintiff, these statements touting the preeminence of Lana Lobell Farms and its managers in the standard-bred breeding industry were false misrepresentations designed to lure investors. The claim of misrepresentation was linked to four material adverse facts about the partnership that Romani claims were deliberately withheld from him and other class members: (1)That the poor financial condition of Lana Lobell Farms and their affiliates made Partnership objectives and financial projections unrealistically optimistic and unattainable; (2) That the departure of Rosenfeld, contrary to the Defendants’ misrepresentations, was a major loss to the Partnership, in terms of financial management, expertise, capital and other resources, and although he was listed as a Managing General Partner of the Partnership, he actually had no substantive responsibilities, duties, or participation in its management; (3) That the standardbred horse industry, in general, and Lana Lobell Farms, in particular, was entering a recessionary period and, thus, representations made to investors which were largely based on past performance which occurred amidst dramatically more favorable operating conditions and markets, were materially false, misleading, and deceptive; and (4) That the managing general partners, after selling their interests out to the Partnership during the public offering period at extremely favorable prices, had no incentive to produce positive results, meet Partnership objectives, or generate the type of attractive financial returns which were represented to investors in the offering materials. Complaint at 1147. Defendants moved for dismissal, arguing, inter alia, that the complaint failed to satisfy the requirement of Fed.R.Civ.P. 9(b) that fraud claims be pleaded with particularity. In granting dismissal of the section 10(b) claim, the district court concluded that the complaint insufficiently specified the nature of the alleged wrongdoing and failed “to delineate the particular part each defendant played in the alleged fraud,” making it impossible for the defendants to respond adequately to the charges against them. The court held that plaintiff’s “ ‘shoot for the moon’ pleading directly violates the Rule 9(b) requirement that each defendant’s role in the alleged fraud be particularized,” Opinion at 5 (quoting Konstantinakos v. FDIC, 719 F.Supp. 35, 39 (D.Mass.1989)). On appeal, Romani argues that his Amended Complaint was sufficiently particular to place the appellees on notice of the conduct with which they were charged and to permit them to frame responsive pleadings, thereby satisfying Rule 9(b). He further claims that, in light of the pre-discovery stage of the case, the court erred in applying an excessively strict particularity standard with respect to the role played by each defendant in the alleged wrongdoing. He also argues that, even if dismissal were proper, the court abused its discretion in failing to grant leave to amend. Finally, appellant contends that dismissal of the pendent state claims was improper because it was based on the erroneous dismissal of his federal claim. II. Discussion It is well settled that Rule 9(b) requires the plaintiff in a securities fraud case to specify the time, place and content of an alleged false representation. Wayne Investment v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir.1984). Although a plaintiff need not specify the circumstances or evidence from which fraudulent intent could be inferred, the complaint must provide some factual support for the allegations of fraud, id.; New England Data Services, Inc. v. Becker, 829 F.2d 286, 288 (1st Cir.1987). The requirement that supporting facts be pleaded applies even when the fraud relates to matters peculiarly within the knowledge of the opposing party. Wayne Investment, 739 F.2d at 13-14, quoted in New England Data, 829 F.2d at 288. Romani argues that his complaint satisfies the requirements of Rule 9(b) because it identifies the offering materials as the “time and place” of the allegedly false and misleading representations and provides “significant detail” about the material omissions on which his claim of fraud principally relies. We disagree. It is true that the complaint isolates the offering materials as the source of the alleged fraud, and this reference probably is sufficient to identify the time and place of the alleged misrepresentations. See Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986). Romani also argues with some force that he has identified the “content” of the asserted fraud adequately by pointing to the statements in the offering materials unreservedly extolling the quality and potential of the partnership and to the allegedly undisclosed contrary fact that there was trouble afoot. Whether or not the time, place and content specificity is met, however, the complaint nevertheless is deficient because the allegations of fraud are entirely unsupported. The complaint contains no factual allegations that would support a reasonable inference that adverse circumstances existed at the time of the offering, and were known and deliberately or recklessly disregarded by defendants. Where allegations of fraud are explicitly or, as in this case, implicitly, based only on information and belief, the complaint must set forth the source of the information and the reasons for the belief. New England Data Services, 829 F.2d at 288; Wayne Investment, 739 F.2d at 13; Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir.1985). We have been especially rigorous in demanding such factual support in the securities context to minimize the chance “that a plaintiff with a largely groundless claim will bring a suit and conduct extensive discovery in the hopes of obtaining an increased settlement, rather than in the hopes that the process will reveal relevant evidence,” New England Data Services, 829 F.2d at 288 (citing Wayne Investment, 739 F.2d at 13). See also Konstantinakos, 719 F.Supp. at 38 (“The rule is especially important in securities fraud cases where the strike suit value of a complaint is high.”) The only statement in the complaint sufficiently factual to provide support for the fraud claim concerns plaintiffs first alleged material omission, that Lana Lobell Farms was in poor financial condition. Paragraph 44 quotes a statement from the partnership’s 1988 10-K form referring to a two-year-old cash flow problem at an affiliate of Lana Lobell Farms. But this document was released in March 1989, nearly three years after the offering materials were disseminated. Even if we view the statement as operative at the end of the fiscal year, December 31, 1988, the two-year period still reaches back only to a time months after the offering closed. Indeed, for the partial year in which the partnership operated in 1986, the complaint alleges that the limited partners received cash distributions representing nearly a 20% annualized cash yield. See Complaint at 1142. Such a return on investment appears to negate plaintiff’s assertion that the partnership already was on shaky financial ground in mid-1986 and that defendants knew this. None of plaintiff’s other asserted material omissions is supported by any allegations of fact. The claim that Rosenfeld’s departure from Lana Lobell Farms was a major loss to the partnership is wholly undeveloped. The complaint fails to specify any connection between Rosenfeld’s role and the partnership’s ability to reach its profitability goals, and there is no reference to how his departure related to Lana Lobell II’s disappointing performance. The third assertedly omitted fact — that the standardbred horse industry was entering a recessionary period, making past performance an imperfect indicator of the future — cannot fairly be termed an omission, let alone a fraudulent one. The Touche Ross report attached to the Prospectus detailed a number of specific problems facing the standardbred industry, including overbreeding, declining attendance at races and an average decline in yearling prices. See Appendix to Touche Ross report at 3, 1-4. The offering materials are replete with statements, some highlighted, emphasizing the high risks associated with Lana Lobell II and that “[tjhere can be no assurance that the investment objectives of the Partnership will be attained.” See, e.g., Prospectus at 1, 9, 26-27, 40-42, 44. Thus, although the offering materials were optimistic about the prospects for Lana Lo-bell II, the documents unquestionably warned potential investors in a meaningful way that economic conditions in the horse-breeding industry were uncertain. Documents such as this, which “clearly ‘bespeak caution,’ ” are not the stuff of which securities fraud claims are made, Luce, 802 F.2d at 56. See also Andreo v. Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, 651 F.Supp. 877, 881 (D.Conn.1986). The final alleged omission, that the managing general partners Leavitt and Rosenfeld had no incentive to produce positive results for the partnership, similarly is not properly characterized as an omission. The offering materials informed investors that, as part of the partnership transaction, Leavitt and Rosenfeld would be selling their horses to Lana Lobell II. Whether such a change in their relationship to the horses and Lana Lobell Farms was likely to reduce their motivation thus was a matter that each investor presumably would have considered before deciding to purchase units in the partnership. Moreover, plaintiff’s complaint contains no allegations permitting an inference that Leavitt and Rosenfeld, in fact, failed fully to perform their obligations to the partnership, causing the poor results. The inadequacy of plaintiff’s complaint is highlighted when it is contrasted with allegations offered by plaintiffs in other securities fraud cases. For example, in Luce, 802 F.2d at 55, plaintiffs claimed fraud in the solicitation of investors for a real estate partnership. Although some portions of the plaintiff’s complaint were dismissed because the allegations were “entirely con-clusory and unsupported by assertions of fact,” id. at 54, other portions based on specific facts survived. The allegations deemed sufficient to deflect a Rule 9(b) dismissal included: (1) that the general partners contributed only approximately $80,000 to the partnership despite a representation in the Offering Memorandum that they would make capital contributions of $385,000; (2) that the general partners entered into an agreement to transfer their partnership interests without the knowledge and consent of the limited partners, in direct contravention to representations made in the Memorandum, and (3) that the general partners collected management fees from the partnership for well over one year despite a representation that the fees would be collected for only one year. Id. at 55-56. In another Second Circuit case, DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1248 (2d Cir.1987), the plaintiff claimed on information and belief that the defendants in their Offering Memorandum falsely had stated that the General Partner intended to observe the high standards required of it as a fiduciary. This belief was supported by allegations that defendants failed to maintain segregated accounts for their various ventures and actually siphoned the limited partners' funds into other ventures. DiVittorio also alleged that the memorandum estimated that the partnership’s properties contained nearly 9.3 million tons of coal, substantially more than in fact existed. In Hurley v. FDIC, 719 F.Supp. 27 (D.Mass.1989), the complaint alleged that a bank’s financial reports were fraudulent because they did not take into account numerous problem loans. The complaint contained many details about specific delinquent loans, the bank’s net worth and its reserves for potential loan losses. Id. at 31. See also Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1440 (9th Cir.1987) (“The complaint specified the exact dollar amount of each alleged overstatement, and the manner in which such representations were false and misleading.”). In each of these cases, the plaintiffs alleged in some detail the facts and figures upon which their claims of misrepresentation were based. Romani’s complaint is comparatively barren. In essence, he speculates that defendants committed fraud based solely on the partnership’s failure to be as profitable as the offering materials indicated was possible. Were such a pleading deemed sufficient, the advent of a recession could be expected to trigger a multitude of complaints in which plaintiffs seek to impose liability for their financial disappointments based on entirely fabricated scenarios of fraud. Without any shred of factual support for plaintiff’s hypothetical tale of deception, we are faced with precisely the sort of fishing expedition for fraud that Rule 9(b) is designed to prevent. See Wayne Investment, 739 F.2d at 14. As we previously have observed, “ ‘the rule does not permit a complainant to file suit first, and subsequently to search for a cause of action,’ ” Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.1985) (quoting Lopez v. Bulova Watch Co., Inc., 582 F.Supp. 755, 766 (D.R.I.1984)). Accordingly, because plaintiff’s allegations do not meet the Rule 9(b) threshold, we affirm the district court’s judgment dismissing Count I of plaintiff's complaint for lack of particularity. III. Leave to Amend Plaintiff claims that the district court erred in dismissing his complaint without granting him leave to amend. The decision whether to allow amendment of a pleading is a matter within the discretion of the district court, and we will reverse only for an abuse of that discretion. Kennedy v. Josephthal & Co., 814 F.2d 798, 806 (1st Cir.1987). We find no such abuse in this case. Indeed, plaintiff’s failure to move for leave to amend arguably precludes us from reviewing the decision to dismiss with prejudice. See Wayne Investment, 739 F.2d at 15. We are unpersuaded by plaintiffs argument on appeal that his general opposition to defendants’ motions to dismiss — which sought dismissal with prejudice — adequately apprised the district court of his claimed entitlement to an opportunity to amend. Plaintiff’s silence may well have been viewed by the court as an implicit concession that he had nothing to add to his allegations. Even at oral argument before this court, plaintiff failed to indicate specifically how he would amend the complaint so as to comply with Rule 9(b). On this record, with neither an express request to the district court for leave to amend nor any indication that successful amendment is possible, we have no basis on which to upset the district court’s exercise of discretion. For the foregoing reasons, the judgment of the district court is AFFIRMED. . Plaintiff argues for the first time on appeal that Rule 9(b) should not be applied to claims under the federal securities laws. It is by now "axiomatic that an issue not presented to the trial court cannot be raised for the first time on appeal.” Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979); Boston Celtics Ltd. Partnership v. Shaw, 908 F.2d 1041, 1045 (1st Cir.1990). We therefore decline to consider the argument beyond noting that, at least facially, it appears meritless. . At page 26, under the heading "Risk Factors,” the Prospectus stated that “it is impossible to predict with any certainty the future economic trend of the Standardbred industry as a whole.” . Although plaintiff did not attach a copy of the offering materials to his complaint, defendants submitted the documents with their motions to dismiss. This step was proper and did not convert the motion to dismiss into a motion for summary judgment. See Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1015 (1st Cir.1988) (" 'when plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading’ ”) (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1327 at 762-63 (1990)). . Our discussion makes it unnecessary to address any other pleading deficiencies, including the one emphasized by the district court — that the complaint does not delineate the particular part each defendant played in the alleged fraud. We note, however, that at least with respect to certain defendants, we are in agreement with the district court. Other defendants may be subject to suit on a less demanding standard. See Ouaknine v. MacFarlane, 897 F.2d 75, 80 (2d Cir.1990) (reference to an Offering Memorandum satisfies 9(b)’s requirement of identifying time, place, speaker, and content of representation with respect to particular defendants who are insiders or affiliates participating in the offer of securities). . Although plaintiff’s counsel stated that he did have information that could be added to the complaint, particularly concerning the financial condition of Lana Lobell Farms, he offered no specifics. . Because the district court properly dismissed plaintiff’s federal securities claim, it correctly declined to exercise pendent jurisdiction over his state law claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Monahan's Marine, Inc. v. Boston Whaler, Inc., 866 F.2d 525, 530 (1st Cir.1989). Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_state	14	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Ronald JARRETT, Defendant-Appellant. No. 81-2565. United States Court of Appeals, Seventh Circuit. Argued Sept. 13, 1982. Decided April 5, 1983. Rehearing and Rehearing En Banc Denied June 8, 1983. John W. Conniff, Chicago, 111., for defendant-appellant. William C. Bryson, Dept, of Justice, Washington, D.C., for plaintiff-appellee. Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. The Honorable Edward Dumbauld, United States Senior District Judge for the Western District of Pennsylvania, is sitting by designation. HARLINGTON WOOD, Jr., Circuit Judge. This appeal, raising a variety of issues, arises from a jury conviction under 18 U.S.C. § 1951 (“the Hobbs Act”) for the armed robbery of Alfred’s Orange Blossom Jewelers (“Orange Blossom”) in Oak Lawn, Illinois, on December 15, 1977. The court sentenced Jarrett as a dangerous special offender under 18 U.S.C. § 3575 to twenty-five years imprisonment. I. Jurisdiction Jarrett asserts that the federal government lacked both constitutional power and statutory authority to prosecute him for the robbery of the Orange Blossom. According to Jarrett, the Hobbs Act does not permit the federal government to bring a criminal prosecution for a local robbery of a retail store upon a de minimis showing of effect on interstate commerce. Jarrett argues that, although the de minimis standard applies in extortion cases under the Hobbs Act, a more exacting standard should apply in robbery cases because of constitutional limits on the power of the federal government imposed by the reservation of power to the states to prosecute traditionally local offenses under the Tenth Amendment. Jarrett points out that traditionally robbery is a local offense whereas extortion is not. Thus, Jarrett concludes, the government failed to establish Hobbs Act jurisdiction in this case because, “of the $38,952.03 listed stolen, the Government proved that about $2,000 worth of interstate commerce was ‘affected,’ ” a figure which establishes only a de minimis effect on commerce. An examination of the statutory language of the Hobbs Act, the legislative history of the Act, the cases interpreting the Act, and the cases which examine the Tenth Amendment refute this position. Nothing on the face of the Hobbs Act indicates a congressional intent to define the phrase “affects commerce” more narrowly with respect to the offense of robbery as opposed to the offense of extortion. To the contrary, the statute places robbery and extortion on equal ground regarding the jurisdictional requirement of affecting commerce. Such equal placement and treatment provides strong evidence that Congress intended the use of the same standard in determining effect on commerce by robbery or extortion. The legislative history provides no support for Jarrett’s contentions. Congress clearly intended to define as a federal crime conduct that it recognized as punishable under state law. United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978). The legislative debates contain numerous statements to the effect that the conduct reached by the Hobbs Act was already subject to punishment under state robbery and extortion statutes. Representatives who opposed the Hobbs Act contended that the Act interfered with the rights of the states. In passing the bill, however, Congress concluded that “the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.” United States v. Culbert, 435 U.S. 371, 380, 98 S.Ct. 1112, 1117, 55 L.Ed.2d 349. Contrary to Jarrett’s position, Congress perceived both extortion and robbery to be crimes traditionally subject to state prosecution. Jarrett cites no case which distinguishes between the degree to which commerce must be affected for purposes of invoking federal jurisdiction for a charge of robbery and for a charge of extortion under the Hobbs Act. Courts draw no such distinction and require only a de minimis effect for robbery as well as extortion. In Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), an extortion prosecution, the Court stated that the Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Reaffirming this view in United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978) (extortion prosecution), a unanimous Supreme Court said: the statutory language [of the Hobbs Act] sweeps within it all persons who have “in any way or degree... affect[ed] commerce... by robbery or extortion.”... These words do not lend themselves to restrictive interpretation; as we have recognized, they “manifest... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Id. at 373, 98 S.Ct. at 1113. In a Hobbs Act robbery prosecution, United States v. Caldarazzo, 444 F.2d 1046 (7th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971), this circuit drew no distinction between the jurisdictional requirement for robbery and extortion cases. In Caldarazzo, we ruled that “[t]he Hobbs Act provides federal sanctions for robbery which ‘in any way or degree obstructs, or delays, or affects commerce or the movement of any article or commodity in commerce.’ ” Id. at 1048-49. We have previously held in an extortion case that “the commerce element [of the Hobbs Act is] satisfied where the actual impact on commerce is de minimis,... or where, in the absence of proof of an actual impact, there is a realistic probability that the extortionate transaction will have some effect on interstate commerce.” United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Thus, in light of Caldarazzo and Hedman, we hold that the de minimis standard applies to robbery cases under the Hobbs Act. The Eighth Circuit, in Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941), addressed a Tenth Amendment attack on the validity of the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, 18 U.S.C. §§ 420a-420e (the predecessor to the Hobbs Act). In upholding the validity of the Act, the court, 122 F.2d at 668, explained as follows: The argument as to the Tenth Amendment is that this Act undertakes to invade State jurisdiction and deal with domestic violence — in short, is an attempt to exercise the police power reserved to the States under the Amendment. Clearly this is not true. The Act is an exercise of police power but it is based upon the protection of interstate commerce. If it comes within the commerce clause of the Constitution it is not open to this objection. If it does not come within the commerce clause it would be invalid whether it involved an exercise of police power or not. That the Act is within the commerce clause seems clear.... Similarly, the Ninth Circuit in Carbo v. United States, 314 F.2d 718, 733 (9th Cir.1963) held that the Hobbs Act is within the power of Congress and does not contravene the Tenth Amendment. Rather than regulate the internal functions of the states, the Hobbs Act regulates the activities of individuals. Furthermore, the Hobbs Act does not displace the states’ freedom to prosecute robberies or extortions. See generally Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Illinois robbery conviction following federal prosecution and acquittal of bank robbery presents no double jeopardy problem). The Hobbs Act presents no unconstitutional intrusion upon the sovereignty of the states and, thus, is a constitutional exercise of the commerce power. II. Jury Instruction on Affecting Commerce Element Jarrett contends that the district court’s instruction respecting the necessary element of interstate commerce was inadequate. According to Jarrett, the instruction which the trial court gave “improperly delegated to the jury” the question of law of whether the robbery affected interstate commerce. Thus, Jarrett argues, the trial court erred in instructing the jury in terms of the governing legal standard instead of requiring the jury to determine only the factual questions supporting a finding of effect on commerce, such as whether the Orange Blossom store received jewelry from out-of-state suppliers. Jarrett fears that the error “diverted the jury from its special office of examining the evidence, and making findings of fact only.” United States v. Kuta, 518 F.2d 947, 951-52 (7th Cir.) (a Hobbs Act case), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975), and United States v. Sweet, 548 F.2d 198, 202 (7th Cir.1977) (18 U.S.C. § 844(i)), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1978), held that the court determines as a jurisdictional matter whether interstate commerce has been affected and the jury finds whether the underlying facts exist. On the issue of the requisite nexus to commerce, the district judge in this case instructed the jurors: Now, the defendant is charged, in effect, with the crime of obstructing, delaying and affecting interstate commerce by knowingly and willfully and unlawfully committing robbery.... ‡ ‡ ‡ ‡ ‡ Now, the term “commerce” means all commerce between any point in the state and any point outside thereof. The robbery here need only have a minimal effect on commerce and it is not necessary for you to find that the defendant knew or intended that his actions would in any way affect commerce, it is only necessary that the natural consequences of the acts committed by the defendant charged in the indictment was to affect commerce in any way or degree. Record at 367-68. In dicta, we approved a similar instruction pertaining to the element of commerce under the Hobbs Act in United States v. Staszcuk, 517 F.2d 53, 55 n. 6, 59 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975). Moreover, no prejudice resulted to Jarrett because the underlying jurisdictional facts were not controverted. In any event, Jarrett failed to object to the instruction at trial. Fed.R. Crim.P. 52(a). III. Selective Prosecution Jarrett also raises a claim of selective prosecution. He argues that it is not a claim which must be raised in a pretrial motion under Rule 12(b) of the Federal Rules of Criminal Procedure and, therefore, that he did not waive that defense by failing to file his motion until after the completion of the trial. We disagree. It seems clear that a request for dismissal based on selective prosecution must be raised before trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). In order to gain an evidentiary hearing on the issue of selective prosecution, the defendant must make a prima facie case based on facts “sufficient to raise a reasonable doubt about the prosecutor’s purpose.” United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973). To do this, the defendant must show (1) that the prosecutor engaged in intentional discrimination based on an impermissible consideration, such as race, religion, or exercise of constitutional rights, United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), and (2) that “[w]hile others similarly situated have not generally been proceeded against because of conduct forming the basis of the charge against him, he has been singled out for prosecution.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). These issues bring into question the institution of the prosecution; Rule 12(b) requires such issues to be raised prior to trial. The sufficiency of these showings can, in the majority of cases, be determined without trying the general issue, which in this case was whether Jarrett was involved in the Orange Blossom robbery in violation of the Hobbs Act. While it is suggested in United States v. Wilson, 639 F.2d 500, 506 (9th Cir.1981) (Real, J., concurring), that a selective prosecution defense may require a full trial in order to develop the relevant facts, this is allowed for within the pretrial motion scheme, by Rule 12(e). The court may, for “good cause,” defer decision of a constitutional objection if production of evidence will clarify the issue, or if factual uncertainties require “trial of any nontrivial part of ‘the general issue...." United States v. Barletta, 644 F.2d 50, 57-58 (1st Cir.1981) (emphasis in original); Wright, Federal Practice and Procedure: Criminal 2d § 194. The stringency of the time requirements are similarly softened by Rule 12(f) which allows the trial judge to relieve a defendant of his waiver “for cause shown.” The policies behind restricting the time for making a motion for dismissal based on selective prosecution are well served by Rule 12(b), while arguments against including selective prosecution in those motions covered by 12(b) are mitigated by the deferral and waiver relief provisions of Rules 12(e) and (f). The district court was correct in finding that Jarrett waived his selective prosecution motion by failure to file until two months after trial. We need not reach the issue of whether Jarrett could have been relieved of his waiver, since he never requested such relief from the district court. IV. New Trial Jarrett claims entitlement to a new trial, citing as grounds (1) new evidence or perjured testimony, (2) government withholding of discovery materials, (3) rebuttal on a collateral matter, and (4) admission of hearsay. Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a court may grant a new trial to a defendant “if required in the interest of justice.” After reviewing the record and the parties’ arguments, we are convinced that the interest of justice does not require a new trial. Jarrett argues that “the jury never heard a critical change in the testimony of his coconspirator, Brown, which occurred subsequent to trial.” Thus, the jury lacked an important factor in evaluating Brown’s credibility. At trial, Jarrett’s counsel asked Brown the following questions and received the following answers: Q. Isn’t it a fact, Mr. Brown, that you didn’t see Ronald Jarrett on December 15, 1977, until after the Orange Blossom robbery had been concluded and accomplished? A. No. Q. Isn’t that a fact? A. No, it is not. Q. Would you lie to help yourself, sir? A. No, I would not. Subsequently, at the sentencing hearing, counsel asked Brown about his parole release in 1968. Brown admitted that he obtained a regular job, not because he wanted or intended to live a law-abiding life, but because it was a “necessity to get out on parole.” When asked if he would lie to help himself, Brown answered, “I probably would.” Contrary to Jarrett’s position, we detect no serious conflict in Brown’s testimony. In the first passage, Brown denied that he was lying about Jarrett’s participation in the robbery in order to help himself. In the second passage, Brown admitted that he would lie on certain occasions, such as obtaining his parole release. Furthermore, during the trial, Brown admitted to lying on a subject more pertinent to the case, stating that he lied to a special agent who was investigating the robbery. The jury, therefore, heard Brown admit that he sometimes lied. Finally, accepting Jarrett’s contentions arguendo, Brown’s testimony at the sentencing hearing does not meet the test for granting a new trial based on newly discovered evidence, United States v. Hedman, 655 F.2d 813, 814 (7th Cir.1981), or based on perjured testimony, Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Newly discovered evidence, to be grounds for a new trial, must be “material, and not merely impeaching or cumulative.” Hedman, 655 F.2d at 814 (emphasis added). Here, Brown’s testimony is merely impeaching, at best. For perjured testimony to form the basis for a new trial, the court must be reasonably convinced that the testimony given by a material witness is false and that the jury might have reached a different conclusion had the truth come to light. United States v. Robinson, 585 F.2d 274 (7th Cir.1978) (en banc), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979); Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Brown’s statement at the sentencing hearing does not convince us that he was lying while testifying at Jarrett’s trial. Moreover, the fact that Brown lied at his parole hearing would not impress the jury to reach a different verdict because Brown already admitted to them that he lied to the special agent. Jarrett claims that the government withheld certain documents necessary for the defense to impeach witnesses for the prosecution. Unfortunately, Jarrett does not describe in particulars the nature of the documents he sought to discover. The district court restricted discovery to “any statements of the witnesses that might be usable for impeachment purposes, but not every statement made by witnesses regarding Jarrett.” In clarification, the court ruled, and we agree, that simply because a witness has accused Jarrett of committing another crime does not mean the witness is biased. Moreover, even if evidence that prosecution witnesses accused Jarrett of other crimes indicates bias, such evidence would be cumulative since the witnesses in question here were already accusing Jarrett of the Orange Blossom robbery. There is no indication or suggestion that the witnesses were accusing Jarrett of crimes so great in number as to connote prejudice or bias. The district court did not err, let alone abuse its discretion, by denying discovery. See generally United States v. Watson, 669 F.2d 1374, 1384 (11th Cir.1982); 10 Fed.Proc., L.Ed. § 26:403 (1982). Jarrett claims that he was improperly impeached on a collateral matter. At trial he testified that when he was visited by ATF agents in April of 1978 (about four months after the robbery), he did not have any police scanners or walkie-talkies in his home. In rebuttal, an ATF agent testified, over objection, that when he went to Jarrett’s home on April 20, 1979, he found walkie-talkies. A matter is collateral if the impeaching fact could not have been introduced into evidence for any purpose other than contradiction. 3 Weinstein’s Evidence ¶ 607 at 607-64 (1981). We agree with Jarrett that proof of possession of walkie-talkies sixteen months after the crime was committed is collateral. However, this impeachment resulted in harmless error beyond a reasonable doubt. Fed.R.Crim.P. 52(a); Fed.R.Evid. 103(a); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The remoteness in time and lack of relevance should have been obvious to the jurors. Possessing walkie-talkies is hardly inflammatory. Jarrett challenges the instruction given by the court relating to the rebuttal testimony. At trial, defense counsel raised no objection; rather, counsel specifically approved the instruction. Tr. 360 (“That’s fine, your Honor, that’s good.”). We do not consider the instruction to constitute plain error. Fed.R.Crim.P. 52; Fed.R. Evid. 103(d). Rather, it appears to be an agreed upon stipulation as to the date of the agents’ visit and a limiting instruction designed to eliminate any prejudice to Jarrett. Jarrett’s final ground for a new trial — improperly admitting hearsay — is frivolous, not meriting detailed discussion. According to Jarrett’s contention, the district court erroneously concluded that “the Government had established a joint venture” between Rodriguez, Jarrett, Brown, and Willis such that statements made by the now deceased Rodriguez were not hearsay under Federal Rule of Evidence 801(d)(2)(E). The independent evidence of the conspiracy was more than sufficient to meet the preponderance test adopted in United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir.1978). Willis and Brown both testified to the participation of the four in the crime, and to various admissions by Jarrett, Fed.R.Evid. 801(d)(2)(A). Their testimony clearly established that Rodriguez was a coconspirator of Jarrett’s within the meaning of United States v. Gil, 604 F.2d 546 (7th Cir.1979). Furthermore, Jarrett failed to object to the admission of Rodriguez’s statements at trial. V. Sentencing Jarrett attacks his sentence imposed under the dangerous special offender statute, 18 U.S.C. § 3575, arguing that the district court’s findings concerning “dangerousness” are not supported by the record and are clearly erroneous, that the court abused its discretion in relying upon the witness Mara and the police reports for corroboration of the witness Brown’s testimony, and that the court erred in not explaining “why a twenty five year sentence is required when the maximum under the statute is twenty years.” We find Jarrett’s claims meritless. Jarrett contends the finding of dangerousness to be unsupported by the record because Brown’s testimony is incredible. As the finder of fact in the sentencing hearing, however, the court was entitled to accord such weight as it saw fit to Brown’s testimony. United States v. Inendino, 604 F.2d 458, 463-64 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Williamson, 567 F.2d 610, 615-16 (4th Cir.1977). Additionally, Brown’s testimony was corroborated by Mara’s testimony and by the police records. Jarrett complains that Mara did not testify as to his personal knowledge concerning Jarrett’s participation in a burglary of a Jewel grocery store and other incidents. Pursuant to Rule 1101(d)(3) of the Federal Rules of Evidence, the Rules do not apply in sentencing hearings. Thus, the Rules relating to hearsay do not apply. A judge may properly conduct a broad inquiry, “largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Hearsay evidence is admissible in sentencing proceedings, including- dangerous special offender proceedings. United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979). Similarly, regarding Jarrett’s claim of lack of authentication, Rule 901 of the Federal Rules of Evidence is inapplicable. In particular, however, Jarrett points out that the FBI agent at the sentencing hearing did not make copies of the police reports himself, or compare them with the originals for accuracy. However, the copies in question were xeroxes of the original — “admissible to the same extent as an original” under Rule 1003 of the Federal Rules of Evidence, unless “a genuine question is raised as to the authenticity of the original.” Fed.R. Evid. 1003. Thus, even if the Rules applied, the fact that the agent did not make the xerox or conform it with the original would make no difference. Although defense counsel called the accuracy into question in form, he did not do so in substance. Further, the district court assured Jarrett he would consider the reports “with a grain of salt,” and would consider them for the “limited purpose of... determining whether or not there is any corroboration in this record as to the testimony given by Brown.” Tr. 343-44. Finally, Jarrett contends that the district court erred in failing to explain its findings concerning “dangerousness” under 18 U.S.C. § 3575(f). “A defendant is dangerous” under Section 3575(f) “if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.” 18 U.S.C. § 3575(f). In United States v. Neary, 552 F.2d 1184, 1193 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977), we noted that a trial court must make additional factual determinations of “special” and “dangerous” after a verdict of guilty to support the imposition of a sentence longer than the maximum sentence normally applicable to the crime. A finding of dangerousness under Section 3575(f) involves an evaluation of the defendant’s character and a prediction of future criminal conduct, “matters which are traditionally left to [the] wide discretion of a sentencing court.” Id. Contrary to Jarrett’s contention, the district court explained its findings concerning dangerousness. The court’s explanation is in accord with the construction of Section 3575(f) in Neary. The district court said, [TJhis- defendant was in charge of an operation and he was the mastermind behind it, he was the organizer of it and he was the one who determined after the Orange Blossom robbery took place who was going to get what.... But in addition to that... this defendant has, as a juvenile, two arrests, on 58 different occasions he has been arrested as an adult. He had two convictions as a juvenile. There were 13 as an adult. Now, when this information was finally collected... the government apparently decided... that society needed some kind of better protection from the continuance of this criminal enterprise in which the defendant was engaged and... the only way in which he was making his living. ... [I]t is clear to me from this record, without any question, that this defendant has been a professional criminal all of his adult life and he qualifies beyond question as a dangerous special offender.... ... [Y]our past record also indicates to me that probation and parole are terms which, apparently, have little meaning for you. Thus, the district court found Jarrett to be dangerous to society because of his criminal life-style. As the trial court judge clearly articulated the reasoning behind his decision in finding Jarrett to be dangerous, we hold that the district court did not abuse its discretion. United States v. Madison, 689 F.2d 1300 (7th Cir.1982). VI. Ineffective Assistance of Counsel Jarrett’s final claim is that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Jarrett makes numerous allegations respecting this claim, ranging from failure to timely file a motion asserting selective prosecution to failure to object to the introduction of certain evidence. As relief, Jarrett requests this court to reverse and remand for a new trial or, in the alternative, to remand for a hearing on the ineffective assistance of counsel claim. This claim is not properly before us. Just prior to sentencing, Jarrett filed a bare motion asserting ineffective assistance of counsel. The district court denied it. At a subsequently held hearing on the motion alleging denial of effective assistance, the district court indicated that it would permit defense counsel to file affidavits in support of this motion, would allow briefing, and then would reconsider its prior ruling. In response, however, defense counsel indicated he preferred not to address the issue further, opting instead to seek collateral relief pursuant to 28 U.S.C. § 2255 if this court did not rule favorably on appeal. We believe defense counsel’s original inclination is correct. As we stated in United States v. Lang, 644 F.2d 1232, 1240 (7th Cir.), cert. denied, 454 U.S. 870, 102 S.Ct. 338, 70 L.Ed.2d 174 (1981): First, this type of allegation is more appropriately dealt with by the district court. Procedurally, several vehicles are available, including Rule 33 of the Fed.R. Crim.P., Motion for a New Trial, or the collateral relief available to federal prisoners under 28 U.S.C. § 2255. Second, examination of the record does not provide clear evidence of the ineffective assistance of counsel, the failure alleged being those of litigation strategy. Nor do we have the impressions and findings of the district judge to guide us. For the foregoing reasons, the judgment of the district court is affirmed. . Although Jarrett cites to the Ninth Amendment, his argument is essentially a Tenth Amendment argument. Cf. J. Ely, Democracy and Distrust at 34-41 (1980). In any event, the Tenth Amendment provides a stronger argument than does the Ninth Amendment. . Title 18 U.S.C. § 1951 provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (3) The term “commerce” means... - commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. . See, e.g., 91 Cong.Rec. 11848 (1945) (remarks of Rep. Powell) (“Extortion and robbery are crimes in all 48 States.”); id. at 11900 (remarks of Rep. Hancock) (“robbery and extortion, two crimes which are recognized as serious in every State in the Union.... The courts of the States of this country have tried thousands of cases of robbery and extortion.”); id at 11901 (remarks of Rep. Gwynne) (“Of course, the state law prohibits robbery and extortion. Unquestionably State indictments could have been returned against the members of this union. The fact is, however, such indictments were not returned. It is a breakdown of law enforcement reminding the Congress of its duty to protect interstate commerce by the enactment of this bill.”); id at 11916 (remarks of Rep. Patrick) (“If you gentlemen can convince me that any state in the Union in which these depredations to which reference has been made has not adequate laws to convict people for robbery and for every one of the things set out here, I will vote for this bill.”); id. at 11906 (remarks of Mr. Robison) (“The definition of robbery and extortion set out in this bill... are defined in substantially the same way by the laws of every State in the Union”). . 91 Cong.Rec. 11903 (remarks of Rep. Welch); id. at 11848 (remarks of Rep. Powell). (“Mr. Speaker, this is another ridiculous threat against democracy. It is the more ridiculous because it comes from the great proponent of States’ rights. Extortion and robbery are crimes in all 48 States.... Why then gentlemen of the States’ rights school, do we need Federal legislation.”). . See generally United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941) (“It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.”); Hoke v. United States, 227 U.S. 308, 321, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913) (Tenth Amendment challenge to White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825, rejected); United States v. Staszcuk, 517 F.2d 53, 58-59 (7th Cir.), (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); Gagliardo v. United States, 366 F.2d 720, 722 (9th Cir.1966) (18 U.S.C. § 1464 does not violate Tenth Amendment); Marshall v. United States, 355 F.2d 999, 1004 (9th Cir.1966) (rejecting Tenth Amendment challenge to 18 U.S.C. § 1952), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966); United States v. Vignola, 464 F.Supp. 1091, 1099 n. 23 (E.D.Pa.1979) (unsuccessful Tenth Amendment attack of RICO, 18 U.S.C. § 1961 et seq.), affirmed, 605 F.2d 1199 (3d Cir.1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980). . See generally United States v. Gillock, 445 U.S. 360, 371, 100 S.Ct. 1185, 1192, 63 L.Ed.2d 454 (1980); National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). See also Equal Employment Opportunity Commission v. Wyoming, -U.S. -, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (narrowly limits Usery). . In United States v. Stubin, 446 F.2d 457, 465 (3d Cir.1971), the Third Circuit examined a similar instruction and concluded that no plain error resulted. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_indict	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Appellee, v. Jasper J. MIRABILE, Appellant. No. 74-1367. United States Court of Appeals, Eighth Circuit. Submitted Sept. 9, 1974. Decided Oct. 15, 1974. Rehearing Denied Nov. 7, 1974. James L. Rider, Washington, D. C., for appellant. Michael A. DeFeo, Sp. Atty., Dept, of Justice, Kansas City, Mo., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. The primary focus of this appeal is the federal mail fraud statute, 18 U.S.C. § 1341 (1970). Issues have been raised regarding the scope of that statute and its applicability in the context of a state misdemeanor violation, namely, fraudulent misrepresentation of gross sales on sales/use tax returns. In addition, this appeal challenges the trial court’s denial of a motion to dismiss on the basis of selective and discriminatory prosecution. We affirm. Appellant Mirabile, owner and operator of a Kansas City, Missouri restaurant, was indicted by a federal grand jury in 1973. The indictment charged that Mirabile had devised and taken part in a scheme in which the gross retail sales of his restaurant were understated on the monthly sales/use tax returns that he caused to be mailed to the Missouri Department of Revenue. As a result, the state was defrauded of approximately $28,000 over a two and one-half year period. In United States v. Mirabile, 369 F.Supp. 1108 (W.D.Mo.1974), the district court denied a motion to dismiss the indictment and held that federal jurisdiction under § 1341 was proper. Subsequently, appellant was found guilty of mail fraud in a jury trial and placed on probation for five years. The initial contention on appeal is that a scheme to defraud the state of Missouri by submitting false sales/use tax returns by mail is beyond the intended scope of § 1341. Appellant urges that the use of the mail fraud statute should be restricted to frauds involving federal injury and abuse of the Postal Service. It is argued that in furtherance of the intended purpose of the statute and in the interest of federal-state relations, all other fraud should be left to the states for enforcement. The fact that the statute has never been used in connection with fraudulent tax returns is, according to appellant, evidence of the error in the instant case. However, the statute on its face is not limited in the manner suggested by the appellant; nor does it exempt the conduct in which appellant engaged. It clearly applies to “any scheme or artifice to defraud” in which the jurisdictional means (the mails) are employed. United States v. States, 488 F.2d 761, 764 (8th Cir. 1973). In the absence of a clear showing of contrary legislative intent, National Railroad Passenger Corporation v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), “the general rule of statutory construction requires the courts to ascertain the intent of legislation from the language used * * * if it is clear and plain and the act is internally cohesive.” Community Blood Bank v. F. T. C., 405 F.2d 1011, 1015 (8th Cir. 1969). We must interpret the plain language of § 1341 “broadly and liberally * -x- * to further the purpose of the statute; namely, to prohibit the misuse of the mails to further fraudulent enterprises.” United States v. States, supra 488 F.2d at 764. Such an interpretation is totally consistent with the ever-expanding role the mail fraud statute has played. The diversity of schemes brought within the purview of § 1341 illustrates the expansive reading that is generally given to that statute. See, e. g., United States v. States, supra 488 F.2d at 764-765; United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973); United States v. Edwards, 458 F.2d 875 (5th Cir.), cert. denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 148 (1972); United States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972); United States v. Rosenblum, 339 F.2d 473 (2d Cir. 1964). Thus the contention that § 1341 was not meant to cover the fraud in the instant case is not persuasive. Appellant argues that the application of § 1341 in this case is an impermissible intrusion into state affairs. However, the fact that the underlying fraud here may violate state law does not exclude it from the proscription of the mail fraud statute. Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); United States v. Flaxman, 495 F.2d 344, 349 (7th Cir. 1974); United States v. States, supra 488 F.2d at 767; United States v. Edwards, 458 F.2d 875, 880 (5th Cir.), cert. denied, 409 U.S. 1029, 93 S.Ct. 459, 34 L.Ed.2d 148 (1972). Appellant’s contention is premised upon a basic misinterpretation of the rationale behind the mail fraud statute. This court recently stated, “[t]he focus of the statute is upon the misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails.” United States v. States, supra 488 F.2d at 767. In this case, as in States, principles of federalism do not provide a basis for reversal. Appellant also alleges that the mailings in this case were not an integral part of the scheme to defraud and therefore the fraud does not fall within the proscription of the mail fraud statute. We disagree. In United States v. Nance, 502 F.2d 615 (8th Cir. 1974), this court discussed the “use of the mails” requirement in connection with § 1341 and stated: * * -x- To bring the scheme within the ambit of the mail fraud statute, the mails must bá used for the purpose of executing the scheme, Kann v. United States, 323 U.S. 88, 93 [65 S.Ct. 148, 89 L.Ed. 88] (1944); must be employed before the scheme reaches fruition, United States v. Maze, 414 U.S. 395, [402] [94 S.Ct. 645, 38 L.Ed.2d 603] (1974); yet, need not be contemplated as an essential element of the scheme, Pereira v. United States, supra, 347 U.S. [1], at 8 [74 S.Ct. 358, 98 L.Ed. 435] (1954). In the case before us, as in United States v. Flaxman, supra 495 F.2d at 348-349, the fraud did not reach fruition until the tax forms were mailed to the state revenue authorities. This fact distinguishes the instant case from United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), and brings appellant’s conduct in executing the fraud directly within the scope of § 1341. See United States v. Britton, 500 F.2d 1257 (8th Cir. 1974); United States v. Miles, 498 F.2d 394 (8th Cir. 1974); United States v. Gaskill, 491 F.2d 981, 984 (8th Cir. 1974). Appellant’s final contention is that the trial court erred in denying his motion to dismiss the indictment for selective and discriminatory prosecution. We disagree. The trial court conducted an evidentiary hearing during which appellant presented his evidence with respect to the motion. This included cross-examination of the prosecutor who voluntarily testified with respect to certain interrogatories propounded by appellant. Although appellant claims his questioning of the prosecutor was unduly circumscribed by the trial court, we find no abuse of discretion in this regard. See United States v. Berrigan, 482 F.2d 171, 179-182 (3d Cir. 1973). Cf. United States v. Falk, 479 F.2d 616, 619-624 (7th Cir. 1973). We are satisfied from an examination of the hearing record that the trial court was warranted in holding that there was insufficient evidence to support a finding of selective and discriminatory prosecution. Affirmed. . The statute, 18 U.S.O. § 1341 (1970), provides, in relevant part, as follows : Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises * * * for the purpose of executing such scheme or artifice or attempting to do so * * * knowingly causes to be delivered by mail according to the directions thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any (matter or thing whatever to be sent or delivered by the Postal Service) shall be fined not more than $1,000 or be imprisoned not more than five years, or both. . We similarly reject appellant’s attempt to equate the present case with Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 19, 77 L.Ed. 511 (1932). The interpretation that, we iiave given to § 1341 produces neither the “absurd consequences” nor the “flagrant injustice” that brought about the kiorreUs entrapment doctrine. Id. at 287 U. S. 446—452, 53 S.Ct. 19, 77 L.Ed. 511. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_genapel2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Rafael CASTILLO-MAGALLON and Martha Ismelda Naranjo de Castillo, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 83-7006. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1984. Decided April 4, 1984. Paul D. Edmondson, Yakima, Wash., for petitioners. Joan E. Smiley, Washington, D.C., for respondent. Before WRIGHT and HUG, Circuit Judges, and MACBRIDE, District Judge. The Honorable Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, sitting by designation. HUG, Circuit Judge: Petitioners Rafael Castillo-Magallon and his wife Martha Ismelda Naranjo de Castillo seek review of a Board of Immigration Appeals (“BIA”) decision dismissing their appeal from a decision of the Immigration Judge (“U”) ordering them excluded from the United States pursuant to section 212(a)(20) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(20). Petitioners contend that the IJ erred in refusing to consider their application for suspension of deportation under section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1). The INS contends that this appeal must be dismissed on the ground that this court lacks jurisdiction to review exclusion proceedings. FACTS Both petitioners entered the United States from Mexico without inspection, she in June, 1973, and he in February, 1974. Apparently they were subjected to deportation proceedings at some point. The IJ’s decision mentions only that “[o]n August 27, 1977, both applicants were notified that due to the court order in Silva v. Levi, ... no action would be taken in their cases until further action by the Court.” The Silva case had been brought to “recapture” Western Hemisphere visa numbers previously given to Cuban refugees. See Silva v. Bell, 605 F.2d 978 (7th Cir.1979). On July 2, 1980, petitioners were issued Form 1-512, Authorization for Parole or Conditional Entry, on which it was noted that they were presently in the United States pursuant to the Silva order and permitted to leave and return to the United States pending a filial resolution of that order. Petitioners then left the United States for two weeks to visit an ailing parent in Mexico, returning on July 26, 1980, as “parolees.” When the Silva case was resolved in a way that offered petitioners no relief, the INS initiated exclusion proceedings against them. At a hearing on July 26, 1982, petitioners were found excludable as charged. They sought to apply for suspension of deportation, but the IJ ruled that they were not entitled to do so. The BIA affirmed, holding that petitioners were clearly ex-cludable and that it had no jurisdiction to consider suspension of deportation in exclusion proceedings. ANALYSIS This court would have jurisdiction to hear this direct appeal from the BIA if the IJ’s order were a final order of deportation. 8 U.S.C. § 1105a(a). An alien against whom a final order of exclusion has been made, however, “may obtain judicial review of such order by habeas corpus proceedings and not otherwise.” 8 U.S.C. § 1105a(b). Since the record in this case leaves no doubt that the IJ intended to issue an order of exclusion, this court lacks jurisdiction to hear the appeal. That the IJ refused to consider the petitioners’ application for suspension of deportation does not change the result. At an exclusion proceeding an alien is not entitled to seek a suspension of deportation. 8 U.S.C. § 1252(e); Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982). In any case, the IJ’s refusal occurred in the course of an exclusion proceeding. Even if the IJ had erred, we would lack jurisdiction to hear a direct appeal. Petitioners may be understood to contend that they were entitled to a deportation proceeding rather than an exclusion proceeding. Their argument is that the Silva injunction gave them the status of permanent resident aliens and, therefore, that the issue of whether their return from Mexico in 1980 was an “entry” for purposes of section 101(a)(13) of the INA, 8 U.S.C. § 1101(a)(13), can be litigated only in deportation proceedings. If a permanent resident alien has not “meaningfully departed” the United States, then he cannot be said to “enter” the United States when he returns, and he is thus not subject to exclusion proceedings under section 236(a), 8 U.S.C. § 1226(a). The Supreme Court has held, however, that the issue of “entry” may indeed be decided at an exclusion hearing. Landon v. Plasencia, 103 S.Ct. at 328-29. Whether there was “entry” is a jurisdictional fact. Id. at 328. In the present ease, the IJ did not specifically address this issue but simply assumed that an exclusion proceeding was appropriate. If he erred in that tacit assumption, he did so in the course of determining his jurisdiction to hold an exclusion proceeding. Review of an exclusion proceeding, even one in which the IJ’s jurisdiction is challenged, is available only in a habeas corpus proceeding in the district court. This appeal is DISMISSED for lack of jurisdiction. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc1sect	191	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 31. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES v. DIVISION OF LABOR LAW ENFORCEMENT, DEPARTMENT OF INDUSTRIAL RELATIONS, CALIFORNIA. No. 13150. United States Court of Appeals Ninth Circuit. Feb. 11, 1953. Ellis N. Slack, Act. Asst. Atty. Gen., A. F. Prescott, Louise Foster and Carolyn Just, Sp. Assts. to Atty. Gen., Walter S. Binns, U. S. Atty., E. H. Mitchell and Edward R. McHale, Asst. U. S. Attys., Los Angeles, Cal., for appellant. Pauline Nightingale, Edward M. Belasco and Leon H. Berger, Los Angeles, Cal., for appellee. Before STEPHENS and ORR, Circuit Judges, and McCORMICK, District Judge. ORR, Circuit Judge. The trial court subordinated the priority granted to claims of the United States by Rev.Stat. § 3466, 31 U.S.C.A. § 191, to certain labor claims which were asserted to have ripened into liens under the California Code of Civil Procedure, § 1204, at the time an assignment for the benefit of its creditors was made by an insolvent corporation. We have for determination the correctness of that finding. The facts are not in dispute. Stanley Restaurants, Inc., executed a written assignment to Ralph Meyer for the benefit of its creditors on June 23, 1947. Notice of this assignment was sent by Meyer to the trade creditors of the Stanley Restaurants, Inc., but no such notice was given to the parties to this action. Appellee is the assignee of certain persons who were employed by the Stanley Restaurants, Inc., to perform labor and services. The wage claims ■ in question which were entitled to a preference and lien to the extent provided 'for by Cal. Code Civ.Proc. § 1204 amounted to the sum of $644.40. Appellee filed with Meyer written notices concerning the preferred labor claims. On October 30, 1947, the United States Collector of Internal Revenue filed with Meyer as assignee for the benefit of creditors of Stanley Restaurants, Inc., a proof of claim for federal insurance contribution taxes, withholding taxes and cabaret taxes plus interest and penalties applicable thereto due and owing from the latter in the sum of $4,915.98. Of this amount the sum of $2,752.62 was secured by liens acquired by the federal government prior to the assignment for the benefit of creditors, and it is conceded that these liens are superior to the claims asserted by appellee. The claim of the Collector, including interest to June 15, 1950, now totals the sum of $5,627.33, of which $3)388.02 is secured by the prior liens and $2,239.31 not so secured. The entire sum of taxes, however, was due and owing from the Stanley Restaurants, Inc., at the time of the assignment for benefit of creditors. Appellee’s theory is that upon the assignment for benefit of creditors a specific and perfected lien arose in favor of the labor claims by operation of law under the provisions of Cal.Code Civ.Proc. § 1204, and that such a specific and perfected lien will prevail over the priority granted to the United States by Rev.Stat. § 3466. Although the language of Rev.Stat. § 3466, which incorporates the priority first granted to the United States in 1797, has been described as broad and sweeping and, on its face, admits of no exception to the priority of claims of the United States, the Supreme Court has recognized that certain exceptions could be read into this statute. See United States v. Waddill, Holland & Flinn, Inc., 1945, 323 U.S. 353, 355, 65 S.Ct. 304, 89 L.Ed. 294. However, the question of whether the priority of the United States may be defeated by a specific and perfected lien created by a state statute has been expressly reserved numerous times by the Supreme Court. The case of Bank of Wrangell v. Alaska Asiatic Lumber Mills, Inc., D.C.D.Alaska 1949, 84 F.Supp. 1, upon which appellee relies, clearly recognizes that the point of law is as yet undecided. The decision there was based solely on the special status traditionally given to mortgage liens. See 84 F.Supp. at page 5. In cases considered by the Supreme Court where the issue of whether a lien may prevail over the priority granted by Rev.Stat. § 3466 was raised, that Court has found that the particular lien asserted was not so specific and perfected as to require determination of the question. See, for example, United States v. Texas, 1941, 314 U.S. 480, 62 S.Ct. 350, 86 L.Ed. 356; United States v. Waddill, Holland & Flinn, Inc., supra; Illinois ex rel. Gordon v. Campbell, 1946, 329 U.S. 362, 67 S.Ct. 340, 91 L.Ed. 348. Certain criteria, however, have now been established. The lien must be definite in at least three respects as of the time the priority of the United States arises, namely: (1) the identity of the lienor; (2) the amount of the lien; and (3) the property to which it attaches. See Illinois ex rel. Gordon v. Campbell, supra, 329 U.S. at page 375, 67 S.Ct. 340. Only in such a situation would the question of priority be squarely presented. Appellee argues that Cal.Code Civ.Proc. § 1204 creates a specific and perfected wage lien within the meaning of the above cases; that the lien is specific since it is upon all the insolvent’s property passing to the assignee for benefit of creditors and is limited both in amount and to a particular class of persons; that the lien is perfected by operation of the statute itself at the time of the assignment for benefit of creditors and subsequent filing of written notice with the assignee is merely a demand for payment; that certain amendments made in 1945 to the California statute were for the purpose of insuring to applicable wage claims the full force of a lien; that the public policy favoring protection of wage-earner claims should result in a liberal interpretation of the state statute. Judges Stephens and McCormick are of the opinion that at the moment of assignment for the benefit of creditors no specific and perfected lien arose under the state statute and that the assignment brought into conflict the federal and state laws as to priority of payment. In such a situation federal law prevails. They believe that to accept the claim of appellee that a lien in appellee’s favor came into existence coincidentally with the Government’s right to have its claim “first satisfied” would present a situation where a mere priority met a lien to which priority must yield. The decision in this case is, therefore, rested upon the ground that the appellee had no specific and perfected lien at the time the Government’s priority arose. To put the basis of Judges Stephens and McCormick’s views into this opinion, I quote Judge Stephens as follows: “We do not dispute the thesis that a prior specific and perfected lien rules over the Government’s priority, but such result follows solely because a species of interest in a third party, the lien holder, is attached to the property. By the same token the lien rules over the priority when the lien and the priority come into being at the same point of time. For at the moment of effectiveness of the priority the property interest of the lienholder also is fixed. In other words, we think that the touchstone for decision as to which rule governs is not the existence of the lien prior to the event which brings both Government priority and laborer’s lien into effect, but the interest in the property secured by the lien. In the circumstances, if the Government’s debt is first paid by taking the property which is charged with the lien, it is paid by taking property from one person to satisfy the debt of another.” The writer of this opinion thinks that even if the contentions of appellee that its lien became specific and perfected be accepted, appellee could not prevail because it is apparent that the wage liens did not become specific and perfected prior to the assignment for the benefit of creditors. The same act, assignment for the benefit of creditors, simultaneously brought into existence the priority of the United States under Rev.Stat. § 3466 and the wage lien under Cal.Code Civ.Proc. § 1204. In United States v. Emory, 1941, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315, the relative priorities of wage claimants under a Missouri statute and the United Statés undér Rev.Stat. § 3466 were in question. The appointment of a receiver constituted the act which brought both statutes into effect. The Court stated: “ * * the state statute could not prevail if it was in conflict with § 3466.” 314 U.S. at pages 426-427, 62 S.Ct. at page 319. The Court there held that the claim of the United States should be first satisfied. “We are aware of no canon of statutory construction compelling us to hold that the word ‘first’ in a 150 year old statute means ‘second’ or ‘third’, unless Congress later has said so. or implied it unmistakably.” 314 U.S. at page 430, 62 S.Ct. at page 321. In Brent v. Bank of Washington, 1836, 10 Pet. 596, 9 L.Ed. 547, one of the earliest cases posing the problem of the relationship of a lien to the statute which is now Rev. Stat. § 3466,; that Court said: “ * * * it has never been decided that it (1 Stat. 515) affects, any lien, general or specific, existing when the event took place which gave the United States a claim of priority.” (Emphasis supplied.) 10 Pet. at pages 611-612. In United States v. Waddill, Holland & Flinn, Inc., supra, the undecided question was stated to be “ * * * whether the priority of the United States might be defeated by a specific and perfected lien upon the property at the time of the insolvency or voluntary assignment.’’ (Emphasis supplied.) 323 U.S. at page 355, 65 S.Ct. at page 306. See also People of State of New York v. Maclay, 1933, 288 U.S. 290, 292, 53 S.Ct. 323, 77 L.Ed. 754. I think these cases suggest that only the lienor whose lien becomes specific and perfected prior to the event giving rise to the priority of the United States may assert the priority of his lien. No wage liens existed here at the time of the assignment for the benefit of creditors, that is, the time the priority of the United States arose. I refuse to ascribe to Congress the intent,, in enacting the statute, that the very situation creating the federal priority could! at the same instant defeat it. A state statute purporting to create a lien at the very instant the federal priority arises is incompatible with the federal statute establishing the priority. Where such conflict exists, the supremacy of the federal law must be recognized. U.S.Const. Art. VI, Cl. 2. Cf. Michigan v. United States, 1943, 317 U.S. 338, 63 S.Ct. 302, 87 L.Ed. 312. A very similar factual situation was presented in Leggett v. Southeastern People’s College, 1951, 234 N.C. 595, 68 S.E.2d 263, where the North Carolina Supreme Court held that the priority of the United States prevails over a statutory wage lien which contemporaneously came into existence. Ernst v. Guarantee Millwork, Inc., 1939, 200 Wash. 195, 93 P.2d 404 apparently adopts a contrary position as regards certain, labor liens which were said to mature automatically at the same time the federal priority also arose, i. e., upon insolvency. No reference is made, however, to the problem of supremacy of federal law. Further, the later case of Spokane Merchants’ Association v. State, 1942, 15 Wash.2d 186; 130 P.2d 373, involving a state lien for taxes, contains the following statement seemingly inconsistent with the decision in the earlier Washington case: “ * * * the right of the United States is superior under Rev.Stat., § 3466, unless the state taxes have become a specific lien prior to the insolvency of the debtor.” (Emphasis supplied.) 15 Wash.2d at page 188; 130 P.2d at page 374. Our holding in Cheek v. Division of Labor Law Enforcement, State of California, 9 Cir., 1948, 166 F.2d 429, certiorari denied, 335 U.S. 820, 69 S.Ct. 42, 93 L.Ed. 374, is not inconsistent with my views. It was there held that a prior lien created under Cal.Code Civ.Proc. § 1204 by an assignment for the benefit of creditors survived the subsequent filing of an involuntary petition in bankruptcy. The Cheek case did not present the question of the simultaneous creation of a lien under a state statute and the priority of the United States under Rev.Stat. § 3466. The judgment of the District Court is reversed. . Revised Statutes, Sec. 3466. “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.” 31 U.S.C.A. § 191. . Deering’s Code of Civil Procedure of California (1941 ed., 1947 Pocket Supplement): “§ 1204. (Preferred labor claims in case of assignment for creditors: Payment: Pro rata distribution: Rights and duties of trustee, etc.: Effect of section.) When any assignment, whether voluntary or involuntary, and whether formal or informal, is made for the benefit of creditors of the assignor, * * * the wages and salaries of minors, mechanics, salesmen, servants, clerks, laborers, and other persons, for personal services rendered such assignor * * * within 90 days prior to such assignment * * * and not exceeding two hundred dollars ($200) each, constitute preferred claims and lions as between creditors of the debtor, and must be paid by the trustee, assignee or receiver before the' claim of any other creditor of the assignor, insolvent, or debtor whose property is so turned over, and must be paid as soon as the money with which to pay same becomes available. * * * The trustee, receiver or assignee for the benefit of creditors shall have the right to require sworn claims to be presented and shall have the right to refuse to pay any such preferred claim, either in whole or in part, if he has reasonable cause to believe that such claim is not valid but must pay any part thereof that is not disputed * * *. “This section is binding upon all the courts of this State and in all receivership actions the court must order the receiver to pay promptly out of the first receipts and earnings of the receivership, after paying the current operating expenses, such preferred labor claims and such liens.” Amended Stats. 1945, ch. 1192, § 1. . See Conard v. Atlantic Insurance Co., 1828, 1 Pet. 386, 441-442, 7 L.Ed. 189; Brent v. Bank of Washington, 1836, 10 Pet. 596, 611-612, 9 L.Ed. 547; Spokane County v. United States, 1929, 279 U.S. 80, 95, 49 S.Ct. 321, 73 L.Ed. 621; People of State of New York v. Maclay, 1933, 288 U.S. 290, 292, 294, 53 S.Ct. 323, 77 L.Ed. 754; United States v. Texas, 1941, 314 U.S. 480, 485-486, 62 S.Ct. 350, 86 L.Ed. 356; United States v. Waddill, Holland & Flinn, supra, 1945, 323 U.S. 355, 65 S.Ct. 304; Illinois ex rel. Gordon v. Campbell, 1946, 329 U.S. 362, 370-371, 67 S.Ct. 340, 91 L.Ed. 348. 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 31? Answer with a number. Answer:
songer_respond1_3_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 "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. AU YI LAU, Yim Tsz Ki , Lam Sai Ting, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. TIT TIT WONG and Nei Ngan Chan, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Nos. 23339, 23527. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 15, 1970. Decided March 19, 1971. Certiorari Denied Oct. 12, 1971. See 92 S.Ct. 64, 66. Mr. David Carliner, Washington, D. C., for petitioners. Mr. Charles Gordon, General Counsel, Immigration and Naturalization Service, of the bar of the Supreme Court of the United States, pro hac vice, by special leave of the court, with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for respondent. Mr. Paul C. Summitt, Atty., Department of Justice, also entered an appearance for respondent. Before FAHY, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges. Opinion and Judgment Vacated as to Yim Tsz Ki, July 8, 1971. McGOWAN, Circuit Judge: These two statutory review proceedings, although not consolidated in this court, were argued together and are suitable for disposition by one opinion. They involve deportation orders issued, after evidentiary hearings, by a Special Inquiry Officer of the Immigration and Naturalization Service (INS), which were affirmed by the Board of Immigration Appeals. Our review is circumscribed by the Congressional commands that it be limited to the administrative record, and that findings of fact therein be taken as conclusive “if supported by. reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a. There is no issue in either case as to the adequacy of, the evidence upon which the orders rest. The claim in each is, rather, that the evidence was the fruit of an illegal arrest. We look first to the factual circumstances from which each of these contentions derive. I No. 23,339 Petitioners in this case are three Chinese seamen who are charged with deserting their ships in American ports. On October 31, 1967, immigration officers at the Washington, D. C., field office received an informant’s tip that aliens unlawfully in this country were working in a restaurant located in the downtown area which had been under periodic surveillance by the Washington immigration office for the preceding year. In response to this tip, some seven of the officers walked to the restaurant, which was a few blocks from their office. They had no warrants because they lacked information of the requisite degree of specificity. Upon their arrival, some of the officers stationed themselves at the main exits of the restaurant. Three of the officers entered the restaurant by way of the front entrance, and spoke to the assistant manager who was in charge at the time. They identified themselves, told him the purpose of their visit, and asked his permission to enter the restaurant in order to talk to the employees. The assistant manager agreed to their coming into the restaurant, but there was some disagreement as to whether he permitted them to conduct their investigations in the kitchen. The Board of Immigration Appeals accepted the finding of fact by the Special Inquiry Officer that the officers had received such an invitation. As the officers proceeded towards the kitchen, they observed a person of Chinese extraction, dressed in a blue denim uniform, scurrying through the dining room to the main entrance door. One officer (Burns) followed him to the door, stopped him, identified himself as an immigration officer, and asked the individual, later identified as petitioner Yim, to accompany him to the kitchen. As the two headed back toward the kitchen, a second employee, petitioner Lam, also dressed in kitchen garb, was met by them as he appeared to be hurrying towards the front door. He was requested by Officer Burns to go to the kitchen for a talk. Lam did so momentarily, but suddenly darted through a side door, only to encounter Officer Lamoreaux who asked him if he was off a ship and received an affirmative answer. Petitioner Lam then was sent to the locker room to change his clothes before being taken to the immigration office. When Officer Burns and petitioner Yim arrived in the locker room of the kitchen, Burns asked Yim if he had jumped a ship, to which Yim replied that he had. During this time, two officers were questioning the employees in the kitchen, when two of the workers dropped their culinary utensils and darted out the rear door. One of the officers gave chase and halted one of the fleeing kitchen workers, later identified as petitioner Au. With the aid of another employee, who acted as interpreter, Au was questioned immediately by the officer who detained him, and admitted that he had “jumped” ship. The officer then took him to the locker room where they joined the other petitioners. All three petitioners were searched, and the officers seized seamens’ documents from each petitioner which indicated that in fact they had overstayed their leave. The three petitioners then accompanied the officers to the immigration office, where they awaited the arrival of an interpreter. In the presence of the interpreter, sworn statements were taken from each of the three in which they admitted that they had come to this country as crewmen, and were illegally in the United States. No. 23,527 On November 7, 1967, petitioners Wong and Chan, persons of Chinese extraction, accompanied Mr. Wong’s ailing brother to the Washington Hospital Center where the latter made application for medical treatment. The receptionist at the hospital doubted the sick man’s right to be in this country, and called the Washington immigration office. Officers Taylor and Reissig were dispatched to the hospital where, upon arrival, Officer Taylor went inside to question the sick man, and Officer Reissig remained in their government car by the front entrance. Once inside the hospital, Officer Taylor went to a waiting room where he was to interrogate the applicant for medical assistance. However, when he identified himself to the receptionist as the immigration officer for whom the patient and two other Chinese (see note 3 supra) men had been waiting, and started talking to the Chinese patient at the desk, he noticed that the two petitioners rose from their chairs and left the room. Officer Taylor testified that he thought there was something odd about their departure; accordingly, when he had concluded the task of interrogating the prospective patient — a questioning that lasted some fifteen minutes, resulting in the clearance of petitioner Wong’s brother — he thought he “would make quiet inquiries” and see if he could find the two men who had left. Officer Taylor advised his colleague he was interested in these two Chinese and intended to look for them in the hospital “so that he could talk to them.” He then spent approximately fifteen minutes more searching several corridors and other waiting rooms in the hope of finding the two petitioners. He stepped out of a side door of the hospital onto a sidewalk, and spotted petitioners by the hospital parking lot, about half a block away. He saw them looking back, and when they saw him they quickened their pace on into the parking lot, and broke into a jog or “sort of dog trot,” glancing back at Officer Taylor as they went. For a while they got out of his field of vision, but then he saw them inside a car parked in the lot. As Taylor approached the ear, one of the men, who was in the back seat, attempted to roll up the car windows and lock the car doors. The other was in the front seat, and tried to start the car. Due to what was described by Officer Taylor as a basic unfamiliarity with the vehicle, neither petitioner was successful at his task. Taylor then attempted to question them through an open window, but soon realized that there was an insurmountable language barrier. He decided to enlist the support of Officer Reissig. In order to insure that petitioners would not leave, Officer Taylor took their car keys and asked a nearby hospital guard to watch the car for a moment. Officer Taylor located Officer Reissig, and the two returned about five to seven minutes later, bringing their car to a halt in front of the one in which the two petitioners were seated. Several more minutes elapsed while the two officers again tried unsuccessfully to communicate with the petitioners. At this point, they sought the aid of a passing Chinese student, who agreed to act as an interpreter. The Chinese student began his interrogation under the supervision of Officer Reissig. In the meantime, Officer Taylor decided that it might be beneficial to return to the hospital to determine whether the other Chinese men in the building were related to petitioners. After a ten minute search, he found Mr. Ling, who was the owner of the car. Mr. Ling agreed to accompany Taylor to the parking lot in order to identify the petitioners. Upon returning to the lot, Mr. Ling identified the petitioners as his friends, but refused to aid in their interrogation. However, at that time, Officer Reissig informed Officer Taylor that the Chinese student had discovered that the petitioners were in the country illegally. According to the findings of the Special Inquiry Officer, the student then left the scene of the interrogation. The two officers then arrested petitioners, and transported them to the Washington headquarters. There, petitioners turned over to the investigators certain seamens’ papers, and also made statements in response to interrogation. These statements were not, however, regarded by the Special Inquiry Officer as competent evidence because of what he found to be the failure of the interrogators to comply with INS regulations requiring advice of right to counsel. II At the hearings before the Special Inquiry Officer in both No. 23,339 and No. 23,527, petitioners were represented by counsel but, upon his advice, stood mute and presented no evidence. The claim made on their behalf there, as here, was that petitioners had been arrested without probable cause, and that the evidence offered by the Government against them was the forbidden fruit of these assertedly illegal arrests. In assessing these claims, any restraints upon the freedom of movement of petitioners must be viewed by reference to the statutory authority given immigration officers. There are two provisions of possible relevance, one being addressed to interrogation and the other to arrest, in each instance without warrant. We agree with the Government that the arrest provision must be read in light of constitutional standards, so that “reason to believe” must be considered the equivalent of probable cause. Moreover, the Government does not insist that in the matter before us each immigration officer did have probable cause to arrest when he first confronted each petitioner. It is urged that probable cause is needed only if a detention reaches the level of an arrest, and that the original encounters with petitioners were not arrests. The Government focuses upon the interrogation provision of the Act as manifesting a Congressional purpose to permit immigration officers to make detentions for questioning which fall short of a full-blown arrest. It argues that such a reading of the statute is buttressed by two practical considerations: First, the number of individuals seeking to enter this country illegally is quite high, and the number who succeed in this venture has rapidly increased with each passing year; and, second, the ability to gather proof against these illegal entrants independent of a reasonable opportunity for interrogation is exceedingly difficult. In Yam Sang Kwai v. INS, 133 U.S. App.D.C. 369, 411 F.2d 683 (1969), cert. denied, 396 U.S. 877, 90 S.Ct. 148, 24 L.Ed.2d 135 (1970), we viewed this provision (Section 287(a) (1)) as according, at the least, to immigration officers the right to seek to interrogate individuals reasonably believed to be of alien origin. The underlying rationale of that decision was that the minimal invasion of the privacy of the individual approached for questioning was justified by the special needs of immigration officials to make such interrogations. This allowance for mere questioning, which assumes the individual’s cooperation, is analogous to decisions which have contemplated the same scope of authority for police officers, as well as for other administrative officials. We are in this instance, however, confronted with a question which the court did not have in Yam Sang Kwai, namely, whether the immigration officer may detain an individual, reasonably believed to be an alien, against his will for the purpose of questioning. We believe the statutory interrogation authority comprehends such detentions, but, because they are far greater intrusions upon personal privacy than the non-foreible approaches, and since aliens in this country are sheltered by the Fourth Amendment in common with citizens, such a reading of the Congressional mandate must be controlled by the constitutional standards governing similar detentions made by other law enforcement officials. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We hold that immigration officers, in accordance with the Congressional grant of authority found in Section 287(a) (1), may make forcible detentions of a temporary nature for the purposes of interrogation under circumstances creating a reasonable suspicion, not arising to the level of probable cause to arrest, that the individual so detained is illegally in this country. Utilizing the standards developed in Terry, such detentions are to be judged from case to case by reference to the particular facts of each. We proceed to this inquiry in the two cases immediately before us. * $ * * Ill With respect to No. 23,339, we disallow the claim that the deportation orders derive from tainted evidence. Our recent decision in Yam Sang Kwai, supra p. 222, insulates from illegality the steps taken by the immigration officers in proceeding upon the informant’s tip to the restaurant in question and in making the initial dispositions of their forces that they did. Their approach was orderly. They were at some pains not to disrupt the regular routine of the restaurant. The management official in charge was asked for authority to enter the restaurant and to conduct the questioning in the kitchen area. Such disorderliness as occurred was the product solely of the efforts of petitioners to flee the premises. It was this response to the appearance of the immigration officers which, we think, sufficed to create a reasonable suspicion in the minds of the officers that petitioners might be illegal aliens, and thereby, under the Terry doctrine, warranted the temporary detention of petitioners for interrogation. In the case of petitioner Yim, indeed, it is not even clear that there was a detention against his will since, once accosted in his apparent progress towards the front door, he appears to have acquiesced readily in the request by Officer Burns to accompany him to the kitchen. Once there, he immediately said that he had jumped a ship. Petitioners Lam and Au manifested their purpose to flee in a more positive manner, and would have gotten away if they had not been affirmatively intercepted. They, thus, ended up in the kitchen under circumstances more nearly resembling forcible detention, although each had given the information that he was off a ship when initially intercepted and before he reached the kitchen. In the case of all three, there had come into being, by the time they were foregathered in the kitchen, probable cause to arrest without warrant under Section 287(a) (2); and they were so arrested and taken to the Immigration Office. No claim is made here that anything improper occurred in their further interrogation there. The argument is, rather, that their arrests occurred simultaneously with the initial approach to them by the officers in the restaurant, and before the officers acquired knowledge constituting probable cause. We think that, at most, those confrontations involved temporary detentions for questioning which were authorized by Congress and which did not, on these facts, fall afoul of the Fourth Amendment. IV In No. 23,527, as noted hereinabove, the Government’s case had to be made without the aid of the statements taken from petitioners Wong and Chan in the course of the investigation conducted at the Washington office following their arrest at the hospital parking lot. The Government now argues that, even if the arrests be deemed illegal, affirmance is in order because the documentary evidence introduced was sufficient to show illegal presence in the country by reason of petitioners having overstayed their limited shore leaves; and that these documents were of an official character and came into the Government’s possession independently of the taking of petitioners into custody. The record, however, is in an abominably muddled state on this score, and we are unable to conclude from our examination of it that the Government’s claim in this regard is well taken. We look, then, to the merits of the claim of taint arising from illegal arrest. This inquiry, of course, is the same as that we have pursued in No. 23,339. There is here no preliminary issue of the Yam Sang Kwai nature, since the errand upon which the two officers came to the hospital was undisputedly legitimate, i. e., to check the status of the ailing Mr. Wong at the request of the hospital receiving authorities. When Officer Taylor arrived at the hospital, identified himself to the receptionist as an immigration officer, and began talking with the Chinese patient who was awaiting his arrival, his attention was struck by the fact that the two Chinese persons immediately got up from their seats in the waiting room and departed. He proceeded with his check of the sick man but resolved to explore the suspicious circumstance further as soon as he had dispatched the business immediately at hand. That took only about 15 minutes, and then he started to look for the two who had left the waiting room. He had reasonable basis to believe they were aliens and to seek to question them. We have recounted above Officer Taylor’s search through the hospital corridors, his sight of petitioners when he came out the side door of the hospital, their hasty repairment to the auto on the parking lot when they saw him, and their unsuccessful efforts to lock the car against him and to drive' away. When they appeared unable to respond to his questions because of a language barrier, he reached in and took the car keys for the purpose of keeping petitioners on hand until he could find help in communication. Petitioners press upon us that it was at this point that an arrest without probable cause occurred. The point is not without difficulty, especially since several minutes elapsed before the matter of communication was brought to resolution by the fortuitous appearance of the Chinese student, who was able to talk to petitioners and who reported that they had exceeded their permissible shore leaves. The Terry doctrine in terms contemplates that detention for interrogation as distinct from arrest will normally be brief in duration, and the reasons why this should be so do not require explication. But the question remains one of the reasonableness of official action under the particular circumstances, and there is no fixed formula as to time, especially when we are dealing with minutes rather than hours. The delay here was occasioned by the efforts made to find a channel of communication to petitioners, not in the time consumed by their questioning once that communication became possible. We think that the conduct of petitioners prior to and upon entering the car, including their vainly seeking to start it, was such as to found a reasonable suspicion about their status within the meaning of the gloss we have hereinabove put on Section 287(a) (1). That being so, Officer Taylor was justified in subjecting petitioners to an investigatory stop for a reasonable period of time. Because of the language barrier, that stop proved longer here than would be necessary in the usual Terry criminal context. But different areas of law enforcement have different problems, and legal doctrine common to all must be of sufficient flexibility to accommodate these differences. We are not persuaded that this record presents a picture of official oppression unrelieved by the quality of reasonableness central to the concept of the Fourth Amendment. We find the deportation orders in both Nos. 23,339 and 23,527 to be valid, and we deny the relief sought in the respective petitions for review. It is so ordered. . The record reveals that petitioners were able to speak in broken English and therefore they were able to answer the simple questions of the detaining officers. However, it is clear that for the purposes of an affidavit an interpreter was needed. . Before the interrogation began at the immigration office, each petitioner was, in accordance with INS policy, given the full Miranda warnings. Each stated that he did not wish counsel to be provided. There is no issue raised in this case as to the adequacy either of the warnings or the waiver. Compare United States v. Campos-Serrano, 430 F.2d 173 (7th Cir. 1970), cert. granted 401 U.S. 936, 91 S.Ct. 926, 28 L.Ed.2d 215, March 1, 1971, (Miranda warnings held necessary where, after one interrogation and examination of an alien’s identification papers, the immigration officers, having thereafter acquired some reason to believe that the alien was guilty of the crime of altering the papers, returned a second time to examine the papers without first giving the warnings). Similarly, since here the restaurant owner consented to the entry by INS agents we are not required to consider the disposition appropriate in a case of unconsented entry and a claim of illegality due to lack of search warrant. . Thei’e were apparently two other men of Chinese extraction in the party, one of whom is identified in the record as Mr. Xee Kong Ling. . Petitioners requested that their hearing be reopened in order that they be allowed to show that the Chinese student never existed. This request was granted by the Special Inquiry Officer. Since petitioners had been instructed by their counsel to remain silent at the hearing, the only method which they could employ to prove the nonexistence of the student was to submit an affidavit by their friend, Mr. Ling. Mr. Ling attested to the fact that he did not see the student when he came to the car to identify petitioners. He further stated that petitioners also denied the existence of the student when they related the incident to him. Mr. Ling was called to the stand in order to be cross-examined by the Government. Petitioners’ counsel also hoped to disprove the existence of the student by pointing out at the hearing that the Government was unable to produce the student as a witness or even to produce the name and address of the student. However, the Board of Immigration Appeals affirmed the finding of the Special Inquiry Officer that there was, in fact, such a student. They based this finding on the testimony of Officers Taylor and Reissig, as well as the hospital policeman. Furthermore, the Board of Immigration Appeals pointed out that the record gives some indication that the student may have left the scene before the arrival of Mr. Ling, thus making Ling’s observations not necessarily inconsistent with that of the officers. We are, in this state of the record, without authority to reject this finding of fact. . Both are contained in Section 287 of the Immigration and Nationality Act, 8 U.S. 0. § 1357, as follows: (a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant— (1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; (2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, or expulsion of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States ; . Green v. United States, 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert. denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959). . United States v. Grandi, 424 F.2d 399 (2nd Cir. 1970) (customs officials). . In Yam Sang Kwai, the claim was that there had been an arrest without probable cause by reason of the fact that, unknown to the petitioner, immigration officers had been posted outside the building while another officer went inside to question petitioner. We held that no arrest had as yet occurred. Petitioner in that case, when approached for interrogation, cooperated voluntarily. The arrest was made only after the information elicited by questioning provided probable cause to believe that he was in the country illegally. . The assistant manager’s testimony was that he offered the officer's a table in the restaurant at which they could question employees, but he admitted that he did not forbid them from going into the kitchen. The officers testified that his grant of permission on the latter score was explicit. The special inquiry officer found this last to be the fact, and his finding was accepted by the Board. We think the finding has adequate support in the record, and we are concluded by it. 8 U.S.C. § 1105a(4). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). . In United States v. Curtis, 138 U.S.App. D.C. 360, 427 F.2d 630 (1970), we remarked en banc the relevance of flight at the appearance of the police to the reasonableness of a warrantless entry upon private premises for the purpose of arrest. We quoted the statement of the Supreme Court in Peters v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968), that “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” If flight can contribute so greatly to probable cause for arrest, it certainly has the capacity in appropriate circumstances to generate the lesser degree of reasonable suspicion requisite for an investigatory stop. . What the Government itself terms a major item of evidence against petitioners, namely, the crewman’s landing permit (which shows the date, place, and manner of admission into the country), appears to have been located as a direct result of the detention. In the case of petitioner Wong, the Government learned, after questioning him at the immigration office, that his permit was in the hands of Mr. Ling. Therefore, the immigration officers called Mr. Ling and asked him to bring the document to the office, which he did. Petitioner Ohan’s permit was either seized from his person after he was arrested or was brought to the office by Mr. Ling after Chan was questioned. The Government points out that the remainder of the documentary evidence (Hong Kong discharge books and Hong Kong and Australian seaman’s identity cards) consisted of identification papers located in the files at the immigration office. The record does not make this fact clear. However, even if this were true, we think it not unlikely that their availability may have been dependent upon determining what date and in what place petitioners entered the country. . They stress also the circumstance that Officer Taylor asked a hospital guard, who happened to be in the vicinity, to keep an eye on the car while he went to find his partner. The testimony of record indicates that the making of this request was not known to petitioners and that they were not aware of the presence of the guard during the five minutes or so that Taylor was away. The guard testified that he was not sure what he would have done if petitioners had tried to leave the car, since Taylor had said nothing about this contingency, although he thought he would probably have endeavored to stop them. The issue, in any event, never arose, since petitioners continued to sit in the cár. . The word “briefly” appears in both Justice Harlan’s and Justice White’s concurrences in Terry. 392 U.S. at 33, 34, 88 S.Ct. 1868. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
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). Ronnie WATKINS, Plaintiff-Appellant, v. SIMMONS AND CLARK, INC., Defendant-Appellee. No. 77-1516. United States Court of Appeals, Sixth Circuit. Cause Argued June 18, 1979. Decided and Filed Jan. 8, 1980. Rehearing and Rehearing En Banc Denied March 24, 1980. David W. Sinclair, Anthony Lutostanski, Detroit, Mich., for plaintiff-appellant. Steven A. Siman, Troy, Mich., Clark, Hardy, Lewis, Fine & Asher, Thomas Hardy, Birmingham, Mich., for defendant-appellee. Before EDWARDS, Chief Judge, KEITH and BROWN, Circuit Judges. The Honorable Bailey Brown, was Chief Judge, United States District Court for the Western District of Tennessee, sitting by designation, when oral argument was heard. KEITH, Circuit Judge. On December 26, 1975, appellant, Ronnie Watkins, purchased a diamond ring on an installment basis from Simmons & Clark, Inc., at a cost of $249.00. On January 22, 1976, Watkins filed the present action in federal district court alleging that the retail credit sales contract which he was required to sign in connection with the purchase did not comply with the disclosure requirements of the Federal-Truth-in-Lending Act, 15 U.S.C. §§ 1601 et seq., and Federal Reserve Regulation Z, 12 C.F.R. § 226 et seq., promulgated pursuant to the Act. In addition to himself, Watkins sought to represent a class estimated to consist of approximately 1,000 other purchasers, each of whom had entered into retail credit transactions with Simmons & Clark in which the same credit sales form was used. The district court decided the case on cross-motions for summary judgment and on appellant’s motion to certify the matter as a class action under Rule 23 of the Federal Rules of Civil Procedure. While the district court found in favor of appellant on the merits, it refused to certify the class, holding, inter alia, that in the circumstances of this case, “the class action is not superior to other available methods of adjudication, and therefore even if compliance with the prerequisites of Rule 23(a) could arguably be shown here, the case does not satisfy the requirements of 23(b).” Plaintiff appeals, claiming that the court abused its discretion in refusing to certify the class. We affirm Judge Philip Pratt. I Since its original enactment in 1968, Section 130 of the Truth-in-Lending Act, 15 U.S.C. § 1640, has permitted consumers to bring civil actions against creditors who fail to disclose the information required by the Act or the accompanying regulations. The Act permits a party who establishes a violation but fails to prove any actual monetary damages resulting therefrom to collect court costs and reasonable attorney’s fees, plus twice the. amount of the finance charge, but not less than $100.00 nor more than $1,000.00. The clear purpose of this statutorily mandated minimum recovery was to encourage lawsuits by individual consumers as a means of enforcing creditor compliance with the Act. However, as originally enacted in 1968, § 1640(a) made no specific provision for class actions. Because of the potentially devastating impact that the statutorily mandated minimum recovery could have on creditors, courts were initially reluctant to certify class actions for Truth-in-Lending Act violations. See Ratner v. Chemical Bank, 329 F.Supp. 270; 54 F.R.D. 412, 414, 416 (S.D.N.Y.1972); Rogers v. Coburn Finance Corp. of Dekalb, 54 F.R.D. 417, 419 (N.D.Ga.1972); Shields v. First National Bank of Arizona, 56 F.R.D. 442, 446 (D.Ariz.1972); Shields v. Valley National Bank of Arizona, 56 F.R.D. 448 (D.Ariz.1972); Wilcox v. Commerce Bank, 55 F.R.D. 134, 138 (D.Kan.1972); Kriger v. European Health Spa, 56 F.R.D. 104, 106 (E.D.Wis.1972); Buford v. American Finance Co., 333 F.Supp. 1243, 1251 (N.D.Ga. 1971). As a rationale for avoiding class certification, the vast majority of courts, particularly where the plaintiff had sustained no monetary damages, concluded that a class action was not “superior to other available methods for the fair and efficient adjudication of the controversy,” Rule 23(b)(3), F.R.C.Pro. In 1974, however, Congress amended the Act by adding the following subsections to § 1640(a): “(2)(B) in the case of a class action, such amount as the court may' allow, except that as to each member of the class no minimum recovery shall be applicable, and the total recovery in such action shall not be more than the lesser of $500,000 or 1 percentum of the net worth of the creditor; and (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. In determining the amount of award in any class action, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the frequency and persistence of failures of compliance by the creditor, the resources of the creditor, the number of persons adversely affected, and the extent to which the creditor’s failure of compliance was intentional.” In 1976, Congress again amended Section 1640 to raise the maximum dollar ceiling on class action recoveries from $100,000 to $500,000. The legislative history of the 1974 amendment reveals that Congress acted to counter the manifest judicial unwillingness to impose class liability under the Act. Indeed, it appears that Congress felt constrained to encourage class actions in the truth-in-lending context because of the apparent inadequacy of the Federal Trade Commission’s enforcement resources and because of a continuing problem of minimal voluntary compliance with the Act on the part of creditors. The legislative history behind the 1976 amendment increasing the maximum dollar ceiling recovery in particular makes clear that Congress wished to encourage Truth-in-Lending class actions: The setting of any ceiling on class action liability is meant to limit the exposure of creditors to vast judgments whose size would depend on the number of members who happened to fall within the class. The risk of any ceiling on class action recoveries is that, if it is too low, it acts as a positive disincentive to the bringing of such actions and thus frustrates the enforcement policy for which class actions are recognized. Under the present Truth in Lending Act, where the class action ceiling is $100,000, several courts have noted the incompatibility of that ceiling with the effective use of the class action device. Boggs v. Alto Trailer Sales, Inc. (No. 74-1605, 5th Cir., April 14, 1975); Weathersby v. Fireside Thrift Co., (No. 73-0563 AJZ, N.D.Calif., Feb. 25, 1975). The Committee wishes to avoid any implication that the ceiling on class action recovery is meant to discourage use of the class action device. The recommended $500,000 limit, coupled with the 1% formula, provides, we believe, a workable structure for private enforcement. Small businesses are protected by the 1% measure, while a potential half million dollar recovery ought to act as a significant deterrent to even the largest creditor. Creditors are also protected by the list of factors a court should consider in determining any class action award. Congress has clearly provided for and tried in encourage class action suits under the Truth-in-Lending Act. In so doing, it has carefully circumscribed such actions so as to insure that they are not overly burdensome on small creditors and yet, at the same time, sufficiently potent to police large concerns. Review of the legislative history surrounding these amendments convinces us that Congress did intend, by them, to encourage class actions and to use the threat of class action recoveries to force compliance with the Act. The fact that courts have recognized this congressional policy is reflected in the dramatic reversal of the judicial trend against the certification of classes in Truth-in-Lending actions. See Goldman v. First National Bank of Chicago, 532 F.2d 10 (7th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 183, 50 L.Ed.2d 150 (1976); Redhouse v. Quality Ford, 523 F.2d 1 (10th Cir. 1975); Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114 (5th Cir. 1975); Agostine v. Sidcon Corp., 69 F.R.D. 437 (D.D.Pa.1975); Postow v. Oriental Building Assn., 390 F.Supp. 1130 (D.C.1976); Eovaldi v. First National Bank of Chicago, 71 F.R.D. 334 (N.D.Ill.1976); Chevalier v. Baind Savings Association, Inc., 72 F.R.D. 140 (E.D.Pa.1976); Vickers v. Federal Savings and Loan Association of East Rochester, 87 Misc.2d 880, 386 N.Y.S.2d 291 (1976); Kaminski v. Shamut Credit Union, 416 F.Supp. 1119 (D.Mass.1976). II Congress did not intend by the 1974 and 1976 amendments, to make the certification of class actions mandatory in every Truth-in-Lending lawsuit. Courts which have considered the question have properly recognized the permissive rather than mandatory nature of class actions and that the determination of whether to certify a class in the Truth-in-Lending context is still to be made on a case-by-case basis, bearing in mind the traditional prerequisites found in 23(a) and (b). See Boggs v. Alto Trailer Sales, Inc., 511 F.2d 114 (5th Cir. 1975); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161 (7th Cir. 1974). The question before us, then, is whether the district court abused its discretion in refusing to certify the class. In determining whether or not to certify a class action, a court must be guided by Rule 23. And while “[sjtudents of the Rule have been led generally to recognize that its broad and open-ended terms- call for the exercise of some considerable discretion of a pragmatic nature,” Ratner, supra, at 416, that discretion must often be limited by considerations in addition to those set forth in the Rule. As this Court has stated: “Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of the purpose for which the power exists. Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir. 1945). Thus in determining the proper scope of the exercise of discretion, the objective sought to be accomplished by the statute must be given great weight. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Where a district court fails to exercise discretion with an eye to the purposes of the Act, it must be reversed. Wirtz v. B. B. Saxon Co., 365 F.2d 457, [17 WH cases 415] (5th Cir. 1966); Shultz v. Parke, 413 F.2d 1364, [19 WH cases 72] (5th Cir. 1969).” Head v. Timken Roller Bearing Co., 486 F.2d 870, 876-77 (6th Cir. 1973) (citations omitted). See Goldman v. First National Bank of Chicago, 532 F.2d 10, 16 (7th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 183, 50 L.Ed.2d 150 (1976). Cf. United States v. Work Wear Corp., 602 F.2d 110 (6th Cir. 1979). We feel that the district court met this standard in this court. After plaintiff won on the merits, Simmons & Clark submitted a revised installment sales contract to the court which was in compliance with the Act. In light of this fact, the district court held that a class action was not necessary in the instant case to force the creditor to comply with the Act because plaintiff’s individual suit had already accomplished this result. The court below was also greatly influenced in its decision to deny certification by its characterization of the violations in this case as mere technical violations, and by the fact that no actual damages were alleged or shown. The court stated that “If the purpose of the Act (and the 1974 Amendment) in these cases of technical violations with no actual damages was to secure compliance with the Act’s disclosure requirements rather than to punish the unheeding violator, then this Court believes maintenance of the class action (at least at this time) is an unnecessary overreaction to the violation here.” We agree that on the facts of this case, this judgment by the district court did not constitute an abuse of discretion. We are aware that Congress did not distinguish technical violations from the more egregious violations in fashioning the class action remedy, except to permit recovery of actual damages of up to $500,000 in the latter cases. A Report of the Senate Committee which issued the amending bill makes clear that Congress intended that the threat of “class liability” should serve to induce compliance with the Act even in cases where the violations are merely technical, involving no actual damages. The Committee noted that “ ‘Most Truth-in-Lending violations do not involve actual damages and some meaningful penalty provisions are therefore needed to insure compliance.’ ” We are also aware that the technical nature of the violations may well argue in favor of the appropriateness of the class action here. Precisely because the violations are technical, as appellant notes, most of the members of the consumer class will not be aware of them unless they should encounter a practicing attorney versed in the Act. The superiority of the class action in these circumstances lies in the fact that the class members may share in a financial recovery which, otherwise, they would never pursue on their own behalf because of ignorance. Additionally, the class action provides an opportunity to educate a segment of the public, those included in the class, of the obligations which creditors owe to them as credit consumers. This mass awakening of awareness could, indeed, be the greatest single benefit derived in an area of regulation in which the responsibility of policing falls principally on the shoulders of the private citizen and private counsel. There are persuasive arguments .which favor class certification even in cases involving technical violations. Were the certification issue before us de novo we may very well have certified the class. However, we cannot find an abuse of discretion on this record. Unlike Goldman v. First National Bank of Chicago, supra and Haynes v. Logan Furniture Mart, supra, the violations here were all technical and no claim was made that the violations influenced the plaintiff in his decision to buy the ring on an installment basis. The defendant is a small store and this was the first time that a truth-in-lending violation had been brought to its attention. It moved quickly after suit was filed to bring its installment contracts into compliance with the Act. This is an extreme case. Were we to order class-certification here, as a practical matter, class certification would be required in all cases. This would effectively negate the discretion of a district court to certify a class. We wish to state that class certification is desirable and should be encouraged. Where the requirements of F.R.Civ.Pro. 23(a) have been met, class certification should be denied only in a case involving technical violations and only where the district court, in the exercise of discretion, believes that certification is unwarranted. On the facts of this case, we can see no abuse of discretion. The judgment of the district court is affirmed. Each party is to bear its own costs. Before EDWARDS, Chief Judge, and KEITH and BROWN, Circuit Judges. ORDER No members of this court having voted in favor of en banc reconsideration, the petition for rehearing has been referred to the hearing panel for disposition. We see no reason to reconsider our opinion. Contrary to the allegations made in the petition for rehearing, we were not overly moved by solicitude for the defendant. The plaintiff characterizes the defendant as a profiteering huckster of overpriced junk jewelry to unsuspecting poor people. Even assuming this is true, the defendant was guilty of only technical truth-in-lending violations. We simply see no abuse of discretion by the district court in denying class certification. The petition for rehearing is denied. . Simmons & Clark is a Michigan Corporation engaged in the retail sale of watches, jewelry, small household appliances, and other related items. . Fed.R.Civ.Pro. 23(a) requires that (1) the class be so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the class. The pertinent requirement of 23(b) is that contained in 23(b)(3): the court must find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. (emphasis added) . Section 1640, originally enacted in 1968, provided in pertinent part: (a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to such person in an amount equal to the sum of (1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and (2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court. **** (e) Jurisdiction: Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. **** Pub.L. 90-321, Title I, § 130, May 29, 1968, 82 Stat. 157. . As the court summarized in Shields, supra: “Recent cases have . emphasized the impact of suits such as this one on corporations charged under the Act. Where an industry may possibly suffer ‘a horrendous, possibly annihilating punishment, unrelated to any damage to the purported class or to any benefit to defendant, for what is at most a technical and debatable violation of the Truth in Lending Act,’ several courts have recently found that a class action is not ‘superior to’ other alternatives and does not ‘achieve economies of time, effort and expenses, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’ Wilcox v. Commerce Bank, supra; Shields v. Valley National Bank, supra; Rogers v. Coburn Finance Corp. of Dekalb, supra; Ratner v. Chemical Bank New York Trust Co., supra; Buford v. American Finance Co., supra; Amendments to Rules of Civil Procedure, Advisory Committee’s Notes, 39 F.R.D. 69, 103 (1966); See Gerlach v. Allstate Insurance Co., 338 F.Supp. 642 (S.D.Fla.1972).” 56 F.R.D. at 446. It bears noting, however, that not all of the earlier decisions denied class certification in the Truth-in-Lending Act context. See Katz v. Carte Blanche Corp., 52 F.R.D. 510, 53 F.R.D. 539 (W.D.Pa.1971); Joseph v. Norman Health Club, Inc., 336 F.Supp. 307 (E.D.Mo.1971). . 15 U.S.C. § 1640 (as amended Pub.L. 94-222, § 3(b), 90 Stat. 197, Mar. 23, 1976, P.L. 94-240). . The Report of the Senate Committee on Banking, Housing and Urban Affairs of June 28, 1973, (legislative date is June 25, 1973), Truth in Lending Act Amendments, contains a cogent analysis of then-proposed changes in the Act which were ultimately adopted in 1974. The report states: A problem has arisen in applying [the applicable individual suits’] minimum liability provisions in class action suits involving millions of consumers. If each member of the class is entitled to a minimum award of $100 a creditor’s liability can be enormous. For example, if a large national department store chain with 10 million customers fails to include a required item of information on its monthly billing statement, it can be subject to a minimum liability of $1 billion in a class action suit. The leading case in construing the applicability of the minimum liability provisions under section 130 to class action suits is Ratner v. Chemical Bank New York Trust Co. [citation omitted] In the Ratner case, Judge Frankel decided that the action by one cardholder would not lie as a class action, stating that, “The allowance of thousands of minimum recoveries like plaintiff’s would carry to an absurd and stultifying extreme the specific and essentially inconsistent remedy Congress prescribed as the means of private enforcement.” In refusing to maintain the Ratner case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, the court also emphasized that it was not ruling on the defendant’s more sweeping contentions that no class actions were authorized under section 130 of the Truth in Lending Act. Prior to the Ratner decision on February 14, 1972, the courts affirmed 8 Truth in Lending suits as class actions while denying class action status to 3. Since the Ratner case, the courts denied 21 Truth in Lending suits class action status while affirming only one and in that case only after the plaintiffs amended their complaint to' sue only for actual damages. Despite this record, many creditors fear a future court may still certify a Truth in Lending suit for class action status and subject the creditor involved to a potentially staggering penalty. At the same time, it is clear that consumers have not obtained much relief because of the court’s reluctance to impose the unreasonably large minimum penalties provided for under section 130 of the Truth in Lending Act. The purpose of the civil penalties section under Truth in Lending was to provide creditors with a meaningful incentive to comply with the law without relying upon an extensive new bureaucracy. However, the Committee feels this objective can be achieved without subjecting creditors to enormous penalties for violations which do not involve actual damages and may be of a technical nature. Putting a reasonable limit on a creditor’s maximum class action liability would seem to be in the best interests of both creditors and consumers, (emphasis added) In reviewing alternative solutions to the problem, the Committee considered a proposal to leave the present law unchanged. This approach was advocated by the finance company industry on the theory that class action suits under Truth in Lending other than for actual damages were inappropriate, were not specifically authorized by The Truth in Lending Act, and would be ultimately held to be illegal per se by the courts. This approach was not approved by the Committee. The Committee believes the present ambiguities and uncertainties with respect to class action suits under Truth in Lending should be clarified. Moreover, the Committee agrees with the Federal Reserve Board that “potential class action liability is an important encouragement to the voluntary compliance which is so necessary to insure nation-wide adherence to uniform disclosure” and that such remedies should not be restricted to actual damages, (emphasis added) As the Committee pointed out in its report on similar legislation last year, “Most Truth in Lending violations do not involve actual damages and some meaningful penalty provisions are therefore needed to insure compliance.” Senate Report No. 93-278, pp. 14-15. . Banking, Housing and Urban Affairs Committee’s Senate Report on P.L. 94-240, Senate -Report No. 94-590 reprinted in 1976 U.S.Code Cong, and Admin.News, pp. 431, 438. . However, we note that if, in every proposed class action, the noncomplying creditor can escape class liability by virtue of a judgment in favor of one party, the congressional purpose of using the threat of a class action to force compliance with the Act is all but completely nullified. In other words, the prophylactic effect of class liability exposure prompting creditors to comply with the Act without the necessity of suit being brought could be, if this approach prevails, nonexistent. . The court below also stated that its finding that the credit form used by Simmons & Clark violated the Act “goes a considerable way toward overcoming any reluctance on the part of other customers to bring suit under the Truth-in-Lending Act.” This overlooks the fact that there may be individual debtors who are aware of their creditors’ violations but have serious reservations about initiating a lawsuit for fear of retaliation. As the 7th Circuit noted in a pre-1974 amendment case: “. . . no particular perceptiveness of modem society is needed for an awareness of a fact of life lying in the virtually perpetual monthly payment program of many families. As balances owing decline new purchases occur. The individual if aware at all of his claim under the Act is bound to have some reluctance to sue in his own name the supplier with whom he continues to do business and one who could be in a position to visit harsh remedies on the buyer in the event of a subsequent default.” Haynes v. Logan Furniture Mart, Inc., 503 F.2d at 1161-1165 (1974). Moreover, the class action is a superior device to numerous individual actions because it will not preclude relief for those individuals on whose claims the statute of limitations has run. See Neeley v. United States, 546 F.2d 1059, 1071 (10th Cir. 1976). Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975); Blackie v. Bannack, 524 F.2d 891 (9th Cir. 1975); Samuel v. University of Pittsburgh, 538 F.2d 991 (3rd Cir. 1976); Dolgow v. Anderson, 43 F.R.D. 472, 481 (E.D.N.Y.1968). . The violations of the Act found by the District Court related to failure of the defendant to use required terminology in its financing statement: 1) The defendant used the term “(Trade In) Down Payment” instead of “cash downpayment” (denoting cash) and “trade in” (denoting a down payment in property, if any), as required by regulation Z, 12 C.F.R. § 226.8(c)(2); 2) The defendant used the term “principle balance” rather than “unpaid balance of cash price” as required by regulation Z, 12 C.F.R. § 226.8(c)(3); 3) The defendant used the term “total time sales price” rather than “deferred payment price” as required by regulation Z, 12 C.R.F. § 226.8(c)(8); 4) The contract, while containing a line stating that terms were $20.00 per week, did not state how many weeks payments were to run before the balance was paid off. See 12 C.F.R. § 226.8(b)(3). Of these four violations found by the district court, only the last even arguably might have had an effect on the buyer. However, unlike the first three violations which were contained on the printed form, the fourth violation arose from a failure of a store employee to write out the needed term. This failure is unique to the plaintiff and he never claimed that it had any effect on his decision to buy the ring. At oral argument before the district court, on motions for summary judgment, counsel for the plaintiff conceded that “the violations we claim are technical.” . See n. 6, supra. . Appellee’s counsel informed the Court in its brief and at oral argument that Watkins has failed to. make any of the payments required on the purchase and has absented himself from the jurisdiction of the district court. At oral argument, counsel suggested that Simmons & Clark should be permitted to offset the unpaid balance due on the purchase against any recovery to which Watkins becomes entitled by virtue of this lawsuit. A setoff is specifically provided for in 15 U.S.C. § 1640(h) but only if the consumer’s debt has been reduced to judgment. See Plant v. Blazer Financial Services Inc. of Georgia, 598 F.2d 1357 (5th Cir. 1979) (under F.R.Civ.Pro. 13(a) setoff of a debt is a compulsory counterclaim to a truth in lending action). In this case, however, no counterclaim was filed in the district court and the set-off issue was raised for the first time on appeal. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
sc_decisiontype	F	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. MOORE v. CITY OF EAST CLEVELAND, OHIO No. 75-6289. Argued November 2, 1976 Decided May 31, 1977 Edward R. Stege, Jr., argued the cause for appellant. With him on the brief were Francis D. Murtaugh, Jr., and Lloyd B. Snyder. Leonard Young argued the cause for appellee. With him on the brief was Henry B. Fischer. Melvin L. Wulf and Benjamin Sheerer filed a brief for the American Civil Liberties Union et al. as amici curiae. Mr. Justice Powell announced the judgment of the Court, and delivered an opinion in which Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun joined. East Cleveland’s housing ordinance, like many throughout the country, limits occupancy of a dwelling unit to members of a single family. § 1351.02. But the ordinance contains an unusual and complicated definitional section that recognizes as a “family” only a few categories of related individuals. § 1341.08. Because her family, living together in her home, fits none of those categories, appellant stands convicted of a criminal offense. The question in this case is whether the ordinance violates the Due Process Clause of the Fourteenth Amendment. I Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins rather than brothers; we are told that John came to live with his grandmother and with the elder and younger Dale Moores after his mother’s death. In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an “illegal occupant” and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and upon conviction she was sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed after giving full consideration to her constitutional claims, and the Ohio Supreme Court denied review. We noted probable jurisdiction of her appeal, 425 U. S. 949 (1976). II The city argues that our decision in Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court’s leading land-use case, Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), we sustained the Belle Terre ordinance on the ground that it bore a rational relationship to permissible state objectives. But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by “blood, adoption, or marriage” to live together, and in sustaining the ordinance we were careful to note that it promoted “family needs” and “family values.” 416 U. S., at 9. East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face it selects certain categories of relatives who may live together and declares that others may not. In particular, it makes a crime of a grandmother’s choice to live with her grandson in circumstances like those presented here. When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate. “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one'oT the* liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974). A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923), and Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), have consistently acknowledged a “private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U. S. 158, 166 (1944). See, e. g., Roe v. Wade, 410 U. S. 113, 152-153 (1973); Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Ginsberg v. New York, 390 U. S. 629, 639 (1968); Griswold v. Connecticut, 381 U. S. 479 (1965); id., at 495-496 (Goldberg, J., concurring); id., at 502-503 (White, J., concurring); Poe v. Ullman, 367 U. S. 497, 542-544, 549-553 (1961) (Harlan, J., dissenting); cf. Loving v. Virginia, 388 U. S. 1, 12 (1967); May v. Anderson, 345 U. S. 528, 533 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra, at 554 (Harlan, J., dissenting). When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland's school system. Although these are legitimate goals, the ordinance before us serves them marginally, at best. For example, the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car. At the same time it forbids an adult brother and sister to share a household, even if both faithfully use public transportation. The ordinance would permit a grandmother to live with a single dependent son and children, even if his school-age children number a dozen, yet it forces Mrs. Moore to find another dwelling for her grandson John, simply because of the presence of his uncle and cousin in the same household. We need not labor the point. Section 1341.08 has but a tenuous relation to alleviation of the conditions mentioned by the city. Ill The city would distinguish the cases based on Meyer and Pierce. It points out that none of them “gives grandmothers any fundamental rights with respect to grandsons,” Brief for Appellee 18, and suggests that any constitutional right to live together as a family extends only to the nuclear family— essentially a couple and their dependent children. To be sure, these cases did not expressly consider the family relationship presented here. They were immediately concerned with freedom of choice with respect to childbearing, e. g., LaFleur, Roe v. Wade, Griswold, supra, or with the rights of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of child rearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case. Understanding those reasons requires careful attention to this Court’s function under the Due Process Clause. Mr. Justice Harlan described it eloquently: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint. “. . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. Ullman, supra, at 542-543 (dissenting opinion). Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary — the boundary of the nuclear family. Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful “respect for the teachings of history [and] solid recognition of the basic values that underlie our society.” Griswold v. Connecticut, 381 U. S., at 501 (Harlan, J., concurring). See generally Ingraham v. Wright, 430 U. S. 651, 672-674, and nn. 41, 42. (1977); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 162-163 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning child rearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household — ■ indeed who may take on major responsibility for the rearing of the children. Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what-happened here. Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State’s public schools, holding that the Constitution “excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” 268 U. S., at 535. By the same token the Constitution prevents East Cleveland from standardizing its children — and its adults — by forcing all to live in certain narrowly defined family patterns. Reversed. All citations by section number refer to the Housing Code of the city of East Cleveland, Ohio. Section 1341.08 (1966) provides: “ ‘Family’ means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following: “(a) Husband or wife of the nominal head of the household. “(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them. “(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household. “(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household. “(e) A family may consist of one individual.” Appellant also claims that the ordinance contravenes the Equal Protection Clause, but it is not necessary for us to reach that contention. Brief for Appellant 4, 25. John’s father, John Moore, Sr., has apparently been living with the family at least since the time of trial. Whether he was living there when the citation was issued is in dispute. Under the ordinance his presence too probably would be a violation. But we take the case as the city has framed it. The citation that led to prosecution recited only that John Moore, Jr., was in the home in violation of the ordinance. The dissenting opinion of The Chief Justice suggests that Mrs. Moore should be denied a hearing in this Court because she failed to seek discretionary administrative relief in the form of a variance, relief that is no longer available. There are sound reasons for requiring exhaustion of administrative remedies in some situations, but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here. See generally McKart v. United States, 395 U. S. 185 (1969). Mrs. Moore defends against the State’s prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e. g., Yakus v. United States, 321 U. S. 414, 446-447 (1944). Moreover, those cases that have denied certain nonconstitutional defenses to criminal defendants for failure to exhaust remedies did so pursuant to statutes that implicitly or explicitly mandated such a holding. See, e. g., Falbo v. United States, 320 U. S. 549 (1944); Yakus v. United States, supra; McGee v. United States, 402 U. S. 479 (1971). Because of the statutes the defendants were on notice that failure to pursue available administrative relief might result in forfeiture of a defense in an enforcement proceeding. But here no Ohio statute or ordinance .required exhaustion or gave Mrs. Moore any such warning. Indeed, the Ohio courts entertained all her claims, perceiving no denigration of state administrative process in according full judicial review. Euclid held that land-use regulations violate the Due Process Clause if they are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” 272 U. S., at 395. See Nectow v. Cambridge, 277 U. S. 183, 188 (1928). Later cases have emphasized that the general welfare is not to be narrowly understood; it embraces a broad range of governmental purposes. See Berman v. Parker, 348 U. S. 26 (1954). But our cases have not departed from the requirement that the government’s chosen means must rationally further some legitimate state purpose. It is significant that East Cleveland has another ordinance specifically addressed to the problem of overcrowding. See United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 536-537 (1973). Section 1351.03 limits population density directly, tying the maximum permissible occupancy of a dwelling to the habitable floor area. Even if John, Jr., and his father both remain in Mrs. Moore’s household, the family stays well within these limits. 8 This explains why Meyer and Pierce have survived and enjoyed frequent reaffirmanee, while other substantive due process cases of the same era have been repudiated — including a number written, as were Meyer and Pierce, by Mr. Justice McReynolds. Lochner v. New York, 198 U. S. 45 (1905). See North Dakota Pharmacy Bd. v. Snyder’s Drug Stores, Inc., 414 U. S. 156, 164-167 (1973); Griswold v. Connecticut, 381 U. S. 479, 514-527 (1965) (Black, J., dissenting); Ferguson v. Skrupa, 372 U. S. 726 (1963); Baldwin v. Missouri, 281 U. S. 586, 595 (1930) (Holmes, J., dissenting); G. Gunther, Cases and Materials on Constitutional Law 550-596 (9th ed. 1975). A similar restraint marks our approach to the questions whether an asserted substantive right is entitled to heightened solicitude under the Equal Protection Clause because it is “explicitly or implicitly guaranteed by the Constitution,” San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 33-34 (1973), and whether or to what extent a guarantee in the Bill of Rights should be “incorporated” in the Due Process Clause because it is “necessary to an Anglo-American regime of ordered liberty.” Duncan v. Louisiana, 391 U. S. 145, 149-150, n. 14 (1968); see Johnson v. Louisiana, 406 U. S. 356, 372 n. 9 (1972) (opinion of Powell, J.). For a recent suggestion that the holding in Griswold is best understood in this fashion, see Pollak, Comment, 84 Yale L. J. 638, 650-653 (1975). “[I]n due course we will see Griswold as a reaffirmation of the Court’s continuing obligation to test the justifications offered by the state for state-imposed constraints which significantly hamper those modes of individual fulfillment which are at the heart of a free society.” Id., at 653. In Wisconsin v. Yoder, 406 U. S. 205 (1972), the Court rested its holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a “strong tradition” founded on “the history and culture of Western civilization,” and because the parental role “is now established beyond debate as an enduring American tradition.” Id., at 232. In Ginsberg v. New York, 390 U. S. 629 (1968), the Court spoke of the same right as “basic in the structure of our society.” Id., at 639. Griswold v. Connecticut, supra, struck down Connecticut’s antieontraception statute. Three concurring Justices, relying on both the Ninth and Fourteenth Amendments, emphasized that “the traditional relation of the family” is “a relation as old and as fundamental as our entire civilization.” 381 U. S., at 496 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, 367 U. S. 497, 551-552 (1961): “[H]ere we have not an intrusion into the home so much as on the life which characteristically has its place in the home. . . . The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right.” Although he agrees that the Due Process Clause has substantive content, Mr. Justice White in dissent expresses the fear that our recourse to history and tradition will “broaden enormously the horizons of the Clause.” Post, at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U. S. 319 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra, at 149-150, n. 14 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in Mr. Justice White’s dissent as “most accurately reflect[ing] the thrust of prior decisions” on substantive due process, post, at 545, expressly points to history and tradition as the source for “supplying .. . content to this Constitutional concept.” Poe v. Ullman, supra, at 542 (Harlan, J., dissenting). See generally Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563, 623-624 (1977). See generally B. Yorburg, The Changing Family (1973); Bronfenbrenner, The Calamitous Decline of the American Family, Washington Post, Jan. 2, 1977, p. Cl. Recent census reports bear out the importance of family patterns other than the prototypical nuclear family. In 1970, 26.5% of all families contained one or more members over 18 years of age, other than the head of household and spouse. U. S. Department of Commerce, 1970 Census of Population, vol. 1, pt. 1, Table 208. In 1960 the comparable figure was 26.1%. U. S. Department of Commerce, 1960 Census of Population, vol. 1, pt. 1, Table 187. Earlier data are not available. Cf. Prince v. Massachusetts, 321 U. S. 158 (1944), which spoke broadly of family authority as against the State, in a case where the child was being reared by her aunt, not her natural parents. We are told that the mother of John Moore, Jr., died when he was less than one year old. He, like uncounted others who have suffered a similar tragedy, then came to live with the grandmother to provide the infant with a substitute for his mother’s care and to establish a more normal home environment. Brief for Appellant 25. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Ernest GUERRERO, Appellant, v. C. J. FITZHARRIS, Superintendent, Department of Corrections, California, Appellee. No. 21036. United States Court of Appeals Ninth Circuit. April 22, 1968. As Corrected on Denial of Rehearing June 3, 1968. Ernest Guerrero, in pro. per. Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, James A. Aiello, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before CHAMBERS, Circuit Judge, MADDEN, Judge of the Court of Claims, and BROWNING, Circuit Judge. PER CURIAM: Appellant is presently in California penal custody serving an indeterminate sentence of two-to-ten years on a narcotics conviction. In addition, he faces a future consecutive sentence of one-year-to-life on a conviction for escape without force. Appellant’s petition for a writ of habeas corpus showed on its face that the escape conviction was valid. Appellant attacked only the validity of the narcotics conviction. The district court summarily denied the petition, reasoning that even if appellant’s narcotics conviction were invalid, appellant would have to serve the sentence on the escape charge and thus appellant was not eligible for the writ because he was not entitled to “immediate release” within the meaning of McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238 (1934), as interpreted by this court in Hoffman v. United States, 9 Cir., 244 F.2d 378, 381-382 (1957). In its recent decision in Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (March 11, 1968), the Supreme Court held that McNally was not a bar to habeas corpus attack on the first of two consecutive sentences. Thus, the ground upon which the district court relied in not reaching the merits of appellant’s petition is no longer tenable. Reversed and remanded. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. 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". SMITH v. SPRINGDALE AMUSEMENT PARK, Limited, et al. No. 5335. Circuit Court of Appeals, Sixth Circuit. April 15, 1930. See, also, 39 F.(2d) 92. J. E. Sater, of Columbus, Ohio, and E. H. M’Caleb, of New Orleans, La. (Walter F. Murray, of Cincinnati, Ohio, and C. Arthur Anderson, of St. Louis, Mo., on the brief), for appellant. Paul Bakewell, of St. Louis, Mo. (J. W. Heintzman, of Cincinnati, Ohio, on the brief), for appellees. Before MOORMAN and HICKS, Circuit Judges, and ANDERSON, District Judge. MOORMAN, Circuit Judge. This suit, as originally brought, was for the infringement of eight patents issued to Owen B. Smith, each of which related to apparatus for dog racing. Before trial, and in response to interrogatories filed by the defendant, the plaintiff elected to rely upon but three of the patents, Nos. 1,379,224,1,507,440, and 1,507,439. The trial court decreed the first and third of these valid, but not infringed, and the second invalid as involving only mechanical skill, but, if valid, not infringed. In holding patent 1,507,440 invalid for lack of invention, the court was at variance with the District Court of the Eastern District of Louisiana [21 F.(2d) 366] and the Court of Appeals of the Fifth Circuit [26 F.(2d) 1016]. Two of the patents, Nos. 1,379,224, and 1,507,440, were also litigated, in Smith v. Magic City Kennel dub, in the Northern District of Oklahoma, and held by the District Judge to be valid and infringed by devices similar to those alleged to- infringe in this ease. Upon appeal, however, from that decree, the Circuit Court of Appeals [38 F. (2d) 170] reversed the decree, holding that, if the patents were valid, they were restricted to the specific elements called for in their claims, and, -as so construed, were not infringed. Claims 1 and 2 of patent 1,379,224 are in issue. These claims call for a combination comprising the following elements: (1) A race course suited for dogs; (2) a casing extending around the outer side of the race course, or, as stated in claim 2, “on one side,” and provided with a longitudinal opening; (3) a mechanical conveyor including a track extending around the race course, and located within the easing; (4) a conveyor or mechanical car operated upon the track and provided with an arm (as called for in claim 2 “hinged” to the car) extending through the longitudinal opening of the casing in a projecting position over the track, and adapted to carry a lure; -and (5) a wheel rotatably mounted on and supporting the arm at the outer end thereof. It is stated for appellant in argument that the real invention disclosed by these elaims is a “horizontal lure carrying arm attached to a traveling propelling operative motor or mechanism, and an arm extending outwardly, close to the surface of the race course, through a continuous longitudinal slot or opening in the housing which conceals-such mechanism from the racing dogs.” It would be difficult to.give to- these elaims the breadth of interpretation that is thus insisted upon without ignoring entirely the record in the Patent Office. The file wrapper shows that elaims broad enough to cover 'such interpretation were made in the original application, but were rejected by the Patent Office, and, as amended, again rejected. These rejections, with the resulting limitations on the claims allowed, were brought about upon references to earlier patents in the same art. All of these earlier patents were for mechanical contrivances for carrying a lure in front of racing dogs. None of them used a horizontal arm, and in none of them was the lure mounted upon the end of the arm. In Everett, 1,052,807, the lure was attached to the end of a vertical arm which passed through the slot of an underground housing. Smith, 1,038,504, also had a vertical arm passing through a slot in an underground easing in which the motorcar and tracks were located. Walsh, 611,876, had a conveyor track aboveground separated from the race course by a fence, with a motor carrying a transverse pole or rod which extended over the fence and partially over the track. To the end of this rod he attached a rope or another rod to the end of which there was -attached a support for the lure. These patents sufficiently show that Smith was not a pioneer in the art. His device is perhaps more effective and better than any of the earlier devices. Whether it amounts to invention or was nothing more than the exercise of a high order of mechanical skill we need not determine, for in our opinion appellees’ device does not come within the limitations which Smith imposed upon his claims in the Patent Office proceedings. It is contended for appellees that there is lack of analogy between their device and the patentee’s in the location of the conveyor tracks, and it appears that there would be difficulties in adapting appellant’s form of apparatus to a track located, as appellees’ is, within the race course. We pass that question by, though, as less important than the rotatable mounted wheel and the hinged arm connection called for in appellant’s claims. It is apparent that the rotatable wheel supporting the arm at the projecting end thereof is an essential element of both of the claims. This is entirely absent from the appellees’ structure. Again, the hinge connecting the horizontal arm with the ear, as specified in claim 2, and as used in appellant’s practical device, is absent from appellees’ construction. This hinge, because of the support given the end of the arm by the wheel, the circular shape of the race course, and the location of the mechanical conveyor on the outer side thereof, performs a substantial function in giving to the horizontal bar the flexibility that is needed to take up the vibrations that result from the operation of the ear.' If these two elements were eliminated from Smith’s combination, it would be obviously inoperable for the purpose for which it was designed. The equivalent of neither of them is found in appellees’ device. As both were specifically relied upon by the patentee in his specifications and claims, and were regarded by the Patent Office as essential to avoid references in the prior art, they are to be treated as limitations. D’Arcy Spring Co. v. Marshall Ventilated Mattress Co., 259 F. 236 (6 C. C. A.); Lakewood Engineering Co. v. Stein, 8 F.(2d) 713 (6 C. C. A.); I. T. S. Co. v. Essex Co., 272 U. S. 429, 47 S. Ct. 136, 71 L. Ed. 335. As so limited, the claims are not infringed by appellees’ device. The trial court was also right in dismissing the claim for infringement of patent No. 1,507,440. Claim 1 is typical. It calls for (1) a housing for covering tracks; (2) ears having laterally extending arms operated upon the track; (3) the combination of posts set in the ground at the side of the track; (4) timbers attached to the posts to form a frame; (5) boards attached to the timbers and posts to form a continuous inclosure above the track, and having a continuous opening on one side of the housing adapted to permit extension of a laterally extending arm therethrough; and (6) truss rods attached to the closed side of the housing adapted to support the side of the housing above the continuous opening. The composite result of these elements is a circular track inclosed in a housing which has a longitudinal opening in one side to admit a laterally extending arm therethrough. All of the elements in this elaim were old and in common use. It was not invention to construct a wooden housing over a circular track with a longitudinal opening in one of the sides thereof. The longitudinal opening would seem to be anticipated by Bertram, No. 729,120, and the element of adjustable supports or truss rods is but a step that would be obvious to any skilled builder who, having the same problem to deal -with, would resort to truss rods or some other familiar method -for constructing supports for that part of the housing which could not be supported from the ground. Besides, appellees’ supports are not adjustable, and, whether they are or are not equivalent in other respects to the truss rods that appellant uses, both were well known to the construction art, and neither could bring invention to the combination. Patent No. 1,507,439 has but a single claim, which calls for a combination of elements forming a housing or box-like structure in which there are separate compartments, the walls of which are formed of wire mesh partially covered with fabric, each having a rear door, but with a single front door which can be raised upwardly and outwardly by springs. The history of this patent shows that the claims as originally filed were rejected upon reference to several earlier patents, among them Andrew, 543,762, and Stitzer, 878,029. After these rejections, the claims were canceled and a new claim inserted ; then followed a rejection and cancellation of this elaim, and the presentation of another which, after amendments upon objection was allowed as the elaim in suit. From this history it is evident that, if the patent is valid, it must be given a relatively narrow range. The particular form of spring support and the wire mesh partitions partially covered with fabric are the two features of the device that are said to be novel and highly useful. We think they, as well as the other elements, are but forms of construction that might be thrown together, if occasion demanded or necessity arose, by any one who is skilled in the braiding art. Furthermore, appellees omit from their combination the wire partitions and the form of spring support used by appellant, and this would avoid infringement even if the patent were valid. The decree below is affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
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. UNITED STATES v. RUIZ No. 01-595. Argued April 24, 2002 Decided June 24, 2002 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, post, p. 633. Solicitor General Olson argued the cause for the United States. With him on the brief were Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, Irving L. Gornstein, and Jonathan L. Marcus. Steven F. Hubachek, by appointment of the Court, 534 U. S. 1126, argued the cause for respondent. With him on the brief was Benjamin L. Coleman A brief of amici curiae urging reversal was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gormley, State Solicitor, Stephen P. Carney, Associate Solicitor, Diane M. Welsh, and Dan Schweitzer, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Bo-telho of Alaska, Ken Salazar of Colorado, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Eliot Spitzer of New York, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Anabelle Rodriquez of Puerto Rico, Paul G. Summers of Tennessee, Mark L. Shurtleffoi Utah, William H. Sorrell of Vermont, and Hoke MacMillan of Wyoming. John T. Philipsborn and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae. Justice Breyer delivered the opinion of the Court. In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose “impeachment information relating to any informants or other witnesses.” App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure. I After immigration agents found 30 kilograms of marijuana in Angela Ruiz’s luggage, federal prosecutors offered her what is known in the Southern District of California as a “fast track” plea bargain. That bargain — standard in that district — asks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. In Ruiz’s case, a two-level departure downward would have shortened the ordinary Guidelines-specified 18-to-24-month sentencing range by 6 months, to 12-to-18 months. 241 F. 3d 1157, 1161 (2001). The prosecutors’ proposed plea agreement contains a set of detailed terms. Among other things, it specifies that “any [known] information establishing the factual innocence of the defendant” “has been, turned over to the defendant,” and it acknowledges the Government’s “continuing duty to provide such information.” App. to Pet. for Cert. 45a-46a. At the same time it requires that the defendant “waiv[e] the right” to receive “impeachment information relating to any informants or other witnesses” as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial. Id., at 46a. Because Ruiz would not agree to this last-mentioned waiver, the prosecutors withdrew their bargaining offer. The Government then indicted Ruiz for unlawful drug possession. And despite the absence of any agreement, Ruiz ultimately pleaded guilty. At sentencing, Ruiz asked the judge to grant her the same two-level downward departure that the Government would have recommended had she accepted the “fast track” agreement. The Government opposed her request, and the District Court denied it, imposing a standard Guideline sentence instead. 241 F. 3d, at 1161. Relying on 18 U. S. C. § 3742, see infra, at 627, 628-629, Ruiz appealed her sentence to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit vacated the District Court’s sentencing determination. The Ninth Circuit pointed out that the Constitution requires prosecutors to make certain impeachment information available to a defendant before trial. 241 F. 3d, at 1166. It decided that this obligation entitles defendants to receive that same information before they enter into a plea agreement. Id., at 1164. The Ninth Circuit also decided that the Constitution prohibits defendants from waiving their right to that information. Id., at 1165-1166. And it held that the prosecutors’ standard “fast track” plea agreement was unlawful because it insisted upon that waiver. Id., at 1167. The Ninth Circuit remanded the case so that the District Court could decide any related factual disputes and determine an appropriate remedy. Id., at 1169. The Government sought certiorari. It stressed what it considered serious adverse practical implications of the Ninth Circuit’s constitutional holding. And it added that the holding is unique among courts of appeals. Pet. for Cert. 8. We granted the Government’s petition. 534 U. S. 1074 (2002). II At the outset, we note that a question of statutory jurisdiction potentially blocks our consideration of the Ninth Circuit’s constitutional holding. The relevant statute says that a “defendant may file a notice of appeal... for review ... if the sentence “(1) was imposed in violation of law; “(2) was imposed as a result of an incorrect application of the sentencing guidelines; or “(3) is greater than [the Guideline] specified [sentence] .. .; or “(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.” 18 U. S. C. § 3742(a). Every Circuit has held that this statute does not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart. See, e. g., United States v. Conway, 81 F. 3d 15, 16 (CA1 1996); United States v. Lawal, 17 F. 3d 560, 562 (CA2 1994); United States v. Powell, 269 F. 3d 175, 179 (CA3 2001); United States v. Ivester, 75 F. 3d 182, 183 (CA4 1996); United States v. Cooper, 274 F. 3d 230, 248 (CA5 2001); United States v. Scott, 74 F. 3d 107, 112 (CA6 1996); United States v. Byrd, 263 F. 3d 705, 707 (CA7 2001); United States v. Mora-Higuera, 269 F. 3d 905, 913 (CA8 2001); United States v. Garcia-Garcia, 927 F. 2d 489, 490 (CA9 1991); United States v. Coddington, 118 F. 3d 1439, 1441 (CA10 1997); United States v. Calderon, 127 F. 3d 1314, 1342 (CA11 1997); In re Sealed Case No. 98-3116, 199 F. 3d 488, 491-492 (CADC 1999). The statute does, however, authorize an appeal from a sentence that “was imposed in violation of law.” Two quite different theories might support appellate jurisdiction pursuant to that provision. First, as the Court of Appeals recognized, if the District Court’s sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure, the quoted provision would apply. 241 F. 3d, at 1162, n. 2. Our reading of the record, however, convinces us that the District Judge correctly understood that he had such discretion but decided not to exercise it. We therefore reject that basis for finding appellate jurisdiction. Second, if respondent’s constitutional claim, discussed in Part III, infra, were sound, her sentence would have been “imposed in violation of law.” Thus, if she had prevailed on the merits, her victory would also have confirmed the jurisdiction of the Court of Appeals. Although we ultimately conclude that respondent’s sentence was not “imposed in violation of law” and therefore that § 3742(a)(1) does not authorize an appeal in a case of this kind, it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction. See United States v. Mine Workers, 330 U. S. 258, 291 (1947). In order to make that determination, it was necessary for the Ninth Circuit to address the merits. We therefore hold that appellate jurisdiction was proper. III The constitutional question concerns a federal criminal defendant’s waiver of the right to receive from prosecutors exculpatory impeachment material — a right that the Constitution provides as part of its basic “fair trial” guarantee. See U. S. Const., Arndts. 5, 6. See also Brady v. Maryland, 373 U. S. 83, 87 (1963) (Due process requires prosecutors to “avoi[d] ... an unfair trial” by making available “upon request” evidence “favorable to an accused . . . where the evidence is material either to guilt or to punishment”); United States v. Agurs, 427 U. S. 97, 112-113 (1976) (defense request unnecessary); Kyles v. Whitley, 514 U. S. 419, 435 (1995) (exculpatory evidence is evidence the suppression of which would “undermine confidence in the verdict”); Giglio v. United States, 405 U. S. 150, 154 (1972) (exculpatory evidence includes “evidence affecting” witness “credibility,” where the witness’ “reliability” is likely “determinative of guilt or innocence”). When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees. Boykin v. Alabama, 395 U. S. 238, 243 (1969) (pleading guilty implicates the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront one’s accusers, and the Sixth Amendment right to trial by jury). Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is “voluntary” and that the defendant must make related waivers “knowing[ly], intelligently], [and] with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U. S. 742, 748 (1970); see also Boykin, supra, at 242. In this case, the Ninth Circuit in effect held that a guilty plea is not “voluntary” (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a trial. We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not. First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (“knowing,” “intelligent,” and “sufficient[ly] aware”). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant. Weatherford v. Bursey, 429 U. S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case”). And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide. Cf. Colorado v. Spring, 479 U. S. 564, 573-575 (1987) (Fifth Amendment privilege against self-incrimination waived when defendant received standard Miranda warnings regarding the nature of the right but not told the specific interrogation questions to be asked). It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant’s own independent knowledge of the prosecution’s potential case — a matter that the Constitution does not require prosecutors to disclose. Second, we have found no legal authority embodied either in this Court’s past cases or in cases from other circuits that provides significant support for the Ninth Circuit’s decision. To the contrary, this Court has found that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See Brady v. United States, 397 U. S., at 757 (defendant “misapprehended the quality of the State’s case”); ibid, (defendant misapprehended “the likely penalties”); ibid, (defendant failed to “anticipate” a change in the law regarding relevant “punishments”); McMann v. Richardson, 397 U. S. 759, 770 (1970) (counsel “misjudged the admissibility” of a “confession”); United States v. Broce, 488 U. S. 563, 573 (1989) (counsel failed to point out a potential defense); Tollett v. Henderson, 411 U. S. 258, 267 (1973) (counsel failed to find a potential constitutional infirmity in grand jury proceedings). It is difficult to distinguish, in terms of importance, (1) a defendant’s ignorance of grounds for impeachment of potential witnesses at a possible future trial from (2) the varying forms of ignorance at issue in these cases. Third, due process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the “right” that the Ninth Circuit found here. This Court has said that due process considerations include not only (1) the nature of the private interest at stake, but also (2) the value of the additional safeguard, and (8) the adverse impact of the requirement upon the Government’s interests. Ake v. Oklahoma, 470 U. S. 68, 77 (1985). Here, as we have just pointed out, the added value of the Ninth Circuit’s “right” to a defendant is often limited, for it depends upon the defendant’s independent awareness of the details of the Government’s case. And in any case, as the proposed plea agreement at issue here specifies, the Government will provide “any information establishing the factual innocence of the defendant” regardless. That fact, along with other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11, diminishes the force of Ruiz’s concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty. Cf. McCarthy v. United States, 394 U. S. 459, 465-467 (1969) (discussing Rule ll’s role in protecting a defendant’s constitutional rights). At the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government’s interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice. The Ninth Circuit’s rule risks premature disclosure of Government witness information, which, the Government tells us, could “disrupt ongoing investigations” and expose prospective witnesses to serious harm. Brief for United States 25. Cf. Amendments to Federal Rules of Criminal Procedure: Hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 92 (1975) (statement of John C. Keeney, Acting Assistant Attorney General, Criminal Div., Dept, of Justice) (opposing mandated witness disclosure three days before trial because of documented instances of witness intimidation). And the careful tailoring that characterizes most legal Government witness disclosure requirements suggests recognition by both Congress and the Federal Rules Committees that such concerns are valid. See, e. g., 18 U. S. C. § 3432 (witness list disclosure required in capital cases three days before trial with exceptions); § 3500 (Government witness statements ordinarily subject to discovery only after testimony given); Fed. Rule Crim. Proe. 16(a)(2) (embodies limitations of 18 U. S. C. §3500). Compare 156 F. R. D. 460, 461-462 (1994) (congressional proposal to significantly broaden §3500) with 167 F. R. D. 221, 223, n. (judicial conference opposing congressional proposal). Consequently, the Ninth Circuit’s requirement could force the Government to abandon its “general practice” of not “disclosing] to a defendant pleading guilty information that would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses.” Brief for United States 25. It could require the Government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the plea-bargaining process of its main resource-saving advantages. Or it could lead the Government instead to abandon its heavy reliance upon plea bargaining in a vast number — 90% or more — of federal criminal cases. We cannot say that the Constitution’s due process requirement demands so radical a change in the criminal justice process in order to achieve so comparatively small a constitutional benefit. These considerations, taken together, lead us to conclude that the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. In addition, we note that the “fast track” plea agreement requires a defendant to waive her right to receive information the Government has regarding any “affirmative defense” she raises at trial. App. to Pet. for Cert. 46a. We do not believe the Constitution here requires provision of this information to the defendant prior to plea bargaining — for most (though not all) of the reasons previously stated. That is to say, in the context of this agreement, the need for this information is more closely related to the fairness of a trial than to the voluntariness of the plea; the value in terms of the defendant’s added awareness of relevant circumstances is ordinarily limited; yet the added burden imposed upon the Government by requiring its provision well in advance of trial (often before trial preparation begins) can be serious, thereby significantly interfering with the administration of the plea-bargaining process. For these reasons the judgment of the Court of Appeals for the Ninth Circuit is Reversed. 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_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. Ora P. HALL v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare. No. 14300. United States Court of Appeals Sixth Circuit. April 13, 1961. Ora F. Duval, Olive Hill, Ky., for appellant. John W. Morgan, Asst. U. S. Atty., Lexington, Ky. (Jean L. Auxier, U. S. Atty., Lexington, Ky., on the brief), for appellee. Before MILLER, Chief Judge, and McALLISTER and WEICK, Circuit Judges. McALLISTER, Circuit Judge. This is an appeal from an order of the District Court dismissing appellant’s claim for benefits under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). Appellant had filed his application for disability insurance benefits, which had been determined adversely to him by the Bureau of Old Age and Survivors Insurance of the Social Security Administration. After such adverse determination, appellant had requested a hearing before a Referee, who, in a comprehensive opinion, ruled that he was not entitled to such benefits. Upon request for review of the decision of the Referee, the Appeals Council of the Department of Health, Education and Welfare, affirmed the findings and conclusions of the Referee. The District Court, on review of the decision of the Appeals Council, acting for the Secretary, found that appellant, because of the condition of his health, was “under severe handicap, and a failure to succeed in this cause will apparently make of him a dependent upon charity until he reaches a sufficient age to draw social benefits under other laws. But the findings of the Referee are supported by substantial evidence and are therefore conclusive. He has found that the claimant has not sustained the burden of proving that he is suffering from a physical impairment which could be expected to result in death, or to be of long continued or indefinite duration, or that he is not capable of engaging in any substantial, gainful activity.” The court further held that “there is ample proof to sustain the findings of the Referee that this claimant is a man of intelligence and some education and has the ability to perform services and duties other than those of his accustomed occupation.” However, in the determination of this appeal,’ the controlling questions are: (1) what can appellant do; and (2) what employment opportunities are there for-a man who can do only what appellant can do? In a similar case, Kerner v. Flemming, 2 Cir., 283 F.2d 916, 921, the court held, after reviewing the record, that there was no substantial evidence that would enable the Secretary to make any reasonable determination whether the applicant was unable to engage in substantial and gainful activity. In its opinion, the court said: “Such a determination requires resolution of two issues — what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. * * * Here there was insufficient evidence on either issue * * *.” We have before us no substantial evidence as to what appellant can do, or as to his employment opportunities, and, further, we have no reasoned determination and findings on these controlling issues. Accordingly, the order appealed from is reversed with directions that the case be remanded to the Secretary of Health, Education and Welfare in order that further evidence be taken and findings be made on the above-mentioned issues. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_respondent	084	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. GUSTE, ATTORNEY GENERAL OF LOUISIANA, et al. v. JACKSON et al. No. 76-61. Decided January 17, 1977 Per Curiam. A Louisiana statute forbids performance of an abortion on a minor without her parents’ consent, or her husband’s consent if she is married. The United States District Court for the Eastern District of Louisiana enjoined enforcement of the statute. Its decision discusses only these special requirements for abortions on minors, but the injunction appears to extend to the entire statute, and thus includes “informed consent” requirements applicable to all women. We vacate the injunction insofar as it bars enforcement of the “informed consent” requirements, and remand to the District Court so that it may consider the construction of those requirements, their validity in light of this Court’s intervening decision in Planned Parenthood of Missouri v. Danforth, 428 U. S. 52, 65-67 (1976), and their severability from the remainder of the statute. So ordered. "Louisiana Rev. Stat. Ann. § 40:1299.33 (D) (Supp. 1976) reads as follows: “No abortion shall be performed on any woman unless prior to the abortion she shall have been advised, orally and in writing, that she is not required to submit to the abortion and that she may refuse any abortion for any reason and without explanation and that she shall not be deprived of any governmental assistance or any other kind of benefits for refusing to submit to an abortion. This provision shall be of full force and effect notwithstanding the fact that the woman in question is a minor, in which event said minor’s parents or if a minor emancipated by marriage, the minor’s husband, shall also be fully advised of their right to refuse an abortion for the minor in the same manner as the minor is advised. Compliance with this provision shall be evidenced by the written consent of the woman that she submits to the abortion voluntarily and of her own free will, and by written consent of her parents, if she is an unmarried minor, and by consent of her husband if she is a minor emancipated by marriage, such written consent to set forth the written advice given and the written consent and acknowledgment that a full explanation of the abortion procedure to be performed has been given and is understood.” 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	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. SOCIETE SUISSE POUR VALEURS DE METAUX v. CUMMINGS, Atty. Gen., et al. No. 6978. United States Court of Appeals for the District of Columbia. Argued April 11, 1938. Decided July 25, 1938. Frederic D. McKenney, John S. Flannery and G. Bowdoin Craighill, all of Washington, D. C., for appellant. Sam E. Whitaker, Asst. Atty. Gen., and Harry LeRoy Jones, Brice Toole, and Enoch E. Ellison, Attys., Department of Justice, all of Washington, D. C., for appellees. Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices. GRONER, C. J. Societe Suisse Pour Valeurs De Met-aux (called herein Swiss Corporation) filed its bill in the court below September 4, 1930, against the Attorney General (as Acting Alien Property Custodian) and the Treasurer of the United States to recover the sum of $643,595.81, which had accrued as interest on money received by the Custodian from the sale of shares of stock of American Metal Company taken over by him during the war. Metallgesellschaft ,and Metallbank, two German corporations, were at the outbreak of the war record holders of 49% of the capital stock of American Metal Company, a New York corporation. The shares were seized pursuant to the Trading with the Enemy Act, 50 U.S.C.A. Appendix § 1 et seq. and were subsequently sold by the Custodian. In September, 1921 the Custodian caused to be paid to Swiss Corporation in money and government bonds the sum of $6,967,987.-30, representing the aggregate principal amount of the sale of the shares. At the time of payment there had been no allocation of the interest accrued during the period of seizure, but subsequently under Section 15 of the Act of March 10, 1928, the Custodian set aside under two trusts the sum of $643,595.81 from that source. He declined, however, to pay this sum to Swiss Corporation because in May, 1926 the former Custodian and the former Attorney General had been indicted in the Southern District of New York for having fraudulently and unlawfully paid to Swiss Corporation the original principal sum. After the instant suit was begun the Attorney General and Treasurer filed an answer and a counterclaim. In the former they denied that any sum was due or payable to Swiss Corporation and in the latter sought restitution of the amount previously paid on the ground that the original claim was fraudulent and the money and bonds procured thereby unlawfully obtained. On motion the trial court entered an order striking the counterclaim and denying the right to cross relief. We allowed a special appeal and in June, 1936 reversed the order with instructions to the lower court to permit the counterclaim to be filed. Thereafter the cause was tried before Judge O’Donoghue, and in February, 1937 a decree was entered dismissing the bill and decreeing in favor of the United States on the counterclaim in the sum of $6,967,987.30. The findings of facts and conclusions of law were announced immediately at the close of the argument. Counsel for Swiss Corporation, excepted to the findings on the ground that they were inadequate, insufficient, and did not meet the requirements of Federal Equity Rule 70% (296 U.S. 671), 28 U.S.C.A. following section 723 and unsuccessfully urged the court, to make additional findings, and they now claim error as the result of the court’s refusal to amplify the findings. Undoubtedly the findings leave much to be desired. We have had occasion recently to emphasize the necessity of compliance with the rule (Boss v. Hardee, 68 App.D.C. 75, 93 F.2d 234), and the Supreme Court more recently still, Interstate Circuit, Inc. et al. v. United States, 304 U.S. 55, 58 S.Ct. 768, 82 L.Ed. 1146 (decided April 25, 1938), has called attention to the fact that an opinion by the trial judge is not a substitute for the required findings nor a discussion of-the evidence and the court’s reasoning in its opinion, sufficient to constitute the special and formal findings by which it is the duty of the court appropriately and specifically to determine all the issues which the case presents. In cases requiring findings of facts it is the better practice to insist that counsel for the prevailing party submit to the court and to the adverse party proposed findings. Thereafter a time should be set at which objections and proposed modifications, eliminations, or additions may be submitted and then, if necessary, a hearing had and the findings settled. In the instant case it would have been better if the findings had not been interwoven with conclusions of law and interspersed with expressions of the court’s opinion on the merits; but by disregarding the extraneous matter there is enough left to enable us to determine the issues which the case presents. As' a matter of real fact there is but a single issue involved, for in the view we take of the case, the question whether Richard Merton ■ as the representative of Swiss Corporation was privy to the bribery of Miller, the Custodian, need not be decided. So far as is involved here we shall assume that Swiss Corporation was at all times during the period of the war an alien friend. In that view if the shares of stock of the American Metal Company seized by the Custodian during the war rightfully belonged to it before April 6, 1917, the seizure was unlawful, the restitution made in 1921 was proper, and the accumulated interest allocated to the trusts should now be paid to it. Contrarily, if the stock of American company did not then belong to Swiss Corporation, but belonged to Metallbank and Metallgesellschaft, alien enemies, the payment in 1921 was in fact unlawful, whether induced by bribery or not. And this brings us to a consideration of the evidence. Metallgesellschaft was formed in 1881 under the laws of Germany as a trading company in metals. It was organized and controlled by the Merton family. Metallbank was formed prior to the war, also by the Merton family, with the idea of keeping separate the industrial and financial sides of the family business. The boards of the two companies were much the same, and Richard Merton was managing director of Metallgesellschaft, and his father of Metallbank. On the death of his father, Richard became chairman of the board of Metallbank. Swiss Corporation was organized in 1910, mainly by the elder Merton, as a holding company, and it acquired by purchase from the two German companies several million dollars of their capital shares. The latter companies held 51% of the capital of Swiss Corporation at all times during the period with which we are concerned. Long prior to the World War the two German companies acquired 49% of the capital stock of American Metal Company. The share certificates were deposited for the account of the German corporations with the American corporation at its New York office. After the United States entered the war the president of American company reported this enemy ownership of stock to the Alien Property Custodian, who took possession of the certificates under the Trading with the Enemy Act (40 Stat. 411, 50 U.S.C.A. Appendix § 1 et seq.). The stocks were subsequently sold by the Custodian. Richard Merton came to the United States in March, 1921 and consulted Mr. Dulles, a New York lawyer, relative to filing a claim in the name of Swiss Corporation for the fund held by the Custodian. Dulles went to Washington and made an investigation and informed Merton that the claim would not b§ allowed without litigation. Merton thereafter met John T. King, a Connecticut politician, whom he interested in the case, and through King he was introduced to Jess Smith, of Ohio, a friend of the then Attorney General, and to Miller, the Custodian. By this means Merton had an interview with George E. Williams of the Custodian’s office and obtained the information which he thought necessary in the preparation of the claim of Swiss Corporation. He then returned to Europe and later brought back with him to this country the prepared claim papers which were submitted to the Custodian through either King or Smith. One or the other told Merton “that he had put up the claim in the wrong way” and not as he had been told, as the result of which he asked for and had a further conference with Williams to find out what was wrong. Williams apparently explained that the papers as prepared showed a “debt claim” rather than an “ownership claim” to the seized property and for that reason could not be allowed. Merton was permitted to withdraw the papers and to take them with him to Switzerland for redrafting. He returned to Washington with the new claim papers the last of August or the first of September, 1921, and within two or three days after their delivery to the Custodian he was notified by either King or Smith that the claim had been allowed; and at the suggestion of Smith or King a dinner party was arranged at the Ritz-Carlton in New York City, attended by Merton, Miller, Smith, and King. At that time treasury checks in the amount of approximately six and a half million dollars were delivered to Merton, followed by the delivery the next day or the day after of Liberty Bonds in the amount of approximately $500,000. Merton paid King for his services about $400,000 in government bonds, — having previously paid him $50,000 in cash, — and a week or ten days later returned to Europe., In 1926 Miller, Attorney General Daugherty, and King were indicted on account of the transaction just described, for violation of Section 37 of the Criminal Code, 18 U.S.C.A. § 88. King died, Miller was convicted, and the jury disagreed as to Daugherty. Miller appealed, and the judgment of conviction was affirmed February 6, 1928. In the criminal trial Merton testified as a witness for the United States, insisting in his testimony, however, that he had never authorized King or Smith to make any payments to any officials of government to expedite or to allow the claim. Thus the matter remained until the present suit was begun. The United States insist that Swiss Corporation never was owner of the American Metal Company stock, but that the shares belonged at all times to the two German companies; that the statement of claim of Swiss Corporation filed and allowed in 1921 by the Custodian was false and fraudulent; and that its allowance was obtained by bribery. Swiss Corporation, on the other hand, insists that it acquired the stock by assignment prior, to the entry of the United States into the World War; that it was entitled to make the claim; that the United States' have wholly failed in this case to prove that its claim was fraudulent; and that in any case the allowance of the claim by the Attorney General was final. But in the view we take of this caseJ the government was not required to prove that the claim made in 1921 was fraudulent, — for the reason that Swiss Corporation was entitled to the money it received only if it was, prior to the commencement of the war, the owner of the American company stock. The answer to this question will, without more, determine whether the government may now prevail on its counterclaim. And this brings us back to the point from which we started. The trial in the court below was on depositions and oral testimony. Ordinarily we should be satisfied to follow the general rule and accept the findings unless clearly wrong. Hearst Radio, Inc. v. Good, 67 App.D.C. 250, 91 F.2d 555. In view, however, of the important nature of the deposition and documentary evidence, we have considered it our duty to weigh the whole evidence, for as to the former we are as able to determine its effect as was the trial court. Photoplay Pub. Co. v. La Verne Pub. Co., 3 Cir., 269 F. 730, 732. We find here a case in which a Swiss company secured payment of a supposedly valid claim to seized property by representing that it was the lawful owner. As we have already said, if it really was not the lawful owner, it was not entitled to the money it received. Not being satisfied with what it got by the allowance of its claim, it brought this suit in order to compel the government to pay over to it the retained interest accumulation. In our decision on the former appeal, we said: “When the corporation brought this suit, it invited the court to which it submitted itself to go behind the settlement, and at the instance of the United States, the real parties in interest, to re-examine all the questions arising out of the original claim.” We think this is a correct statement of the law, and hence that the United States are not foreclosed by the action of the former Attorney General. McElrath v. United States, 102 U.S. 426, 440, 441, 26 L.Ed. 189. Swiss Corporation insists that the United States, as the parties alleging fraud,must prove it by clear, unequivocal, and convincing testimony, and that such proof will not arise from a bare preponderance of evidence which leaves the issue in doubt. But we think the rule is not applicable in the view we have taken of the case and in the narrow limits to which we have confined it. Here, as we have seen, the question is: — Were the shares of stock the property of Swiss Corporation ? If not, the only answer is that Swiss ’ Corporation was not entitled to receive the proceeds of their sale. And so the question of actual fraud may be said to be out of the case. We go far enough when we hold, as we do, that the United States as to the counterclaim had the burden throughout. As we understand the evidence and the arguments, the case for Swiss Corporation is as follows: The German corporations owned the American 'company stock prior to 1910. In that year those two corporations desired to increase their capital and to strengthen their cash position and accordingly formed the Swiss Corporation and sold to it large blocks of their own stocks. At the time of these sales “representatives” of the German corporations exhibited to Swiss Corporation their financial statements for the purpose' of showing the value of their stocks, and as an inducement to the purchase. On the strength of these representations and on its holdings of - the German corporations’ stocks, the Swiss Corporation issued debentures which were sold to the public. In March, 1916, because of the depression resulting from the war, the Swiss Corporation called upon the German corporations for assurances of the value of their stocks, and the German corporations thereupon orally acknowledged their obligations and orally referred to their holdings of American company stock as evidence of continuing value. Later,' and in consequence of further depreciation, negotiations were resumed between the Swiss and German corporations in February and - March, 1917 (a time when the United States and Germany had severed diplomatic relations), - and the German corporations verbally transferred to the - Swiss Corporation their -interest in the American company stock. All these things are said to have happened in Switzerland, where the agreements were to be performed. Accordingly, it is contended that the Swiss law governs their validity, and that under’ Swiss law a verbal guaranty of the value of stock and a verbal transfer of ownership of stock are valid and enforceable, — so that before the United States entered the war the Swiss Corporation was legal owner of the American company stock. This, we say, is the story which Swiss Corporation told in its claim papers and in the annexed and supporting affidavits which it submitted to the court below, including the expert opinion certificate of the Swiss lawyer, and on the strength of the case thus made it insists the payment in 1921 was lawful and proper. Looking at the other side, we find that attached to the claim paper was a writing, called a cession, dated November 20, 1919, — after the war ended, — in the following words: “The Metallbank and the Metallgesellschaft do hereby assign to the Swiss Bank Corporation [fiscal agent for Swiss Corporation] all their claims to the payment of the dividends and interests paid to the Custodian and their claims to the payment of the proceeds of the sale or future sale of said shares, which claims they have against the Custodian or the Government of' the United States of America or against any person who is liable for the payment of the sums received by the Custodian.” Swiss Corporation contends this cession was a confirmation of the verbal transfer, although nowhere in it is any reference made to a prior transaction, verbal or written. Further, there was evidence submitted to the lower court, oral and documentary, showing that early in 1918, when the seizure of the American company stock by the Custodian was imminent, Julian B. Beaty and Henry Bruere, Treasurer and Vice-President of the American company, suggested to the Custodian the possibility of purchasing the interest of the German companies; and that in May, 1918, under licenses permitting them to trade with the enemy, they went to Switzerland and negotiated to that end with Alfred Merton, George Schwartz, and Rudolph Euler, representing the German companies. The parties framed a contract, in the presence of representatives of the Swiss Corporation, wherein the German companies were described as owners of the American company stock in question and whereby they agreed to sell it to Beaty and Bruere. The purchase money, however, was not to be paid over to the German corporations until the close of the war. Because the consent of the United States government to the sale could not be obtained, the transaction was abandoned. Other evidence submitted below showed that when the Swiss Corporation first sought to collect the proceeds of the sale of the American company stock from the Custodian it wrote (Dec. 1920) to Mr. Dulles, an attorney, and told him that it had acquired its claim on November 20, 1919 (the date of the cession), from the German companies. With this brief summary of a part of the evidence introduced below, we turn to the findings of the trial court, which were: 1. Before the year 1910 the stock of the American company was owned by the two German companies. 2. The two German companies have nothing in their minutes with regard to the alleged oral guaranty or the alleged oral transfer of the American company stock and the Swiss company has nothing in its minutes in regard to those two transactions. The German companies filed their annual reports and accounts, as required by law, during several years after 1910 and before 1920, therein expressly or impliedly indicating that the American company stock still belonged to them. 3. In 1918, after the Alien Property Custodian had seized the American company stock, the two German companies entered into a formal contract for the sale of the American company stock, putting themselves in the position of the owners thereof. The terms and conditions of this contract were known to Swiss Corporation and to some of its officers but Swiss Corporation asserted no claim to the stock and allowed the German companies to act as the owners thereof. This agreement fell through. 4. Later in 1918 the Alien Property Custodian sold the American company stock which he had seized. 5. In November 1919 the German companies executed a written assignment, transferring or undertaking to transfer to Swiss Corporation’s fiscal agent the American company stock or the proceeds of the sale thereof that were held by the Alien Property Custodian. This assignment did not mention the alleged oral guaranties of 1910 or 1912, nor did it purport to be a confirmation of the transfer of the American company stock to Swiss Corporation in March 1917, nor did it state that in consideration of the assignment the German companies were being released from their guaranties. 6. In 1920 Swiss Corporation employed New York counsel in connection with its supposed claim and informed that counsel that it became the owner of the American company stock, or the proceeds of the sale thereof, by the assignment of November, 1919. Swiss Corporation did not mention to its counsel the guaranties of 1910 or 1912, or any transfer of the title or interest in this stock in March 1917. On the basis of these evidential facts the court made a conclusion of law and fact: — ■ that the title of the American company stock did not pass from the German companies to Swiss Corporation and that in 1921, when Swiss Corporation secured allowance of its claim, the German companies owned the stock. The attempted assignment of 1919 was ineffectual because it could not operate on property seized and held by the Custodian. Are these findings supported by the evidence and are they sufficient to support the conclusions reached by the trial court ? We think they are. We shall refer later to other matter which the trial judge did not mention, and which in our opinion strengthens the grounds of his holding Some objections to parts of the evidence upon which the findings are based were made below and have been argued here; but we shall not discuss them because we are convinced they are technical and, in or out of the record, do not affect the result. In final analysis Swiss Corporation’s contention is that its evidence is true, that the oral guaranties and the oral transfer of the American company stock were really made just as it says they were made. If we had before us nothing but the evidence of Swiss Corporation as it was revealed to the administrative officers of government in the claim papers, and if we could assume that the asserted verbal agreement to transfer the shares was the valid act of the German corporations and was enforceable under German and Swiss law, we might easily reach a different conclusion from that which we have expressed above. But the contrary of all of this is the case. The government, as we have pointed out, has brought to light positive evidence of acts and conduct inconsistent with the story which Swiss Corporation tells; there is no proof of acts of the German corporations which would justify our holding that there was valid corporate action authorizing a verbal transfer; and there is no proof of German law and- insufficient proof of Swiss law upon which to declare that the alleged verbal transfer was binding and enforceable. Hence we must make our decision upon more than the statements found in the claim papers, and viewed in this aspect we are unable to find any evidence that at any time prior to the seizure was Swiss Corporation the true and lawful owner of .the American company stock. On the contrary, we are of opinion that the finding of the lower court, that not until November 20," 19Í9, did the German corporations, undertake to assign to Swiss Corporation their interest in the American company stock, is sustained by a preponderance of the evidence. In all that we have said heretofore it has been assumed that under the Trading with the Enemy Act no assignment by an enemy alien of property in the hands of the Custodian was valid so as to create title in -the assignee unless the assignment was made prior to the time the United States, entered the war. We think this is a correct assumption. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688; Sturchler v. Hicks, D.C.N.Y., 17 F.2d 321. Swiss Corporation, while admitting the correctness of the rule, says it has no applicability here because, though the written assignment of November 20, 1919, was executed after the property had been seized and was in the hands of the Custodian, the previous transactions between the German' companies and itself, which it claims began in 1910, continued through 1917, and were consummated in 1919, created definite rights in the property as to which the 1919 writing is merely the evidence. The lower court rejected this contention, and we think correctly: First, because we think the evidence shows that the representations which it is claimed were made in 1910 by the German corporations were nothing more than assurances of the sound value of the shares which Swiss Corporation acquired. The supporting affidavit states that, before the sale took place, the representatives of the German corporations did at various times declare that they guaranteed the value of the shares and the amount of the dividends of such shares and stated particularly that the real value of the shares was more than the price asked. But the “representatives” referred to in this affidavit could have been no others than the Merton family, who then controlled both corporations. There is no showing of formal corporate action, and there is a total absence of any writing or even a minute in the German or Swiss corporations’ . records by which the corporations themselves could be bound. Furthermore, in view of the testimony of experts on German law that a corporation could not lawfully guarantee the value of its own stock, we think it would be unjustifiable to assume, in the very teeth of the German law forbidding it, that the German corporations made a binding guaranty. We are fortified in this conclusion by the published statements of the boards of the companies in April, 1910, issued to facilitate sale of the Swiss Corporation’s debentures, and which go no further than to state the opinion that the shares they were selling were amply secured because of the German corporations’ sound financial condition and the fact that the dividends paid over the previous five years on the German corporations’ stocks were three times more than was necessary to pay interest on the.debentures. The subsequent proceedings described by Zahn-Geigy are to the effect that in 1916 the representatives of the German corporations agreed that the holdings of those companies in the American company should serve as security for their previous representation of value, and that in 1917 they stated that they would hold their interest in the stocks of the American company to provide against a loss to Swiss Corporation. Though we were to regard this statement as a deliberate attempt on the part of these “representatives” to transfer title to the shares, it would still be true that we have no record of any corporate act authorizing or ratifying the transfer, and equally it would still be true that under German law no such transfer could lawfully be made. On the other hand, in the report of the German companies covering the business year October 1, 1917, to September 30, 1918, the statement is made to stockholders that “our stock” in the American Metal Company, including the dividends declared and 'paid since the war began, remain in the hands of the American trustee for enemy property. This statement is inconsistent with the present position of Swiss Corporation that in 1916 and in 1917 the German companies had by verbal agreement transferred their entire interest in those stocks to it. We think it beyond question that, if a seller in a supposed sale continues to hold itself out as being still the owner of the property in question, considerable doubt is thrown on the buyer’s claim of title. And so again, the agreement of sale of the 11th of May, 1918, to American interests was made and entered into on the written assurance by the German corporations to Bruere and Beaty that the German corporations were the owners of the stock and were fully authorized to make the sale. And, finally, the written agreement made in November, 1919 is a complete document within itself. It recites the ownership of the American Metal Company stock by the German corporations, the accretion due to the issuance of new shares by the American company, and states that in 1917 by reason of these accretions the total number of shares held by both corporations since 1917 is 31,570 shares. And the proceeds of the sale of all the shares are by that instrument assigned to Swiss Corporation. But this was done long after the seizure and at a time when an assignment was ineffective. On the whole case we think the facts we have just outlined overcome the prima facie case made by Swiss Corporation and establish as clearly as a matter of this kind is capable of being established, the falsity of the claim that there was an actual transfer of the interest in the American Metal Company stock prior to November 20, 1919. In reaching this conclusion we have not found it necessary to determine the correctness of the claim of Swiss Corporation that a verbal agreement of transfer of stocks, without delivery of the certificates, by a German corporation to a Swiss corporation is as valid as a written agreement. We do comment in passing, however, on the testimony of all the experts on foreign law to the effect that under the laws of Germany it was unlawful for Metallbanlc and Metallgesellschaft to transfer any of their securities or assets to a foreign corporation during the period of the war, and we should be very slow to hold that those corporations had attempted to do so, — certainly that they had done so,- — by a verbal representation on the part of their “representatives”. In addition to this, — and as we have pointed out above, —there is the testimony that a German corporation cannot lawfully guarantee the value of its own stock. Whether a Swiss court would enforce such a guaranty if it had jurisdiction of the parties is a matter beside the point; for we regard the illegality of the alleged transaction as merely another reason for concluding that it did not in fact take place. In saying this we are not unmindful, of course, that what Swiss Corporation claims was done could, factually, have been done. But if it was done, with the intent said to have accompanied the transaction, then not only did the corporations concerned act unlawfully, but their other contrary acts and conduct arc virtually inexplicable. Because of the nature of the case and of the positions which the parties have taken, we must decide the controversy on the strength of 'that evidence which not only is the subject of the more convincing proof but also has the greater probative force. Upon the whole record we think there can be no doubt that during the period involved here the German companies and not Swiss Corporation owned the American company stock. We think there is no basis for the claim of laches on the part of the government. No rule is better established than that the United States are not bound by limitations or barred by laches where they are asserting a public right. United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Porto Rico Fruit Union, 1 Cir., 12 F.2d 961, 962. Here the United States are not seeking the. return of money unlawfully paid “as a, mere conduit of title for private persons”, as counsel suggest. The property and money delivered to Swiss Corporation in 1921 was, in our opinion, enemy property, and it is settled that under the Trading with the Enemy Act enemy property after seizure belonged to the United States to be' disposed of as they pleased. Cummings v. Deutsche Bank, 300 U.S. 115, 57 S.Ct. 359, 81 L.Ed. 545. The contention is urged by Swiss Corporation that, if its “ownership” claim is rejected, recovery is still sustainable on the theory that the German companies were liable to Swiss Corporation on the guaranty, — that is to say, that recovery may be had as on a “debt” claim. We think the preceding discussion amply disposes of this contention, for in our view of the case the one claim must fall with the other. Affirmed. 45 Stat. 254, 273, 50 U.S.C.A.Appendix § 26 et seq. 66 App.D.C. 121, 85 F.2,d 287. Miller v. United States, 2 Cir., 24 F. 2d 353. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688. Public Motor Service, Inc. v. Standard Oil Company, 69 App.D.C. 89, 99 F.2d 124, decided by‘ us June 20. 1938; Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 30 L.Ed. 949; Equitable Life Assur. Soc. v. Johnson, 6 Cir., 81 F.2d 543. 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_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". DREW BROWN LIMITED, Plaintiff, Appellant, v. JOSEPH RUGO, INC., et al., Defendants, Appellees. No. 7713. United States Court of Appeals, First Circuit. Jan. 12, 1971. Thomas F. Needham, Bangor, Me., with whom Stearns, Finnegan & Need-ham, Bangor, Me., was on the brief, for appellant. John W. Philbrick, Portland, Me., with whom Howard H. Dana, Jr., and Verill, Dana, Philbrick, Putnam & Williamson, Portland, Me., were on the brief, for appellees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. In October 1966, defendant, Joseph Rugo, Inc., a Massachusetts general contractor, entered into an agreement with Husson College, Bangor, Maine, for the construction of six campus buildings. The contract with the college was to be fully performed by April 9, 1968. On November 28, 1966, plaintiff, Drew Brown Limited (Brown), a Canadian corporation, subcontracted with Rugo to furnish and erect all the reinforcing steel required for the project at $240 a ton.* The subcontract provided that Brown was to submit a progress estimate by the sixth day of each month indicating the work it had completed by the end of the previous month. Rugo would then pay Brown “this estimate less a deduction for all previous payments and less a ten percent (10%) reserve.” Each monthly payment became due and payable no later then the twenty-fifth day of the month that the estimate was submitted. The reserve was payable on the thirtieth day of the month after the subcontract was completed. Between November 1966 and May 31, 1968, Brown delivered 814 tons of reinforcing steel to the job site, of which it erected 777 tons. Pursuant to a collateral agreement between the parties, Rugo erected 27 tons between January 31 and May 1, 1968. On May 31, 1968, before the subcontract was fully completed, Brown quit the job, claiming that Rugo had breached the subcontract. Up to that point, Brown had billed Rugo $198,163.05 for the 814 tons, plus authorized extras, although under an accurate estimate it should only have billed for the 777 tons delivered and erected. Rugo had paid Brown a total of $170,-600.90, withholding the ten percent reserve ($19,816.30). The unpaid difference of somewhat less than $8,000 was one of the reasons cited by Brown for its repudiation of the contract. From the inception of its work, Brown continuously requested that Rugo furnish an advance schedule or schedules for the performance of Brown’s work. Brown felt that it needed such scheduling in order to arrange the material at the job site and adjust the size of its crew to the construction plan. But no such schedule was ever supplied. When the completion deadline of April 9, 1968, had passed, Brown wrote to Rugo stating that it no longer felt bound by the subcontract. It further stated that the long overdue back balance ($7,969.42) alone gave it every right to terminate the contract. However, at Brown’s request, the parties met on May 14, 1968. At this meeting Brown offered a novation of the subcontract so that it could complete the reinforcing steel work and confirmed this proposal by letter dated May 21, 1968. Not having received a reply, Brown then wrote to Rugo, “As we have not had a reply to our proposal presented to you on May 14th, 1968 and our letter of May 21st, 1968, you leave us no other alternative but to remove our personnel from the project, as of Friday, May 31st, 1968. “In spite of your promises, our long overdue account amounting to $7,969.-42 has not been paid, therefore, we consider our contract with you to be terminated.” After Brown left the project, Rugo completed Brown’s work at a cost of some $31,000. Brown bought this diversity suit against Rugo to collect the balance of $27,562.15 allegedly due on the subcontract. Rugo counterclaimed for $35,000 damages sustained by reason of Brown’s failure to complete its subcontract. The cage was tried to the district court sitting without a jury. The court found that Rugo did not breach the subcontract; that Brown’s reasons for quitting the job were insufficient to justify its termination; and that Brown was liable to Rugo for $63.03 on its counterclaim. Brown appealed. In this court Brown contends that Rugo’s failure to coordinate and schedule the work entitled Brown to treat the subcontract as terminated and recover the unpaid balance thereof. In support of this contention it argues (1) that time was of the essence as regards the performance of both Rugo and Brown, and (2) that Rugo as general contractor was responsible for the overall direction of the work. Accordingly, Brown concludes that Rugo had a duty to exercise some overt action such as scheduling so that Brown would have a better chance to complete its work by the April 9 deadline. But this argument assumes too much. While time was of the essence with respect to Rugo’s obligations to Husson College, this right did not extend to a subcontractor. Moreover, Rugo’s failure to prosecute the work did not make Brown liable to Hus-son College for such delay. Nor did Rugo’s responsibilities to Brown as enumerated in the subcontract include the advance scheduling of work for the latter’s convenience. Furthermore, Brown was unable to prove that scheduling was a custom of the trade. While we might agree that Rugo’s failure to provide such scheduling was ungenerous, the irritation to Brown caused by such failure was not a breach of the subcontract. Cf. Brunswick Diggers, Inc. v. Anthony Grace and Sons, Inc., 159 Me. 21, 25, 187 A.2d 391, 393 (1963); accord, Godburn v. Meserve, 130 Conn. 723, 37 A.2d 235 (1944). Moreover, it was specifically provided in the subcontract that Brown was to see the plans and specifications for the buildings, and, in signing the subcontract, Brown agreed that it had reviewed those plans and familiarized itself “with the conditions under which said work is to be performed.” Brown inserted many amendments in the subcontract, and it seems to us that, if it felt that schedules were that important, it should have added a clause requiring the same. The district court found that Brown terminated its subcontract “because of Rugo’s failure to agree to revised terms for completing the contract which had been proposed by Drew Brown and because of Rugo’s failure to pay an outstanding balance of $7,969.42, against which Rugo was claiming back charges of $8,504.16.” The court further found that Brown’s termination was unjustified. In this appeal Brown no longer claims that it could terminate because Rugo failed to renegotiate the contract; Rugo had no duty to do so, in any event. Brunswick Diggers, supra, 159 Me. at 29, 187 A.2d at 395. Brown does contend, however, that it was entitled to terminate the work for Rugo’s failure to make payments as required by the subcontract. In the circumstances of this case, we must disagree. First of all, we note that, prior to Brown’s termination, the parties had entered into a collateral agreement whereby Rugo would erect some of the steel and Brown would reimburse Rugo for this expense. On May 31, 1968, Brown knew that it owed Rugo for at least nine tons of steel erected by Rugo under the collateral agreement although it disputed the amount owed. Secondly, Brown billed Rugo for 814 tons of steel estimated as delivered and erected, although in fact Brown never erected more than 777 tons during the whole job. Finally, Brown brought its men back to work on the site at a time when it claimed Rugo was in arrears. This shows that the lack of payment was not hampering Brown in the fulfillment of its contract. Taking these circumstances into account, in our opinion Brown had no right to terminate the contract over such a collateral issue. Wilson v. Wilson, 157 Me. 119, 130, 170 A.2d 679, 685 (1961); Clifford L. Swan Co. v. Dean, 151 Me. 359, 362, 118 A.2d 890, 892 (1955); Wright v. Haskell, 45 Me. 489, 492 (1858); Restatement, Contracts §§ 274-275, 397 (1932); see also Lynch v. Stebbins, 127 Me. 203, 206, 142 A. 735, 736 (1928); 6 Corbin, Contracts § 1253, at 10-11 (1962). We conclude, therefore, that the district court did not err in holding that Brown’s termination of the subcontract was unjustified and that Rugo could counterclaim for damages for its breach. Affirmed. ., The codefendant, Maryland Casualty I Company, is surety on the payment bond furnished by Rugo to Husson College. . The exact amount of reinforcing steel required was not set forth in the subcontract, but the price of $240 a ton was conditioned on a minimum of 896 tons being supplied. In the event the total tonnage required was less than said amount, a deficiency payment of $20 per ton was to be made to Brown for the difference between 896 tons and the lower amount. . During this period Brown’s work crew was not on the job site. They returned to the job between May 3 and May 31, 1968. . In May 1968 Brown claimed that $7,-969.42 of its bill had been due and owing since December 1967 and that the only amount Rugo had a right to withhold was the ten percent reserve. . Brown stated that this proposal “is the basis of our completing the placing of the reinforcing steel on the Husson College project as of this date.” . In its complaint Brown also complained that it was entitled to additional damages of $71,944.80 for Rugo’s failure to schedule the work properly. The district court dismissed this claim at the conclusion of plaintiff’s case for failure to show a breach by Rugo or damages ■ suffered by Brown. ¡ Fed.R.Civ.P. 41(b). . Brown argues on appeal that the terms of the general contract were “incorporated” into the subcontract. To the extent that this is so, certainly it was not intended that Rugo would be responsible to Brown for deadlines which were set for the benefit of Husson College. Moreover, Brown was obligated to “carry to completion the work undertaken by the agreement as the progress of the work requires.” The fact that the April 9 deadline .had passed added nothing to Brown’s rights. . See, e. g., Joseph Lande & Son v. Wellsco Realty, 131 N.J.L. 191, 197, 34 A.2d 418, 422 (1943) ; Cox v. Curnutt, 271 P.2d 342, 344 (Okl.1954). . The district court found that Brown actually owed Rugo for erecting 27 tons under the collateral agreement and approved the lump sum of Rugo’s cost estimates for the steel erected both before and after Brown quit the job. Rugo estimated the erection of the 27 tons at $8,-780.48, although in the May 14th negotiations with Brown it claimed only $8,-504.16. . We note that neither party objected to the calculation of damages in the counterclaim. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_fedlaw	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 statute, and if so, whether the resolution of the issue by the court favored the appellant. DENNERT v. UNITED STATES. No. 9788. Circuit Court of Appeals, Sixth Circuit. Feb. 16, 1945. Stephens L. Blakely, of Covington, Ky., for appellant. Claude P. Stephens, of Lexington, Ky. (Claude P. Stephens and Ben L. Kessinger, both of Lexington, Ky., on the brief), for appellee. Before SIMONS, ALLEN, and McALLISTER, Circuit Judges. PER CURIAM. The appellant was convicted and sentenced on each of two counts of an indictment, one charging him with being engaged in a conspiracy to transport, possess, and sell distilled spirits in containers without stamps affixed thereto, and the other with being in possession of such illicit spirits. Viewing the evidence in the light most favorable to the government, there is a complete absence of substantial evidence that Dennert was a conspirator, or that the liquors were possessed by him. The principal item of evidence is that Dennert was the owner of the house in a vacant part of which the liquor was found. There is no evidence that it was his liquor, that he placed it there, or that it was placed there at his direction or with his knowledge. Indeed, there was substantial evidence contra, one Farley having confessed to placing the liquor in the premises without the knowledge of Dennert. Nor was there any proof that he conspired. It may not be inferred from casual and unexplained meetings between Dennert and other persons charged, that he participated or even knew of the conspiracy. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128. “Circumstances which merely raise suspicion or give room for conjecture are not sufficient evidence of guilt. Wharton on Evidence, p. 1532. A conviction resting on them alone cannot stand.” Kassin v. United States, 5 Cir., 87 F.2d 183, 184. The evidence also shows that the revenue agents broke into Dennert’s house without a search warrant. The fact that the rooms where the whiskey was found were unoccupied, did not justify the search, and the agents had no means of knowing that there were no other possessions of Dennert’s on the premises, nor can the search be validated by the consent of a tenant upon another portion of the premises, who had no control or dominion over the locked rooms which were broken into. The reasonableness of a search made upon information of a moving vehicle as validated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, does not apply, where, as here, there was ample opportunity to obtain a search warrant. United States v. Falcone, supra; Go-Bart v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. As was said in Alvau v. United States, 9 Cir., 33 F.2d 467, 470, “there was here no emergency.” There was much more evidence in Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, where the search was held to be unreasonable and void. It must also be noted that the search was not in connection with Dennert’s arrest. The judgment and sentence must be reversed, and the court is directed to suppress the evidence obtained by the illegal search. Reversed and remanded for further proceedings not inconsistent herewith. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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 Charles KVERAGAS, et ux., Plaintiffs-Appellants, v. SCOTTISH INNS, INC., et al., Defendants-Appellees. No. 83-5197. United States Court of Appeals, Sixth Circuit. Argued Feb. 15, 1984. Decided May 2, 1984. See also D.C., 96 F.R.D. 425. W. Zane Daniel, Steven Oberman, Knoxville, Tenn., Laurence M. Kelly, argued, Montrose, Pa., for plaintiffs-appellants. Robert A. Crawford, argued, Knoxville, Tenn., for defendants-appellees. Before MERRITT and JONES, Circuit Judges, and TAYLOR, District Judge. The Honorable Anna Diggs Taylor, United States District Court for the Eastern District of Michigan, sitting by designation. MERRITT, Circuit Judge. On February 16, 1982, three intruders kicked open the door to a guest room in a Scottish Inns motel in Knoxville, Tennessee, occupied by Charles and Esther Kveragas, plaintiffs below. Charles Kveragas was shot, Esther Kveragas was injured, and both were robbed of approximately three thousand dollars. The couple subsequently filed a diversity action against the actual and apparent owners and operators of the motel, alleging that their injuries were proximately caused by the failure of the owners and operators of the motel to make adequate provisions for the safety of motel guests. At the close of plaintiffs’ case, the District Court directed a verdict for the defendants on the grounds that the defendants had no duty to protect the guests and that the sudden criminal acts of the assailants were the sole proximate cause of plaintiffs’ injuries. Kveragas v. Scottish Inns, Inc., 565 F.Supp. 258 (E.D. Tenn.1983). We reverse and remand for a new trial. I. The evidence presented at trial showed that the plaintiffs registered as guests at a Scottish Inns motel located in Knoxville on February 16, 1982. Their room was equipped with a hollow core door that fit poorly into the door frame. The only door lock was that incorporated into the handle, described as a grade three lock, although a security chain was provided. After the plaintiffs entered the room, they dutifully locked the door and secured the chain. At approximately 10:10 P.M., three intruders broke down the door and burst into the room. The evidence showed a single footprint on the door, strongly suggesting that a single kick was the only force applied to the door. One intruder accosted Mrs. Kveragas, who was taking a bath, while another shot Mr. Kveragas, gravely wounding him. The attackers took three thousand dollars in cash and escaped. The evidence further showed that deadbolt locks and other security devices were easily available and in use throughout the motel industry. Deadbolt locks are considerably stronger than the type of lock employed at this motel, and the evidence was sufficient to support a finding that a deadbolt lock could withstand the force which was applied to the plaintiffs’ door. n. The District Court directed a verdict for the defendants based on its application of the standard announced by the Tennessee Supreme Court in Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). Cornpropst involved an action against the owners and operators of a shopping center by a female shopper who was assaulted in the shopping center’s parking lot. Affirming the defendants’ motion to dismiss in that case, the Tennessee Supreme Court stated that [tjhere is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises. 528 S.W.2d at 198. Applying this standard to the facts of this case, the District Court concluded that plaintiffs “as a matter of law, failed to show that defendants had knowledge of or reason to know that acts were occurring or about to occur at the motel that posed an imminent probability of harm to motel guests.” Memorandum Opinion at 259. Alternatively, the District Court held that “the sudden criminal acts of the assailants were the sole proximate legal cause of plaintiffs’ injuries.” Id. We believe the District Court erred in applying the Cornpropst standard to this case. Although the majority opinion in Cornpropst is wide-ranging, the holding is expressly limited by the following language: We are not called upon, in this case, to draft a rule applicable to all of the many types of business and entertainment and service establishments or of every premises liability, or special relationship situation wherein a duty of protection of invitees might be assorted, and we do not propose to do so. 528 S.W.2d at 198. Cornpropst, by its own terms, addresses only the liability of shopping center owners and operators and other shopkeepers; the innkeeper-registered guest relationship is the type of “special relationship situation” which the Cornpropst court expressly refused to address. Thus, our responsibility is to survey other indicia of state law to determine what rule the Tennessee Supreme Court would apply to this case. A. The common law has long recognized the special legal relationship between innkeepers and registered guests. Historically, innkeepers operated under an extreme standard of liability, approaching that of an insurer against all dangers save acts of God. See, e.g., Dickson v. Waldon, 135 Ind. 507, 34 N.E. 506 (1893); McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 46 N.E.2d 573 (1943); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928). The Supreme Court of New York long ago offered an explanation for the emergence of the innkeeper’s special responsibility: This rigorous rule had its origin in the feudal conditions which were the outgrowth of the Middle Ages. In those days there was little safety outside of castles and fortified towns for the wayfaring traveler, who, exposed on his journey to the depredations of bandits and brigands, had little protection when he sought at night temporary refuge at the wayside inns, established and conducted for his entertainment and convenience. Exposed as he was to robbery and violence, he was compelled to repose confidence, when stopping on his pilgrimages over night, in landlords who were not exempt from temptation; ■ and hence there grew up the salutary principles that a host owed to his guest the duty, not only of hospitality, but also of protection. Crapo v. Rockwell, 48 Misc.Rep. 1, 94 N.Y.Supp. 1122 (1905). Although castles and fortified towns are no longer part of our landscape, bandits and brigands remain. The common law has responded to these cultural changes by lessening, but not removing, the innkeeper’s liability for criminal acts committed by third parties. See Anno., Liability of Innkeeper, Restaurateur, or Tavern Keeper for Injury Occurring on or about Premises to Guest or Patron by Person other than Proprietor or his Servant, 70 A.L.R.2d 628; Note, Landlord’s Duty to Protect Tenants From Criminal Acts of Third Parties: The View from 1500 Massachusetts Avenue, 59 Georgetown L.J. 1153 (1971). We predict that the Supreme Court of Tennessee would neither adhere to the ancient rule of virtual strict liability nor entirely abrogate the innkeeper’s duty save in cases of imminent harm. Rather, we predict the Tennessee Supreme Court would adopt the rule announced by a panel of the Tennessee Court of Appeals in Zang v. Leonard, 643 S.W.2d 657 (Tenn.App.1982). The plaintiff in Zang was shot by a robber in the parking lot of a motel in which the plaintiff was then residing. The theory of plaintiff’s suit was that the motel was negligent in failing to make adequate provision for his safety in the parking lot. The Zang court concluded that Cornpropst did not apply, for the same reasons that we do not believe it applies to the case sub judice. See 643 S.W.2d at 662. The Zang court next rejected the rule set out in Restatement, Second, Torts § 344 because that rule can be interpreted to impose liability in the absence of fault on the part of the innkeeper. The Zang court then set out the standard of care which we believe the Tennessee Supreme Court would apply in cases such as the instant one: the duty placed on innkeepers to protect registered guests from the misconduct of third persons is a duty of due care under all the circumstances. 643 S.W.2d at 663. Put differently, the “reasonable person” standard, the cornerstone of common law tort jurisprudence, is the standard that applies to innkeepers in the protection of their guests, just as it governs countless other relationships. The Zang court did not leave the application of the general due care standard to the unfettered discretion of the jury, and neither do we. The Zang court addressed the factors which a jury should consider in assessing due care: The measure of the liability of the possessor of land to invitees is due care under all the circumstances including the nature and use of the land, the nature of the invitation, the nature of the relationship with the invitee, the opportunity of the possessor and the invitee to know and avoid existing or probable dangers, and any and all other factors which would challenge the attention of the possessor and/or invitee to the probability of danger to the invitee and produce the precautions which a reasonably prudent person would instigate under the same or similar circumstances. 643 S.W.2d at 663. Under the Zang rule, the first responsibility of the factfinder is to determine “what, if any, protective measures would have been employed by a reasonably prudent motel operator under the same circumstances” which the factfinder finds existed at the time of the injury. Id. The finding of fact as to the protective measures which a reasonably prudent motel operator would have employed is to be based on a comprehensive study of all relevant conditions. The Zang court listed some of the appropriate considerations: whether the motel is advertised as an unusual establishment which offers better than ordinary-facilities; whether the location of the motel is such as to be convenient to criminals; and whether prior assaults or other criminal acts have occurred on the premises. Id. This list is not exhaustive. The fact-finder may also consider the cost of various protective measures weighed against the expected benefits of those measures; the ability of the guest to protect himself by employing available and relatively inexpensive protective measures such as deadbolt locks and other devices; compliance with the industry standard, if such a standard exists and is found to be reasonable; compliance with internal safety procedures if such procedures exist; the inconvenience to guests occasioned by particular protective measures; and any other factor or circumstance which the trial court determines, in light of the particular facts of each case, is relevant to the ultimate fact question regarding reasonable protective measures. Once the factfinder determines what, if any, protective measures would have been employed by a reasonably prudent motel operator under the same circumstances, the fact-finder next should determine “whether the actions of the responsible defendants conform to the actions of a reasonably prudent motel operator” as found by the factfinder. Id. If the fact-finder determines that the responsible defendants did not comply with this standard of care, then it should find the defendants negligent; otherwise, it should find them not negligent. Id. In sum, we accept the Zang court’s conclusion .that the general rule in Tennessee is not that “the possessor of premises must have actual notice of a threatened specific act by a specific person before liability can attach to the possessor for the criminal act of a third person.” 643 S.W.2d at 664. That rule, the Cornpropst rule, is an exception that applies to commercial facilities, such as shopping centers, which invite and attract people to enter an open area and mix indiscriminately with other people. A traveler enters his hotel room with a different expectation of' security than that with which he enters a shopping mall. Moreover, motel operators are, in most cases, better situated to protect their guests from the wrongful acts of third parties than are the operators of shopping centers. The common law of Tennessee is equal to the task of distinguishing these disparate situations. The Zang court has made this distinction and promulgated a rule applicable to motel operators. We believe the Tennessee Supreme Court will adopt that rule when presented with the question. B. The preceding discussion addresses only the standard of care applicable to motel operators, that is, the “duty” and “breach” elements of the negligence cause of action asserted by plaintiffs. Before liability attaches, even if negligence is found, plaintiffs must establish causation, the third element of a negligence action. Given the unusual nature of this cause of action — potential liability is based on an injury occasioned by the wrongful and even criminal acts of persons not under the control of the defendants — the causation element is espe- • daily important and requires the careful attention of both the trial court and the factfinder. The Zang negligence standard does not transform motel operators into insurers: they are not liable for all injuries to guests resulting from the wrongful acts of others. The instructions to the factfinder should state clearly that motel operators “are liable for the misconduct of third persons only when negligence of the [operator] is a proximate cause of the injury.” 643 S.W.2d at 663. In determining causation, the factfinder should be instructed not to consider “whether the attacker would or would not have attacked” if certain protective measures were taken, for that fact is not the ultimate causation issue. 643 S.W.2d at 665. The crucial inquiry is “what could and should have been anticipated by defendants” and what the result likely would have been if the defendants had adopted reasonable protective measures designed to prevent these anticipated dangers. Id. Some criminals are bent on theft or violence regardless of the obstacles placed in front of them; some crimes are therefore simply not foreseeable and others are not preventable, even with the exercise of utmost care. The ultimate causation question is whether the injured party would have suffered the same injury if the motel operator had employed the protective measures which the factfinder determines should have been employed in the exercise of reasonable diligence. If the injured party would have suffered the same injuries in the face of due care on the part of the motel operator, then the motel operator’s failure to exercise due care is not the proximate cause of the injuries. If the factfinder determines that the guest’s injuries would not have occurred, or would have been less severe, if reasonable protective measures had been employed, then the failure to employ these measures is the cause of these injuries. In accordance with the general rule, the plaintiff bears the burden of persuasion on the causation issue. That burden will sometimes be difficult or impossible to meet, since it requires proof of a counter-factual hypothesis: what would have happened if certain protective measures had X , . « y i . . .ill . t been taken. Nonetheless, the balancing of ,. . 1 . . ■ . competing considerations inherent m the „ , • .i x .i i . , Zanq rule requires that the plaintiff bear ,, . t_ . ^ . , , , this burden. Otherwise, motel operators ,, ... ,, - . . would approach the status of insurers m f ,, . ,, 7. cases where the circumstances attending .... . i ui the miury are unknown or unknowable. The Zang court rejected this result and we believe the Tennessee Supreme Court would also. Liability attaches only when the factfinder determines from all the proof and inferences that it is more probable than not that the injury would not have occurred if the motel operator had adopted the protective measures or security devices which the factfinder determines would have been employed by a reasonably prudent operator. III. Turning now to the facts of the case sub judice, we conclude that under the Zang rale plaintiffs have presented sufficient proof to survive a motion for a directed verdict. The evidence that the assailants gained entry to the room by kicking °Pen the doori that the door fit P00rly and ^ad a Srade three lock with no deadbolt lock; that other types of doors and locks were available and in use in the motel industry which could withstand the force applied to the door in this case; this evidenee, together with the inferences that arise therefrom, is sufficient to permit a jury to find that a reasonably prudent motel operator would, under the circumstances of this case, have employed a more substantial door and lock; that the responsible defendants failed to adopt these protective measures; and that if the protective measures had been adopted the assailants would not have been able to gain entry into the plaintiffs’ room. These facts, if found by the jury, are sufficient to establish a cause of action under the Zang standard, Hence, it was error to direct a verdict for fhe defendants, jy The on whidl the motel ¡s locat. . . , , m m^rr ed is owned by defendant Izu-Chi Hsu Í . . j , ¿ £ j a. individually and is leased to defendant Tr > -n / . T m Hsu s Enterprises, Inc., a Tennessee corpo- . . . , , , . ration which owns and operates the motel - . . . . x r,. .. , and whose principal stockholders are de- . - ^ TT , , TT » >*1 > fendant Hsu and his wife. Hsu s Enter- . , , _ „ prises operates the motel as a franchise of % „ _ ^t . , _ defendant Scottish Inns, Inc. The parties have briefed and argued the question whether defendants Scottish Inns, Inc. and Tzu-Chi Hsu are liable. The District Court did not address this issue in its memorandum opinion and, given the present state of the record, we decline to address it in this Court in the first instance. On remand, the District Court, if presented with the issue, may find helpful the discussion in Zang, wherein the court recognized that actions such as the instant one are “not based upon the liability of an owner for the condition of property but upon negligent operation of a business on the property.” 643 S.W.2d at 667. A party is liable to the extent that it operates the motel. The District Court or other factfinder will be required to make findings regarding operation of the motel; absent such findings, this Court will pretermit resolution of this issue. For the foregoing reasons, the judgment of the District Court is reversed and the cause remanded for a new trial. . The Cornpropst opinion recognizes the special status of innkeepers. The opinion contains the following passage from Prosser, Law of Torts 4th Ed. at 339: Liability for nonfeasance was [] slow to receive recognition in the law. It first appears in the case of those engaged in "public" callings, who, by holding themselves out to the public, were regarded as having undertaken a duty to give service, for the breach of which they were liable. This idea still survives in the obligation of common carriers, innkeepers, public warehousemen, and public utilities to serve all comers. 528 S.W.2d at 192 (emphasis added). In its survey of the general development of the common law, the opinion states that “[t]he cases involving liability for the criminal acts of third persons are most numerous involving the innkeeper guest relationship and the patron public amusement owners and operators." 528 S.W.2d at 193 (emphasis added). . "In the absence of more convincing evidence of what the state law is,” a federal court should apply the law as declared by an intermediate state court. Fidelity Trust Co. v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 177-78, 85 L.Ed. 109 (1940); Woodruff v. Tomlin, 616 F.2d 924, 928-29 (6th Cir.1980). . Restatement, Second, Torts § 344 provides: A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. The Zang court apparently read this section in the disjunctive: liability attaches either for physical harm caused by the acts of third persons regardless of the care exercised by the possessor or for physical harm caused by the possessor’s failure to exercise reasonable care to discover danger or give a warning. Under this interpretation, possessors of land would indeed approach the status of insurers. We are not convinced this is the appropriate interpretation of this section, however. Comment (d) to this section states that a possessor of land "is not an insurer of the safety of [ ] visitors against the acts of third persons, or the acts of animals. He is, however, under a duty to exercise reasonable care to give them protection.” Comment (f) states that "[sjince the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know the acts of the third person are occurring, or are about to occur.” This formulation sounds strikingly like the Cornpropst rule. . Permission to appeal the Zang decision was denied by the Tennessee Supreme Court on October 4, 1982. We draw no inference from that action. 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_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. CAVANA v. ADDISON MILLER, Inc. (Circuit Court of Appeals, Ninth Circuit. March 28, 1927.) No. 4990. Exceptions, bill of <9=38 — Bill of exceptions must be certified during term or extension thereof. Bill of exceptions must be certified during the term at which judgment was entered or extension granted during that term. In Error to the the District Court of the United States for the Northern Division of the Eastern District of Washington; J. Stanley Webster, Judge. Action at law by Jack Cavana against Addison Miller, Inc. Judgment for defend-' ant, and plaintiff brings error. Affirmed, E. B. Sharpstein and Everett J. Smith, both of Walla Walla, Wash., for plaintiff in error. E. Eugene Davis, of Spokane, Wash., and M. L. Driscoll, of Pasco, Wash., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. Rehearing denied May 2, 1927. RUDKIN, Circuit Judge. A motion has been interposed by the defendant in error to strike the bill of exceptions from the record and files, on the ground that it was not settled or certified within the term, or within the time allowed by law. Inasmuch as the assignments of error are all predicated upon the ruling of the court granting an involuntary nonsuit, if this motion is granted, there is no question before us for review. The facts in relation to the settlement and certification of the bill of exceptions are as follows: The case was tried .during the April term, 1926, of the court below, which expired on the first Monday of the ensuing September. The final judgment was entered May 17; the motion for a new trial was denied August 23; the proposed bill of exceptions was served on opposing counsel and lodged with the clerk of the court on August 30, but was not presented for allowance by the court, and no notice of such presentation was given until after the expiration of the term, when on October 1, 1926, the bill was settled and certified by the court, over the objection and protest of the defendant in error. The plaintiff in error has cited certain cases holding that the court may certify a bill of exceptions in disregard of its own rules, such as Southern Pac. Co. v. Johnson (C. C. A.) 69 F. 559; City of Seattle v. Board of Home Missions (C. C. A.) 138 F. 307; Russo-Chinese Bank v. National Bank of Commerce (C. C. A.) 187 F. 80. But, conceding this, the rule is well settled that it may not do so in the face of a statute or rule of law limiting its. authority in that regard. Thus in O’Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827, the Supreme Court held that the power of the trial court over' the cause expired with the expiration of the term, as extended by order of court, and that any proceedings concem- , ing the settlement of a bill of exceptions thereafter had were coram non judice and void. In the earlier case of Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 L. Ed. 162, the same court said: “By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term.” ' The later decisions do not seem to recognizé even the limited exception there mentioned. Thus in Exporters v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663, the court said: “We think the better rule and the one supported by former opinions of this court requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as may have been duly prescribed.” But, whichever rule we adopt, the bill of exceptions in this case was not certified in time because the delay in obtaining the certification was not caused by very extraordinary circumstances. On the contrary, the circumstances were but usual and ordinary. The time for proposing a bill of exceptions commenced to run with the entry of final judgment on May 17, 3% months before the expiration of the term, without any extension thereof, and no excuse for the delay is offered or given. The ruling of the Supreme Court in such matters is, of course, controlling upon this court. Maryland Casualty Co. v. Citizens’ Nat. Bank (C. C. A.) 8 F.(2d) 216. The court below was therefore without jurisdiction to certify the bill of exceptions after the expiration of the term, and for that reason the bill of exceptions must be disregarded and the judgment affirmed. It is so ordered, Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_issue_8	03	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. SCHWAB v. REILLY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 08-538. Argued November 3,2009 — Decided June 17, 2010 Thomas, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Alito, and Sotomayor, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Roberts, C. J., and Breyer, J., joined, post, p. 795. Craig Goldblatt argued the cause for petitioner. With him on the briefs were William G. Schwab, pro se, Seth P. Waxman, Danielle Spinelli, and Daniel S. Volchok. Jeffrey B. Wall argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Kagan, Assistant Attorney General West, Deputy Solicitor General Stewart, Ramona D. Elliott, P. Matthew Sutko, and Eric K. Bradford. G. Eric Brunstad, Jr., argued the cause for respondent. With him on the brief were Collin O'Connor Udell, Joshua Richards, and Gino L. Andreuzzi. Martin P. Sheehan filed a brief for the National Association of Bankruptcy Trustees as amicus curiae urging reversal. William C. Heuer filed a brief for the National Association of Consumer Bankruptcy Attorneys et al. as amici curiae urging affirmance. Justice Thomas delivered the opinion of the Court. When a debtor files a Chapter 7 bankruptcy petition, all of the debtor’s assets become property of the bankruptcy estate, see 11 U. S. C. § 541, subject to the debtor’s right to reclaim certain property as “exempt,” § 522(0. The Bankruptcy Code specifies the types of property debtors may exempt, § 522(b), as well as the maximum value of the exemptions a debtor may claim in certain assets, § 522(d). Property a debtor claims as exempt will be excluded from the bankruptcy estate “[u]nless a party in interest” objects. §522(0. This case presents an opportunity for us to resolve a disagreement among the Courts of Appeals about what constitutes a claim of exemption to which an interested party must object under §522(0- The issue is whether an interested party must object to a claimed exemption where, as here, the Code defines the property the debtor is authorized to exempt as an interest, the value of which may not exceed a certain dollar amount, in a particular type of asset, and the debtor’s schedule of exempt property accurately describes the asset and declares the “value of [the] claimed exemption” in that asset to be an amount within the limits that the Code prescribes. Fed. Rule Bkrtcy. Proc. Official Form 6, Schedule C (1991) (hereinafter Schedule C). We hold that, in cases such as this, an interested party need not object to an exemption claimed in this manner in order to preserve the estate’s ability to recover value in the asset beyond the dollar value the debtor expressly declared exempt. I Respondent Nadejda Reilly filed for Chapter 7 bankruptcy when her catering business failed. She supported her petition with various schedules and statements, two of which are relevant here: Schedule B, on which the Bankruptcy Rules require debtors to list their assets (most of which become property of the estate), and Schedule C, on which the Rules require debtors to list the property they wish to reclaim as exempt. The assets Reilly listed on Schedule B included an itemized list of cooking and other kitchen equipment that she described as “business equipment,” and to which she assigned an estimated market value of $10,718. App. 40a, 49a-55a. On Schedule C, Reilly claimed two exempt interests in this equipment pursuant to different sections of the Code. Reilly claimed a “tool[s] of the trade” exemption of $1,850 in the equipment under § 522(d)(6), which permits a debtor to exempt his “aggregate interest, not to exceed [$1,850] in value, in any implements, professional books, or tools, of [his] trade.” See also 69 Fed. Reg. 8482 (2004) (Table). And she claimed a miscellaneous exemption of $8,868 in the equipment under § 522(d)(5), which, at the time she filed for bankruptcy, permitted a debtor to take a “wildcard” exemption equal to the “debtor’s aggregate interest in any property, not to exceed” $10,225 “in value.” See App. 58a. The total value of these claimed exemptions ($10,718) equaled the value Reilly separately listed on Schedules B and C as the equipment’s estimated market value, see id., at 49a, 58a. Subject to exceptions not relevant here, the Federal Rules of Bankruptcy Procedure require interested parties to object to a debtor’s claimed exemptions within 30 days after the conclusion of the creditors’ meeting held pursuant to Rule 2003(a). See Fed. Rule Bkrtcy. Proc. 4003(b). If an interested party fails to object within the time allowed, a claimed exemption will exclude the subject property from the estate even if the exemption’s value exceeds what the Code permits. See, e. g., § 522(1); Taylor v. Freeland & Kronz, 503 U. S. 638, 642-643 (1992). Petitioner William G. Schwab, the trustee of Reilly’s bankruptcy estate, did not object to Reilly’s claimed exemptions in her business equipment because the dollar value Reilly assigned each exemption fell within the limits that §§ 522(d)(5) and (6) prescribe. App. 163a. But because an appraisal revealed that the total market value of Reilly’s business equipment could be as much as $17,200, Schwab moved the Bankruptcy Court for permission to auction the equipment so Reilly could receive the $10,718 she claimed as exempt, and the estate could distribute the equipment’s remaining value (approximately $6,500) to Reilly’s creditors. Id., at 141a-143a. Reilly opposed Schwab’s motion. She argued that by equating on Schedule C the total value of the exemptions she claimed in the equipment with the equipment’s estimated market value, she had put Schwab and her creditors on notice that she intended to exempt the equipment’s full value, even if that amount turned out to be more than the dollar amount she declared, and more than the Code allowed. Id., at 165a. Citing § 522(1), Reilly asserted that because her Schedule C notified Schwab of her intent to exempt the full value of her business equipment, he was obliged to object if he wished to preserve the estate’s right to retain any value in the equipment in excess of the $10,718 she estimated. Because Schwab did not object within the time prescribed by Rule 4003(b), Reilly asserted that the estate forfeited its claim to such value. Id., at 165a. Reilly further informed the Bankruptcy Court that exempting her business equipment from the estate was so important to her that she would dismiss her bankruptcy case if doing so was the only way to avoid the equipment’s sale at auction. The Bankruptcy Court denied both Schwab’s motion to auction the equipment and Reilly’s conditional motion to dismiss her case. See In re Reilly, 403 B. R. 336 (Bkrtcy. Ct. MD Pa. 2006). Schwab sought relief from the District Court, arguing that neither the Code nor Rule 4003(b) requires a trustee to object to a claimed exemption where the amount the debtor declares as the “value of [the debtor’s] claimed exemption” in certain property is an amount within the limits the Code prescribes. The District Court rejected Schwab’s argument, and the Court of Appeals affirmed. See In re Reilly, 534 F. 3d 173 (CA3 2008). The Court of Appeals agreed with the Bankruptcy Court that by equating on Schedule C the total value of her exemptions in her business equipment with the equipment’s market value, Reilly “indicate[d] the intent” to exempt the equipment’s full value. Id., at 174. In reaching this conclusion, the Court of Appeals relied on our decision in Taylor: “[W]e believe this case to be controlled by Taylor. Just as we perceive it was important to the Taylor Court that the debtor meant to exempt the full amount of the property by listing 'unknown’ as both the value of the property and the value of the exemption, it is important to us that Reilly valued the business equipment at $10,718 and claimed an exemption in the same amount. Such an identical listing put Schwab on notice that Reilly intended to exempt the property fully. “ ‘[A]n unstated premise’ of Taylor was ‘that a debtor who exempts the entire reported value of an asset is claiming the “full amount,” whatever it turns out to be.’” 534 F. 3d, at 178-179. Relying on this “unstated premise,” the Court of Appeals held that Schwab’s failure to object to Reilly’s claimed exemptions entitled Reilly to the equivalent of an in-kind interest in her business equipment, even though the value of that exemption exceeded the amount that Reilly declared on Schedule C and the amount that the Code allowed her to withdraw from the bankruptcy estate. Ibid. As noted, the Court of Appeals’ decision adds to disagreement among the Circuits about what constitutes a claim of exemption to which an interested party must object under §522(l). We granted certiorari to resolve this conflict. See 556 U. S. 1207 (2009). We conclude that the Court of Appeals’ approach fails to account for the text of the relevant Code provisions and misinterprets our decision in Taylor. Accordingly, we reverse. II The starting point for our analysis is the proper interpretation of Reilly’s Schedule C. If we read the Schedule Reilly’s way, she claimed exemptions in her business equipment that could exceed statutory limits, and thus claimed exemptions to which Schwab should have objected if he wished to enforce those limits for the benefit of the estate. If we read Schedule C Schwab’s way, Reilly claimed valid exemptions to which Schwab had no duty to object. The Court of Appeals construed Schedule C Reilly’s way and interpreted her claimed exemptions as improper, and therefore objectionable, even though their declared value was facially within the applicable Code limits. In so doing, the Court of Appeals held that trustees evaluating the validity of exemptions in cases like this cannot take a debtor’s claim at face value, and specifically cannot rely on the fact that the amount the debtor declares as the “value of [the] claimed exemption” is within statutory limits. Instead, the trustee’s duty to object turns on whether the interplay of various schedule entries supports an inference that the debtor “intended” to exempt a dollar value different than the one she wrote on the form. 534 F. 3d, at 178. This complicated view of the trustee’s statutory obligation, and the strained reading of Schedule C on which it rests, is inconsistent with the Code. The parties agree that this case is governed by § 522(0, which states that a Chapter 7 debtor must “file a list of property that the debtor claims as exempt under subsection (b) of this section,” and further states that “[u]nless a party in interest objects, the property claimed as exempt on such list is exempt.” The parties further agree that the “list” to which § 522(0 refers is the “list of property... claim[ed] as exempt” currently known as “Schedule C.” See Schedule C. The parties, like the Courts of Appeals, disagree about what information on Schedule C defines the “property claimed as exempt” for purposes of evaluating an exemption’s propriety under §522(Z). Reilly asserts that the “property claimed as. exempt” is defined by reference to all the information on Schedule C, including the estimated market value of each asset in which the debtor claims an exempt interest. Schwab and the United States as amicus curiae argue that the Code specifically defines the “property claimed as exempt” as an interest, the value of which may not exceed a certain dollar amount, in a particular asset, not as the asset itself. Accordingly, they argue that the value of the property claimed exempt, i. e., the value of the debtor’s exempt interest in the asset, should be judged on the value the debtor assigns the interest, not on the value the debtor assigns the asset. The point of disagreement is best illustrated by the relevant portion of Reilly’s Schedule C: According to Reilly, Schwab was required to treat the estimate of market value she entered in column 4 as part of her claimed exemption in identifying the “property claimed as exempt” under §522(7). See Brief for Respondent 22-28. Relying on this premise, Reilly argues that where, as here, a debtor equates the total value of her claimed exemptions in a certain asset (column 3) with her estimate of the asset's market value (column 4), she establishes the “property claimed as exempt” as the full value of the asset, whatever that turns out to be. See ibid. Accordingly, Reilly argues that her Schedule C clearly put Schwab on notice that she “intended” to claim an exemption for the full value of her business equipment, and that Schwab’s failure to oppose the exemption in a timely manner placed the full value of the equipment outside the estate’s reach. Schedule C-Property Claimed as Exempt Description of Property Specify Law Providing Each Exemption Value of Claimed Exemption Current Market Value of Property Without Deducting Exemptions Schedule B Personal Property See attached 11 U. S. c. 1,850 10,718 list of business § 522(d)(6) equipment. 11 U. S. C. 8,868 § 522(d)(5) Schwab does not dispute that columns 3 and 4 apprised him that Reilly equated the total value of her claimed exemptions in the equipment ($1,850 plus $8,868) with the equipment’s market value ($10,718). He simply disagrees with Reilly that this “identical listing put [him] on notice that Reilly intended to exempt the property fully,” regardless of whether its value exceeded the exemption limits the Code prescribes. 534 F. 3d, at 178. Schwab and amicus United States instead contend that the Code defines the “property” Reilly claimed as exempt under §522(Z) as an “interest” whose value cannot exceed a certain dollar amount. Brief for Petitioner 20-26; Reply Brief for Petitioner 3-6; Brief for United States as Amicus Curiae 12-18. Construing Reilly’s Schedule C in light of this statutory definition, they contend that Reilly’s claimed exemption was facially unobjectionable because the “property claimed as exempt” (i e., two interests in her business equipment worth $8,868 and $1,850, respectively) is property Reilly was clearly entitled to exclude from her estate under the Code provisions she referenced in column 2. See supra, at 780 (citing §§ 522(d)(5) and (6)). Accordingly, Schwab and the United States conclude that Schwab had no obligation to object to the exemption in order to preserve for the estate any value in Reilly’s business equipment beyond the total amount ($10,718) Reilly properly claimed as exempt. We agree. The portion of § 522(0 that resolves this case is not, as Reilly asserts, the provision stating that the “property claimed as exempt on [Schedule C] is exempt” unless an interested party objects. Rather, it is the portion of §522(0 that defines the target of the objection, namely, the portion that says Schwab has a duty to object to the “list of property that the debtor claims as exempt under subsection (b).” (Emphasis added.) That subsection, § 522(b), does not define the “property claimed as exempt” by reference to the estimated market value on which Reilly and the Court of Appeals rely. Brief for Respondent 22-23; 534 F. 3d, at 178. Section 522(b) refers only to property defined in § 522(d), which in turn lists 12 categories of property that a debtor may claim as exempt. As we have recognized, most of these categories (and all of the categories applicable to Reilly’s exemptions) define the “property” a debtor may “clai[m] as exempt” as the debtor’s “interest” — up to a specified dollar amount — in the assets described in the category, not as the assets themselves. §§ 522(d)(5)-(6); see also §§ 522(d)(1) — (4), (8); Rousey v. Jacoway, 544 U. S. 320, 325 (2005); Owen v. Owen, 500 U. S. 305, 310 (1991). Viewing Reilly’s form entries in light of this definition, we agree with Schwab and the United States that Schwab had no duty to object to the property Reilly claimed as exempt (two interests in her business equipment worth $1,850 and $8,868) because the stated value of each interest, and thus of the “property claimed as exempt,” was within the limits the Code allows. Reilly’s contrary view of Schwab’s obligations under §522(Z) does not withstand scrutiny because it defines the target of a trustee’s objection — the “property claimed as exempt” — based on language in Schedule C and dictionary definitions of “property,” see Brief for Respondent 24-25, 40-41, that the definition in the Code itself overrides.* * Although we may look to dictionaries and the Bankruptcy Rules to determine the meaning of words the Code does not define, see, e. g., Rousey, supra, at 330, the Code’s definition of the “property claimed as exempt” in this case is clear. As noted above, §§ 522(d)(5) and (6) define the “property claimed as exempt” as an “interest” in Reilly’s business equipment, not as the equipment per se. Sections 522(d)(5) and (6) further and plainly state that claims to exempt such interests are statutorily permissible, and thus unobjectionable, if the value of the claimed interest is below a particular dollar amount. That is the case here, and Schwab was entitled to rely upon these provisions in evaluating whether Reilly’s exemptions were objectionable under the Code. See Lamie v. United States Trustee, 540 U. S. 526, 534 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000). The Court of Appeals’ contrary holding not only fails to account for the Code’s definition of the “property claimed as exempt.” It also fails to account for the provisions in § 522(d) that permit debtors to exempt certain property in kind or in full regardless of value. See, e. g., §§ 522(d)(9) (professionally prescribed health aids), (10)(C) (disability benefits), (7) (unmatured life insurance contracts). We decline to construe Reilly’s claimed exemptions in a manner that elides the distinction between these provisions and provisions such as §§ 522(d)(5) and (6), see, e. g., Duncan v. Walker, 533 U. S. 167, 174 (2001), particularly based upon an entry on Schedule C — Reilly’s estimate of her equipment’s market value — to which the Code does not refer in defining the “property claimed as exempt.” For all of these reasons, we conclude that Schwab was entitled to evaluate the propriety of the claimed exemptions based on three, and only three, entries on Reilly’s Schedule C: the description of the business equipment in which Reilly claimed the exempt interests; the Code provisions governing the claimed exemptions; and the amounts Reilly listed in the column titled “value of claimed exemption.” In reaching this conclusion, we do not render the market value estimate on Reilly’s Schedule C superfluous. We simply confine the estimate to its proper role: aiding the trustee in administering the estate by helping him identify assets that may have value beyond the dollar amount the debtor claims as exempt, or whose full value may not be available for exemption because a portion of the interest is, for example, encumbered by an unavoidable lien. See, e. g., 3 W. Norton & W. Norton, Bankruptcy Law and Practice § 56:7 (3d ed. 2009); Brief for United States as Amicus Curiae 16; Dept, of Justice, Executive Office for U. S. Trustees, Handbook for Chapter 7 Trustees, p. 8-1 (2005), http://www.justice.gov/ust/eo/private_ trustee / library /chapter07 / docs / 7handbookl008 / Ch7_ Handbookpdf (as visited June 14, 2010, and available in Clerk of Court’s case file). As noted, most assets become property of the estate upon commencement of a bankruptcy case, see 11 U. S. C. § 541, and exemptions represent the debtor’s attempt to reclaim those assets or, more often, certain interests in those assets, to the creditors’ detriment. Accordingly, it is at least useful for a trustee to be able to compare the value of the claimed exemption (which typically represents the debtor’s interest in a particular asset) with the asset’s estimated market value (which belongs to the estate subject to any valid exemption) without having to consult separate schedules. Our interpretation of Schwab’s statutory obligations is not only consistent with the governing Code provisions; it is also consistent with the historical treatment of bankruptcy exemptions. Congress has permitted debtors to exempt certain property from their bankruptcy estates for more than two centuries. See Act of Apr. 4, 1800, ch. 19, § 5, 2 Stat. 23. Throughout these periods, debtors have validly exempted property based on forms that required the debtor to list the value of a claimed exemption without also estimating the market value of the asset in which the debtor claimed the exempt interest. See Brief for Respondent 46, n. 7 (citing Sup. Ct. Bkrtcy. Form 20 (1877)). Indeed, it was not until 1991 that Schedule B-4 was redesignated as Schedule C and amended to require the estimate of market value on which Reilly so heavily relies. See Schedule C. This amendment was not occasioned by legislative changes that altered the Code’s definition of “the property claimed as exempt” in this case as an “interest,” not to exceed a certain dollar amount, in Reilly’s business equipment. Accordingly, we agree with Schwab and the United States that this recent amendment to the exemption form does not compel Reilly’s view of Schwab’s statutory obligations, or render the claimed exemptions in this ease objectionable under the Code. See Reply Brief for Petitioner 9-11; Brief for United States as Amicus Curiae 16-17. III The Court of Appeals erred in holding that our decision in Taylor dictates a contrary conclusion. See 534 F. 3d, at 178. Taylor does not rest on what the debtor “meant” to exempt. 534 F. 3d, at 178. Rather, Taylor applies to the face of a debtor’s claimed exemption the Code provisions that compel reversal here. The debtor in Taylor, like the debtor here, filed a schedule of exemptions with the Bankruptcy Court on which the debtor described the property subject to the claimed exemption, identified the Code provision supporting the exemption, and listed the dollar value of the exemption. Critically, however, the debtor in Taylor did not, like the debtor here, state the value of the claimed exemption as a specific dollar amount at or below the limits the Code allows. Instead, the debtor in Taylor listed the value of the exemption itself as “$ unknown”: Schedule B-4. -Property Claimed Exempt Type of Property Location, Description, and, So Far as Relevant to the Claim of Exemption, Present Use of Property Specify the Statute Creating the Exemption Value Claimed Exempt Proceeds from lawsuit Winn v. TWA Claim for lost wages 11 U. S. C. 522(b)(d) unknown The interested parties in Taylor agreed that this entry rendered the debtor’s claimed exemption objectionable on its face because the exemption concerned an asset (lawsuit proceeds) that the Code did not permit the debtor to exempt beyond a specific dollar amount. See 503 U. S., at 642. Accordingly, although this case and Taylor both concern the consequences of a trustee’s failure to object to a claimed exemption within the time specified by Rule 4003, the question arose in Taylor on starkly different facts. In Taylor, the question concerned a trustee’s obligation to object to the debtor’s entry of a “value claimed exempt” that was not plainly within the limits the Code allows. In this case, the opposite is true. The amounts Reilly listed in the Schedule C column titled “Value of Claimed Exemption” are facially within the limits the Code prescribes and raise no warning flags that warranted an objection. See supra, at 780. Taylor supports this conclusion. In holding otherwise, the Court of Appeals focused on what it described as Taylor’s “'unstated premise”’ that '"a debtor who exempts the entire reported value of an asset is claiming the “full amount,” whatever it turns out to be.’” 534 F. 3d, at 179. But Taylor does not rest on this premise. It establishes and applies the straightforward proposition that an interested party must object to a claimed exemption if the amount the debtor lists as the “value claimed exempt” is not within statutory limits, a test the value ($ unknown) in Taylor failed, and the values ($8,868 and $1,850) in this ease pass. We adhere to this test. Doing otherwise would not only depart from Taylor and ignore the presumption that parties act lawfully and with knowledge of the law, cf. United States v. Budd, 144 U. S. 154, 163 (1892); it would also require us to expand the statutory definition of “property claimed as exempt” and the universe of information an interested party must consider in evaluating the validity of a claimed exemption. Even if the Code allowed such expansions, they would be ill advised. As evidenced by the differences between Reilly’s Schedule C and the schedule in Taylor, preprinted bankruptcy schedules change over time. Basing the definition of the “property claimed as exempt,” and thus an interested party’s obligation to object under § 522(0, on inferences that party must draw from evolving forms, rather than on the facial validity of the value the debtor assigns the “property claimed as exempt” as defined by the Code, would undermine the predictability the statute is designed to provide. For all of these reasons, we take Reilly’s exemptions at face value and find them unobjectionable under the Code, so the objection deadline we enforced in Taylor is inapplicable here. IV In a final effort to defend the Court of Appeals’ judgment, Reilly asserts that her approach to § 522(Z) is necessary to vindicate the Code’s goal of giving debtors a fresh start, and to further its policy of discouraging trustees and creditors from sleeping on their rights. See Brief for Respondent 21, 55-68. Although none of Reilly’s policy arguments can overcome the Code provisions or the aspects of Taylor that govern this case, our decision fully accords with all of the policies she identifies. We agree that “exemptions in bankruptcy cases are part and parcel of the fundamental bankruptcy concept of a 'fresh start.’” Brief for Respondent 21 (quoting Rousey, 544 U. S., at 325); see Marrama v. Citizens Bank of Mass., 549 U. S. 365, 367 (2007). We disagree that this policy required Schwab to object to a facially valid claim of exemption on pain of forfeiting his ability to preserve for the estate any value in Reilly’s business equipment beyond the value of the interest she declared exempt. This approach threatens to convert a fresh start into a free pass. As we emphasized in Rousey, “[t]o help the debtor obtain a fresh start, the Bankruptcy Code permits him to withdraw from the estate certain interests in property, such as his car or home, up to certain values.” 544 U. S., at 325 (emphasis added). The Code limits exemptions in this fashion because every asset the Code permits a debtor to withdraw from the estate is an asset that is not available to his creditors. See § 522(b)(1). Congress balanced the difficult choices that exemption limits impose on debtors with the economic harm that exemptions visit on creditors, and it is not for us to alter this balance by requiring trustees to object to claimed exemptions based on form entries beyond those that govern an exemption’s validity under the Code. See Lamie, 540 U. S., at 534, 538; Hartford, 530 U. S., at 6; United States v. Locke, 471 U. S. 84, 95 (1985). Reilly nonetheless contends that our approach creates perverse incentives for trustees and creditors to sleep on their rights. See Brief for Respondent 64, n. 10, 67-69. Again, we disagree. Where a debtor intends to exempt nothing more than an interest worth a specified dollar amount in an asset that is not subject to an unlimited or in-kind exemption under the Code, our approach will ensure clear and efficient resolution of competing claims to the asset’s value. If an interested party does not object to the claimed interest by the time the Rule 4003 period expires, title to the asset will remain with the estate pursuant to § 541, and the debtor will be guaranteed a payment in the dollar amount of the exemption. If an interested party timely objects, the court will rule on the objection and, if it is improper, allow the debtor to make appropriate adjustments. Where, as here, it is important to the debtor to exempt the full market value of the asset or the asset itself, our decision will encourage the debtor to declare the value of her claimed exemption in a manner that makes the scope of the exemption clear, for example, by listing the exempt value as “full fair market value (FMV)” or “100% of FMV.” Such a declaration will encourage the trustee to object promptly to the exemption if he wishes to challenge it and preserve for the estate any value in the' asset beyond relevant statutory limits. If the trustee fails to object, or if the trustee objects and the objection is overruled, the debtor will be entitled to exclude the full value of the asset. If the trustee objects and the objection is sustained, the debtor will be required either to forfeit the portion of the exemption that exceeds the statutory allowance, or to revise other exemptions or arrangements with her creditors to permit the exemption. See Fed. Rule Bkrtcy. Proc. 1009(a). Either re-suit will facilitate the expeditious and final disposition of assets, and thus enable the debtor (and the debtor’s creditors) to achieve a fresh start free of the finality and clouded-title concerns Reilly describes. See Brief for Respondent 57-59 (arguing that “[u]nder [Schwab’s] interpretation of Rule 4003(b), a debtor would never have the certainty of knowing whether or not he or she may keep her exempted property until the case had ended”); id., at 66. For all of these reasons, the policy considerations Reilly cites support our approach. Where, as here, a debtor accurately describes an asset subject to an exempt interest and on Schedule C declares the “value of [the] claimed exemption” as a dollar amount within the range the Code allows, interested parties are entitled to rely upon that value as evidence of the claim’s validity. Accordingly, we hold that Schwab was not required to object to Reilly’s claimed exemptions in her business equipment in order to preserve the estate’s right to retain any value in the equipment beyond the value of the exempt interest. In reaching this conclusion, we express no judgment on the merits of, and do not foreclose the courts from entertaining on remand, procedural or other measures that may allow Reilly to avoid auction of her business equipment. * * * We reverse the judgment of the Court of Appeals for the Third Circuit and remand this case for further proceedings consistent with this opinion. It is so ordered. The 1994 version of 11 U. S. C. § 522(d)(5) allowed debtors to exempt an “aggregate interest in any property, not to exceed in value $800 plus up to $7,500 of any unused amount of the [homestead or burial plot] exemption provided under [§ 522(d)(1)].” In 2004, pursuant to § 104(b)(2), the Judicial Conference of the United States published notice that § 522(d)(5) would impose the $975 and $9,250 ($10,225 total) limits that governed Reilly’s April 2005 petition. See 69 Fed. Reg. 8482 (Table). In 2007 and 2010 the limits were again increased. See 72 id., at 7082 (Table); 75 id., at 8748 (Table). Schwab concedes that the appraisal occurred before Rule 4003(b)’s 30-day window for objecting to the claimed exemptions had passed. See Brief for Petitioner 15. Reilly’s desire to avoid the equipment’s auction is understandable because the equipment, which Reilly’s parents purchased for her despite their own financial difficulties, has “‘extraordinary sentimental value.’” Brief for Respondent 5 (quoting App. 152a-153a). But the sentimental value of the property cannot drive our decision in this case, because sentimental value is not a basis for construing the Bankruptcy Code. Because the Code imposes limits on exemptions, many debtors who seek to take advantage of the Code are, no doubt, put to the similarly difficult choice of parting with property of “extraordinary sentimental value.” Id., at 152a-153a; see infra, at 791-794. Compare In re Williams, 104 F. 3d 688, 690 (CA4 1997) (holding that interested parties have no duty to object to a claimed exemption where the dollar amount the debtor assigns the exemption is facially within the range the Code allows for the type of property in issue); In re Wick, 276 F. 3d 412 (CA8 2002) (employing reasoning similar to Williams, but stopping short of articulating a clear rule), with In re Green, 31 F. 3d 1098, 1100 (CA11 1994) (“[A] debtor who exempts the entire reported value of an asset is claiming the [asset’s] ‘full amount,’ whatever it turns out to be”); In re Anderson, 377 B. R. 865 (Bkrtcy. App. Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:
songer_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. UNITED STATES of America, Appellant, v. CROSLAND CONSTRUCTION COMPANY, Inc., Pacific Employers Insurance Company, and American Indemnity Company, Appellees. No. 6891. United States Court of Appeals, Fourth Circuit. Argued Nov. 18, 1954. Decided Dec. 1, 1954. Fred E. Youngman, Sp. Asst. to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and A. F. Prescott, Sp. Assts. to Atty. Gen., N. Welch Morrisette, Jr., U. S. Atty., and Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C., on the brief), for appellant. Thomas E. McCutchen, Columbia, S. C., (Whaley & McCutchen and Hoover C. Blanton, Columbia, S. C., on the brief), for appellees Pacific Employers Ins. Co. and American Indemnity Co. ' Before PARKER, Chief Judge, SOP-ER, Circuit Judge, and THOMSEN, District Judge. THOMSEN, District Judge. The only question presented by this appeal is whether the sureties on a bond eonditiofied that “the principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in” a contract between the Crosland Construction Company, Inc. (the principal) and the Newberry County Memorial Hospital of Newberry, South Carolina (the obli-gee) for the construction of certain alterations and additions to said hospital, are liable to the United States under that bond for federal income withholding taxes under Sec. 1622 et seq., I.R.C., Title 26 U.S.C.A. and Federal Insurance Contributions Act taxes under Sec. 1400 et seq., I.R.C., which were deducted and withheld by the principal from wages paid to employees engaged in the performance of said contract, but not paid over to the Government as required by law. Other claims in addition to the one pressed on this appeal were made against the principal and the sureties in the amended complaint filed by the Government in the district court. The sureties moved for an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard arguments based on the pleadings and affidavits submitted by the parties, and filed an opinion and order entering judgment in favor of the sureties. U. S. v. Crosland Construction Co., Inc., D.C., 120 F.Supp. 792. From that order and judgment the Government has appealed, but is pressing only the question stated above. The parties do not contend that the language of the bond is extended or limited by any contract provision or statute. The question is simply whether the Government’s claim is covered by the terms of the bond, quoted above. The relevant statutes and regulations are set out in the note below. From a consideration of all of them, we conclude, as did the majority of the Tenth Circuit in United States Fidelity & Guaranty Co. v. U. S., 201 F.2d 118: “ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120. That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S., 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312, in which it was held that the Government’s claim against the contractor for amounts withheld could not be set off against amounts due the contractor’s assignee because of the provision of the Assignment of Claims Act, 54 Stat. 1029, 31 U.S.C.A. § 203, that “ ‘such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.’ ” The Supreme Court said: “The requirement that Graham withhold taxes from the ‘payment of wages’ to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code. Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham’s embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the withheld taxes which Graham held as trustee for the United States pursuant to § 3661 of the Code. Assignor Graham’s indebtedness to the United States arose, we think, ‘independently’ of the contract.” 345 U.S. at pages 645, 646, 73 S. Ct. at page 920. We agree with the Fifth Circuit: “Though measured by the amount of wages, the money due the United States was owing as taxes and not as wages.” General Casualty Co. of America v. U. S., 205 F.2d at page 755. Such a claim is not covered by the bond in this case. The judgment of the District Court must be Affirmed. . There were two bonds given by the principal and the sureties to the obligee —one a performance- bond in the u-sual form, the other a payment bond conditioned as set out above. The perform-anee bond was involved in some of the ' questions discussed in the district court; the claim pressed on this appeal is under the payment bond. . Internal Revenue Code of 1939, as amended, Title 26 U.S.C.A. § 35, 57 Stat. 126; § 322(a) (2), 58 Stat. 231; § 1400 et seq., 61 Stat. 793, 64 Stat. 477, esp. §§ 1401, 1402, 1427, 1430; § 1608, 53 Stat. 188; § 1622 et seq., 57 Stat. 126, 62 Stat. 110, 64 Stat. 906, esp. §§ 1622(a) (d) (e), 1623, 3627; § 3661, 53 Stat. 448. T. R. 116, See. 405.301. T.R. 128, Sec. 408.304. 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:
sc_petitioner	294	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. SELECTIVE SERVICE SYSTEM et al. v. MINNESOTA PUBLIC INTEREST RESEARCH GROUP et al. No. 83-276. Argued April 23, 1984 Decided July 5, 1984 Burger, C. J., delivered the opinion of the Court, in which White, Rehnquist, Stevens, and O’Connor, JJ., joined, and in Parts I, II-B, III, and IV of which Powell, J., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 859. Brennan, J., post, p. 862, and Marshall, J., post, p. 862, filed dissenting opinions. Blackmun, J., took no part in the decision of the case. Solicitor General Lee argued the cause for appellants. With him on the briefs were Acting Assistant Attorney General Willard, Deputy Solicitor General Bator, John H. Garvey, and Neil H. Koslowe. William J. Keppel argued the cause for appellees. With him on the brief was E. Gail Suchman Peter B. Ellis filed a brief for the Trustees of Boston University as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for Swarthmore College et al. by Thomas P. Preston and Robert D. Williams; and for the University of Minnesota et al. by Stephen S. Dunham, William P. Donohue, Roderick K. Daane, Patricia Eames, and James D. Miller. Chief Justice Burger delivered the opinion of the Court. We noted probable jurisdiction to decide (a) whether § 12(f) of the Military Selective Service Act, 96 Stat. 748, 50 U. S. C. App. § 462(f), which denies federal financial assistance under Title IV of the Higher Education Act of 1965 to male students who fail to register for the draft under the Act, is a bill of attainder; and (b) whether § 12(f) compels those students who elect to request federal aid to incriminate themselves in violation of the Fifth Amendment. I Section 3 of the Military Selective Service Act, 62 Stat. 605, as amended, 50 U. S. C. App. §453, empowers the President to require every male citizen and male resident alien between the ages of 18 and 26 to register for the draft. Sections 12(b) and (c) of that Act impose criminal penalties for failure to register. On July 2, 1980, President Carter issued a Proclamation requiring young men to register within 30 days of their 18th birthday. Presidential Proclamation No. 4771, 3 CFR 82 (1981). Appellee students (hereafter appellees) are anonymous individuals who were required to register before September 1,1982. On September 8, Congress enacted the Department of Defense Authorization Act of 1983, Pub. L. 97-252, 96 Stat. 718. Section 1113(a) of that Act added § 12(f) to the Military Selective Service Act. Section 12(f)(1) provides that any person who is required to register and fails to do so “in accordance with any proclamation” issued under the Military Selective Service Act “shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965.” Section 12(f)(2) requires applicants for Title IV assistance to file with their institutions of higher education a statement attesting to their compliance with the draft registration law and regulations issued under it. Sections 12(f)(3) and (4) require the Secretary of Education, in agreement with the Director of Selective Service, to prescribe methods for verifying such statements of compliance and to issue implementing regulations. Regulations issued in final form on April 11, 1983, see 48 Fed. Reg. 15578, provide that no applicant may receive Title IV aid unless he files a statement of compliance certifying that he is registered with the Selective Service or that, for a specified reason, he is not required to register. 34 CFR § 668.24(a) (1983). The regulations allow a student who has not previously registered, although required to do so, to establish eligibility for Title IV aid by registering, filing a statement of registration compliance, and, if required, verifying that he is registered. § 668.27(b)(1). The statement of compliance does not require the applicant to state the date that he registered. In November 1982 the Minnesota Public Interest Research Group filed a complaint in the United States District Court for the District of Minnesota seeking to enjoin the operation of § 12(f). The District Court dismissed the Minnesota Group for lack of standing but allowed three anonymous students to intervene as plaintiffs. 557 F. Supp. 923 (1983); 557 F. Supp. 925 (1983). The intervenors alleged that they reside in Minnesota, that they need financial aid to pursue their educations, that they intend to apply for Title IV assistance, and that they are legally required to register with the Selective Service but have failed to do so. This suit was informally consolidated with a separate action brought by three other anonymous students making essentially the same allegations as the intervenors. In March 1983 the District Court granted a preliminary injunction restraining the Selective Service System from enforcing § 12(f). After finding that appellees had demonstrated a threat of irreparable injury, the court held that appellees were likely to succeed on the merits. First, the District Court thought it likely that § 12(f) was a bill of attainder. The court interpreted the statutory bar to student aid as applicable to students who registered late. Thus interpreted, the statute “clearly singles out an ascertainable group based on past conduct” and “legislatively determines the guilt of this ascertainable group.” Doe v. Selective Service System, 557 F. Supp. 937, 942, 943 (1983). The court viewed the denial of aid as punishment within the meaning of the Bill of Attainder Clause because it “deprives students of the practical means to achieve the education necessary to pursue many vocations in our society.” Id., at 944. Second, the District Court found it likely that § 12(f) violated appel-lees’ Fifth Amendment privilege against compelled self-incrimination. In the District Court’s view, the statement of compliance required by § 12(f)(2) compels students who have not registered for the draft and need financial aid to confess to the fact of nonregistration, which is a crime. 50 U. S. C. App. § 462(a). On June 16, 1983, the District Court entered a permanent, nationwide injunction against the enforcement of § 12(f). The court held that the regulations making late registrants eligible for aid were inconsistent with the statute and concluded that the statute was an unconstitutional attainder. It also held the statute to violate appellees’ constitutional privilege against compelled self-incrimination. On June 29, we stayed the District Court’s June 16 order pending the timely docketing and final disposition of this appeal. Selective Service System v. Doe, 463 U. S. 1215. We noted probable jurisdiction on December 5, 1983, 464 U. S. 1006, and we reverse. II The District Court held that § 12(f) falls within the category of congressional actions that Art. I, § 9, cl. 3, of the Constitution bars by providing that “[n]o Bill of Attainder... shall be passed.” A bill of attainder was most recently described by this Court as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of General Services, 433 U. S. 425, 468 (1977); see United States v. O’Brien, 391 U. S. 367, 383, n. 30 (1968); United States v. Lovett, 328 U. S. 303, 315 (1946). Appellants argue that § 12(f) does not satisfy any of these three requirements, i. e., specification of the affected persons, punishment, and lack of a judicial trial. A In forbidding bills of attainder, the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial “specifically designated persons or groups.” United States v. Brown, 381 U. S. 437, 447 (1965). Historically, bills of attainder generally named the persons to be punished. However, “[t]he singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons.” Communist Party of United States v. Subversive Activities Control Board, 367 U. S. 1, 86 (1961). When past activity serves as “a point of reference for the ascertainment of particular persons ineluctably designated by the legislature” for punishment, id., at 87, the Act may be an attainder. See Cummings v. Missouri, 4 Wall. 277, 324 (1867). In Cummings the Court struck down a provision of the Missouri post-Civil War Reconstruction Constitution that barred persons from various professions unless they stated under oath that they had not given aid or comfort to persons engaged in armed hostility to the United States and had never “‘been a member of, or connected with, any order, society, or organization, inimical to the government of the United States.’” Id., at 279. The Court recognized that the oath was required, not “as a means of ascertaining whether parties were qualified” for their professions, id., at 320, but rather to effect a punishment for having associated with the Confederacy. Although the State Constitution did not mention the persons or groups required to take the oath by name, the Court concluded that in creating a qualification having no possible relation to their fitness for their chosen professions, the Constitution was intended “to reach the person, not the calling.” Ibid. On the same day that it decided Cummings, the Court struck down a similar oath that was required for admission to practice law in the federal courts. Ex parte Garland, 4 Wall. 333 (1867). Like the oath considered in Cummings, the oath “operate[d] as a legislative decree of perpetual exclusion” from the practice of law, id., at 377, since past affiliation with the Confederacy prevented attorneys from taking the oath without perjuring themselves. See Cummings v. Missouri, supra, at 327. In both Cummings and Garland, the persons in the group disqualified were defined entirely by irreversible acts committed by them. The District Court in this case viewed § 12(f) as comparable to the provisions of the Reconstruction laws declared unconstitutional in Cummings and Garland, because it thought the statute singled out nonregistrants and made them ineligible for aid based on their past conduct, i. e., failure to register. To understand the District Court’s analysis, it is necessary to turn to its construction of the statute. The court noted that § 12(f) disqualifies applicants for financial assistance unless they have registered “in accordance with any proclamation issued under [§3 of the Military Selective Service Act],” and that Proclamation No. 4771 requires those born after January 1, 1963, to register within 30 days of their 18th birthday. See 3 CFR 82 (1981). In the court’s view, the language of § 12(f), coupled with the Proclamation’s 30-day registration requirement, precluded late registrants from qualifying for Title IV aid. Having construed § 12(f) as precluding late registration, the District Court read the statute to be retrospective, in that it denies financial assistance to an identifiable group — nonregistrants—based on their past conduct. The District Court acknowledged that implementing regulations would allow students who had not previously registered to become eligible for Title IV benefits by registering, see 34 CFR § 668.27(b)(1) (1983), but the court declared those regulations to be void because they conflicted with what the District Court viewed as § 12(f )’s requirement of registration within the time prescribed by Proclamation No. 4771. We reject the District Court’s view that § 12(f) requires registration within the time fixed by Proclamation No. 4771. That view is plainly inconsistent with the structure of § 12(f) and with the legislative history. Subsection (f)(4) of the statute requires the Secretary of Education to issue regulations providing that “any person” to whom the Secretary proposes to deny Title IV assistance shall be given notice of the proposed denial and “not less than thirty days” after such notice to “establis[h] that he has complied with the registration requirement.” 50 U. S. C. App. § 462(f)(4). The statute clearly gives nonregistrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid. See 34 CFR § 668.27(b)(1) (1983). To require registration within the time fixed by the Presidential Proclamation would undermine this provision allowing “any person” 30 days after notification to establish compliance with the registration requirement. This was clearly a grace period. The District Court also ignored the relevant legislative history. Congress’ purpose in enacting § 12(f) was to encourage registration by those who must register, but have not yet done so. Proponents of the legislation emphasized that those failing to register timely can qualify for aid by registering late. The District Court failed to take account of this legislative purpose. See Heckler v. Edwards, 465 U. S. 870 (1984). Nor did its construction of § 12(f) give adequate deference to the views of the Secretary of Education, who had helped to draft the statute. Miller v. Youakim, 440 U. S. 125, 144 (1979); see 128 Cong. Rec. 18363 (1982) (remarks of Rep. Solomon). The judicial function is “not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations,” CSC v. Letter Carriers, 413 U. S. 548, 571 (1973). Section 12(f) does not make late registrants ineligible for Title IV aid. Because it allows late registration, § 12(f) is clearly distinguishable from the provisions struck down in Cummings and Garland. Cummings and Garland dealt with absolute barriers to entry into certain professions for those who could not file the required loyalty oaths; no one who had served the Confederacy could possible comply, for his status was irreversible. By contrast, § 12(f)’s requirements, far from irreversible, can be met readily by either timely or late filing. “Far from attaching to... past and ineradicable actions,” ineligibility for Title IV benefits “is made to turn upon continuingly contemporaneous fact” which a student who wants public assistance can correct. Communist Party of United States v. Subversive Activities Control Board, 367 U. S., at 87. B Even if the specificity element were deemed satisfied by § 12(f), the statute would not necessarily implicate the Bill of Attainder Clause. The proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group. In determining whether a statute inflicts punishment within the proscription against bills of attainder, our holdings recognize that the severity of a sanction is not determinative of its character as punishment. Flemming v. Nestor, 363 U. S. 603, 616, and n. 9 (1960). That burdens are placed on citizens by federal authority does not make those burdens punishment. Nixon v. Administrator of General Services, 433 U. S., at 470; United States v. Lovett, 328 U. S., at 324 (Frankfurter, J., concurring). Conversely, legislative intent to encourage compliance with the law does not establish that a statute is merely the legitimate regulation of conduct. Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct. United States v. Brown, 381 U. S., at 458-459. It is thus apparent that, though the governing criteria for an attainder may be readily indicated, “each case has turned on its own highly particularized context.” Flemming v. Nestor, supra, at 616. In deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.” Nixon, supra, at 473, 475-476, 478. We conclude that under these criteria § 12(f) is not a punitive bill of attainder. 1 At common law, bills of attainder often imposed the death penalty; lesser punishments were imposed by bills of pains and penalties. The Constitution proscribes these lesser penalties as well as those imposing death. Cummings v. Missouri, 4 Wall., at 323. Historically used in England in times of rebellion or “violent political excitements,” ibid., bills of pains and penalties commonly imposed imprisonment, banishment, and the punitive confiscation of property. Nixon, supra, at 474. In our own country, the list of punishments forbidden by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific employments or professions. Section 12(f) imposes none of the burdens historically associated with punishment. As this Court held in Flemming v. Nestor, supra, at 617, “the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed,” and Congress has inflicted “nothing approaching the ‘infamous punishment’ of imprisonment” or other disabilities historically associated with punishment. Congress did not even deprive appellees of Title IV benefits permanently; appellees can become eligible for Title IV aid at any time simply by registering late and thus “carry the keys of their prison in their own pockets.” Shillitani v. United States, 384 U. S. 364, 368 (1966). A statute that leaves open perpetually the possibility of qualifying for aid does not fall within the historical meaning of forbidden legislative punishment. 2 Our inquiry does not end with a determination that § 12(f) does not inflict punishment in its historical sense. To ensure that the Legislature has not created an impermissible penalty not previously held to be within the proscription against bills of attainder, we must determine whether the challenged statute can be reasonably said to further nonpunitive goals. Nixon, 433 U. S., at 475-476. The legislative history reflects that § 12(f) represents the considered congressional decision to further nonpunitive legislative goals. Congress was well aware that more than half a million young men had failed to comply with the registration requirement. The legislators emphasized that one of the primary purposes of § 12(f) was to encourage those required to register to do so. Conditioning receipt of Title IV aid on registration is plainly a rational means to improve compliance with the registration requirement. Since the group of young men who must register for the draft overlaps in large part with the group of students who are eligible for Title IV aid, Congress reasonably concluded that § 12(f) would be a strong tonic to many nonregistrants. Section 12(f) also furthers a fair allocation of scarce federal resources by limiting Title IV aid to those who are willing to meet their responsibilities to the United States by registering with the Selective Service when required to do so. As one Senator stated: “This amendment seeks not only to increase compliance with the registration requirement but also to insure the most fair and just usage of Federal education benefits. During these times of extreme budgetary constraints, times when even the most worthwhile programs are cut back drastically, this Government has every obligation to see that Federal dollars are spent in the most fair and prudent manner possible.... If students want to further their education at the expense of their country, they cannot expect these benefits to be provided without accepting their fair share of the responsibilities to that Government.” Certain aspects of the legislation belie the view that § 12(f) is a punitive measure. Section 12(f) denies Title IV benefits to innocent as well as willful nonregistrants. Yet punitive legislation ordinarily does not reach those whose failure to comply with the law is not willful. Thus, in stressing that the legislation would reach unintentional violators, 128 Cong. Rec. 18355-18356 (1982) (remarks of Rep. Solomon); id., at 18357 (remarks of Rep. Simon); id., at 9666 (remarks of Sen. Stennis), proponents indicated that they intended to regulate all nonregistrants, rather than to single out intentional nonregistrants for punishment. In this same nonpunitive spirit, Congress also allowed all nonregistrants to qualify for Title IV aid simply by registering late, instead of choosing to punish willful nonregistrants by denying them benefits even if they registered belatedly. We see therefore that the legislative history provides convincing support for the view that, in enacting § 12(f) Congress sought, not to punish anyone, but to promote compliance with the draft registration requirement and fairness in the allocation of scarce federal resources. Section 12(f) clearly furthers nonpunitive legislative goals. C Because § 12(f) does not single out an identifiable group that would be ineligible for Title IV aid or inflict punishment within the meaning of Bill of Attainder Clause, we hold that the District Court erred in striking down § 12(f) as an impermissible attainder. Ill Appellees assert that § 12(f) violates the Fifth Amendment by compelling nonregistrants to acknowledge that they have failed to register timely when confronted with certifying to their schools that they have complied with the registration law. Pointing to the fact that the willful failure to register within the time fixed by Proclamation No. 4771 is a criminal offense punishable under §§ 12(a) and (b), they contend that § 12(f) requires them — since in fact they have not registered — to confess to a criminal act and that this is “compulsion” in violation of their Fifth Amendment rights. However, a person who has not registered clearly is under no compulsion to seek financial aid; if he has not registered, he is simply ineligible for aid. Since a nonregistrant is bound to know that his application for federal aid would be denied, he is in no sense under any “compulsion” to seek that aid. He has no reason to make any statement to anyone as to whether or not he has registered. If appellees decide to register late, they could, of course, obtain Title IV aid without providing any information to their school that would incriminate them, since the statement to the school by the applicant is simply that he is in compliance with the registration Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_crossapp	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. C.H. SANDERS CO., INC. and Bristol Construction Corp., a Joint Venture, Appellees/Cross-Appellants, v. BHAP HOUSING DEVELOPMENT FUND COMPANY, INC., and Samuel R. Pierce, Secretary of Housing and Urban Development, Defendants, Samuel R. Pierce, Secretary of Housing and Urban Development, Appellant/Cross-Appellee. Nos. 1016, 1017, Dockets 89-6249, 89-6251. United States Court of Appeals, Second Circuit. Argued March 21, 1990. Decided May 8, 1990. Frederick Cohen, New York City (John S. Wojak, Jr., and Ross & Cohen, New York, N.Y., on the brief), for appellees C.H. Sanders Co. and Bristol Const. Corp., a Joint Venture. Samuel Kirschenbaum, Garden City, N.Y. (Ira Levine, and Kirschenbaum & Kir-schenbaum, Garden City, N.Y., on the brief), for appellant Samuel R. Pierce in No. 89-6249. Thomas A. McFarland, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty., Brooklyn, N.Y., on the brief), for appellant Samuel R. Pierce in No. 89-6251. Before TIMBERS, NEWMAN and PRATT, Circuit Judges. TIMBERS, Circuit Judge: The defendants in the district court in this action were Samuel R. Pierce, the Secretary of the United States Department of Housing and Urban Development (“the Secretary” or “HUD”) and BHAP Housing Development Fund Company, Inc. (“BHAP”), a non-profit corporation organized for the purpose of constructing a facility for the elderly in Brooklyn. The Secretary is the sole appellant/cross-appel-lee. The plaintiffs in the district court were C.H. Sanders Co., Inc. and Bristol Construction Corp. (collectively “Sanders”), a joint venture; they are the appel-lees/cross-appellants in this Court. The Secretary appeals from that part of a judgment entered September 25, 1989, in the Eastern District of New York, I. Leo Glasser, District Judge, which granted Sanders’ motion for summary judgment on its first cause of action which sought foreclosure of a mechanic’s lien filed by Sanders. The judgment also denied the Secretary’s motion for summary judgment which would have dismissed Sanders’ entire complaint. Sanders cross-appeals from that judgment to the extent that it denied Sanders’ motion for summary judgment on its second cause of action which sought direct enforcement of an arbitration judgment against HUD and granted the Secretary’s cross-motion for dismissal of that claim for lack of subject matter jurisdiction. On appeal, HUD claims that granting summary judgment on the lien foreclosure claim is error due to several outstanding issues of material fact and due to the court’s flawed construction of the New York Lien Law. On cross-appeal, Sanders claims that, not only is there federal subject matter jurisdiction over the second cause of action relating to the arbitration award, but that HUD has consented to the suit in the district court. For the reasons which follow, we affirm on HUD’s appeal which relates to the lien foreclosure claim, and we reverse and remand on Sanders’ cross-appeal which relates to enforcement of the arbitration judgment. I. We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. This action arises out of the construction and renovation of a federally funded housing project known as the Brooklyn Home for Aged People (“the Project”), located at 1095 St. John’s Place, Brooklyn, New York, which BHAP owned. BHAP is essentially a non-profit, assetless, community organization organized specifically for the Project. It obtained funding for the Project from HUD under § 202 of the National Housing Act, 12 U.S.C. § 1701q (1988), pursuant to which HUD agreed to provide a low-cost mortgage in the amount of $4,364,100. In return, HUD received a security interest in the property and retained substantial control over the Project. To implement their agreements, on or about December 14, 1981 BHAP and HUD executed a building loan agreement, building loan mortgage, and mortgage note and regulatory agreement. That same day, simultaneous with the execution of the agreements referred to above, BHAP entered into a construction contract (“the Agreement”) with Sanders as general contractor, under which Sanders agreed to furnish all services and materials necessary to complete the Project. The Agreement, which was prepared by HUD, required that all claims and disputes be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Although the Secretary was not a party to the Agreement, HUD was given substantial control over the Project, including the right to interpret the Agreement itself and “to determine compliance therewith.” In addition, BHAP agreed to use HUD forms as a condition for obtaining the HUD mortgage loan. Sanders worked on the project for several years, although the actual date that it halted work is unclear. In any event, on January 17, 1986, Sanders requested arbitration, claiming that BHAP breached the Agreement. Sanders sought to recover $1,848,010 claimed to be due under the Agreement, representing a contract balance ($212,045), extra work performed at the request of BHAP ($121,353), and additional costs for labor and materials furnished to the Project. BHAP counterclaimed for $1,974,506.94, claiming that the work performed by Sanders was inadequate and defective. On January 21, 1986, Sanders filed a Notice of Mechanic’s Lien in the amount of $1,161,528 in the Kings County clerk’s office, pursuant to N.Y.Lien Law §3 et seq. (McKinney’s 1966). Sanders could not compel HUD to submit to arbitration as HUD was not formally a party to the contract. Prior to the arbitration hearings, however, by letters dated August 26, 1986, October 8, 1986, and November 6, 1986, counsel for Sanders advised HUD of the scheduled hearings and requested HUD’s participation therein, stating that HUD could be held liable for any arbitration award rendered against BHAP. HUD declined. It stated that it considered the arbitration to be “essentially a private dispute” between BHAP and Sanders. On April 23, 1987, after six hearings, the arbitrators found for Sanders and awarded $406,000, plus interest from April 1, 1985. In a decision dated October 1, 1987, the New York Supreme Court confirmed the award, which totaled $502,328.86 with interest and costs. In November 1987, Sanders commenced the instant action. The complaint alleged two causes of action. The first sought foreclosure of Sanders’ mechanic’s lien in the amount of the arbitration award, claiming priority over HUD’s mortgage because of HUD’s admitted failure to comply with the provisions of the lien law. The second cause of action sought direct enforcement of the arbitration award against HUD, claiming that, since BHAP was organized as a “shell” corporation without assets, HUD was liable under general equitable principles. On April 8, 1988, Sanders moved for summary judgment on the ground that there were no genuine issues of material fact relevant to the disposition of either cause of action. HUD cross-moved for summary judgment, seeking dismissal of both causes of action. By a separate cross-motion, HUD sought dismissal of the second cause of action on the ground that the district court lacked subject matter jurisdiction. On July 20,1989, the district court granted summary judgment in favor of Sanders on the first cause of action, holding that Sanders was entitled to foreclose on its lien in the amount of the arbitration award as confirmed. It based its decision on its finding that BHAP in effect was HUD’s alter ego. The court dismissed the second cause of action, holding that it lacked subject matter jurisdiction to entertain Sanders’ direct claim against HUD. This appeal followed. II. We turn first to the question whether the district court erred in dismissing Sanders’ second cause of action for lack of subject matter jurisdiction. At the outset, we observe that an action against the sovereign is properly before the district court only if there was both a grant of subject matter jurisdiction and a valid waiver of sovereign immunity. Falls Riverway Realty v. City of Niagara Falls, 754 F.2d 49, 54 (2 Cir.1985); S.S. Silberblatt, Inc. v. East Harlem Pilot Block — Building 1 Housing Development Fund Co., 608 F.2d 28, 35 (2 Cir.1979). We consider these issues separately. (A) We must determine whether the district court had subject matter jurisdiction to consider Sanders' second cause of action for direct enforcement against HUD of the state court judgment which confirmed the arbitration award. Sanders contends that the district court had “federal question” jurisdiction pursuant to 28 U.S.C. § 1331 (1988). It asserts that enforcement of the judgment claim “arises under” § 202 of the National Housing Act, 12 U.S.C. § 1701q (1988), and requires the application of federal common law. We agree. Our analysis begins with the substance of Sanders’ second cause of action. Sanders sought a monetary recovery from HUD in the amount of the state court judgment on the ground that, since HUD was liable for the debts of its assetless creation (BHAP), it was bound by the award rendered in the arbitration proceeding between BHAP and Sanders. Under federal common law, Sanders contended, it had “equitable rights generated by HUD’s course of activities pursuant to federal statutes, including the contracts it has sponsored, and prescribed for others, as a condition of federal aid.” Trans-Bay Engineers and Builders, Inc. v. Hills, 551 F.2d 370, 377 (D.C.Cir.1976). The district court granted the Secretary’s motion to dismiss the enforcement claim, holding that it lacked subject matter jurisdiction. The court correctly rejected 12 U.S.C. § 1702 as a basis for subject matter jurisdiction over the enforcement claim. Séction 1702, as the court observed, is only a waiver of sovereign immunity and not an independent grant of jurisdiction. Mundo Developer, Ltd. v. Wicklow Associates, 585 F.Supp. 1324, 1327 & n. 6 (S.D.N. Y.1984) (citing cases). In considering federal question jurisdiction under 28 U.S.C. § 1331, however, the court merely stated that we have declined to follow the “equitable rights” theory embraced by the D.C. Circuit in Trans-Bay, supra, 551 F.2d at 370. See Falls Riverway, supra, 754 F.2d at 54 n. 3 (declining to follow this “vague formulation”). But our analysis does not end there. The gist of Sanders non-contractual claim is that HUD failed in its duties under 12 U.S.C. § 1701q, and as a result was unjustly enriched. Restitution for unjust enrichment is not provided by federal statute. Its availability is part of the federal common law relating to statutory violations. Silberblatt, supra, 608 F.2d at 37; Trans-Bay, supra, 551 F.2d at 381. While a “vague formulation” of equitable rights alone will not confer subject matter jurisdiction, Falls Riverway, supra, 754 F.2d at 54 n. 3, that is not the case here. Rather, Sanders, “simply by alleging a cause of action, not patently frivolous on its face, that purportedly arises under a federal statute, ha[s] made allegations sufficient to sustain subject matter jurisdiction in the district court.” Id.; see also Bell v. Hood, 327 U.S. 678, 682 (1946). Although we have declined to follow Trans-Bay’s “equitable rights” theory to invoke federal question jurisdiction, Falls Riverway, supra, 754 F.2d at 54 n. 3, we have permitted the assertion of quantum meruit claims against HUD where the plaintiff was in privity with only the HUD-assisted shell corporation and where subject matter jurisdiction otherwise was present. Silberblatt, supra, 608 F.2d at 37 (citing Trans-Bay); see also Niagara Mohawk Power Corp. v. Bankers Trust Co. of Albany, N.A., 791 F.2d 242, 244-45 (2 Cir.1986) (applying Silberblatt). In Silberblatt, since jurisdiction was predicated on the federal defendant removal statute, 28 U.S.C. § 1442(a)(1) (1988), we found it unnecessary to address the question whether there was jurisdiction under § 1331. Our decision in Silberblatt, however, makes clear that Sanders’ claim based on unjust enrichment is plausible and thus is sufficient to invoke federal question jurisdiction. We hold that the district court had federal question jurisdiction over Sanders’ second cause of action, arising under federal common law and the statute authorizing the loan. 12 U.S.C. § 1701q. (B) We turn now to the question, not reached by the district court, whether HUD has consented to suit in the district court. Spe-eifically, the question is whether the Tucker Act, 28 U.S.C. §§ 1846, 1491 (1988), displaces an otherwise valid exercise of federal question jurisdiction in the district court and places jurisdiction over Sanders’ direct claim against HUD exclusively in the United States Claims Court. The Secretary’s contention on Sanders’ cross-appeal is that it does. The Tucker Act provides both subject matter jurisdiction and sovereign immunity for non-tort claims “against the United States ... founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States.” § 1346(a)(2). On its face, the Tucker Act permits such actions in the district courts only when the amount sought is $10,000 or less. Id. The Claims Court, however, may entertain such actions without regard to the amount in controversy. § 1491(a)(1). The Secretary reads this statutory scheme to place exclusive jurisdiction over Sanders’ enforcement of judgment claim in the Claims Court. We disagree. We hold that an action (regardless of the amount sought) may be commenced under § 1331 in the district court provided there is an independent waiver of sovereign immunity outside the Tucker Act. The Tucker Act does not expressly state that the jurisdiction of the Claims Court is exclusive. We find that omission significant. In reaching our decision, we find support in the analysis in Ghent v. Lynn, 392 F.Supp. 879 (D.Conn.1975) (Newman, J.). Judge Newman explained the simple reason many courts have held that actions against the government for an amount above $10,000 are within the exclusive jurisdiction of the Claims Court: “Most claimants against the government rely on the Tucker Act for the waiver of sovereign immunity that would otherwise preclude their suits. When such a claimant attempts to sue in a district court ... he encounters the Tucker Act’s $10,000 maximum, and his claim therefore fails as an unconsented suit against the sovereign. Hence it is commonly said that suits against the government for more than $10,000 are in the exclusive jurisdiction of the Court of Claims.... In fact, the jurisdiction of the Court of Claims is not exclusive; rather, there is rarely any statute available that waives sovereign immunity for suits in the district court, other than the Tucker Act with its $10,000 limit.” Id. at 881 (citations omitted) (emphasis added); see also Falls Riverway, supra, 754 F.2d at 55 n. 4 (agreeing with this aspect of the Ghent analysis). In other words, the Tucker Act provides merely one limited waiver of sovereign immunity. If Sanders were relying on the grant of jurisdiction provided by the Tucker Act, it would encounter the $10,000 limitation on actions commenced in district courts and its enforcement of the judgment claim necessarily would fail. § 1346(a)(2). Since we have held that the district court has § 1331 jurisdiction over Sanders’ claim, however, it may be asserted in the district court provided there is an independent waiver of sovereign immunity outside of the Tucker Act. Our decisions in B.K. Instrument, Inc. v. United States, 715 F.2d 713 (2 Cir.1983), and Estate of Watson v. Blumenthal, 586 F.2d 925 (2 Cir.1978), relied upon by the Secretary, do not change our analysis. In Watson, we said that jurisdiction of the Claims Court over plaintiff’s contract claim was exclusive, but we were careful to say “on these facts exclusive.” 586 F.2d at 929. That is because, other than the Tucker Act, no other statute waived sovereign immunity. In B.K. Instrument, we dealt with the question whether the 1976 amendment to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1988), constituted a waiver of sovereign immunity. We held that it did. 715 F.2d at 724-25. That provision provided, however, that, if “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought,” the waiver would be inapplicable. We then considered whether plaintiff’s action could have been brought in the Claims Court and concluded it could not. Id. at 726-27. Within that context, Judge Friendly suggested in dictum that the combination of § 1491(a)(1) and § 1346(a)(2) “could well be considered an implied proscription” against bringing a suit in the district court that could have been brought in the Claims Court. Id. at 726. He suggested this only as an arguable position. Accordingly, we find that B.K. Instrument, which considered only the claim that § 702 of the APA waived sovereign immunity, does not control here. (C) We next must determine whether there was a waiver of sovereign immunity by HUD outside of the Tucker Act. Sanders suggests two sources. We need address only one. Section 1701q, the statute which confers subject matter jurisdiction in this action, vests in the Secretary “the functions, powers, and duties set forth in section 402 of the Housing Act of 1950.” § 1701q(b). Section 402 contains a “sue and be sued” clause. Originally § 402 was codified at 12 U.S.C. § 1749a. In 1986 the section (which relates to a college housing loan program) was transferred to the Education title of the United States Code. The “sue and be sued” clause is now located at 20 U.S.C. § 1132g-l(c)(2) (1988). The fact that § 402 was transferred is not relevant to our holding. Indeed, even had § 402 been repealed subsequent to its incorporation in § 1701q(b), that repeal would be irrelevant absent any indication by Congress that its action was intended to alter the remaining statute as well. Hassett v. Welch, 303 U.S. 303, 314 (1938). We hold that the Secretary’s immunity to suit in the district court has been waived. (D) We remand this second cause of action to the district court for a determination of the merits. In addition to the foregoing, we suggest one further instruction. If the court determines that HUD is liable for the arbitration award, it need not engage in a further analysis of the source of the funds that would be used to satisfy its judgment —i.e., from general Treasury funds or funds within the discretion and control of the Secretary. The court should simply direct the Secretary to satisfy the judgment out of funds that are within his control, assuming, of course, that such funds exist. It is only as to such funds that the Secretary’s immunity has been waived. See F.H.A. v. Burr, 309 U.S. 242, 250-51 (1940); Silberblatt, supra, 608 F.2d at 36. III. This brings us to the lien cause of action. In contrast to the enforcement cause of action, there is no serious dispute here that there is both subject matter jurisdiction and waiver of immunity. 28 U.S.C. § 2410 (1988). We address briefly HUD’s various arguments in support of its contention that the district court erred in permitting Sanders to foreclose on its mechanic’s lien. HUD asserts that there are genuine issues of material fact as to the elements necessary to establish a valid mechanic’s lien. It argues that summary judgment was improper because its defenses were based in part on documentary evidence in Sanders’ possession. It fails to demonstrate, however, that such evidence would change the result. Its assertions are merely conclusory and must be rejected. Section 10 of the Lien Law requires that a mechanic’s lien be filed within eight months from the date the lienor last furnished materials. This provision has been construed to include remedial work if done pursuant to the contract, but not if done pursuant to a later guarantee to repair. Since there was no such guarantee, Sanders’ work, which continued at least until June 5, 1985, ended less than eight months prior to the January 21, 1986 filing date. HUD also asserts that the lien is invalid because Sanders intentionally exaggerated its amount when it was filed. In New York, merely filing a lien that is greater than the eventual judgment will not invalidate the lien; the lienor must know that the amount is false and must intend to exaggerate. Howdy Jones Constr. Co. v. Parklaw Realty, Inc., 76 A.D.2d 1018, 429 N.Y.S.2d 768 (3 Dep’t 1980), aff'd, 53 N.Y.2d 718, 439 N.Y.S.2d 354, 421 N.E.2d 846 (1981). In this light, HUD’s proof fails even to hint at willfulness. HUD makes an assertion that relates to the preceding cause of action; i.e., whether HUD is bound by the arbitration award and therefore by the lien. The district court’s holding that HUD is bound by both is correct. HUD is collaterally es-topped from challenging the award. In New York, collateral estoppel requires (1) identity of issues in the two proceedings, and (2) that the party sought to be es-topped had a full and fair opportunity to contest the prior determination. Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449, 455-56, 492 N.Y.S.2d 584, 588, 482 N.E.2d 63, 67 (1985). With respect to the first prong, it is clear that the issue is identical: liability under the building contract. With respect to the second prong, a party will be bound if the issue previously was contested vigorously by its privy. Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 486, 414 N.Y.S.2d 308, 311, 386 N.E.2d 1328, 1331 (1979). The district court not only found that HUD and BHAP were in privity, but that they were alter egos. This was based on earlier decisions that held similarly with respect to HUD control of assetless, non-profit shell corporations. E.g., Niagara Mohawk Power Corp. v. Bankers Trust Co., 791 F.2d 242, 245 (2 Cir.1986); Silberblatt, supra, 608 F.2d at 40-41. Since HUD was aware of the possibility of arbitration (and indeed demanded it by requiring that the contract form be one pre-printed by HUD) and repeatedly was given notice of the arbitration as well as an invitation to participate, the doctrine of “vouching-in” also serves to bind HUD. Fidelity and Deposit Co. v. Parsons & Whittemore Contractors Corp., 48 N.Y.2d 127, 131-32, 421 N.Y.S.2d 869, 871-72, 397 N.E.2d 380, 383 (1979) (where alter ego is aware of arbitration clause and has notice of proceedings, it can be bound). To the extent that the rule in SCAC Transport (USA), Inc. v. S.S. “Dañaos”, 845 F.2d 1157 (2 Cir.1988), differs, we find it inapplicable. The basis of jurisdiction in SCAC Transport apparently was admiralty. In any event, the opinion does not purport to invoke New York law. HUD further asserts that the contract in question is one "for public improvement” under the Lien Law. In New York, mechanic’s liens are not valid as against real property that is the subject matter of such contracts. HUD asserts this claim for the first time on appeal. We “ ‘will not reverse a summary judgment on the basis of arguments not presented below unless our failure to do so will result in a possible miscarriage of justice.’ ” Republic Nat’l Bank v. Eastern Airlines, Inc., 815 F.2d 232, 240 (2 Cir.1987) (quoting Radix Org. v. Mack Trucks, Inc., 602 F.2d 45, 48 (2 Cir.1979)). Since there is no reason that HUD could not have raised this defense in the district court, there is no miscarriage of justice. In any event, BHAP does not appear to be a “public benefit corporation” within the meaning of New York law, since its profits, if any, do not inure to the state or its citizens—a prerequisite to enjoying protection from mechanic’s liens on real property. IV. To summarize: We reverse the judgment of the district court to the extent that it held that it did not have subject matter jurisdiction over the cause of action which sought to enforce the arbitration award against HUD. We hold that the court did have jurisdiction and that HUD waived its immunity to suit. We therefore remand that cause of action to the district court for a determination of the merits of Sanders’ claim. We affirm the judgment of the district court to the extent that it held that Sanders was entitled to foreclose its mechanic’s lien against HUD. Affirmed in part; reversed and remanded in part. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
sc_threejudgefdc	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. MARQUETTE NATIONAL BANK OF MINNEAPOLIS v. FIRST OF OMAHA SERVICE CORP. et al. No. 77-1265. Argued October 31, 1978 Decided December 18, 1978 BreNNAN, J., delivered the opinion for a unanimous Court. Richard B. Allyn, Solicitor General of Minnesota, argued the cause for petitioner in No. 77-1258. With him on the briefs were Warren Spannaus, Attorney General, Stephen Shakman, Jacqueline P. Taylor, and Barry R. Qreller, Special Assistant Attorneys General, and Thomas R. Muck, Assistant Attorney General. John Troyer argued the cause for petitioner in No. 77-1265. With him on the briefs was J. Patrick McDavitt. Robert H. Bork argued the cause for respondent First of Omaha Service Corp. in both cases. On the brief was Clay R. Moore Together with No. 77-1258, Minnesota v. First of Omaha Service Corp. et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed by Richard C. Turner, Attorney General, and Julian B. Garrett, Assistant Attorney General, for the State of Iowa; and by Roger A. Peterson for the Minnesota AFL-CIO. Peter D. Schellie filed a brief for the Consumer Bankers Assn, as amicus curiae urging affirmance. Briefs of amici curiae were filed by James F. Bell and Calvin Davison for the Conference of State Bank Supervisors; and by Joseph DuCoeur and Alan I. Becker for the First National Bank of Chicago. Me. Justice Brennan delivered the opinion of the Court. The question for decision is whether the National Bank Act, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85, authorizes a national bank based in one State to charge its out-of-state credit-card customers an interest rate on unpaid balances allowed by its home State, when that rate is greater than that permitted by the State of the bank’s nonresident customers. The Minnesota Supreme Court held that the bank is allowed by § 85 to charge the higher rate. 262 N. W. 2d 358 (1977). We affirm. I The First National Bank of Omaha (Omaha Bank) is a national banking association with its charter address in Omaha, Neb. Omaha Bank is a card-issuing member in the BankAmericard plan. This plan enables cardholders to purchase goods and services from participating merchants and to obtain cash advances from participating banks throughout the United States and the world. Omaha Bank has systematically sought to enroll in its BankAmericard program the residents, merchants, and banks of the nearby State of Minnesota. The solicitation of Minnesota merchants and banks is carried on by respondent First of Omaha Service Corp. (Omaha Service Corp.), a wholly owned subsidiary of Omaha Bank. Minnesota residents are obligated to pay Omaha Bank interest on the outstanding balances of their BankAmericards. Nebraska law permits Omaha Bank to charge interest on the unpaid balances of cardholder accounts at a rate of 18% per year on the first $999.99, and 12% per year on amounts of $1,000 and over. Minnesota law, however, fixes the permissible annual interest on such accounts at 12%. To compensate for the reduced interest, Minnesota law permits banks to charge annual fees of up to $15 for the privilege of using a bank credit card. The instant case began when petitioner Marquette National Bank of Minneapolis (Marquette), itself a national banking association enrolled in the BankAmericard plan, brought suit in the District Court of Hennepin County, Minn., to enjoin Omaha Bank and Omaha Service Corp. from soliciting in Minnesota for Omaha Bank’s BankAmericard program until such time as that program complied with Minnesota law. Marquette claimed to be losing customers to Omaha Bank because, unlike the Nebraska bank, Marquette was forced by the low rate of interest permissible under Minnesota law to charge a $10 annual fee for the use of its credit cards. App. 7a-15a, 45a-48a. Marquette named as defendants Omaha Bank, Omaha Service Corp., which is organized under the laws of Nebraska but qualified to do business and doing business in Minnesota, and the Credit Bureau of St. Paul, Inc., a corporation organized under the laws of Minnesota having its principal office in St. Paul, Minn. Omaha Service Corp. participates in Omaha Bank’s BankAmericard program by entering into agreements with banks and merchants necessary to the operation of the BankAmericard scheme. Id., at 30a. At the time Marquette filed its complaint, Omaha Service Corp. had not yet entered into any such agreements in Minnesota, although it intended to do so. Id., at 30a, 92a, 94a. For its services, Omaha Service Corp. receives a fee from Omaha Bank, but it does not itself extend credit or receive interest. Id., at 94a, 97a-110a. It was alleged that the Credit Bureau of St. Paul, Inc., solicited prospective cardholders for Omaha Bank’s BankAmericard program in Minnesota. Id., at 9a, 30a. The defendants sought to remove Marquette’s action to Federal District Court. See 12 IT. S. C. § 94. Marquette responded by dismissing without prejudice its action against Omaha Bank, see Fed. Rule Civ. Proc. 41 (a)(l)(i), and the District Court, citing Gully v. First Nat. Bank, 299 U. S. 109 (1936), remanded the case to the District Court of Hennepin County. Marquette Nat. Bank v. First Nat. Bank of Omaha, 422 F. Supp. 1346 (Minn. 1976). Marquette thereupon moved for partial summary judgment to have Omaha Bank’s BankAmericard program declared in violation of the Minnesota usury statute, Minn. Stat. § 48.185 (1978), and permanently to enjoin the remaining defendants from engaging in any activity in connection with the offering or operation of that program in further violation of Minnesota law. Defendants argued that the National Bank Act, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85, pre-empted Minn. Stat. § 48.185 and enforcement of that statute against Omaha Bank’s Bank-Americard program. Upon being notified of this challenge to Minn. Stat. § 48.185, the Attorney General of the State of Minnesota intervened as a party plaintiff and joined in Marquette’s prayer for a declaratory judgment and permanent injunction. The District Court of Hennepin County granted plaintiffs’ motion for partial summary judgment, holding in an unreported opinion that “nothing contained in the National Bank Act, 12 U. S. C. § 85, precludes or preempts the application and enforcement of Minnesota Statutes, § 48.185 to the First National Bank of Omaha’s BankAmericard program as solicited and operated in the State of Minnesota.” App. 139a-140a. The court enjoined Omaha Service Corp., “as agent of the First National Bank of Omaha,” from “engaging in any solicitation of residents of the State of Minnesota or other activity in connection with the offering or operation of a bank credit card program in the State of Minnesota in violation of Minnesota Statutes, § 48.185.” Id., at 140a-141a. On appeal, the Minnesota Supreme Court reversed. Noting that Marquette’s dismissal of Omaha Bank was a procedural device that removed the case from the jurisdiction of the federal courts of the Eighth Circuit, and noting that a recent decision of the Court of Appeals for the Eighth Circuit had made it plain that in its judgment the usury laws of Nebraska rather than Minnesota should govern the operation of Omaha Bank’s BankAmericard program in Minnesota, see Fisher v. First Nat. Bank of Omaha, 548 F. 2d 255 (1977), the Minnesota Supreme Court concluded that it would be “inappropriate for this court to permit the use of procedural devices to obtain a result inconsistent with the existing doctrine in the Eighth Circuit.” 262 N. W. 2d, at 365. Plaintiffs filed timely petitions for writs of certiorari, which we granted, 436 U. S. 916 (1978), in order to decide the appropriate application of 12 U. S. C. § 85. II In the present posture of this case Omaha Bank is no longer a party defendant. The federal question presented for decision is nevertheless the application of 12 U. S. C. § 85 to the operation of Omaha Bank's BankAmericard program. There is no allegation in petitioners’ complaints that either Omaha Service Corp. or the Minnesota merchants and banks participating in the BankAmericard program are themselves extending credit in violation of Minn. Stat. §48.185 (1978), and we therefore have no occasion to determine the application of the National Bank Act in such a case. Omaha Bank is a national bank; it is an “instrumentalit[yj of the Federal government, created for a public purpose, and as such necessarily subject tO' the paramount authority of the United States.” Davis v. Elmira Savings Bank, 161 U. S. 275, 283 (1896). The interest rate that Omaha Bank may charge in its BankAmericard program is thus governed by federal law. See Farmers’ & Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 34 (1875). The provision of § 85 called into question states: “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located,... and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.” (Emphasis supplied.) Section 85 thus plainly provides that a national bank may charge interest “on any loan” at the rate allowed by the laws of the State in which the bank is “located.” The question before us is therefore narrowed to whether Omaha Bank and its BankAmericard program are “located” in Nebraska and for that reason entitled to charge its Minnesota customers the rate of interest authorized by Nebraska law. There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. See Brief for Petitioner in No. 77-1258, p. 3; Brief for Petitioner in No. 77-1265, pp. 3, 16, 33-34. The National Bank Act requires a national bank to state in its organization certificate “[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village.” Rev. Stat. § 5134, 12 U. S. C. § 22. The charter address of Omaha Bank is in Omaha, Douglas County, Neb. The bank operates no branch banks in Minnesota, cf. Seattle Trust & Savings Bank v. Bank of California, 492 F. 2d 48 (CA9 1974), nor apparently could it under federal law. See 12 U. S. C. § 36 (c). The State of Minnesota, however, contends that this con-elusion must be altered if Omaha Bank’s BankAmericard program is considered: “In the context of a national bank which systematically solicits Minnesota residents for credit cards to be used in transactions with Minnesota merchants the bank must be deemed to be located’ in Minnesota for purposes of this credit card program.” Reply Brief for Petitioner in No. 77-1258, p. 7. We disagree. Section 85 was originally enacted as § 30 of the National Bank Act of 1864, 13 Stat. 108.' The congressional debates surrounding the enactment of § 30 were conducted on the assumption that a national bank was “located” for purposes of the section in the State named in its organization certificate. See Cong. Globe, 38th Cong., 1st Sess., 2123-2127 (1864). Omaha Bank cannot be deprived of this location merely because it is extending credit to residents of a foreign State. Minnesota residents were always free to visit Nebraska and receive loans in that State. It has not been suggested that Minnesota usury laws would apply to such transactions. Although the convenience of modern mail permits Minnesota residents holding Omaha Bank’s BankAmericards to receive loans without visiting Nebraska, credit on the use of their cards is nevertheless similarly extended by Omaha Bank in Nebraska by the bank’s honoring of the sales drafts of participating Minnesota merchants and banks. Finance charges on the unpaid balances of cardholders are assessed by the bank in Omaha, Neb., and all payments on unpaid balances are remitted to the bank in Omaha, Neb. Furthermore, the bank issues its BankAmericards in Omaha, Neb., after credit assessments made by the bank in that city. App. 30a. Nor can the fact that Omaha Bank’s BankAmericards are used “in transactions with Minnesota merchants” be determinative of the bank’s location for purposes of § 85. The bank’s BankAmericard enables its holder “to purchase goods and services from participating merchants and obtain cash advances from participating banks throughout the United States and the world.” Stipulation of Facts, App. 91a. Minnesota residents can thus use their Omaha Bank Bank-Americards to purchase services in the State of New York or mail-order goods from the State of Michigan. If the location of the bank were to depend on the whereabouts of each credit-card transaction, the meaning of the term “located” would be so stretched as to throw into confusion the complex system of modern interstate banking. A national bank could never be certain whether its contacts with residents of foreign States were sufficient to alter its location for purposes of § 85. We do not choose to invite these difficulties by rendering so elastic the term “located.” The mere fact that Omaha Bank has enrolled Minnesota residents, merchants, and banks in its BankAmericard program thus does not suffice to “locate” that bank in Minnesota for purposes of 12 U. S. C. § 85. See Second Nat. Bank of Leavenworth v. Smoot, 9 D. C. 371, 373 (1876). Ill Since Omaha Bank and its BankAmericard program are “located” in Nebraska, the plain language of § 85 provides that the bank may charge “on any loan” the rate “allowed” by the State of Nebraska. Petitioners contend, however, that this reading of the statute violates the basic legislative intent of the National Bank Act. See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 9-10 (1976). At the time Congress enacted § 30 of the National Bank Act of 1864, 13 Stat. 108, so petitioners’ argument runs, it intended “to insure competitive equality between state and national banks in the charging of interest.” Brief for Petitioner in No. 77-1265, p. 24. This policy could best be effectuated by limiting national banks to the rate of interest allowed by the States in which the banks were located. Since Congress in 1864 was addressing a financial system in which incorporated banks were “local institutions,” it did not “contemplate a national bank soliciting customers and entering loan agreements outside of the state in which it was established.” Brief for Petitioner in No. 77-1258, p. 17. Therefore to interpret § 85 to apply to interstate loans such as those involved in this case would not only enlarge impermissibly the original intent of Congress, but would also undercut the basic policy foundations of the statute by upsetting the competitive equality now existing between state and national banks. We cannot accept petitioners’ argument. Whatever policy of “competitive equality” has been discerned in other sections of the National Bank Act, see, e. g., First Nat. Bank v. Dickinson, 396 U. S. 122, 131 (1969); First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252, 261-262 (1966), § 30 and its descendants have been interpreted for over a century to give “advantages to National banks over their State competitors.” Tiffany v. National Bank of Missouri, 18 Wall. 409, 413 (1874). “National banks,” it was said in Tiffany, “have been National favorites.” The policy of competitive equality between state and national banks, however, is not truly at the core of this case. Instead, we are confronted by the inequalities that occur when a national bank applies the interest rates of its home State in its dealing with residents of a foreign State. These inequalities affect both national and state banks in the foreign State. Indeed, in the instant case Marquette is a national bank claiming to be injured by the unequal interest rates charged by another national bank. Whether the inequalities which thus occur when the interest rates of one State are “exported” into another violate the intent of Congress in enacting § 30 in part depends on whether Congress in 1864 was aware of the existence of a system of interstate banking in which such inequalities would seem a necessary part. Close examination of the National Bank Act of 1864, its legislative history, and its historical context makes clear that, contrary to the suggestion of petitioners, Congress intended to facilitate what Representative Hooper termed a “national banking system.” Cong. Globe, 38th Cong., 1st Sess., 1451 (1864). See also Report of the Comptroller of the Currency 4 (1864). Section 31 of the Act, for example, fully recognized the interstate nature of American banking by providing that three-fifths of the 15% of the aggregate amount of their notes in circulation that national banks were required to “have on hand, in lawful money” could “consist of balances due to an association available for the redemption of its circulating notes from associations approved by the comptroller of the currency, organized under this act, in the cities of Saint Louis, Louisville, Chicago, Detroit, Milwaukie [sic], New Orleans, Cincinnati, Cleveland, Pittsburg, Baltimore, Philadelphia, Boston, New York, Albany, Leavenworth, San Francisco, and Washington City.” 13 Stat. 108, 109. The debates surrounding the enactment of this section portray a banking system of great regional interdependence. Senator Chandler of Michigan, for example, noted: “[T]he banking business of the Northwest is done upon bills of exchange. The wool clip of Michigan, the wheat crop of Michigan, the hog crop of Iowa, are all purchased with drafts drawn chiefly upon [New York, Philadelphia, and Boston], The wool clip is chiefly bought by drafts upon Boston. I put in the three cities because it is convenient to the customer, to the broker, to the merchant, to be enabled to purchase a draft upon either one of these three places.” Cong. Globe, 38th Cong., 1st Sess., 2144 (1864). See also id., at 1343, 1376, 2143-2145, 2152, 2181-2182. Similarly, the debates surrounding the enactment of § 41 of the Act, which provided that the shares of a national bank could be taxed as personal property “in the assessment of taxes imposed by or under state authority at the place where such bank is located, and not elsewhere,” 13 Stat. 112, demonstrated a sensitive awareness of the possibilities of interstate ownership and control of national banks. See, e. g., Cong. Globe, 38th Cong., 1st Sess., 1271, 1898-1899 (1864). Although in the debates surrounding the enactment of § 30 there is no specific discussion of the impact of interstate loans, these debates occurred in the context of a developed interstate loan market. As early as 1839 this Court had occasion to note: “Money is frequently borrowed in one state, by a corporation created in another. The numerous banks established by different states are in the constant habit of contracting and dealing with one another.... These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the states, that the Court cannot overlook them....” Bank of Augusta v. Earle, 13 Pet. 519, 590-591 (1839). Examples of this interstate loan market have been noted by historians of American banking. See, e. g., 1 F. Redlich, The Molding of American Banking 49 (1968); 1 F. James, The Growth of Chicago Banks 546 (1938); Breckenridge, Discount Rates in the United States, 13 Pol. Sci. Q. 119, 136-138 (1898). Evidence of this market is to be found in the numerous judicial decisions in cases arising out of interstate loan transactions. See, e. g., Woodcock v. Campbell, 2 Port. 456 (Ala. 1835); Clarke v. Bank of Mississippi, 10 Ark. 516 (1850); Planters Bank v. Bass, 2 La. Ann. 430 (1847); Knox v. Bank of United States, 27 Miss. 65 (1854); Bard v. Poole, 12 N. Y. 495 (1855); Curtis v. Leavitt, 15 N. Y. 9 (1857). After passage of the National Bank Act of 1864, cases involving interstate loans begin to appear with some frequency in federal courts. See, e. g., In re Wild, 29 F. Cas. 1211 (No. 17,645) (SDNY 1873); Cadle v. Tracy, 4 F. Cas. 967 (No. 2,279) (SDNY 1873); Farmers’ Nat. Bank v. McElhinney, 42 F. 801 (SD Iowa 1890); Second Nat. Bank of Leavenworth v. Smoot, 9 D. C. 371 (1876). We cannot assume that Congress was oblivious to the existence of such common commercial transactions. We find it implausible to conclude, therefore, that Congress meant through its silence to exempt interstate loans from the reach of § 30. We would certainly be exceedingly reluctant to read such a hiatus into the regulatory scheme of § 30 in the absence of evidence of specific congressional intent. Petitioners have adduced no such evidence. Petitioners’ final argument is that the “exportation” of interest rates, such as occurred in this case, will significantly impair the ability of States to enact effective usury laws. This impairment, however, has always been implicit in the structure of the National Bank Act, since citizens of one State were free to visit a neighboring State to receive credit at foreign interest rates. Cf. 38 Cong. Globe, 38th Cong., 1st Sess., 2123 (1864). This impairment may in fact be accentuated by the ease with which interstate credit is available by mail through the use of modem credit cards. But the protection of state usury laws is an issue of legislative policy, and any plea to alter § 85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court. Affirmed. Section 85 states in pertinent part: “Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank hi the Federal reserve district where the bank is located, or in the case of business or agricultural loans in the amount of $25,000 or more, at a rate of 5 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter.” See §§ 201, 206 of Pub. L. 93-501, 88 Stat. 1558, 1560. The National Bank Act, Rev. Stat. § 5134, 12 U. S. C. § 22, provides that a national bank must create an “organization certificate” which specifically states “[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or District, and the particular county and city, town, or village.” See Neb. Rev. Stat. §§ 8-815 to 8-823, 8-825 to 8-829 (1974). Omaha Bank assesses a finance charge on the daily outstanding balance of cash advances and on the entire previous balance of purchases of goods or services before deducting any payments made during the billing cycle. No finance charges are imposed, however, on the purchases portion of the account balance when the previous month’s total balance is paid in full on or before the due date shown on the monthly statement. See Stipulation of Facts, App. 93a-94a. Minnesota Stat. §48.185 (1978) provides in pertinent part: “Subdivision 1. Any bank organized under the laws of this state, any national banking association doing business in this state, and any savings bank organized and operated pursuant to Chapter 50, may extend credit through an open end loan account arrangement with a debtor, pursuant to which the debtor may obtain loans from time to time by cash advances, purchase or satisfaction of the obligations of the debtor incurred pursuant to a credit card plan, or otherwise under a credit card or overdraft checking plan. “Subd. 3. A bank or savings bank may collect a periodic rate of finance charge in connection with extensions of credit pursuant to this section, which rate does not exceed one percent per month computed on an amount no greater than the average daily balance of the account during each monthly billing cycle. If the billing cycle is other than monthly, the maximum finance charge for that billing cycle shall be that percentage which bears the same relation to one percent as the number of days in the billing cycle bears to 30. “Subd. 4. No charges other than those provided for in subdivision 3 shall be made directly or indirectly for any credit extended under the authority of this section, except that there may be charged to the debtor: “(a) Annual charges, not to exceed $15 per annum, payable in advance, for the privilege of using a bank credit card which entitled the debtor to purchase goods or services from merchants, under an arrangement pursuant to which the debts resulting from the purchases are paid or satisfied by the bank or savings bank and charged to the debtor’s open end loan account with the bank or savings bank.... “Subd. 5. If the balance in a revolving loan account under a credit card plan is attributable solely to purchases of goods or services charged to the account during one billing cycle, and the account is paid in full before the due date of the first statement issued after the end of that billing cycle, no finance charge shall be charged on that balance. “Subd. 6. This section shall apply to all open end credit transactions of a bank or savings bank in extending credit under an open end loan account or other open end credit arrangement to persons who are residents of this state, if the bank or savings bank induces such persons to enter into such arrangements by a continuous and- systematic solicitation either personally or by an agent or by mail, and retail merchants and banks or savings banks within this state are contractually bound to honor credit cards issued by the bank or savings bank, and the goods, services and loans are delivered or furnished in this state and payment is made from this state. A term of a writing or credit card device executed or signed by a person to evidence an open end credit arrangement specifying: “(a) that the law of another state shall apply; “(b) that the person consents to the jurisdiction of another state; and “(c) which fixes venue; “is invalid with respect to open end credit transactions to which this section applies. An open end credit arrangement made in another state with a person who was a resident of that state when the open end credit arrangement was made is valid and enforceable in this state according to its terms to the extent that it is valid and enforceable under the laws of the state applicable to the transaction. “Subd. 7. Any bank or savings bank extending credit in compliance with the provisions of this section, which is injured competitively by violations of this section by another bank or savings bank, may institute a civil action in the district court of this state against that bank or savings bank for an injunction prohibiting any violation of this section. The court, upon proper proof that the defendant has engaged in any practice in violation of this section, may enjoin the future commission of that practice. Proof of monetary damage or loss of profits shall not be required.... The relief provided in this subdivision is in addition to remedies otherwise available against the same conduct under the common law or statutes of this state.” See Minn. Stat. § 48.185 (4) (a) (1978), supra, n. 4. Marquette is petitioner in No. 77-1265. The principal banking offices of Marquette are located in the County of Hennepin in the State of Minnesota. See n. 2, supra. Marquette also asked for compensator}'' and punitive damages. App. 16a. The principal offices of Omaha Service Corp. are located in Omaha, Neb. Omaha Service Corp. does, however, accept assignments of delinquent accounts from Omaha Bank and, as an incident to collecting these accounts, does collect interest. Id.., at 94a. The venue provision of the National Bank Act, Rev. Stat. § 5198, 12 U. S. C. § 94, states: “Suits, actions and proceedings against any association under this chapter may be had in any district.or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.” See n. 4, supra. See n. 1, supra. The State of Minnesota is petitioner in No. 77-1258. Defendant Credit Bureau of St. Paul, Inc., was not named as an addressee of the injunction, and it is not before this Court. In its opinion the Eighth Circuit relied upon the decision of the Court of Appeals for the Seventh Circuit in Fisher v. First Nat. Bank of Chicago, 538 F. 2d 1284 (1976). The Supreme Court of Iowa has since reached a contrary conclusion. See Iowa ex rel. Turner v. First of Omaha Service Corp., 269 N. W. 2d 409 (1978), appeal docketed, No. 78-846. We reject respondent’s argument that the petitions are untimely. The opinion of the Minnesota Supreme Court was filed on November 10, 1977. Petitioners filed a timely petition for rehearing, which, under Minnesota law, defers the entry of judgment until after the disposition of the petition. See Minn. Rules Civ. App. Proc. 136.02, 140. The petition for rehearing was denied on December 8, 1977; judgment was entered on December 14, 1977, by way of a separate document stating that “the order and judgment of the Court below, 'herein appealed from,... be and the same hereby is in all things reversed.” App. H to Pet. for Cert, in No. 77-1265. Petitions for certiorari were filed in this Court on March 13, 1978, within the 90 days “after the entry of such judgment or decree” allotted by 28 U. S. C. §2101 (c). See Puget Sound Power & Light Co. v. King County, 264 U. S. 22, 24-25 (1924); Commissioner v. Estate of Bedford, 325 U. S. 283, 284-288 (1945). We have no occasion in this case to parse the meaning of the phrase in § 85 “associations organized or existing in any such State (Emphasis added.) This phrase occurs in the “except” clause of § 85, which, at least since Tiffany v. National Bank of Missouri, 18 Wall. 409 (1874), has been interpreted as an “enabling” clause. “If there is a rate of interest fixed by State laws for lenders generally, the banks are allowed to charge that rate, but no more, except that if State banks of issue are allowed to reserve more, the same privilege is allowed to National banking ássocia-tions.” Id., at 411. Since there is in this case no allegation or proof that Minnesota state banks are “allowed to reserve more” than the rate of interest “for lenders generally,” we need not determine the relationship of the phrase “organized or existing” to the term “located.” There is no contention that Omaha Bank could qualify to operate a branch bank in Minnesota under the grandfather provisions of 12 U. S. C. §36 (a). Although Nebraska law prohibits branch banking, it permits the establishment of not more than two “detached auxiliary teller offices” which must be maintained “within the corporate limits of the city in which such bank is located.” Neb. Rev. Stat. §§8-157 (1) and (2) (1977). Nebraska also permits banks to operate manned or unmanned “electronic satellite facilities.” §8-157 (3). There is no contention in this case that Omaha Bank operates such facilities in the State of Minnesota. Last Term Citizens & Southern Nat. Bank v. Bougas, 434 U. S. 35 (1977), held that, with respect to the venue provision of the National Bank Act, 12 U. S. C. § 94, supra, n. 11, a national bank is “located” either in the place designated in its “organization certificate,” 12 ü. S. C. § 22, supra, n. 2, or in the places in which it has established authorized branches. Omaha Bank is thus also “located” in Nebraska for purposes of 12 U. S. C. § 94. Although the Act of June 3, 1864, ch. 106, 13 Stat. 99, was originally entitled "An Act to Provide a National Currency...,” its title was altered by Congress in 1874 to "the national-bank act.” Ch. 343, 18 Stat. 123. Section 30 was, in its pertinent parts, virtually identical with the current § 85. Section 30 stated: “[E]very association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of exchange, or other evidences of debt, interest at the rate allowed by the laws of the state or territory where the bank is located, and no more, except that where by the laws of any state a different rate is limited for banks of issue organized under state laws, the rate so limited shall be allowed for associations organized in any such state under this act.” Section 30 was preceded by § 46 of the National Currency Act of 1863, 12 Stat. 678, which provided: “[E]very association may take, reserve, receive, and charge on any loan, or discount made, or upon any note, bill of exchange, or other evidence of debt, such rate of interest or discount as is for the time the established rate of interest for delay in the payment of money, in the absence of contract between the parties, by the laws of the several States in which the associations are respectively located, and no more....” Once again, there is no allegation in these cases that either Omaha Service Corp. or any of the Minnesota merchants or banks participating in Omaha Bank’s BankAmericard program are themselves extending credit in violation of Minn. Stat. § 48.185 (1978). In their stipulation of facts, the parties describe the operation of the BankAmericard program as follows: “HI “While participating Minnesota banks will not have the authority to issue cards or extend credit directly in connection with BankAmericard transactions, they will advertise the BankAmericard plan and solicit applications for BankAmericards from Minnesota residents which are then forwarded to First National Bank of Omaha for acceptance or rejection, and they will serve as a depository for BankAmericard sales drafts deposited by participating merchants with whom defendant First of Omaha Service Corporation has member agreements. “V “Minnesota cardholders wishing to purchase goods and services or obtain cash advances with a BankAmericard issued by the First National Bank of Omaha, sign a BankAmericard form evidencing the transaction which is authenticated by the cardholder’s BankAmericard credit card, and exchange the signed form for goods or services or cash from a participating Minnesota merchant or bank, respectively. The sales draft forms are then deposited by the participating Minnesota merchant in his account with a participating Minnesota bank for credit, which will then forward them and cash advance drafts drawn on such bank to the First National Bank of Omaha for credit. “VI “The First Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Frank C. JOYNER, Appellant, American Motorists Insurance Company, v. F & B ENTERPRISES, INC. T/A Naylor Jewelers et al. No. 24167. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 3, 1970. Decided July 28, 1971. Mr. James A. Mannino, Washington, D. C., with whom Messrs. Lee C. Ashcraft, Martin E. Gerel and Joseph H. Koonz, Jr., Washington, D. C., were on the brief, for appellant. Mr. Denver H. Graham, Washington, D. C., with whom Mr. Albert E. Brault, Washington, D. C., was on the brief, for appellees. Before WILBUR K. MILLER, Senior Circuit Judge, and MacKINNON and ROBB, Circuit Judges. MacKINNON, Circuit Judge: Appellant Joyner was injured on March 18, 1968 during the course of his employment with the A.B.C. Consolidated Corporation. As a result of these injuries, he was paid workmen’s compensation benefits by American Motorists Insurance Co. (American), the compensation insurance carrier for his employer, under the terms of the Longshoremen’s and Harbor Workers’ Compensation Act. The payments were made by American without a formal award of compensation benefits being entered. On February 19, 1969 Joyner filed a third-party action against appellee Cala-cino as the person allegedly responsible for Joyner’s injuries, and against F. & B. Enterprises, Inc. as Calacino’s employer. The complaint alleged that Joyner’s injuries were caused by the defendants’ negligence and/or their intentional, willful and malicious acts. The defendants then filed a motion with the trial court to join American as a named party plaintiff in the action. The pretrial examiner entered a recommendation that the motion to join American be granted, and Joyner filed an opposition to the recommendation. The trial judge denied the motion in opposition, but granted leave to apply to this court for permission to take an interlocutory appeal under 28 U.S.C. § 1292(b) (1964). On March 6, 1970 the petition for an interlocutory appeal was granted by order of this court, and the appeal is now here for decision on the merits. I. The controversy between the parties is whether American must be joined as a “real pai-ty in interest” under Fed.R. Civ.P. 17(a). Thus it is necessary to understand the true nature of the real party in interest provision. Professor Moore has said of Rule 17(a): The meaning and object of the real party in interest provision would be more accurately expressed if it read: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced. 3A J. Moore, Federal Practice j[ 17.02, at 53 (2d ed.1953) (emphasis in original) . This concept of a real party in interest has been given effect by the courts, see generally 3A J. Moore, supra, jf 17.07, and has been applied to the circumstances of subrogation as between an insurer and an insured. For example, in United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 380, 70 S.Ct. 207, 215, 94 L.Ed. 171 (1949), the Court said that “of course the insurer-subro-gee, who has substantive equitable rights, qualifies as [a real party in interest].” But the Court also made clear that the “substantive equitable rights” referred to were “substantive rights against the [third party] tort-feasor.” 338 U.S. at 381, 70 S.Ct. at 215 (emphasis supplied). The question to be resolved then reduces to whether, by the terms of the applicable substantive law, American possesses substantive rights against the defendants on the facts of the present case. The substantive law to be applied begins with section 33(b) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 933(b) (1964): (b) Acceptance of [workmen’s) compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. Subsection (b) has been construed to confer subrogation rights on the employer, or on the employer’s insurance carrier, even where workmen’s compensation was paid without the entry of a formal compensation award, as in the present case. E. g., Hugev v. Dampskisaktieselskabet International, 170 F.Supp. 601 (S.D.Cal.1959), aff’d, Metropolitan Stevedore Co. v. Dampskisaktieselskabet International, 274 F.2d 875 (9th Cir.), cert. denied, 363 U.S. 803, 80 S.Ct. 1237, 4 L.Ed.2d 1147 (1960) ; The Etna, 138 F.2d 37 (3d Cir. 1943); see Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1965). The significant point to be explored concerns the nature of American’s subrogation rights, once it paid workmen’s compensation benefits to Joyner without an award, and once Joyner commenced his third-party action. It is settled that an injured employee “may bring suit against a third party whenever it is evident that the employer-assignee, for whatever reason, does not intend to bring suit.” Potomac Electric Power Co. v. Wynn, supra, 120 U.S.App.D.C. at 15, 343 F.2d at 298. The first consequence of the employee’s commencing suit is to deprive the employer-assignee of any right to control the employee’s third-party action. E. g., The Etna, supra, 138 F.2d at 41. The second consequence is the one of central importance to this case. Where compensation benefits are paid without an award, and the employee commences a third-party action, what substantive right does the employer-assignee then enjoy? Does the employer-assignee retain a substantive right as against the third party ? Or, is there merely a right as against the employee if the employee succeeds in his third-party action? It is clear that the latter is the case. In The Etna, supra, 138 F.2d at 41, it was said that “the employer who pays compensation without an award [retains] his right to reimbursement out of his own employee’s recovery from third persons” (emphasis supplied). In Potomac Electric Co. v. Wynn, supra, 120 U.S.App.D.C. at 15, 343 F.2d at 298, this court stated that “the employer’s interest in recoupment, if the employee ultimately succeeds in recovering from the third party, would presumably be protected by a lien on the proceeds" (emphasis supplied). See also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Liberty Mutual Insurance Co. v. United States, 290 F.2d 257, 258 (2d Cir. 1961). The legislative history of the most recent amendments to 33 U.S.C. § 933 make this result plain. The 1959 amendments to subsection 933 removed the necessity for an employee’s electing between accepting the statutory compensation benefits and bringing suit against the third party. See Potomac Electric Power Co. v. Wynn, supra. The Senate Report on the amendments noted: Although an employee could receive compensation under the act and for the same injury recover damages in a third-party suit, he would not be entitled to double compensation. The bill, as amended, provides that an employer must be reimbursed for any compensation paid to the employee out of the net proceeds of the recovery. S.Rep.No. 428, 86th Cong., 1st Sess. 2 (1959) (emphasis supplied). U.S.Cong. & Admin.News, p. 2134. There can be no doubt then under 33 U.S.C. § 933(b) and the cases interpreting it that American’s only rights in the circumstances of the present case run against Joyner and any recovery he may obtain in his third-party action. Only if American had obtained a formal award of benefits, and Joyner had not commenced a third-party action within six months of the entry of the award, would American have a substantive right directly against the third-party tortfeasor. This being the case, American is not a “real party in interest” in Joyner’s suit against the third-party tortfeasor. II. The appellees have placed considerable weight on the decision in City Stores Co. v. Lerner Shops of the District of Columbia, 133 U.S.App.D.C. 311, 410 F.2d 1010 (1969) as support for a contrary conclusion. In making his recommendation that American be joined under Rule 17(a), the pretrial examiner also relied on the City Stores decision, although he recognized that a somewhat different issue was raised in the present case. For the reasons which follow, we think that the situation facing the court in City Stores differed significantly from that of the present case, and that the City Stores decision does not require a different result than the one we have reached. City Stores dealt with a ease of equitable subrogation arising from common-law principles, where the rights of the subrogee were not governed by a statutory provision such as 33 U.S.C. § 933(b). The court specifically found that on common-law principles, “when an insurer pays a loss, it is by operation of law subrogated to the insured’s right of action against a third party.” 133 U.S.App.D.C. at 312, 410 F.2d at 1011 (emphasis supplied). As we have seen, the effect of 33 U.S.C. § 933(b) on the facts of the case at hand is to cut off the subrogee’s rights as against the third party. Thus, in City Stores, as opposed to the present case, the subro-gee did retain a substantive right against the third party, sufficient to make the subrogee a real party in interest. III. The appellees have also raised a number of practical objections to a holding that American is not a real party in interest in this case. We need mention only two, and but briefly. Neither appear to pose any serious difficulties, and certainly they furnish no reason for avoiding a result which seems to us clearly required by controlling legal principles. The first is a suggestion that if American is not added as a party plaintiff, the third party defendants will face the possibility of having to defend two suits — the present one by Joyner and a possible second one by American, if for some reason American’s claim is not satisfied out of Joyner’s recovery, if any. However, this possibility is of course ruled out by our conclusion above that once Joyner filed his suit, American’s only remaining substantive right was to be compensated out of Joyner’s recovery. American no longer possesses any right of action in the present circumstances against the third-party tortfeasor. The second is an assertion that otherwise American itself will be unprotected, and may eventually have to bring suit against Joyner to obtain its share of the proceeds of Joyner’s recovery. The first answer to this objection is that our holding today does not necessarily preclude American from intervening in the suit to protect its rights, if American so chooses. All that we decide is that Rule 17(a) does not require that American be joined at someone else’s behest. We are not now called upon to decide whether, for example, American could intervene by choice under Fed.R.Civ.P. 24. A second answer is that as a practical matter, there are other means of subrogees protecting themselves in cases such as the present one. American has filed an affidavit in this case that it “has an agreement with the plaintiff [Joyner] that its interests will be protected in the event the pending tort action is successful * * and at oral argument it was stated that this was the usual method of proceeding. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411, 74 S.Ct. 202, 98 L.Ed. 143 (1953). The order of the District Court denying the motion in opposition to the pretrial examiner’s recommendation is accordingly reversed. So ordered. . 44 Stat. 1440 (1927), as amended, 33 U.S.C. § 901 et seq. (1964). The Act is made applicable to employment in the District of Columbia by D.C.Code § 36-501 (1907 ed.). . See 33 U.S.C. §§ 919, 921 (1904). . Suit was thus filed within one month of the running of the one year period of the statute of limitations applicable to intentional tort actions. D.C.Code § 12-301 (4) (1967 ed.). . Under Civil Rule 9 (i) (1) of the Rules of the United States District Court for the District of Columbia, the recommendation of the pretrial examiner becomes the order of the trial court unless objections to the recommendation are filed within five days as provided by Civil Rule 9 (i) (2). . The pertinent part of Rule 17 (a) states simply that “[ejvery action shall be prosecuted in the name of the real party in interest.” . 33 U.S.C. § 933(h) (1964) provides: (h) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section, . Pub.L. 86-171, 73 Stat. 391 (1959). . Rule 24 provides : (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene ; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_appel1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. George H. WINKLE, Petitioner-Appellee, v. George A. KROPP, Warden, State Prison of Southern Michigan, Respondent-Appellant. No. 18574. United States Court of Appeals Sixth Circuit. Nov. 15, 1968. Stewart H. Freeman, Asst. Atty. Gen., Lansing, Mich., for appellant; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief. D. Michael Kratchman, (Court Appointed) Detroit, Mich., for appellee. •Before WEICK, Chief Judge, CELE-BREZZE, Circuit Judge, and CECIL, Senior Circuit Judge. PER CURIAM. Appellee was convicted in the Circuit Court of Lenawee County, Michigan, in 1958, for carrying concealed weapons and for possession of burglary tools. The Supreme Court of Michigan affirmed the conviction. People v. Winkle, 358 Mich. 551, 100 N.W.2d 309 (1960). Thereafter the Supreme Court of Michigan denied, in an unreported order, Winkle’s petition for habeas corpus and certiorari. The Supreme Court of the United States granted certiorari and upon the suggestion of the Attorney General of Michigan, remanded the case to the Supreme Court of Michigan for consideration in the light of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Winkle v. Bannan, 368 U.S. 34, 82 S.Ct. 146, 7 L.Ed.2d 91 (1961). Upon receipt of the mandate from the United States Supreme Court, the Supreme Court of Michigan vacated its earlier denial of habeas corpus and ordered the cause to be rebriefed and re-argued, and again denied the writ. All seven Judges agreed, although for different reasons, that there was no unlawful search and seizure of appellee’s automobile. In re Winkle, 372 Mich. 292, 125 N.W.2d 875 (1964). Certiorari was denied by the United States Supreme Court, Winkle v. Bannan, 379 U.S. 645, 85 S.Ct. 611, 13 L.Ed.2d 551 (1965), and a rehearing was denied, 380 U.S. 967, 85 S.Ct. 1102, 14 L.Ed.2d 157 (1965). Appellee then filed a habeas corpus action in the District Court for the Eastern District of Michigan, 279 F.Supp. 532, and the District Court granted the writ, disagreeing with the Supreme Court of Michigan, and holding that Article 2, Section 10 of the Michigan Constitution of 1908 was in violation of the Fourth Amendment to the United States Constitution. Appellant contends that the ease is controlled by Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), which was overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Appellant further contends that the judgment of conviction in the present case had become final before Mapp was decided and that Mapp should not have been retrospectively applied by the District Court. He relies on Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The question whether Mapp should be retrospectively applied apparently was not brought up in the District Court as everyone assumed that the rule in Mapp was controlling. It is not understandable why counsel for appellant did not present the point. However, irrespective of whether this question of law was raised by counsel for appellant, it is clear from Linkletter that it was error to apply Mapp retrospectively. The rule in Wolf should have been applied. Since Wolf was applicable, the question whether Article 2, Section 10 of the Michigan Constitution of 1908 offends the Fourth Amendment to the Constitution of the United States was not properly before the District Court; nor is it properly before us and we express no opinion on it. The judgment of the District Court is vacated and the cause is remanded for further proceedings in conformity with this opinion. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_state	56	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". MARWAIS STEEL COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 19068. United States Court of Appeals Ninth Circuit. Dec. 20, 1965. Robert L. Farmer, James H. Knecht, Jr., of Forster, Gemmill & Farmer, Los Angeles, Cal., for the petitioner. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, Jr., Fred R. Becker, Michael I. Smith, Attys., Dept, of Justice, Washington, D. C., for respondent. Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges. CHAMBERS, Circuit Judge: Wilmington Metal Manufacturing Company, wholly owned by Marwais Steel Company, lived at the whim of the latter. Marwais organized Wilmington in 1951 to do a special wheel manufacturing job. The latter company was dissolved at the will of Marwais in August, 1956. Wilmington was never successful in business and existed on loans from Marwais which amounted to $57,857.35 on the eve of dissolution. Just before dissolution of Wilmington, Marwais, by a board of directors resolution, forgave the whole amount. At dissolution, Wilmington surrendered its cash assets of $110.02 to Marwais. Marwais claimed as a deduction on its tax return for its taxable year ending January 31, 1957, $23,967.52. Then it carried over to the following year ending January 31, 1958, as a deduction, $35,-807.35. These represented accumulated net operating losses of Wilmington of $59,774.87, approximately the amount of the forgiven debt from Wilmington to Marwais: $57,857.35. Except for the special circumstances here, the commissioner would not question Marwais’ right to take advantage of its subsidiary’s losses in the manner it did. The special circumstances are that Marwais had already for its taxable year ending January 31, 1953, put into its bad debt reserve the figure of $22,000.00 because of the unadjudicated bad insolvency of Wilmington. For its tax year ending January 31, 1957, Marwais added to its bad debt reserve $35,122.35, approximately the balance of Wilmington’s debt to Marwais. The two amounts were used as deductions for business bad debts on Marwais’ returns. The commissioner says that Marwais cannot again get the advantage of the bad debt in the amount of $57,122.35 so far as it is represented in the operating loss carry-over acquired by Marwais out of the liquidation of Wilmington. Disallowance of the deduction results in an income tax deficiency for the two years in question of about $22,-500.00. The tax court ruled in favor of commissioner and we affirm. We shall not reiterate here the rather long and complete statement of the case found in Marwais Steel Co. v. Commissioner, 38 T.C. 633. Marwais demonstrates pretty well that from beginning to end each step in the family relations of the two corporations was dominated by a business purpose. For example, the indebtedness was forgiven Wilmington to avoid an otherwise bad cloud in credit reports on Marwais. Had it not been done, Marwais would have been branded with having managed its business offspring into an insolvent end. Marwais bases its case for deduction of the Wilmington loss carry-over on its interpretation of Sections 332 and 381 of the Internal Revenue Code of 1954. It is evident that if the debt had not been forgiven, under Section 332 the position of Marwais would have no logical validity. On its face, the argument of Marwais is very difficult to answer. It seems near perfect in logic. But in human experience, most logic can be carried only so far. For example, by the literal terms of the Fifth Amendment, one should not have to file income tax returns because he might incriminate himself. But they must be filed. We conclude, as the tax court did, plausible as the position of Marwais is, there is a message in Ilfeld Co. v. Hernandez, Collector, 292 U.S. 62, 54 S.Ct. 596, 78 L.Ed. 1127, another double tax deduction disallowed. We follow taxpayer’s argument that part of what was there said was dicta. And, of course, the sequence of facts there is reversed from what we have here. If what it said there was dicta, we believe that it is dicta the court will follow in cases having any similarity at all on double deductions for a single economic loss. The decision is affirmed. . No consolidated returns of a parent and wholly owned subsidiary are involved here. If the companies were ever eligible to elect such an option, it was never done. . It will be noted that the reserve of Marwais for Wilmington’s bad debts (the prior deductions) was $57,122.35, the debt forgiven was $57,857.35, and the net operating loss carry-over of Wilmington later claimed by Marwais was $59,774.87. We assume the government allows the difference between $59,774.87 and $57,-122.35, $2,652.52, as a deduction for Marwais, it not having been previously deducted by Marwais. . The sections, in part, provide: “I.R.C. § 332: “(a) General rule. — No gain or loss shall be recognized on the receipt hy a corporation of property distributed in complete liquidation of another corporation. “(b) Liquidations to which section applies. — For purposes of subsection (a), a distribution shall be considered to be in complete liquidation only if— * * * (2) the distribution is by such other corporation in complete cancellation or redemption of all its stock, and the transfer of all the property occurs within the taxable year; in such case the adoption by the shareholders of the resolution under which is authorized the distribution of all the assets of such corporation in complete cancellation or redemption of all its stock shall be considered an adoption of a plan of liquidation, even though no time for the completion of the transfer of the property is specified in such resolution; * * * “I.R.C. § 381: “(a) General rule. — In the case of the acquisition of assets of a corporation by another corporation. — ■ (1) in a distribution to such other corporation to which section 332 (relating to liquidations of subsidiaries) applies, except in a case in which the basis of the assets distributed is determined under section 334(b) (2); * * * the acquiring corporation shall succeed to and take into account, as of the close of the day of distribution or transfer, the items described in subsection (c) of the distributor or transferor corporation, subject to the conditions and limitations specified in subsections (b) and (c). ❖ * (c) Items of the distributor or transferor corporation. — The items referred to in subsection (a) are: (1) Net operating loss carryovers.— The net operating loss carryovers determined under section 172, subject to the following conditions and limitations: * * :¡: » . Cf. McLaughlin v. Pacific Lumber Co., 293 U.S. 351, 55 S.Ct. 219, 79 L.Ed. 423, and Spokane Dry Goods Co. v. Commissioner, 9 Cir., 125 F.2d 865. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_respondent	061	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. USERY, SECRETARY OF LABOR, et al. v. TURNER ELKHORN MINING CO. et al. No. 74-1302. Argued December 2, 1975 Decided July 1, 1976 Deputy Solicitor General Wallace argued the cause for appellants in No. 7A-1302 and for appellees in No. 74-1316. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Ronald R. Glancz, and Laurie Streeter. R. R. McMahan argued the cause for appellees in No. 74-1302 and for appellants in No. 74-1316. With him on the briefs was James M. Graves. Together with No. 74A1316, Turner Elkhorn Mining Co. et al. v. Usery, Secretary of Labor, et al., also on appeal from the same court. Joseph A. Yablonski and Willard P. Owens filed a brief for the United Mine Workers of America as amicus curiae urging reversal in No. 74^1302 and affirmance in No. 74-1316. Guy Farmer and William A. Gershuny filed a brief for the Bituminous Coal Operators' Assn., Inc., as amicus curiae. Mr. Justice Marshall delivered the opinion of the Court. Twenty-two coal mine operators (Operators) brought this suit to test the constitutionality of certain aspects of Title IY of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 792, as amended by the Black Lung Benefits Act of 1972, 86 Stat. 150, 30 U. S. C. § 901 et seq. (1970 ed. and Supp. IV). The Operators, potentially liable under the amended Act to compensate certain miners, former miners, and their survivors for death or total disability due to pneumoconiosis arising out of employment in coal mines, sought declaratory and in-junctive relief against the Secretary of Labor and the Secretary of Health, Education, and Welfare, who are responsible for the administration of the Act and the promulgation of regulations under the Act. On cross-motions for summary judgment, a three-judge District Court for the Eastern District of Kentucky, convened pursuant to 28 U. S. C. §§ 2282 and 2284, found the amended Act constitutional on its face, except in regard to two provisions concerning the determination of a miner's total disability due to pneumoconiosis. The court enjoined the Secretary of Labor from further application of those two provisions. 385 F. Supp. 424 (1974). After granting a stay of the three-judge court's order, 421 U. S. 944 (1975), we noted probable jurisdiction of the cross-appeals. 421 U. S. 1010 (1975). We conclude that the amended Act, as interpreted, is constitutionally sound against the Operators' challenges. I Coal workers’ pneumoconiosis — black lung disease— affects a high percentage of American coal miners with severe, and frequently crippling, chronic respiratory impairment. The disease is caused by long-term inhalation of coal dust. Coal workers’ pneumoconiosis (hereafter pneumoconiosis) is generally diagnosed on the basis of X-ray opacities indicating nodular lesions on the lungs of a patient with a long history of coal dust exposure. As the Surgeon General has stated, however, post-mortem examination data have indicated a greater prevalence of the disease than X-ray diagnosis reveals. According to the Surgeon General, pneumoconiosis is customarily classified as “simple” or “complicated.” Simple pneumoconiosis, ordinarily identified by X-ray opacities of a limited extent, is generally regarded by physicians as seldom productive of significant respiratory impairment. Complicated pneumoconiosis, generally far more serious, involves progressive massive fibrosis as a complex reaction to dust and other factors (which may include tuberculosis or other infection), and usually produces significant pulmonary impairment and marked respiratory disability. This disability limits the victim's physical capabilities, may induce death by cardiac failure, and may contribute to other causes of death. Removing the miner from the source of coal dust has so far proved the only effective means of preventing the contraction of pneumoconiosis, and once contracted the disease is irreversible in both its simple and complicated stages. No therapy has been developed. Finally, because the disease is progressive, at least in its complicated stage, its symptoms may become apparent only after a miner has left the coal mines. In order to curb the incidence of pneumoconiosis, Congress provided in Title II of the Federal Coal Mine Health and Safety Act of 1969, § 201 et seq., 30 U. S. C. § 841 et seq., for limits on the amount of dust to be permitted in the ambient air of coal mines. Additionally, in view of the then-established prevalence of irreversible pneumoconiosis among miners, and the insufficiency of state compensation programs, Congress passed Title IV of the 1969 Act, § 401 et seq., 30 U. S. C. § 901 et seq., to provide benefits to afflicted miners and their survivors. These benefit provisions were subsequently broadened by the Black Lung Benefits Act of 1972. 30 U. S. C. § 901 et seq. (1970 ed., Supp. IV). As amended, the Act divides the financial responsibility for payment of benefits into three parts. Under Part B of Title IV, §§ 411-414, 30 U. S. C. §§ 921-924 (1970 ed. and Supp. IV), claims filed between December 30, 1969, the date of enactment, and June 30, 1973, are adjudicated by the Secretary of Health, Education, and Welfare and paid by the United States. Under Part C of Title IV, §§ 421-431, 30 U. S. C. §§931-941 (1970 ed. and Supp. IV), claims filed after December 31, 1973, are to be processed under an applicable state workmen's compensation law approved by the Secretary of Labor under the standards set forth in §421, 30 U. S. C. §931 (1970 ed. and Supp, IV). In the absence of such an.approved state program, and to date no state program has been approved, claims are to be filed with and adjudicated by the Secretary of Labor, and paid by the mine operators. § 422, 30 U. S. C. §932 (1970 ed. and Supp. IV). Under §422 an operator who is entitled to a hearing in connection with these claims is liable for Part C benefits with respect to death or total disability due to pneumoconiosis arising out of employment in a mine for which the operator is responsible. The operator’s liability for Part C benefits covers the period from January 1, 1974, to December 30, 1981. Payments of benefits under Part C are to the same categories of persons — a miner or certain survivors — and in the same amounts, as under Part B. §§ 422 (c), (d); see § 412 (a), 30 U. S. C. § 922 (a) (1970 ed. and Supp. IV). Claims filed during the transition period between the Federal Government benefit provision under Part B, and state plan or operator benefit provision under Part C— that is, July 1 to December 31, 1973 — are adjudicated under § 415 of Part B, 30 U. S. C. § 925 (1970 ed., Supp. IV), by the Secretary of Labor. The United States is responsible for payment of these claims until December 31, 1973. Responsible operators, having been notified of a claim and entitled to participate in a hearing thereon, are thereafter liable for benefits as if the claim had been filed pursuant to Part C and § 422 had been applicable to the operator. The Act provides that a miner shall be considered "totally disabled,” and consequently entitled to compensation, "when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time.” § 402 (f), 30 U. S. C. § 902 (f) (1970 ed., Supp. IV). The Act also prescribes several “presumptions” for use in determining compensable disability. Under § 411(c) (3), a miner shown by X-ray or other clinical evidence to be afflicted with complicated pneumoconiosis is “irrebuttably presumed” to be totally disabled due to pneumoconiosis; if he has died, it is irrebuttably presumed that he was totally disabled by pneumoconiosis at the time of his death, and that his death was due to pneumoconiosis. 30 U. S. C. §921 (c)(3) (1970 ed., Supp. IY). In any event, the presumption operates conclusively to establish entitlement to benefits. The other presumptions are each explicitly rebuttable by an operator seeking to avoid liability. There are three such presumptions. First, if a miner with 10 or more years’ employment in the mines contracts pneumoconiosis, it is rebuttably presumed that the disease arose out of such employment. §411 (c)(1), 30 U. S. C. §921 (c)(1) (1970 ed., Supp. IV). Second, if a miner with 10 or more years’ employment in the mines died from a “respirable disease,” it is rebuttably presumed that his death was due to pneumoconiosis. § 411 (c)(2), 30 U. S. C. § 921 (c) (2) (1970 ed., Supp. IV). Finally, if a miner, or the survivor of a miner, with 15 or more years’ employment in underground coal mines is able, despite the absence of clinical evidence of complicated pneumoconiosis, to demonstrate a totally disabling respiratory or pulmonary impairment, the Act rebuttably presumes that the total disability is due to pneumoconiosis, that the miner was totally disabled by pneumoconiosis when he died, and that the miner’s death was due to pneumoconiosis. § 411 (c)(4), 30 U. S. C. § 921 (c)(4) (1970 ed., Supp. IV). Section 411(c)(4) specifically provides: “The Secretary may rebut [this latter] presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.” Moreover, under § 413(b), 30 U. S. C. § 923 (b) (1970 ed., Supp. IV), none of these three rebuttable presumptions may be defeated solely on the basis of a chest X-ray. II In initiating this suit against the defendant Secretaries (hereafter Federal Parties), the Operators contended that the amended Act is unconstitutional insofar as it requires the payment of benefits with respect to miners who left employment in the industry before the effective date of the Act; that the Act’s definitions, presumptions, and limitations on rebuttal evidence unconstitutionally impair the operators’ ability to defend against benefit claims; and that certain regulations promulgated by the Secretary of Labor regarding the apportionment of liability for benefits among operators, and the provision of medical benefits, are inconsistent with the Act and constitutionally defective. The three-judge District Court held that all issues as to the validity of the challenged regulations were within the jurisdiction of a single district judge, and the court entered an order so remanding them. 385 F. Supp., at 426. The District Court upheld each challenged statutory provision as constitutional, with two exceptions. First, the District Court held that § 411 (c) (3)’s irrebut-table presumption is unconstitutional as an unreasonable and arbitrary legislative finding of total disability “in terms other than those provided by the Act as standards for total disability.” 385 F. Supp., at 430. Second, reading the limitation on evidence in rebuttal to § 411 (c) (4)’s presumption of total disability due to pneumo-coniosis to apply to an operator’s defense in a § 415 transition-period case, the District Court found thát limitation unconstitutional in two respects. It held the limitation arbitrary and unreasonable in not permitting a rebuttal showing that the case of pneumo-coniosis afflicting the miner was not disabling. 385 F. Supp., at 430. And taking the provision to mean that an operator may defend against liability only on the ground that the pneumoconiosis did not arise out of employment in any coal mine, rather than on the ground that it did not arise out of employment in a coal mine for which the operator was responsible, the District Court found the provision an unreasonable and arbitrary limitation on rebuttal evidence relevant and proper under § 422 (c), 30 U. S. C. § 932 (c). 385 F. Supp., at 430-431. The District Court accordingly entered an order declaring unconstitutional, and enjoining the Secretary of Labor from seeking to apply, §411 (c)(3)’s irrebut-table presumption and §411(c)(4)’s limitation on rebuttable evidence. The Operators’ appeal, No. 74-1316, reasserts the constitutional challenges rejected by the District Court. The appeal of the Federal Parties, No. 7-D1302, seeks reversal of the declaration and injunction respecting the constitutionality of §§411 (c)(3) and (4). Neither side here questions the District Court’s decision not to address the issues raised with respect to the Secretary of Labor’s regulations. As we have already noted, we uphold the statute against all the constitutional contentions properly presented here. Because we read the limitation on rebuttal evidence in §411 (c)(4) as inapplicable to the Operators, however, we vacate that portion of the District Court’s order which invalidates that limitation. III The Federal Parties direct our attention initially to National Independent Coal Operators Assn. v. Brennan, 372 F. Supp. 16 (DC), summarily aff’d, 419 U. S. 955 (1974), which raised a number of issues identical to those presented here. Our summary affirmance in that case did not foreclose the District Court’s determination of unconstitutionality regarding §§411 (c)(3) and (4), those issues not having been before us on the appeal. Several questions presented here — most notably those of retroactivity and preclusion of sole reliance on X-ray testimony evidence — were raised and decided in National Independent Coal Operators Assn. v. Brennan, but having heard oral argument and entertained full briefing on these issues together with the other questions raised in the case, we proceed to treat them here more fully. Cf. Edelman v. Jordan, 415 U. S. 651, 670-671 (1974). IV The Operators contend that the amended Act violates the Fifth Amendment Due Process Clause by requiring them to compensate former employees who terminated their work in the industry before the Act was passed, and the survivors of such employees. The Operators accept the liability imposed upon them to compensate employees working in coal mines now and in the future who are disabled by pneumoconiosis; and they recognize Congress’ power to create a program for compensation of disabled inactive coal miners. But the Operators complain that to impose liability upon them for former employees’ disabilities is impermissibly to charge them with an unexpected liability for past, completed acts that were legally proper and, at least in part, unknown to be dangerous at the time. It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, 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. See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483, 487-488 (1955). And this Court long ago upheld against due process attack the competence of Congress to allocate the interlocking economic rights and duties of employers and employees upon workmen’s compensation principles analogous to those enacted here, regardless of contravening arrangements between employer and employee. New York Central R. Co. v. White, 243 U. S. 188 (1917); see also Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603 (1912). To be sure, insofar as the Act requires compensation for disabilities bred during employment terminated before the date of enactment, the Act has some retrospective effect — although, as we have noted, the Act imposed no liability on operators until 1974. And it may be that the liability imposed by the Act for disabilities suffered by former employees was not anticipated at the time of actual employment. But our cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. See Fleming v. Rhodes, 331 U. S. 100 (1947); Carpenter v. Wabash R. Co., 309 U. S. 23 (1940); Norman v. Baltimore & Ohio R. Co., 294 U. S. 240 (1935); Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934); Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467 (1911). This is true even though the effect of the legislation is to impose a new duty or liability based on past acts. See Lichter v. United States, 334 U. S. 742 (1948); Welch v. Henry, 305 U. S. 134 (1938); Funkhouser v. Preston Co., 290 U. S. 163 (1933). It does not follow, however, that what Congress can legislate prospectively it can legislate retrospectively. The retrospective aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former. Thus, in this case the justification for the retrospective imposition of liability must take into account the possibilities that the Operators may not have known of the danger of their employees’ contracting pneumoconiosis, and that even if they did know of the danger their conduct may have been taken in reliance upon the current state of the law, which imposed no liability on them for disabling pneumoconiosis. While the Operators have clearly been aware of the danger of pneumoconiosis for at least 20 years, and while they have not specifically pressed the contention that they would have taken steps to reduce or eliminate the incidence of pneumoconiosis had the law imposed liability upon them, we would nevertheless hesitate to approve the retrospective imposition of liability on any theory of deterrence, cf. United States v. Peltier, 422 U. S. 531, 542 (1975), or blameworthiness, cf. ibid.; De Veau v. Braisted, 363 U. S. 144, 160 (1960). We find, however, that the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor — the operators and the coal consumers. The Operators do not challenge Congress’ power to impose the burden of past mine working conditions on the industry. They do claim, however, that the Act spreads costs in an arbitrary and irrational manner by basing liability upon past employment relationships, rather than taxing all coal mine operators presently in business. The Operators note that a coal mine operator whose work force has declined may be faced with a total liability that is disproportionate to the number of miners currently employed. And they argue that the liability scheme gives an unfair competitive advantage to new entrants into the industry, who are not saddled with the burden of compensation for inactive miners’ disabilities. In essence the Operators contend that competitive forces will prevent them from effectively passing on to the consumer the costs of compensation for inactive miners’ disabilities, and will unfairly leave the burden on the early operators alone. Of course, as we have already indicated, a substantial portion of the burden for disabilities stemming from the period prior to enactment is borne by the Federal Government. But even taking the Operators’ argument at face value, it is for Congress to choose between imposing the burden of inactive miners’ disabilities on all operators, including new entrants and farsighted early operators who might have taken steps to minimize black lung dangers, or to impose that liability solely on those early operators whose profits may have been increased at the expense of their employees’ health. We are unwilling to assess the wisdom of Congress’ chosen scheme by examining the degree to which the “cost-savings” enjoyed by operators in the pre-enactment period produced “excess” profits, or the degree to which the retrospective liability imposed on the early operators can now be passed on to the consumer. It is enough to say that the Act approaches the problem of cost spreading rationally; whether a broader cost-spreading scheme would have been wiser or more practical under the circumstances is not a question of constitutional dimension. See, e. g., Ferguson v. Skrupa, 372 U. S., at 730-732; Williamson v. Lee Optical Co., 348 U. S., at 488. The Operators ultimately rest their due process argument on Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935), in which the Court found the Railroad Retirement Act of 1934 to be unconstitutional. Among the provisions specifically invalidated as arbitrary was.a provision for employer-financed pensions for former employees who, though not in the employ of the railroads at the time of enactment, had been so employed within the year. Assuming that the portion of Alton invalidating this provision retains vitality, we find it distinguishable from this case. The point of the black lung benefit provisions is not simply to increase or supplement a former employee’s salary to meet his generalized need for funds. Rather, the purpose of the Act is to satisfy a specific need created by the dangerous conditions under which the former employee labored — to allocate to the mine operator an actual, measurable cost of his business. In sum, the Due Process Clause poses no bar to requiring an operator to provide compensation for a former employee's death or disability due to pneumo-coniosis arising out of employment in its mines, even if the former employee terminated his employment in the industry before the Act was passed. V We turn next to a consideration of the Operators' challenge to the “presumptions” and evidentiary rules governing adjudications of compensable disability under the Act. A The Act prescribes two alternative methods for showing “total disability,” which is a prerequisite to compensation. First, a miner is “totally disabled” under the definition contained in § 402 (f), if pneumoconiosis, simple or complicated, “prevents him from engaging in gainful employment requiring the skills and abilities comparable to those 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_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. William Peter CAREY, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. No. 5551. United States Court of Appeals First Circuit. March 11, 1960. Lane McGovern, Boston, Mass., with whom John P. O’Brien, Chicago, 111., and Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., were on brief for petitioner. Morris Chertkov, Attorney, Civil Aeronautics Board, Washington, D. C., with whom Robert A. Bicks, Acting Assistant Attorney General, Richard A. Solomon, Attorney, Department of Justice, Franklin M. Stone, General Counsel, Civil Aeronautics Board, John H. Wanner, Deputy General Counsel, and O. D. Ozment, Associate General Counsel, Washington, D. C., Litigation and Research, were on brief, for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. The petitioner, a resident of Massachusetts, and a senior airlines pilot for Northeast Airlines who had flown approximately 10,800 hours and who had held an Airline Transport Rating for 10 years, was the pilot in command of a Northeast Airlines DC-3 A scheduled to fly on November 30, 1954, from New York to Boston as Flight 656, and, after a layover of about half an hour in Boston, on to Concord, Laconia and Berlin, New Hampshire, as Flight 792. The flight from New York to Boston was conducted under visual flight rules (VFR) and was routine. So also was the flight on from Boston to Concord and Laconia. On the take-off from Laconia Captain Carey was advised through Northeast Airlines radio facilities that the Boston Air Route Traffic Control Center (ATC) of the Civil Aeronautics Administration had granted previously requested instrument flight rules (IFR) clearance to fly over North Conway, New Hampshire, to the Berlin Airport as follows: “ATC clears Northeast Flight 792 for an approach to the Berlin Airport via Blue 63 to cruise 8000'.” While making an instrument approach in clouds to the Berlin Airport the plane struck the top of Mount Success about 7 nautical miles southeast of the airport. The crash caused fatal injuries to the co-pilot and a Northeast Airlines dispatcher riding in the plane, severe injuries to Captain Carey, minor injuries to the stewardess and passengers on board and extensive damage to the aircraft. On December 2 the survivors were rescued by helicopter. On May 3, 1955, the Administrator of Civil Aeronautics, invoking the jurisdiction conferred on the Civil Aeronautics Board by § 609 of the Civil Aeronautics Act of 1938, 52 Stat. 1011, 49 U.S.C.A. § 559, filed a complaint against Captain Carey alleging in substance that while pilot in command on the flight described above he descended below the initial approach altitude specified by the applicable regulations governing approach to the Berlin Airport. Specifically, the charges were that Captain Carey descended below 8000' altitude in the approximate vicinity of Gorham, New Hampshire, some miles short of the Berlin Airport, in violation of section 609.8 of the Administrator’s Regulations as amended thereby violating section 40.-409 (a) of the Civil Air Regulations and by the same conduct also violated sections 610.663 and 610.5 of the Administrator’s Regulations thereby violating section 60.17 of the Civil Air Regulations. On the basis of these charges it was alleged that Captain Carey operated the aircraft “in a careless and reckless manner” and “failed to exercise the degree of care, caution and judgment required of the holder of an Airline Transport Rating.” Wherefore it was requested that the Airline Transport Rating of Captain Carey’s airman certificate be revoked for lack of qualification. Subsequently the Administrator was allowed to amend his complaint to conform to the language of the statute to be considered hereinafter by adding an allegation that Captain Carey's conduct on the flight demonstrated his lack of qualification to hold an Airline Transport Rating “sufficient to justify a refusal by the Administrator to issue a like certificate to him.” Captain Carey in his answer did not deny, as indeed the event proved, that he approached the Berlin Airport at an altitude less than 8000', for Mount Success is less than 4000' high. But he asserted that the crash of his flight was not caused by any lack of qualification on his part but by a combination of factors for which he was not responsible. These included 1) failure of the Berlin approach plate in the Northeast Airlines pilot’s manual to show clearly in graphic form that 8000' was the minimum approach altitude prescribed by the official Regulations of the Administrator, 2) faulty operation of the Automatic Direction Finder (ADF) equipment in the plane, the needle of which reversed prematurely, thereby indicating arrival over the Berlin airfield, at a point which subsequently turned out to be several miles short of the field, and 3) extremely bad weather, the plane bucking a “mountain wave condition” of which he was not forewarned, causing great turbulence and severe vertical air currents which made it very difficult to control the plane as to both altitude and speed. After hearing in November, 1957, three years after the accident, the trial examiner found against Captain Carey on every issue in the case, and indeed, on some other issues not raised by the pleadings. lie found that Captain Carey failed to make proper use of available weather information before leaving Boston, that he failed to adhere to his ATC clearance to maintain 8000' altitude until he reached the “H” facility at Berlin, and that he failed properly to monitor his ADF or other equipment while attempting a “straight-in” approach to the Berlin Airport. The trial examiner further found that when Captain Carey reached a point in flight where conditions were so perilous that he was in grave doubt as to the outcome of the flight he failed to “pull up on top” where he knew the wheather was fair (VFR) thereby demonstrating carelessness in violation of Civil Air Regulation 60.12 and lack of sound judgment, which, standing alone, “could be considered a lack of qualification” to hold an airline transport rating. In addition the trial examiner found the evidence insufficient to establish that the ADF indicator reversed prematurely but on the contrary showed that it and other radio facilities were functioning properly, that Captain Carey failed to “overhead” the radio facility at North Conway and failed to make necessary radio reports which indicated “a pattern of indifference and carelessness,” and that the evidence did not establish either the existence or nonexistence of a “mountain wave” in the vicinity of Berlin but that even if such a condition had been shown to exist Captain Carey by his own admissions made no attempt to avoid the hazardous conditions which he claimed to have encountered. On the basis of these findings the trial examiner concluded that Captain Carey had “demonstrated a lack of qualification to hold an airline transport pilot rating sufficient to justify a refusal by the Administrator to issue a like certificate to him” wherefore he recommended that Captain Carey’s airline transport rating be revoked and that no similar rating be issued to him for a year. On appeal the Civil Aeronautics Board concluded that certain of the findings of the trial examiner were unnecessary to its decision so that there was no need for it to decide whether those findings were supported by the evidence. These findings were 1) that Captain Carey was attempting a “straight-in” approach to the Berlin Airport, 2) that when he reached a point where conditions became so perilous that he was in serious doubt as to the outcome of the flight he failed to “pull up on top” where he knew the weather was good, and 3) that he had failed to make “other necessary radio reports besides failing to overhead the radio facility at North Conway as required by company regulations.” Nevertheless the Board said that it was persuaded that Captain Carey by his actions demonstrated extreme carelessness and lack of sound judgment in the operation of his flight and that the record showed a series of commissions and omissions which indicated that he “failed to exercise the degree of care, skill, judgment, and responsibility required of the holder of an airline transport pilot rating.” The Board then listed the “most important” of Captain Carey’s faults as his failure “(1) to familiarize himself with the weather forecasts for the area prior to his departure from Boston and to make proper use of such weather information as he did have; (2) to maintain the minimum 8000 feet altitude from North Conway until he passed over the radio navigational facility at Berlin; (3) to adhere to his ATC clearance to maintain the minimum altitude prescribed by the Administrator for Blue Airway 63 en route; (4) to properly monitor his ADF and other equipment; (5) to overhead the radio facility at North Conway as required by company regulations; (6) to follow the standard instrument approach procedure as established by the Administrator; and (7) to avoid, the hazardous conditions which he encountered.” On the basis of these findings the Board affirmed the trial examiner’s initial decision “as modified” and ordered Captain Carey’s “airline transport rating certificate” revoked effective June 23, 1959 . But, because of the Administrator’s and the examiner’s delays in prosecuting the case, it did not (one member dissenting) attach to its order the condition that Captain Carey could not apply for a new “certificate” until one year thereafter. Section 609 of the 1938 Act, 52 Stat. 1011, as amended, see 49 U.S.C.A. § 559, provides that the Civil Aeronautics Board “ * * * upon notice and hearing, may alter, amend, modify, or suspend, in whole or in part, any * * * airman certificate * * * if the interest of the public so requires, or may revoke, in whole or in part, any such certificate for any cause which, at the time of revocation, would justify the Administrator of Civil Aeronautics in refusing to issue to the holder of such certificate a like certificate.” We agree with the Board that an airline pilot’s conduct on a single flight may show a degree of lack of flying skill, carelessness, recklessness, poor judgment or lack of emotional control sufficient to justify the Administrator of Civil Aeronautics in refusing to issue a certificate to him, and thus warrant Board action under the above statute revoking in whole or in part his airman’s certificate. See Specht v. Civil Aeronautics Board, 8 Cir., 1958, 254 F.2d 905. The question in this case is whether the series of faults found by the Board to have been committed by Captain Carey on the flight in question added together warrant the Board’s order, for it is clear that the Board, unlike the examiner, did not rest its order on any single finding of fault standing alone but on the sum or totality of its findings of fault. Thus if any one of its specific findings is infected with error, the Board’s ultimate conclusion cannot stand and the case must go back to the Board for further study. But we need not analyse each separate finding of the Board in complete detail, for we think that the case must go back to the Board for correction of obvious errors in some of its findings and the clarification of others. There can be no doubt on the evidence in the record, indeed Captain Carey concedes, that he descended from 8000' into clouds in the vicinity of Gorham, New Hampshire, several miles short of the Berlin Airport, and that he was flying at an altitude of about 5500' when he said his ADF reversed indicating to him that he was over the airport and that he thereupon started his instrument approach to the field and while making the maneuvers required for that operation crashed into Mount Success. Thus it is clear from Captain Carey’s own version of the accident that he did not maintain 8000' altitude even up to the point where he thought, obviously erroneously, that he was over the Berlin Airport. Thus the Board’s finding (3) above that Captain Carey failed “to adhere to his ATC clearance to maintain the minimum altitude prescribed by the Administrator for Blue Airway 63 en route” is correct. But, as we have already pointed out, the Board did not rest its ultimate conclusion of revocation on this finding of fault alone, but on the sum of all of its findings of fault added together. We therefore turn our attention to the Board’s other findings. It seems to us that the Board’s findings (2), (5) and (6), i. e., failure to maintain 8000’ altitude from North Conway to the radio facility at Berlin, failure to overhead the radio facility at North Conway as required by company regulations, and failure to follow the standard approach procedures established by the Administrator are not findings of faults separate and apart from the broad finding of fault covered in (3), that Captain Carey failed to adhere to his ATC clearance. These findings (2), (5) and (6) are statements of specific ways in which Captain Carey committed the fault found in (3). They are particularizations or specifications of the fault found in (3), not findings of faults separate and apart or in addition to the fault found in (3). This is clearly so with respect to finding (2) that Captain Carey failed to maintain 8000’ altitude from North Conway to the radio navigational facility at Berlin. Moreover, the Board’s findings (5) and (6) are infected with error even as findings of the specifications of the fault found in (3). The Board’s finding (5) that Captain Carey failed to overhead the radio facility at North Conway is clearly inconsistent with the Board’s previous statement that it was unnecessary for it to decide, so that it need not consider the evidence to support, the finding of the examiner that he did not do so. And the Board’s finding (6) that Captain Carey failed to follow standard approach procedures is far from clear. It can be construed as inconsistent with the Board’s statement that it was passing as unnecessary to decide the question of the sufficiency of the evidence to support the examiner’s finding that Captain Carey was attempting a “straight-in” approach. But if it is not, we do not know quite what is meant by the finding. If it means that Captain Carey started his approach procedures at too low an altitude it is correct, but amounts to no more than another specification of the fault found in (3) of failing to adhere to IFR clearance. If it means that approach procedures were started too soon, the finding is also correct, for Captain Carey said that he started approach procedures when the ADF needle reversed indicating to him that it was time to do so, although, of course, he was not then over the airport where he thought he was, but several miles short of it. But in this event the crucial issue is not whether he failed to follow established approach procedures, but whether he was at fault in starting those procedures too soon, and this raises the question whether the ADF reversed prematurely or not, and if it did, whether he should have discovered that error by more careful aural monitoring of the device. If, on the other hand, the finding means that Captain Carey was making no attempt to follow standard instrument approach procedure at all, but was attempting a straight-in approach, the finding is either open to the defect of inconsistency pointed out above or else it is wholly without support in the evidence for there is nothing whatever to contradict Captain Carey’s testimony that he was following those procedures, at least as. to course, albeit prematurely, when the crash occurred. Other findings of the Board seem to us to be supported by little if any convincing evidence. One of these is the finding that Captain Carey failed to “properly monitor his ADF and other equipment,” the evidence being that Captain Carey could not remember whether he was aurally monitoring the ADF himself or whéther his co-pilot was doing so, and the evidence is at best vague as to what, if any, other equipment useful in the Berlin area for the same purpose as the ADF was in the plane. And another is the finding that Captain Carey failed to familiarize himself with weather forecasts for the Northern New England area prior to his departure from Boston, for the evidence is that he familiarized himself with the forecasts for that area before he left New York and picked up such weather bulletins as were handed to him by the dispatcher in Boston, and there is no evidence that later area forecasts than he received in New York an hour and a half earlier were available to him in Boston. Moreover we think the Board’s finding that the ADF instrument did not reverse prematurely needs more careful consideration. This finding is directly contrary to Captain Carey’s undisputed testimony and can rest only upon the testimony of experts who removed the external portions of the instrument from the plane after the crash and examined it some six months later in a laboratory. These experts, however, did not remove the wiring connecting the external portions of the instrument with the indicator on the plane’s instrument panel and made no test of the wiring in the plane, which they admitted might be defective and could cause reversal. Nor does the Board’s finding take into account the testimony of the Administrator’s radio specialist mentioned by the Board in a footnote that “not only atmospheric conditions but also unknown nebulous failures within the equipment itself” could cause premature reversal. Furthermore, there seems to us at. least the possibility of inconsistency between the Board’s passing over as unnecessary for it to decide the examiner’s finding that Captain Carey was at serious fault in not pulling up out of the clouds where he knew the weather was clear when he encountered such bad weather conditions near the ground that he was in doubt of the outcome of the flight and the Board’s finding of fault (7) that Captain Carey failed to avoid the hazardous weather conditions he encountered. However, since this case must go back to the Board for correction and clarification of several of its findings, we leave all of them for the Board to reconsider in the light of a more thorough, careful and painstaking reevaluation of the record. The statutory mandate of 49 U.S.C.A. § 402(b) directing the Board to regulate air transportation in such a manner as, among other matters, to “assure the highest degree of safety” imposes heavy responsibilities. Those responsibilities, however, must be carried out with due regard for the serious consequences to a senior airlines pilot of the loss of his air transport rating for fault. Nothing can now be done about the Board’s self-confessed delay in processing this case in spite of the provision in § 559 of Title 49 U.S.C.A. that in these matters the Board “shall enter upon a hearing which shall be disposed of as speedily as possible.” That is water over the dam. But the parties to proceedings before the Board are entitled to at least reasonably clear and consistent findings as well as findings supported by substantial evidence in the record considered as a whole. We are constrained to say after careful consideration of the record that the Board’s work in this case does not meet legal requirements of thoroughness, care, precision and accuracy. Decree will be entered setting aside the order of the Board and directing it to take further proceedings not inconsistent with this opinion. . As of December 31, 1958, the Civil Aeronautics Act of 1938 was supplanted by the Federal Aviation Act of 1958, 49 U.S.C.A. § 1301 et seq., but this is unimportant here for § 1501 of the latter Act provides for continuation under the provisions of the earlier Act of proceedings such as this which were pending at the time of the change. . Section 609.8 provides: “If an ADF instrument approach is conducted at the below named airport, it shall be in accordance with the following instrument approach procedure * * Minimum altitudes shall correspond with those established for en route operations in the particular area as set forth below: “To Berlin, N.H., from North Conway, N.H. minimum altitude 8000 feet.” (19 Fed.Reg. 5663, September 8, 1954.) . Section 40.409(a) provides: “When making an initial approach to a radio navigation facility under IFR * * * an airplane shall not descend below the pertinent minimum altitude for initial approach specified by the Administrator for such facility until arrival over the radio facility has been definitely .established; * * * ”, . Section 610.663 provides; “Blue Civil Airway No. 63 amended by adding: ‘From Laconia, N.H., to North Conway, N.H., 6000 feet, and from North Conway, N.H., to Berlin, N.H., 8000 feet minimum altitude.’ ” (19 Fed.Reg. 6178, Sept. 28, 1954.) . Section 610.5 provides: “Except when necessary for taking off or landing no person shall operate an aircraft below IFR along the routes or portion thereof designated * * * below the altitude prescribed for such routes.” . Section 60.17 provides: “Except when necessary for taking off or landing, no person shall operate an aircraft below * * * (d) The minimum IFR altitude established by the Administrator for that portion of the route over which the operation is conducted * * . Section 60.12 “Careless or Reckless Operation. “No person shall operate an aircraft in a careless or reckless manner so as to endanger the life or property of others.” . Subsequently, after the petition for review had been filed in this court, the Board purported to amend its order to ■ make its sanction run against Captain Carey’s “rating” instead of his “certificate.” The effect of this amendment was to make it clear that Captain Carey was not disqualified from flying commercially at all but only that he was forbidden to fly as a captain in command of a scheduled airline flight. There is serious doubt of the Board’s power to make this amendment, for § 1006 of the 1938 Act as amended, 49 U.S.C.A. § 646, provides that once a petition for review lias been filed in a court of appeals and a copy transmitted to the Board “the court shall have exclusive jurisdiction to * * * modify * * * the order complained of.” Since the Board’s modification is perhaps only in clarification of its order, and is to Captain Carey’s advantage, we overlook the question of the Board’s jurisdiction to make it. . The most that can bo said in excuse of Captain Carey’s conduct is that he may have been misled by lack of clarity of the approach plate of his pilot’s manual or by the ATC clearance given to him by his company, for that clearance was to “cruise 8000' ” and the C.A.A. Flight Information Manual of May 25, 1954, provides: “The term ‘cruise’ rather than ‘maintain’ is used in air traffic clearance to signify that descent may be commenced at pilots’ discretion.” But whether Captain Carey was justifiably misled, and if so, its effect in mitigation of his fault are matters for the Board to decide. . Incidentally Captain Carey was not charged with violating company regulations and we are not cited to any Regulation of the Administrator or the Board requiring compliance with company safety rules. 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_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BLUE PEARL MUSIC CORPORATION, Appellee, v. Alberta BRADFORD, as Administratrix of the Estate of Alex E. Bradford, Deceased, Appellant. Nos. 83-5139, 83-5237. United States Court of Appeals, Third Circuit. Argued Jan. 27, 1984. Decided March 5, 1984. Frederick L. Whitmer (argued), Pitney, Hardin, Kipp & Szuch, Morristown, N.J., for appellee. Moonyene S. Jackson (argued), Montclair, N.J., Brenda J. Saunders, Irvington, N.J., for appellant. Before GIBBONS and BECKER, Circuit Judges, and DUMBAULD, District Judge. Honorable Edward Dumbauld, United States District Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT BECKER, Circuit Judge. This is a copyright infringement case that presents the question whether a court can order an infringer of a copyrighted musical work to re-create the work on pain of a contempt penalty because the copyright owner has lost all its copies of the work. Appellant Alberta Bradford is the executrix of the estate of her husband, Alex E. Bradford, who was the composer of the musical plays Your Arm’s Too Short to Box with God and Don’t Cry Mary, or What’s a Friend For, both of which are involved in this lawsuit. The two questions raised by these appeals — the first relating to the correctness of the denial of Mrs. Bradford’s Rule 60(b) motion, and the second concerning the re-creation issue mentioned above— can be understood only against the background of the complex procedural history of this case, to which we now turn. I. Plaintiff, Blue Pearl Corporation, was organized in 1975 and was originally owned equally by three shareholders, Richard Becker, Newton Burkett, Jr., and the composer, Alex E. Bradford. By assignment from Bradford, Blue Pearl acquired the copyrights to Bradford’s musical compositions, including all rights to promote, license, or otherwise control them. On February 27, 1981, after two prior lawsuits, Blue Pearl filed suit against Alberta Bradford as executrix of the estate of her late husband, claiming continuing infringement of Blue Pearl’s copyright to Alex Bradford’s musical compositions. No appearance was entered on Mrs. Bradford’s behalf in this suit and on June 26, 1981, the district court entered a default judgment against Mrs. Bradford. The court enjoined Mrs. Bradford from further infringement of plaintiff’s copyright, directed her to turn over all lead sheets and other copyrightable materials in her possession to Blue Pearl, and required her to provide written notice of Blue Pearl’s copyright to certain music publishing companies that Blue Pearl would identify. The final order also provided for a hearing on damages. On November 12, 1981, the damages hearing was held. Mrs. Bradford again did not appear. On November 20, 1981, the magistrate issued a report and recommendation concluding that Blue Pearl had established seven separate instances of infringement by Mrs. Bradford, and that on each occasion Mrs. Bradford willfully infringed Blue Pearl’s copyright. The magistrate recommended an award of damages pursuant to 17 U.S.C. § 504(c) in the amount of .$105,000. The district court adopted the report and recommendation and entered judgment in favor of Blue Pearl on December 1, 1981. On November 19, 1982, Mrs. Bradford finally responded to Blue Pearl’s lawsuit by filing an “Answer and counterclaim and demand for jury trial” and a separate “Motion to vacate and set aside judgment of damages and motion to vacate and set aside default judgment and to restore the matter to the active calendar.” Blue Pearl made a cross-motion to hold Mrs. Bradford in contempt of court and for sanctions for her breach of the provisions of the June 1981 judgment. After a hearing the district court denied Mrs. Bradford’s rule 60(b) motion to vacate and, on March 29, 1983, granted Blue Pearl’s cross-motion for eon-tempt. Mrs. Bradford has appealed both decisions. II. The first question presented by these appeals is whether the district court erred in denying Mrs. Bradford’s motions under Rule 60(b) to vacate the default judgments enjoining her from further infringement of Blue Pearl’s copyright and awarding damages. The district court’s denial of the appellant’s Rule 60(b) motion is reviewable only for abuse of discretion. See In re Eastern Sugar Antitrust Litigation, 697 F.2d 524, 528 (3d Cir.1982). We have carefully reviewed the record — the convoluted history of this case is adumbrated above and is more fully set out in the district court’s comprehensive opinion — and conclude that, because of Mrs. Bradford’s dilatory conduct and the lack of any justification for opening the judgment at this late date, the district court did not abuse its discretion in refusing to vacate the default judgments. III. We have substantially more difficulty with Mrs. Bradford’s second point, which arises in connection with her appeal from the district court’s March 29, 1983, order and judgment holding her in contempt for failing to comply with the June 26, 1981, default judgment. Our concern centers on that portion of the contempt order that states: IT IS ORDERED, ADJUDGED AND DECREED that, pending full compliance by defendant Alberta Bradford with this court’s order of June 26,1981, by delivering to plaintiff of all copyrighted materials in her possession or by recreating all copyrightable materials which were previously but are no longer in her possession and delivering same to plaintiff, including tapes of the materials, defendant Alberta Bradford shall deliver to the clerk of this court $50.00 for every day that she fails to comply with this order for as long as she remains in contempt until further order of this court, .... (emphasis added). This order to re-create is not subsumed in either of the previous orders of the district court and therefore the appeal is timely. In answer to our request for supplemental briefing on the issue of the authority of the district court to order a copyright in-fringer to re-create a copyrighted work, the parties have been unable to cite us to any authority in either the copyright case-law or any analogous area of the law that holds that the district court can order such relief. This case is somewhat analogous to cases that discuss the availability of specific performance for breach of a personal services contract. The leading case that discusses the propriety of a court decree that orders a party to perform personal services is the classic contract-law case of Lumley v. Wagner, 42 Eng.Rep. 687 (1852) (court cannot order opera singer to sing). Lumley stands for the time-honored common-law rule that a plaintiff can recover damages for breach of a personal-services obligation, but a court will not order specific performance. Lumley and its progeny thus do not aid Blue Pearl. Furthermore, there is nothing in the record that would support the extreme remedy of re-creation. We therefore conclude that the district court exceeded its authority in ordering Mrs. Bradford to re-create the lost copyrighted works of her deceased husband. IV. For the reasons stated above, we will affirm the district court’s denial of Mrs. Bradford’s motion to vacate the default judgments. However, we will vacate the March 29, 1983, order to the extent that it requires Mrs. Bradford to “re-create” her deceased husband’s copyrighted works, and we will remand to the district court for further proceedings consistent with this opinion. . Your Arm’s Too Short to Box with God was a Broadway hit and has had at least one nationwide run. . In 1976 Burkett and Becker filed an action in Superior Court of New Jersey, Chancery Division, Union County, individually and as shareholders, suing on behalf of Blue Pearl, against Bradford, Bradford’s interest in Blue Pearl, and Broadcast Music, Inc. (BMI), arising out of Bradford’s breach of his contract with Blue Pearl, his representing himself as sole owner of rights to his compositions, and his purporting to license compositions to BMI. That action was eventually settled. In 1978 Becker purchased Burkett’s one-third interest in Blue Pearl. In 1979 Blue Pearl filed a copyright-infringement action in the District Court for the District of New Jersey against the present defendant Alberta Bradford and the estate of Alex E. Bradford. Defendants filed a third-party claim against Becker. In a settlement conference before a magistrate, Mrs. Bradford acknowledged that Blue Pearl was the sole owner of all rights to Bradford’s compositions. This action was also eventually settled. . In addition to the question of the general propriety of an order to re-create a copyrighted work, we are also troubled by the vagueness of the order in this case. It is unclear from reading the order exactly what Mrs. Bradford is expected to re-create. Certainly the musical play your Arm’s Too Short to Box with God is such a famous and oft-performed musical that there are many copies of the work other than in Mrs. Bradford’s head (if it is in fact in her head — an allegation her counsel denies). And, according to the record in this case, Blue Pearl has a videotaped copy of the musical work Don’t Cry Mary, or What’s a Friend For performed on television by Mrs. Bradford. Thus, Blue Pearl apparently has independent access to copies of the only two musical works of Mr. Bradford that are mentioned by name in the record of this case. The record seems to indicate that there may be other works of Alex Bradford that have been lost, but if it is these unnamed musical works that are the subject of the district court’s re-creation order then the order is certainly too vague to survive appellate scrutiny. . If, for example, the record disclosed that the appellant had stolen the only copies of the musical works in question from the appellee and then destroyed them, and the record further disclosed that she had committed the works to memory, that she was technically competent to re-create them, and that she was the only person in the world who could re-create the lost material, then an order to “re-create” might arguably be permissible. However, we see no facts in the record even approaching this hypothesized scenario. Indeed, the record is curiously silent as to why Blue Pearl, the owner of the copyrighted works in question, no longer has any copies of the materials. Certainly there is nothing in the record that suggests that it is the appellant’s fault that the appellee has lost all copies of Mr. Bradford’s musical works. . We note by way of contrast with the order to re-create, that the district court’s June 26, 1981, order requiring Mrs. Bradford to “forthwith deliver over to Blue Pearl Music Corporation all manuscripts, leadsheets, and other documents together with all copies thereof, which embody the literary, dramatic, choreographic, artistic, and/or other literary works of Alex E. Bradford.....”, is expressly authorized by the Copyright Act. See 17 U.S.C. § 503. . In her appeal Mrs. Bradford raises thirteenth amendment objections to the district court’s re-creation order. We do not reach this constitutional contention because we vacate the recreation order on the narrower ground that the district court abused its discretion. . The appendix prepared by the appellant did not contain all the materials required by court rule and was not properly paginated. For the convenience of the court, the appellee prepared a supplemental appendix that conformed with rule 30(a) of the Federal Rules of Appellate Procedure and rule 10(3) of this court. Since the cost of preparing an adequate appendix is normally borne by the appellant, see Fed.R. App. P. 30(b), we will order that the appellant reimburse the appellee for its cost in preparing the supplemental appendix. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_constit	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Charles McCORKLE, Plaintiff-Appellant, v. W.E. JOHNSON, Warden, Joseph Kolb, Chaplain, Freddie V. Smith, Commissioner, Defendants-Appellees. No. 88-7478 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Aug. 24, 1989. P. David Bjurberg, David Christy, and Beth Jackson Hughes, Asst. Attys. Gen., Montgomery, Ala., for defendants-appel-lees. Before VANCE, JOHNSON and CLARK, Circuit Judges. PER CURIAM: The judgment of the district court is AFFIRMED on the basis of the memorandum opinion entered by the district court on July 13, 1988. (Attached hereto as Appendix.) APPENDIX In The United States District Court For The Southern District of Alabama Southern Division Charles McCorkle, Plaintiff, vs. W.E. Johnson, et al., Defendants. Civ. A. No. 84-0918-C MEMORANDUM OPINION This action was referred to the Magistrate for submission of recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate submitted recommendations, and timely objections to those recommendations were filed by the plaintiff. In accordance with 28 U.S.C. § 636(b)(1)(C), the court has made a de novo determination of those portions of the Magistrate’s recommendations to which objections were made. Charles McCorkle, a state prisoner confined in the Holman facility, filed this complaint pursuant to 42 U.S.C. § 1983 seeking redress for the deprivation of his First Amendment right to freely exercise his chosen religion. The defendants are prison officials who allegedly impinged on the plaintiff’s practice of the Satanic “religion” by denying plaintiff’s request for access to certain Satanic books and articles, including The Satanic Bible, The Satanic Book of Rituals, and a Satanic medallion. Their defense is three-fold: (1) Satanism is not a religion entitled to First Amendment protection; (2) assuming it is a religion, the plaintiff is not a sincere believer in Satanism; and (3) access to the requested books and medallion would pose a threat to the security of the prison. The Magistrate held that all three defenses were valid and recommended that judgment be entered in favor of the defendants. The threshold questions of whether Satanism is a religion and, if it is, whether plaintiff is a sincere believer need not be decided since it is clear that, even if these questions are answered affirmatively, the challenged prison policy does not violate the Free Exercise Clause of the First Amendment as it is applied to the States through the Fourteenth Amendment. When it is alleged that a prison policy impinges on an inmate’s constitutional rights, the policy is valid “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Giving the deference that is due to the officials charged with prison administration, see Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977), the court finds that the policy at issue in the present case successfully withstands this scrutiny; it is not an exaggerated response to the situation. There are several factors which are relevant in determining the reasonableness of this policy. First, there must be a “valid, rational connection” between the prison restriction and the legitimate governmental interest put forward to justify it. Turner, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). The restriction at issue here clearly meets this standard. The prohibition on Satanic materials such as those requested by the plaintiff is justified by the defendants’ concern for institutional security and order. It is an informed and measured response to the violence inherent in Satan worship, and to the potential disorder that it might cause within the prison. Testimony at the evidentiary hearing turned gruesome when the plaintiff recounted two of the rituals espoused by The Satanic Book of Rituals. The fertility ritual includes the sacrifice of a female virgin, preferably a Christian. Also explained in this book, according to the plaintiff, is the initiation ritual. Wrist-slashing, blood-drinking, and the consumption of human flesh — usually fingers — are some of the gory highlights of this ceremony. The plaintiff quipped that hopefully the person whose flesh is eaten is alive at the end of the ritual. Candles, a common item in many religious ceremonies, are also used in the Satanic rituals. However, the candles preferred by the plaintiff and other Satanists are not made of wax or paraffin; instead, they are made from the fat of unbaptized infants. An inmate witness subpoenaed by the plaintiff testified that he has observed the plaintiff performing certain Satanic rituals within Holman Prison on several occasions. According to this testimony, the plaintiff, as part of these rituals, drew his own blood by slicing his wrist or using a needle, and burned paper. Mr. McCorkle has also asked other inmates for their blood. Approximately three years ago, one inmate got highly irritated when the plaintiff requested that he donate a vial of blood for use in the worship of Satan. The teachings of The Satanic Bible, which the plaintiff claims to wholeheartedly believe, and desires to study, also present a significant threat to security and order within the prison. W.E. Johnson, Warden of Holman Prison, testified that upon review of The Satanic Bible, he concluded that persons following its teachings would murder, rape or rob at will without regard for the moral or legal consequences. Moreover, Warden Johnson thought that the plaintiff’s safety would be threatened if other inmates became aware of the contents of The Satanic Bible. Accordingly, he denied plaintiff’s requests. Testimony from proclaimed Satanists, and an independent review of the book, confirms Warden Johnson’s conclusions about the beliefs of Satanists. A “master counselor” of a Satanic sect testified that the premise underlying all of the teachings in The Satanic Bible is that life should be lived according to individual desires without regard for conscience or consequences. Certain portions of the book are somewhat harsher. For instance, in the chapter entitled “The Book of Satan,” author Anton Szandor LaVey states that right and wrong have been inverted too long. He challenges readers to rebel against the laws of man and God. Furthermore, LaVey declares that hatred of ones enemies is of utmost importance; revenge should be a top priority. Clearly, practices such as those described above, and the beliefs that encourage them, cannot be tolerated in a prison environment since they pose security threats and are directly contrary to the goals of the institution. Allowing the plaintiff access to the requested books and medallion would only encourage such behavior. Thus, it cannot be said that the policy in question is arbitrary; rather, it is logically connected to the governmental interests asserted. A second factor relevant in determining the reasonableness of a prison restriction is that alternative means of exercising the asserted right remain open. Turner, 107 S.Ct. at 2262. The inquiry here is whether, under the restrictions imposed, the plaintiff is deprived of all means of practicing his “religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 2406, 96 L.Ed.2d 282 (1987). Testimony at trial revealed that the plaintiff and other members of the various Satanic sects in Holman Prison are practicing Satanists despite the deprivation of the books and medallion requested by the plaintiff. Moreover, plaintiff indicated that he wears a duplicate medallion and has memorized portions of both The Satanic Bible and The Satanic Book of Rituals. Clearly, the restrictions about which plaintiff complains have not foreclosed all avenues of his worship of Satan. A third consideration in the reasonableness inquiry is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. Turner, 107 S.Ct. at 2262. Warden Johnson justifiably believes that books and memorabilia that teach hatred for one’s fellow man and disrespect for laws and legal order, and that encourage and explain the practice of violent acts such as flesh-eating and blood-letting, pose substantial threats to prison security and order, and are contrary to the rehabilitative goals of the institution. Consequently, the plaintiff’s asserted right to freely worship Satan can be exercised only at significant costs to guards, other prisoners, and society in general. Where such a trade-off is necessary, the choice made by prison officials should not be lightly set aside by the court since such judgments are peculiarly within their province. See Turner, 107 S.Ct. at 2263, (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)). Finally, the presence of workable alternatives is evidence of the unreasonableness of the restrictions imposed. Turner, 107 S.Ct. at 2262. Plaintiff, however, has not offered any alternatives that would fully accomodate his asserted rights at a de min-imis cost to the valid penological interests that gave rise to the imposed restrictions. The restrictions challenged by the plaintiff are reasonably related to valid penological interests. Accordingly, the court refuses to substitute its judgment on difficult matters of prison administration for the determinations of those charged with the formidable task of running a prison. See O’Lone, 107 S.Ct. at 2407. The court will by separate document enter final judgment dismissing the plaintiff’s complaint on the merits. DONE this 13 day of July, 1988. Emmett R. Cox UNITED STATES CIRCUIT JUDGE SITTING BY DESIGNATION Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_r_subst	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LOUISVILLE JOINT STOCK LAND BANK v. RADFORD. No. 6959. Circuit Court of Appeals, Sixth Circuit. Feb. 11, 1935. J. E. Tarrant and William Marshall Bullitt, both of Louisville, Ky. (J. E. Tarrant, of Louisville, Ky., on the brief), for appellant. E. A. Krauthoff, of Chicago, 111., Harry H. Peterson, of St. Paul, Minn., and William Lemke, of Washington, D. C. (P. O. Sathre, of Bismarck, N. 1)., David A. Sachs, Jr., of Louisville, Ky., and Frank Rives, of Hopkinsville, Ky., on the brief), for appellee. Robert II. Winn, of Mount Sterling; Ky., amicus curise. Before MOORMAN, HICKS, and SI-MONS, Circuit Judges. Writ of certiorari granted 55 S. Ct. 547, 79 L. Ed.- SIMONS, Circuit Judge. This appeal, seasonably allowed by us and by the District Court, raises questions in respect to the constitutionality of section 75 of the Bankruptcy Act, as amended by the Frazier-Lemke Act of June 28, 1931 (adding subsection (s), 11 USCA § 203). The facts are not in dispute, and are sufficiently found in the opinion of the District Judge. In re Radford, 8 F. Supp. 489. The bankrupt is a farmer. In 1922 he borrowed $8,000 and in 1924 an additional $1,000 from the appellant bank, giving as security mortgages on his 170-acre farm in Christian county, Ky., the mortgages containing covenants to pay taxes and to keep the buildings insured. Upon default in the payment of principal, interest, and taxes, and through allowance of insurance to lapse, the bank, pursuant to the terms of the mortgages, declared the entire indebtedness thereon due and payable, and on June 5, 1933, filed a foreclosure suit in the circuit court of Christian county. Later the bank moved for the appointment of a receiver, but, upon being informed by the conciliation commissioner of the county that Radford desired to avail himself of the benefits of section 75 of the Bankruptcy Act (11 USCA § 203), providing for agricultural compositions and extensions, the court declined to appoint the receiver, and stayed the foreclosure suit. On February 26, 1934, Radford filed in the United States District Court his petition and schedule under section 75. On June 30, 1934, the Christian county circuit court entered judgment for the bank for the full amount of Radford’s indebtedness, sustained the mortgages as a first lien upon his farm, and ordered the property sold by the master commissioner. Before the sale could be had, Radford, on August 6, 1934, filed in the District Court an amended petition under the Frazier-Lemke Act, asking to be adjudged a bankrupt; that proceedings against him be stayed for a period of five yeans; that he be allowed to retain possession of the property during that period; and that he be given an option to purchase the mortgaged property at its appraised value at its termination. The bank intervened and answered, alleging section 75 as amended to be unconstitutional, asking dismissal of the bankruptcy proceedings, and that it be allowed to pursue its remedies in accordance with the judgment of the circuit court. Rad-ford admitted the allegations of fact in the answer, and the case was submitted upon the pleadings. The court held section 75 and the Frazier-Lemke Amendment constitutional, adjudged Radford a bankrupt, and referred the cause to the referee for further proceedings. Radford then petitioned to have his property appraised, his exemptions set aside, and that he be allowed to retain possession of the property and pay for it under the terms of subsection (s) of section 75 of the Bankruptcy Act (11 USCA § 203 (s). The referee appointed appraisers, who appraised all of Radford’s property, and fixed the fair and reasonable value of the mortgaged property at $4,445. The bank in open court offered to pay $9,205.09 in cash for the mortgaged property, but the referee refused to consider the offer, approved the report of the appraisers, fixed the fair and reasonable value at $4,445, and ordered that possession thereof should remain in Radford, subject to a general lien in the trustee as security for the payment of the value of the property. Radford thereupon requested the trustee to sell him the mortgaged property under the terms and conditions of paragraph (3) of subsection (s) of section 75 of the act, 11 USCA § 203 (s) (3). The bank refused consent, and filed its written'objections thereto. Radford then petitioned the court to stay all proceedings against him for five years, and to allow him to retain possession upon a reasonable annual rental to be fixed by the court. The petition was granted, proceedings were stayed, the bank enjoined from enforcing its mortgage lien for five years, and Radford allowed to retain possession on payment of $325 on May 1, 1935, as rental for the first year, with rental for subsequent years to be fixed by the court. Upon a petition to the District Court for review, the referee’s orders were sustained, and the bank took its appeal. Section 75 of the Bankruptcy Act, as originally enacted, was part of_the Act of March 3, 1933, entitled “Provisions for the Relief of Debtors.” It provided that any farmer claiming to be insolvent or unable to.meet his debts might file a petition for composition or an extension. This automatically gave the bankruptcy court the same power and jurisdiction over the farmer and his property as if a voluntary petition for adjudication had been filed, and a decree of adjudication entered. Thereupon all proceedings against the farmer and his farm property, including his home and household effects, were stayed, except for the collection of taxes. The proposed composition or extension could be confirmed by the court only upon written acceptance by a majority of creditors in number and amount, but such composition or extension might not reduce the amount of or impair the lien of a secured creditor, but affect only the time and method of its liquidation. The Fra-zier-Lemke Act of June 28, 1934, is an amendment to section 75 of the Act of March 3, 1933. Its text is fully set forth in the opinion of the District Judge, and it is therefore not necessary to burden this opinion with It. It is sufficient for our purpose to say that it provides that a farmer failing to obtain the necessary consent to the terms of a composition or extension may by amended petition ask to be adjudged a bankrupt and secure the appointment of appraisers, who shall appraise all of his property at its then fair and reasonable value, not necessarily its market value, and, after such appraisal, and after his exemptions under the state law have been set aside to him, then upon an agreement with the lienholders the trustee in bankruptcy must sell back to him all or any part of his property upon the terms specified in the act, but that, if any secured creditor refuses to consent to such sale, the court shall stay all proceedings for a period of five years, during which time the farmer may retain possession of all or any part of his property, provided he pays a reasonable annual rental therefor. At any time within five years the farmer may obtain full possession and title to his property by paying into court either its original appraised value, or, in the case of mortgaged real estate, a reappraised price at the option of the lien-holder, and may apply for his discharge in bankruptcy. The provisions of the act apply, however, only to debts existing on Jttne 28, 1934. The legislation in respect to its validity under the Federal Constitution is attacked on two main grounds. It is asserted (1) that section 75 as amended i.s not a law on the subject of 'bankruptcies and does not deal with any subject over which power is delegated to Congress, and so is in contravention of the Tenth Amendment to the Constitution of the United States; and (2) that it deprives creditors of their property without due process of law, and is therefore in contravention of the Fifth Amendment to the Constitution. The power to legislate with respect to bankruptcies is conferred upon the Congress by the fourth clause of section 8 of article 1 of the Constitution, whereby there is vested in it the power “ * * * to establish * * * uniform laws on the subject of bankruptcies throughout the United States.” This power is conferred by express grant, and is, so far as the granting clause is concerned, without qualification or limitation. “The power of Congress to establish uniform laws on the subject of bankruptcies throughout the United States is unrestricted and paramount.” International Shoe Co. v. Pinkus, 278 U. S. 261, 265, 49 S. Ct. 108, 110, 73 L. Ed. 318. On the first ground it is said that a law is not one on the subject of bankruptcies which does not provide for the speedy distribution of an insolvent debtor’s assets among his creditors. The contention is that the attacked legislation fails to meet this test in providing that the debtor may at his option retain his property, that his debts may be reduced to the fair and reasonable value of his property, not necessarily the market value, and that he shall have a five-year moratorium on the payment of this reduced amount. Whatever may have been the primary purpose of bankruptcy laws, their historical development and the concept of an earlier day, illustrated by the provisions of English bankruptcy statutes and colonial insolvency laws, it is now established that the subject of bankruptcies includes, not only the ratable distribution of the debtor’s property, but the discharge of the bankrupt from his obligations. No commentary upon the„ connotation of the constitutional phrase has been so often quoted as that of Mr. Justice Catron in the case of Matter of Klein, reported in the note to Nelson v. Carland, 1 How. 265, 277, 11 L. Ed. 126: “I hold, it extends to all cases where the law causes to be distributed, the property of the debtor among his creditors : this is its least limit. Its greatest, is a discharge of the debtor from his contracts. And all intermediate legislation, affecting substance and form, but tending to further the great end of the subject — distribution and discharge — are in the competency and discretion of Congress. “With the policy of a law, letting in all classes, others as well as traders; and permitting the bankrupt to come in voluntarily, and be discharged without the consent of his creditors, the courts have no concern; it belongs to the’ lawmakers.” To this conjment the Supreme Court gave approval in Hanover National Bank v. Moyses, 186 U. S. 181, at page 186, 22 S. Ct. 857, 46 L. Ed. 1113. Whether the limits drawn by Mr. Justice Catron mark the ultimate of the modern concept of bankruptcy it is not necessary to decide, for they are sufficient for present purposes. It has been said that distribution of property is the principal object to be attained, and that the discharge of the debtor is merely incidental, U. S. v. Fox, 95 U. S. 670, 24 L. Ed. 538. This but illustrates the historical development of bankruptcy legislation. Judge Taft, speaking for this court in Leidigh Carriage Co. v. Stengel, 95 F. 637, 647, enumerates the purposes of bankruptcy acts in the order of their chronological development rather than in the order of their present importance when he declares that the third purpose of a Bankruptcy Act is “to relieve debtors from the burden of debts which, through business misfortunes and otherwise they have incurred, and which they are unable to pay.” One of the tests applied to state insolvency laws to determine whether they invade the field conveyed to and occupied by the Congress is to ascertain whether they contain provisions for the discharge of the insolvent debtor from all or part of his debts. If they do, the statute is one of bankruptcy. Pobreslo v. Joseph M. Boyd Co., 287 U. S. 518, 53 S. Ct. 262, 77 L. Ed. 469; Johnson v. Star, 287 U. S. 527, 53 S. Ct. 265, 77 L. Ed. 473; International Shoe Co. v. Pinkus, supra. While this may not be the sole test, it is undoubtedly an important one. See “What is a Bankruptcy Act,” by Prof. Max Radin, vol. 20, American Bar Association Journal, 792. It is an undoubtedly desirable concomitant of bankruptcy legislation that distribution of the debtor’s assets be made as speedily as is consistent with the attainment of the principal objectives of such laws, but that prompt distribution is a necessary prerequisite to the exercise of the granted power we doubt, and no cited case so holds. Observations on the manifest purpose of specific statutes are not to be interpreted as limitations upon a constitutional power, nor is its exercise to be based upon a standard so elastic as to shift with varying judgments based upon differences of time and circumstance. Even so it is doubtful whether the courts will oppose their judgment as to what constitutes speedy distribution to that of the Congress, except as the legislative standard may be so grossly arbitrary and unreasonable as to offend against the due process clause of the Fifth Amendment, to be hereinafter discussed. The challenged statute provides for ratable distribution of the bankrupt’s assets among his creditors. It provides for his discharge. That it also in response to a manifest public purpose opens the door of opportunity to his ultimate rehabilitation is not of itself destructive of the character of the legislation as within the constitutional grant of power. The limitation of its assailed provisions to a single class does not invalidate it if the classification be reasonable, for the uniformity required by the Constitution is geographical and not personal. Hanover National Bank v. Moyses, supra. Compositions have generally been regarded as in some respects outside of bankruptcy proceedings, but nevertheless as reasonably auxiliary thereto. Provisions in bankruptcy statutes for compositions have never been held to invalidate them, though the creditor by reason thereof receives but his pro rata share of the fair value of the bankrupt’s assets, while the debtor retains possession and title to his property. Of course, with respect to consenting creditors, it is a matter of agreement, In re Lane (D. C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U. S. 447, 452, 35 S. Ct. 636, 59 L. Ed. 1042, yet it is coercion as to nonassenting creditors, however, it may be rationalized by considering creditors as a class with the will of the majority enforced upon the minority. Nor has the provision in bankruptcy acts permitting trustees to sell mortgaged property free and clear of lien been considered destructive of their validity as acts upon the subject of bankruptcy. “To transfer the lien from the property to the proceeds of its sale is the exercise of a lesser power [than sale]; and legislation conferring it is obviously constitutional.” Van Huffel v. Harkelrode, 284 U. S. 225, 228, 52 S. Ct. 115, 116, 76 L. Ed. 256, 78 A. L. R. 453. It must be remembered that constitutional power is not necessarily confined within those limits within which the Congress has hitherto seen fit to exercise it. The novelty of a provision is no demonstration of its invalidity. The grant to Congress of the power to establish bankruptcy laws involves the power to impair the obligation of contracts — this the States are by the Fourteenth Amendment forbidden to do. Hanover National Bank v. Moyses, supra. No case has been cited which limits this power to contracts which are unsecured, and none has been found. On the contrary, it has frequently been held that private contracts may not impose a restriction upon the exercise of a constitutional power, Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 485, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Monongahela Bridge Co. v. U. S., 216 U. S. 177, 193, 30 S. Ct. 356, 54 L. Ed. 435; Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 229, 20 S. Ct. 96, 44 L. Ed. 136, and preferences valid under state law have been destroyed by the exercise of federal power under the bankruptcy clause. The subject of bankruptcies comprehends every phase of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his or their relief. In re Reiman, 20 Fed. Cas. 496, No. 11,673 (D. C. N. Y.), affirmed Fed. Cas. No. 11,675 (C. C. N. Y.). We come then to the contention that the assailed statute offends against the due process clause of the Fifth Amendment. Conceding that the due process clause limits the power or the manner of its exercise under the bankruptcy clause, it nevertheless does not vitiate it. The Constitution is not self-destructive — “the powers which it confers on the one hand it does not immediately take away on the other.” Billings v. U. S., 232 U. S. 261, 282, 34 S. Ct. 421, 424, 58 L. Ed. 596; McCray v. U. S., 195 U. S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. Perhaps all that is or can be said from the point of view of the appellant is expressed in Hanover National Bank v. Moyses, supra: “Congress may prescribe any regulations concerning discharge in bankruptcy that arc not so grossly unreasonable as to be incompatible with fundamental law,” and this is the test that we apply to the contentions upon which the validity of the statute is attacked. While the Congress does not by reason of a national emergency draw unto itself under the bankruptcy clause powers not previously possessed, since “emergency does not create power,” yet the existence of an emergency is not to be ignored when validity is to be determined by the reasonableness of the extent to which, and the means by which, constitutional power is exercised, assuming limitations upon such power exerted by the due process clause. That the assailed legislation was conceived in emergency and addressed to the legitimate end of relieving widespread national distress is implicit in the provisions limiting the operation of paragraph 7 of section 75 (s) of the act, 11 US CA § 203 (s) (7), to debts existing June 28, 1934, providing that it shall expire in 1938, and by the declaration of policy in substantially contemporaneous amendments to the Bankruptcy Act. That the Frazier-Lemke Act does not itself contain an express declaration of a policy based upon the existence óf an emergency is unimportant. A declaration by the Legislature as to the existence of an emergency, while entitled to great weight, is not conclusive. Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. It must follow that the absence of such formal declaration, if the purpose and policy of the act be otherwise disclosed, is equally inconclusive, and the courts are not required to close their eyes to that which everybody knows exists. In considering whether the regulations concerning discharge are so grossly unreasonable as to be incompatible with fundamental law, we apply, therefore, a criterion which itself is not one of unyielding rigidity or narrow conception. “There has been a growing appreciation,” said the Supreme Court in Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 442, 54 S. Ct. 231, 241, 78 L. Ed. 413, 88 A. L. R. 1481, “of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare.” As a leading text-writer has put it: “The concept of the balance of convenience between private rights and public welfare runs throughout the entire scope of due process.” Mott, Due Process of Law (1926), 597. It follows, if these observations are sound, that the exercise of constitutional power in the public interest is not to be limited by considerations of form rather than of substance, and that the fair intent of the constitutional limitation in the Fifth Amendment no more precludes the Congress from meeting the public need because of a pressing public disaster than does that in the Fourteenth Amendment constrain the states in similar situations so long as the relief afforded has reasonable relation to the legitimate end to which the legislation is directed. W. B. Worthen Co. v. Thomas, 292 U. S. 426, 433, 54 S. Ct. 816, 78 L. Ed. 1344, 93 A. L. R. 173. The public welfare sought to be conserved by the assailed legislation not only transcends the interest of the class to be affected, but is rooted in the traditional policy of the United States to prevent the development of a great class of dependent tenant farmers comparable to the peasantry of European states. This policy was early reflected in the disposition of the public domain, the homestead laws, and the limitations written into ,the railroad land grants restricting sales in quantity and price and to actual settlers. Oregon & California R. Co. v. U. S., 238 U. S. 393, 35 S. Ct. 908, 59 L. Ed. 1360. This is not to say that substantial private rights must yield to public policy in the face of constitutional limitation, but is indicated as an aid to determining whether constitutional power has been arbitrarily or unreasonably exercised or the balance between individual int crests and the public welfare destroyed. We pass without consideration the arguments advanced to show that the law is unreasonable or arbitrary with respect to the rights of sureties or unsecured creditors. The appellant is not a surety, nor does the record disclose that its debt is secured otherwise than by mortgage. Neither is it an unsecured creditor. Having offered to pay to the trustee for the mortgaged property an amount equivalent to the total of the mortgage debt and to step out of the bankruptcy proceedings with its mortgages fully discharged, it may become an unsecured creditor if at all only by the failure of its assault upon the statute, and then to the extent of the deficiency that may result after purchase by the bankrupt at appraised value. It is settled that the constitutionality of a statute may be considered only when the justification for some direct injury suffered or threatened presenting a justiciable issue is made to rest upon the enforcement of the act. See City of Allegan v. Consumers’ Power Co., 71 F.(2d) 477, 481 (C. C. A. 6), and authorities there cited. The record presents no issue as between the bankrupt and unsecured creditors. Complaint is made, however, that the statute prevents the appellant from enforcing its mortgages for an arbitrary period of five years, and this without relation to the continuance of an emergency; that the rental terms are unreasonable; that no provision is made for taxes and insurance, or for the prevention of waste; that the interest on the mortgage debt is wiped out; that fixing the value of the debtor’s property at its fair and reasonable value, not necessarily its market value, is arbitrary, unreasonable, and capricious; that all risk of decline in value is borne by the mortgagee; and, generally, that part of its debt is confiscated for the benefit of the mortgagor. As to the first)’ it may be sufficient to say that any forecast as to the extent and, duration of the emergency must necessarily be uncertain, and we are unable to say until “experience is available to correct uncertain prophesy” that the judgment of the Congress after hearing and deliberation is wrong. But the appellant gives no challenge to the present existence of the emergency, and manifestly can give none. We are not obliged to speculate as to validity of the statute at another time and under other circumstances. “A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed,” Chastleton Corp. v. Sinclair, 264 U. S. 543, 547, 548, 44 S. Ct. 405, 406, 68 L. Ed. 841, and “it is always open to judicial inquiry whether the exigency still exists upon which •the continued operation of the law depends,” Home Bldg. & Loan Ass’n v. Blaisdell, supra. The principal inquiry, however, that suggests itself in relation to the appellant’s grievance, and this in respect to all of the specifications of its complaint, must concern itself with consideration of what it is in fact deprived through the operation of the challenged law. It is true that the appellant will not be able to collect the face value of its mortgages, nor the accrued interest thereon. But this is a loss it has already sustained, not through the operation of the statute, but through the default, insolvency, and bankruptcy of its debtor. But for the bankruptcy, it would still have its right to foreclose and to bid in the property. It is by the measure of that right that the reasonableness of section 75 must be judged. The appraisers have declared, and the court has found, that the fair value of the mortgaged property is $4,445. The fairness of the appraisal is not attacked. That the appellant offered to buy the property from the trustee for an amount equal to the mortgage debt is of course beside the point. Such offer can have no possible bearing upon the fair value of the property. It is this value that forms the base for the price the bankrupt is to pay upon the exercise of his option. True, the mortgagee, upon bidding in the property under foreclosure, has the expectation that by holding the property for a time values may be restored, and it may recoup part or all of its loss. The statute does not take from him this opportunity. It provides for a reappraisal at the end of five years — the option period — upon the mortgagee’s request, and the debtor must pay the reappraised price or the original appraised value at the mortgagee’s option. If in composition proceedings nonassenting creditors may be compelled, without valid constitutional objection, to accept in discharge of their claims their pro rata share of the fair value of the bankrupt’s assets— if under the doctrine of Van Huffel v. Harkelrode, supra, it is “obviously constitutional” to transfer the creditor’s lien from the bankrupt’s property to the proceeds of its sale — we can see no constitutional bar to the substitution for the value of the appellant’s right to foreclose the fair value of the mortgaged property. But the appellant complains that the provisions for appointment of appraisers is arbitrary and unreasonable, and that the appraisal of the security at its “fair and reasonable value, not necessarily its market value,” somehow offends against due process. It has never been thought that, in the taking of private property for public use under the power of eminent domain, an award made by a jury or commissioners under the supervision of a court violates the due process clause or results in taking private property without just compensation. The appraisals are by paragraph (1) of section 75 (s) of the act, 11 USCA § 203 (s) (1), subject to the right of exceptions, objections, and appeal, in accordance with the act. This obviously means the Bankruptcy Act of which the Frazier-Lemke Act has become a component part. If there is any doubt about this, construction must under familiar principles of statutory interpretation be arrived at to the end that validity rather than invalidity results. An appraisal at “fair and reasonable value, not necessarily market val-tie,” must necessarily mean that market value is the minimum value to be found beyond which other circumstances may be considered to arrive at “fair value.” It is inconceivable that an appraisal aiming at fair value will ever be lower than market value, or, if so, would stand the test of judicial review. When the appellant complains of its loss of interest during the option period, or the insufficiency of the rental to pay taxes, insurance, and repairs, it still speaks in the terms of the mortgage covenants rather than with an evaluation of its remedies for broken contracts, and is tilting at economic distress rather than at the reasonableness of the challenged statute. The foreclosure that is stayed would have brought it no interest, and reasonable rental value has always been the compensatory equivalent for deprivation of the use of property in the eyes of the law. Nor is there substance to the grievance that the property will be seized for taxes and deteriorate through waste. Rentals are to he paid to the bankruptcy trustee, who is still under the supervision of the referee and the court. There is no warrant for the assumption that the trustee may or will be permitted to be less diligent with respect to his duties than with bankrupt estates generally. Moreover, the property is by subsection (b) of section 75 (11 USCA § 203 (b) placed under the supervision of the conciliation commissioner, and the rights of the appellant to invoke the protection of the bankruptcy court as a court of equity are not less under the assailed statute than are those of mortgagees or lessors generally. Finally, the grounds of complaint are in many respects similar to those upon which the constitutionality of section 77 of the Bankruptcy Act, 11 USCA § 205 (providing for corporate reorganizations) has been assailed. While we express no opinion upon the validity of that section, the constitutionality of which will presently be passed upon by the Supreme Court, it is important to note that, so far as its provisions are similar to those here considered, they have not generally been considered incompatible with validity. In re Chicago, R. I. & P. R. Co., 72 F.(2d) 443 (C. C. A. 7). Compare In re Landquist et al., 70 F.(2d) 929 (C. C. A. 7). The decree below is affirmed. See vol. 21, American Bar Ass’n Journal, 49, 50. See, also, Corwin, No Doctrine of Due Process of Law Before the Civil War, 24 Har. L. Rev. 306, 400; Hough, Due Process of Law Today, 32 Har. L. Rev. 218. Due process does not require a. jury trial if one would be inappropriate. Ex parte Wall, 107 U. S. 265, 289, 2 S. Ct 569, 27 L. Ed. 552; Maxwell v. Dow, 176 U. S. 581, 20 S. Ct. 448, 494, 44 L. Ed. 597. See, also, vol. 21 American Bar Ass’n Journal, 47; 12 N. Y. Univ. Law Quarterly Rev. 196. 44 Yale Law Journal 197 (December, 1934); 32 Mich. L. Rev. 221. Also as to § 75, 48 Harv. L. Rev. 332 and 29 Ill. Law Rev. 645. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. BURKA et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 6020. United States Court of Appeals, Fourth Circuit. Argued Jan. 12, 1950. Decided Jan. 28, 1950. Bert B. Rand, Washington, D. C, for petitioners. Francis W. Sams, Special Assistant to the Attorney General (Theron Lamar Caudle, Assistant Attorney General; Ellis N. Slack, Lee A. Jackson and Virginia H. Adams, Special Assistants to the Attorney General, on brief), for respondent. Before SOPER and DOBIE, Circuit Judges, and WARLICK, District Judge. SOPER, Circuit Judge. The petitioning taxpayers were equal partners in a laundry business in Washington, D. C. during the taxable year 1944. They seek a review of a determination of deficiencies in income tax growing out of a finding that the distributable net income of the partnership for the year should be increased by the sum of $12,508.93. During the year 1944, the business of the laundry grew rapidly and the books of the firm were not accurate or complete, but were in a state of great confusion. Accordingly, the firm employed a certified public accountant in the fall of the year and' turned over to him its available records which included bank books, cancelled checks and sales sheets. The accountant endeavored to reconstruct the income for the first ten months and introduced standard accounting practices for the balance of the year. In reconstructing the income for the period from January 1 to October 31, he assumed that the gross bank deposits represented sales and the gross bank disbursements represented expenses of the business which he endeavored to allocate to running expenses, drawing or capital items. The trial balance of October 31, 1944, stated by the accountant, showed “unrecorded expense” of $12,463.93. This amount, plus $45 listed as contributions, makes up the deficiency. The larger bills during the year were paid by check but the smaller bills for supplies, gas, oil and lost laundry were paid in cash by one or another of the partners. Some of these items, but not all of them, were recorded 9n the reverse side of sales sheets which were prepared by six or seven different employees who were changed from time to time during a rapid turnover. These notations amounted to $6,368.12 during the five months prior to October 31. There were no such notations on the sales slips for the first five months of 1944. To meet this situation the accountant in his endeavor to show the true income of the firm set up an account which he designated “unrecorded expense.” He credited this account with the sum of $500 representing checks marked petty cash, but not broken down as to items, $595.81 representing checks marked supplies for rug department not used in 1944, and also the above sum of $6,368.12 making a total of $7,463.93. He also concluded that similar expenses must have been incurred, although not recorded, during the first five months, and he credited the additional sum of $5,000 to unrecorded expenses for this period. Accordingly the trial balance for October 31, 1944 showed the item of $12,463.93 for unrecorded expense; and since the accountant concluded that these expenditures were made from unrecorded cash receipts, it was necessary for him to increase the sales by a corresponding amount on the balance sheet. When the accountant made his trial balance for December 31, 1944, he decided that he had been wrong in arbitrarily estimating the unrecorded expense as $5,-000 for the first five months since there were no supporting records and accordingly he eliminated the $5,000 item of unrecorded expense and the corresponding $5,000 credit to sales. The Commissioner accepted the conclusions of the accountant that the income of the partnership should be increased by the sum of $12,463.93 since the evidence indicated that this amount had been expended and must have been derived from the un-deposited cash receipts of the business; but the Commissioner rejected the accountant’s conclusion that this sum represented deductible expenses of the business. He disallowed these deductions since they were not accurately recorded or supported by the evidence and could have included withdrawals by the partners as well as other non-deductible items. The Tax Court refused to disturb the Commissioner’s determination. It pointed out that the taxpayers failed to produce their vouchers or even the accountant’s work sheets and that the conclusions of the accountant were based upon estimates rather than reliable records. For example, the accountant made journal entries on the books of the firm indicating that the unrecorded expense for the five months ending October 31, in the sum of $7,463.93 was made up of $1,000 for payment of claims, $2,000 auto expenses, and $4,463.93 for supplies; but, it was conceded, these sums were mere estimates on the part of the accountant and that there were no vouchers or listings of any kind to support the entries. We are in accord with these conclusions. The Commissioner’s disallowance of the deductions was presumptively correct and the burden was on the taxpayers to overcome it. Their evidence, however, shows that they failed to keep an adequate account of their receipts and disbursements as contemplated by Section 54(a) of the Internal Revenue Code, 26 U.S.C.A. § 54 (a), and that in consequence their records were in extremely bad shape. Moreover, the taxpayers failed to produce such books and vouchers as they kept or even the accountant’s work sheets, and failed to give a satisfactory explanation of the absence of these records. The Commissioner was therefore at liberty to resort to the best procedure available under the circumstances in making his determinations, and to adopt the method used by the taxpayers’ accounting in arriving at the amount of the gross income; Kenney v. Commissioner, 5 Cir., 111 F.2d 374; but the Commissioner was not bound to adopt the accountant’s conclusion that the unrecorded expense represented deductible items. The amount of the unrecorded expense and its proper allocation were the result of the accountant’s estimates and neither the Commissioner nor the court was obliged to accept this estimate or to give credit to the testimony of the taxpayers which was likewise unsupported by detailed records. It is true that the Tax Court may not arbitrarily reject well substantiated testimony; but it is not bound to accept the estimates of interested witnesses under such circumstances as prevail in this case. Greenfield v. Commissioner, 4 Cir., 165 F.2d 318, 319. The decision of the Tax Court is therefore Affirmed. Despite these disallowances, the petitioners were allowed deductions in the sum of $16,000 for supplies. $1,200 for auto expenses and $1,000 for the payment of claims. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_r_bus	11	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. WILLIAM GOLDMAN THEATRES, Inc., v. LOEW’S, Inc., et al. No. 8639. Circuit Court of Appeals, Third Circuit Argued Feb. 8, 1945. Decided Aug. 2, 1945. Rehearing Denied Sept. 21, 1945. William A. Gray and Robert Dechert, both of Philadelphia, Pa. (Francis T. Anderson and Barnes, Dechert, Price and Smith, all of Philadelphia, Pa., on the brief), for appellant. Robert L. Wright, Sp. Asst, to Atty. Gen. (Elliott H. Moyer, Sp. Asst, to Atty Gen., and Wendell Berge, Asst. Atty. Gen., on the brief), for amicus curiae. Bernard G. Segal, of Philadelphia Pa., (Wm. A. Schnader, John E. Mulder, and Schnader, Kenworthey, Segal & Lewis, all of Philadelphia, Pa., on the brief), for Loew’s et al., distributor appellees. Joseph M. Proskauer, of New York City, and George Wharton Pepper, of Philadelphia, Pa. (Morris Wolf, of Philadelphia, Pa., and J. Alvin Van Bergh, of New York City, on the brief), for Warner appellees. Before PARKER and BIGGS, Circuit Judges, and LEAHY, District Judge. LEAHY, District Judge. The question we meet is whether plaintiff has supported its charge of illegal monopoly that defendants have violated § 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C.A. § 2, in order to support an action for injunctive relief and triple damages under § 4 of the Clayton Act 38 Stat. 731, 15 U.S.C.A. § 15. Plaintiff relied too on § I of the Sherman Act, 50 Stat. 693, 15 U.S.C.A. § 1; and while this section states an additional offense “the two sections overlap in the sense that a monopoly under § 2 is a species of restraint of trade under § 1.” There are eleven defendants engaged in three phases of the moving picture business: (1) producers, (2) exhibitors, and (3) licensors of pictures to others for exhibition. Plaintiff conducts the particular business of operating moving picture theatres in Philadelphia, its environs, and in other parts of Pennsylvania. Defendants did not offer any counter proofs in support of their own case. The district court filed its findings of fact, conclusions of law and opinion (54 F.Supp. 1011) and entered judgment in favor of defendants. After plaintiff completed the presentation of its evidence before the trial court, defendants asked for several days adjournment." At that time counsel for defendants advised the Court below that they had not decided whether or not they would “make a motion to dismiss, whether or not to close without offering any testimony and make a motion for judgment on the record as it then stands.” Upon the resumption of the trial several days later, plaintiff asked to reopen and adduced additional evidence. The record fails to disclose whether defendants made a formal motion for dismissal. Apparently defendants simply sought judgment on the ground that upon the facts and the law the plaintiff had shown no right to relief. Certain primary facts were found by the Court below. There can be no possible disagreement about.these findings. Warner Brothers, owning Vitagraph, Circuit Management and 99% of Stanley, is a producer and exhibitor of motion pictures m various parts of the United States, including Philadelphia. Since November 9, 1940, Stanley has owned or leased and operated all of the theatres in Philadelphia in which first-class motion pictures have been exhibited on “first-run” — that is, at the Stanton, Stanley, Aldine, Earle, Mastbaum, Boyd and Fox Theatres. These theatres were acquired by Warner Brothers between 1919 and 1936. Since 1936 these theatres have exhibited first-class features. Concededly, Warner Brothers intend to continue such showings. No such pictures are to be leased to plaintiff. The Court below found that Warner Brothers now have an actual 100% monopoly in the business of exhibiting feature motion pictures on first-run in Philadelphia, because of substantially uniform action by each of the seven defendant distributors. These distributor defendants and Vitagraph control the production and distribution of more than 80% of the feature pictures available for exhibition in the United States. Plaintiff, having been engaged in the business of exhibiting motion pictures in and about Philadelphia for many years, is completely qualified to operate a first-run motion picture theatre in Philadelphia. In 1940, plaintiff decided to enter the first-run business. The Erlanger Theatre, located at 21st and Market Streets, one city block from Warner Brothers’ Mastbaum Theatre, was available for leasing. The Erlanger has a seating capacity of 1859 persons. Its appointments are quite as elegant as any of those of the Warner theatres. As to management, reputation and in all other respects, the Court below found, the Erlanger was suitable for profitable exhibition of first-class feature motion pictures on first-run in competition with the theatres operated by Warner Brothers. Plaintiff’s 10 year lease of the Erlanger commenced on November 9, 1940, at an annual rental of $12,000. After leasing the Erlanger plaintiff made repeated requests to the distributor defendants to lease feature pictures for first-run exhibition upon offers to pay much higher prices for pictures than the distributors had been receiving from Warner Brothers. Plaintiff was able to offer such prices because of the favorable terms found in its lease. But, distributor defendants refused and still refuse to lease any of such pictures to plaintiff for first-run exhibition. Plaintiff put interrogatories to the defendants in order to ascertain their reason for such uniform exclusion. Fox stated that its arrangement with Warner Brothers gave it “economic advantage.” RKO and Loew’s stated a similar arrangement was “more advantageous”. Paramount said its agreement with Warner Brothers was “desirable,” while Columbia put the arrangement on the basis it was “very satisfactory.” Prior and during the time plaintiff attempted to obtain pictures for exhibition at the Erlanger, Warner Brothers controlled the Mastbaum Theatre which is, as observed above, located at 20th and Market Streets and one city block from the Erlanger. From 1929 to 1935 the Mastbaum was operated as a combined stage-show and motion picture theatre. It closed on March 3, 1935. Then, on September 4, 1942, Warner Brothers reopened it. Since its reopening, the receipts have amounted to approximately $1,-000,000 a year. The Court below found that since September, 1942, it has proved to be one of the most successful of the Warner theatres operating in Philadelphia. The Court below then found the distributor defendants had refused to lease pictures to plaintiff at the Erlanger theatre solely because that theatre was not under the control of Warner Brothers; but if it had been a Warner’s theatre they would have leased plaintiff the pictures it sought. In addition, the Court below found that each and every distributor, as well as Vitagraph, knew every other distributor was leasing its feature pictures for first-run in Philadelphia to Warner Brothers to the exclusion of plaintiff. In order not to break the continuity of the exposition of the primary facts as found by the Court below, we merely and momentarily make one reference to’a portion of the opinion below (54 F.Supp. at page 1015) : “Of course, the intent is patent— necessarily inferable from the contracts themselves — to exclude the plaintiff and all others except Warner from the first rim business.” The Court below concluded that defendants had not imposed nor intended to impose unreasonable restraint upon interstate commerce, but that the state of control exercised by defendants over their product constituted merely a monopoly in the “ordinary” and “popular” sense, and that su'ch acts of control did not come within the prohibition of the anti-trust laws, because defendants’ activities amounted, at best, to a “partial control of a given market.” Admittedly, all three phases of the motion picture business involved in the instant case — production, distribution and exhibition — constitute a part of interstate commerce. Unquestionably, no person can with profit operate a first-run theatre in Philadelphia without access to defendants’ product. Defendants urge us to recognize the rule “ ‘long recognized’ of a trader engaged in an entirely private business ‘free to exercise his own independent discretion as to the parties with whom he will deal.’ ” That doctrine has deep roots in our past. But like all postulates it has its limitations. Free trade between private parties is subject to the condition that a particular method of doing business must not run afoul of the federal anti-trust laws. We do not believe it our function to enter into the strife of the competitive markets to protect the unfortunate. Plaintiff, as the mere lessee of a theatre, has no right to demand defendants’ products. But, plaintiff does have the right to have its business protected if there is concert of action directed at plaintiff, which results in its removal from competition. Combination which unreasonably limits competition which would otherwise exist between persons in similar businesses is illegal. A suppression of competition necessarily restrains commerce. Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683, Ann.Cas.1918D, 1207. The purpose of the anti-trust laws— an intendment to secure equality of opportunity — is thwarted if group-power is utilized to eliminate a competitor who is equipped to compete. United States v. Socony-Vacuum Oil Co., 7 Cir., 105 F.2d 809, 825. In Paramount Famous Lasky Corp. v. United States, 282 U.S. 30, 51 S.Ct. 42, 45, 75 L.Ed. 145, it was said: “In order to establish violation of the Sherman Anti-Trust Act, it is not necessary to show that the challenged arrangement suppresses all competition between the parties * * . The interest of the public in the preservation of competition is the primary consideration.” The restraint of trade contemplated by the statute means restraint of competition. United States v. Eastern States Retail L.D. Ass’n, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788. Warner Brothers, controlling all the theatres involved, enjoys monopoly not alone by the fact of ownership but also as a result of the concert of action of the distributors. It is here that the Court below arrived at two crucial findings: The first: “Each and every distributor defendant as well as Vita-graph, Inc., knew that every other distributor defendant was leasing its feature pictures for first run exhibition in Philadelphia at the theatres operated by the Stanley Company of America [Warners] to the exclusion of plaintiff”; the second: “The distributor defendants have refused to lease pictures for exhibition at the Erlanger theatre solely because that theatre was not under the control of Stanley Company of America, Inc., and if said theatre had been under the control of Stanley Company of America, Inc., the distributor defendants would have leased pictures for exhibition therein at all times since November 9, 1940.” After critical re-examination of the whole record, we conclude that from plaintiff’s evidence it has been shown that there existed an illegal intent to restrain. Plaintiff’s evidence shows that there is concert of action in what has been done and that this concert could not possibly be sheer coincidence. We think there must have been some form of informal understanding. The axiom is ancient that the deed speaks for itself and that man intends the probable consequences of his act. Here, the conclusion is justified that defendants acted in concert in excluding plaintiff. This conclusion is strengthened by the circumstance that defendants “with like unanimity, failed to tender the testimony, at their command, of any officer or agent of a distributor who knew, or was in a position to know, whether in fact an agreement had been reached among them for concerted action. When the proof supported, as we think it did, the inference of such concert, the burden rested on [defendants] of going forward with the evidence to explain away or contradict it. * * The failure under the circumstances to call as witnesses those officers who did have authority to act for the distributors and who were in a position to know whether they had acted in pursuance of agreement is itself persuasive that their testimony, if given, would have been unfavorable. * * * Silence then becomes evidence of the most convincing character. * * * It was enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it. * * * It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators.” Interstate Circuit v. United States, 306 U.S. 208, 225, 227, 59 S.Ct. 467, 474, 83 L.Ed. 610. We conclude that where a person has an available theatre to exhibit first-run pictures in a city of some two millions of people, where such business draws receipts in the many more millions of dollars each year, where the public has a live interest in the recreation, education and informative services which this new art form furnishes, a course of conduct, by those who own all of the other available theatres in that area, and those who distribute the product, which eliminates from competition the owner of the available theatre, constitutes a violation of the statutes. We reject the argument that, at most, if monopoly existed or exists it is limited to the downtown theatre district of Philadelphia and it amounts to partial control of the business of exhibiting motion pictures in a limited area. True, Warner Brothers operate only a small part of the total number of theatres within the municipal boundaries of Philadelphia and its environs. But, Warner Brothers own or control all of the theatres where first-run pictures are exhibited in the centralized theatre district of Philadelphia. We are unaware of a rule of limitation, dependent upon operation in space, which permits an illegal monopoly and restraint of trade. The statutory prohibition is against any course of conduct which monopolizes “any part” of interstate trade. We know of no authority which sanctions what would otherwise be an illegal monopoly simply because it operates in a single city or a particular part of a city and affects only a part of an industry involved. There is no such limitation on the effect of the anti-trust laws. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; Indiana Farmer’s Guide Pub. Co. v. Prairie F. P. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356; Oxford Varnish Corp. v. Ault & Wiborg Corp., 6 Cir., 83 F.2d 764; Peto v. Howell, 7 Cir., 101 F.2d 353; Truck Drivers’ Local No. 421 v. United States, 8 Cir., 128 F.2d 227; White Bear Theatre Corp. v. State Theatre Corp., 8 Cir., 129 F.2d 600; Louisiana Farmers’ Protective Union v. Great A. & P. Tea Co., 8 Cir., 131 F.2d 419; Bigelow v. Calamet & Hecla Mining Co., 6 Cir., 167 F. 704. Neither can there be a basis for the proposition that a first-run picture is not an article of trade or commerce. If the proposition were sound, Warner Brothers and the distributors could never, under any circumstances, be charged with violation of the anti-trust laws in dealing in first-run pictures. There is nothing vague about the quality of the product. That product as it affects plaintiff’s business is as real as if the defendant distributors had combined to remove Warner Brothers as an exhibitor in the City of Philadelphia. To say that if this should come to pass Warners would be helpless to call the statutes into operation is to say that the business of producing, distributing and exhibiting first-run pictures is not a “part of the trade or commerce within the States” as that phrase is found in the Act. When the control of the product is accompanied by an intent to monopolize and there results a restraint on interstate trade by the elimination of a smaller competitor, then we think there does exist an unreasonable restraint within the meaning of the statutes. When plaintiff leased the Erlanger it knew, defendants argue, that the distributors had licensed their product to Warner Brothers and there was no way plaintiff could get that product unless the distributors violated their agreements with Warners. Those contracts were never intended to be in perpetuity. It is their legal validity when placed in juxtaposition to the Sherman and Clayton Acts which is challenged. If they were instruments utilized in violation of the statutes, they have no sanctity; except between the parties to them. The sum of this case results from the addition of definite facts. Plaintiff is qualified to operate a first-run motion picture theatre in Philadelphia. Defendants control the production and distribution of more than 80% of feature pictures in this country, and no exhibitor can successfully operate without access to defendants’ product. Plaintiff asked for the product. He was refused. If its Erlanger theatre had been owned or controlled by Warner Brothers a part of defendants’ product would have been exhibited at the Erlanger. Uniform participation by competitors in a particular system of doing business where each is aware of the other’s activities, the effect of which is restraint of interstate commerce, is sufficient to establish an unlawful conspiracy under the statutes before us. In the case at bar it is necessary to conclude that plaintiff has sustained its charges, as each of the distributor defendants knew that its refusal to lease pictures to plaintiff, together with the refusal of all, would result in the creation of an illegal monopoly in the business of exhibiting first-run pictures in Philadelphia by Warner Brothers; that Warner Brothers have attempted to and are monopolizing such business; that distributor defendants have aided Warner Brothers to monopolize; and that the monopoly is only made possible by the cooperation between Warner Brothers and the distributors. As the trial court also found, plaintiff has unquestionably suffered loss. We have no means of knowing the extent of that loss. Perhaps, upon remand plaintiff may be able to prove its damages; or, the factors to be considered may be subject to so many unknowns that such damages may veer toward the speculative. We specifically pass no opinion on these problems. We do conclude, however, plaintiff should have judgment and the injunctive relief which it originally sought. The form of decree we leave to the Court below after it has made inquiry into the damages question. Reversed. § 2. “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States * * * shall be deemed guilty of a misdemeanor * * § 4. “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of .suit, including a reasonable attorney’s fee.” § 1. “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States * * * is hereby declared to be illegal * * United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226, 255, 60 S.Ct. 811, 816, 846, 84 L.Ed. 1129, note 59. Universal Corporation was eliminated by agreement. Defendant Loew’s, Inc. (“Loew’s”), Paramount Pictures, Inc. (“Paramount”), R. K. O. Radio Pictures, Inc. (“RKO”), Twentieth Century Fox Film Corporation (“Fox”), and Warner Bros. Pictures, Inc. (“Warner Brothers”) are engaged in all three activities. Defendant Columbia Pictures Corporation (“Columbia”) produces and licenses pictures. Defendants United Artists Corporation and Universal Film Exchanges, Inc. (“United Artists” and “Universal”) license pictures produced by others. Warner Brothers will apply to itself as producer, Vitagraph, Inc., a distributor-lessee, as well as to its subsidiaries, Stanley Company of America, Inc., an exhibitor, and Warner Bros. Circuit Management Corporation, which does the booking for Stanley. R. 489. R. 501, 511. The requirement here is to fit the inference facts into the framework of the primary facts in order to ascertain if there is to be a reversal or an affirmance. “First-run” is the first showing of a picture; later showings are called “subsequent-runs.” The country is divided into districts. The best theatres are the first-run theatres. For the most part subsequent-run theatres are usually located in local communities or removed from the central part of a city. “Clearance” symbolizes the agreement of the producer or owner of a picture that he will not lease the picture for a subsequent-run in the same district until the expiration of a substantial period of time has elapsed after the picture has completed its first-run. See Westway v. Twentieth Century Fox Film Corporation, D.C., 30 F.Supp. 830, 834-839 and White Bear Theatre Corporation v. State Theatre Corporation et al., 8 Cir., 129 F.2d 600, for a discussion of “runs” and “clearances.” See the opinion of the Court below (54 F.Supp. 1011, 1012) for “block booking.” The Warner Brothers theatres have substantially similar appointments and have seating capacities ranging from 1473 to 4387 persons. While the Court below did not specifically so find, the evidence is clear that plaintiff believed at the time it leased the Erlanger that it would be able to obtain the quality of pictures it desired from the distributor defendants. In fact, Paramount had informed plaintiff that it was dissatisfied with Warner Brothers’ exhibition of its pictures and it was highly likely Paramount would lease to plaintiff instead of Warner Brothers if plaintiff acquired the Erlanger. While the precise fact was not found by the Court below, plaintiff’s inability to procure the feature pictures it desired was obviously not and could not be based on the fitness of plaintiff’s theatre which had never been used for subsequent-run pictures. The Court below refused to find that the successful operation of the Mastbaum theatre by Warner Brothers was evidence that the public would have patronized from November 1940 plaintiff’s Erlanger theatre for the exhibition of first-run pictures. We think there was ample evidence to support such a finding. “The picture of conspiracy as a meeting by twilight of a trio of sinister persons with pointed hats close together belongs to a darker age.” Temporary National Economic Committee, Monograph No. 16, p. 15. “But bonds of union exclude the newcomer, impose vassalage upon the independent exhibitor, and deny to a modern art adequate opportunity for expression.” TNEC, Mon. No. 16, p. 19. Under its agreements with distributor defendants, Warner Brothers not only has exclusive first-run in Philadelphia but also in the contiguous territory, i.e., Delaware, Chester, Montgomery and Bucks Counties in Pennsylvania; Camden, Gloucester, Burlington, Cumberland and Atlantic (except Atlantic City) Counties in New Jersey. Some of the agreements include the “entire state of Delaware,” which means, for example, that no person in the state of Delaware is permitted to enjoy a Pox production until after it has finished its run at a Warner Brothers theatre in Philadelphia. We are not to be understood as condemning “clearances.” The reference is made simply to show the significance of first-run pictures in and around Philadelphia. 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_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. Irving W. DOBSON, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee. No. 11805. United States Court of Appeals Seventh Circuit. Oct. 16, 1957. Rehearing Denied Nov. 25, 1957. Robert J. Kenney and John J. Naughton, Chicago, III, Henslee, Monek & Murray, Chicago, 111., of counsel, for appellant. Edward J. Wendrow and Winston, Strawn, Smith & Patterson, Chicago, 111., George B. Christensen, Gerard E. Grashorn, Chicago, 111., of counsel, for appellee. Before LINDLEY, SCHNACKENBERG and PARKINSON, Circuit Judges. LINDLEY, Circuit Judge. Plaintiff, an employee of defendant, brought suit in the district court, seeking to recover damages for personal injuries. He charged that, in violation of the duties which the railroad owed him, it (a) hauled a car “with a coupler which would not uncouple”, contrary to the requirements of See. 2 of the Safety Appliance Act (45 U.S.C.A. § 2); (b) negligently failed to furnish him with a reasonably safe place in which to work; and (c) negligently allowed an iron bar to remain on the roadway. During the trial, plaintiff withdrew charge (c), but insists here that the essence of that charge remained in the case by' inclusion in the more general charge (b). Defendant brought General Motors into court by a third party complaint asking indemnification from that party for any damages which plaintiff might recover from defendant. From a judgment upon a verdict for defendant, plaintiff appeals. He admits that the proof presented a jury issue and does not contend that the evidence does not sustain the verdict, but insists that he was prejudiced in the trial by these errors on the part of the trial court: (1) giving an erroneous instruction; (2) submitting an improper special interrogatory to the jury; (3) unreasonably restricting plaintiff’s evidence as to an unsafe place to work to a period of “three to four months” prior to the accident and, as to his physician’s testimony, in unduly limiting it. Though the sufficiency of the evidence to support the verdict is not questioned, some consideration of the facts is necessary to a correct determination of whether the trial court committed prejudicial error in any of the respects named. On December 19, 1952, plaintiff was attempting to uncouple one box car from others, in order to shunt it down a side switch track, branching off of a main lead track, on a General Motors’ plant in Detroit, Michigan. While so engaged, just as he began to try to make the uncoupling, or just before he began that operation, or, just as he was accomplishing it, he claims to have stepped on a round iron bar, which, he says, turned, causing him to twist and wrench his back, seriously, as he says, slightly, as defendant insists. Obviously, in our inquiry as to alleged errors, the extent of his injuries is unimportant. As opposed to his testimony at the trial that he unsuccessfully endeavored to work the coupling, before he stepped on the iron bar or bolt, defendant offered in evidence two documents signed by plaintiff; first, his accident report, in his own handwriting, and, second, his more detailed report delivered to defendant January 16, 1953. In the first, he stated “was working lead * * * cars and reached to pull pin when slipped on piece of scrap twisting myself around and hurting back.” The report contains nothing about any defect in cars or coupling apparatus. In the statement made January 16,1953, plaintiff said that he was “going to cut off one car” and that just as he was pulling the pin he “stepped on a piece of scrap iron, round like a bolt, and about 5 or 6 inches long -x- * This bolt or whatever it was rolled under my foot and twisted me around.” He had hold of the coupling operating lever, otherwise he “would have gone down * * * there was nothing defective about car I was pulling pin on. Operating lever was O.K.” As to the piece of iron, there was no proof that defendant or anyone else, knew, actually or constructively, of its presence, except that plaintiff testified that he had complained about debris on or about the switch tracks. This was denied. It is obvious from these facts that a sharp controversy existed, which has been settled by the verdict. The instruction of which complaint is made reads: “The Court instructs the jury that, if you find from the evidence that prior to the time plaintiff was injured he attempted to operate the cutting lever on the car in question in the usual and customary manner, but did not succeed in uncoupling the car pri- or to the time he stepped on the metal bar, if any, but if you further find that his failure, if any, to operate the cutting lever was not a proximate cause, in whole or in part, of plaintiff’s injuries, then you must find defendant, Grand Trunk Western Railroad Company, not guilty as to plaintiff’s claim under the Safety Appliance Act.” This instruction, says plaintiff, “directed” a verdict for defendant as to the charge of violation of the Safety Appliance Act. We think it obvious that the charge is not reasonably susceptible of any such construction. It purported only to advise the jury that, even if there was a defective appliance, if the jury found from the evidence that the defect was not the proximate cause of or had no causal connection with the accident, then, the jury could not properly find a verdict in plaintiff’s favor, insofar as the Safety Appliance Act was concerned. No one can question this as a correct proposition of law. Surely upon the conflicting statements of plaintiff himself, there was a serious controversy as to whether there was any appliance defect, or if so, that it had any causal connection with the accident. If such a defect existed but had no causal connection with the injury, it was the jury’s duty to find defendant not guilty on this charge. This accident occurred on the premises of General Motors over which these switching tracks ran. Because of this fact defendant had brought in General Motors as a third party defendant in order to secure indemnity, if a verdict should be returned in plaintiff’s favor on the charge of failure to furnish a safe place to work. Upon submission of the cause to the jury, General Motors’ counsel asked the court to submit to the jury three special interrogatories. The first read: “Was the defendant, Third-Party Plaintiff, Grand Trunk Western Railroad Company, guilty of negligence in the use of the car in question at the time in question with a defective coupler or coupler pin, which proximately caused or proximately contributed to cause the occurrence in question and the plaintiff’s alleged injuries? To this the jury answered “No.” The second question was: “Did defendant Grand Trunk Western Railroad Company fail to use ordinary care to furnish the plaintiff with a reasonably safe place in which to do his work?” To this the answer was “No.” The third was: “Are any of the injuries complained of by plaintiff proximately due, in whole or in part, to a violation of the Safety Appliance Act by Grand Trunk Western Railroad Company?” And to this the answer was “No.” Plaintiff asserts that the first interrogatory was so misleading as to constitute error in submitting it. Obviously, it is not necessary, in order to constitute liability for a defective appliance, that defendant be negligent. Its liability arises from the violation of the statute, O’Donnell v. Elgin, J. & E. R. Co., 338 U.S. 384, 393, 70 S.Ct. 200, 94 L.Ed. 187, and the trial court so instructed the jury in no uncertain terms. The jury, having been thus correctly instructed, found in answer to the third interrogatory, as a matter of fact, that the plaintiff’s injuries were not due “in whole or in part to a violation of the Safety Appliance Act” by defendant. In such situation, whether it was negligent in that respect was wholly immaterial, — without relevance to the specific finding that no such violation had caused the injuries “in whole or in part.” This interrogatory was not requested by defendant; but by the third party defendant, for some purpose beyond this court’s conception, apparently with the thought that it might affect the respective rights and liabilities of defendant and Genera] Motors. At any rate, the interrogatory could have had no effect under the court’s explicit charge to the jury that proof of negligence was wholly unnecessary under the Safety Appliance Act, and under the jury’s finding that the injuries were not caused by a violation of the Statute. The court’s charge was full and complete, covering properly all issues involved. Submission of a special interrogatory upon an irrelevant and immaterial subject could not prejudice plaintiff. The jury’s, general verdict and its answers to the other two pertinent interrogatories completely disposed of the issues. That another interrogatory asked for an answer upon an irrelevant issue could not invalidate the pertinent positive findings. Plaintiff insists that the trial court committed error in restricting his evidence as to an unsafe place to work to a period of three to four months prior to the accident. It will be remembered that plaintiff originally charged negligence in this respect due to the presence of the specific piece of metal which, plaintiff claimed, turned under his foot, causing him to wrench his back under charge (c), i-n addition to the general complaint (b) of negligently failing to furnish him a safe place to work. At the close of the evidence plaintiff withdrew the. charge ■(c), saying that he would rely upon the general charge (b). However, his evidence as to an unsafe place to work, depended entirely upon and was confined to existence of the iron bar. Yet he attempted to prove that from time to time, prior to the accident some “debris” or scrap was found on the track, which, he said, was periodically cleaned away by someone. The court permitted him to prove that such was the situation for 3 to 4 months before the accident, but did not allow him to produce evidence of what occurred prior to that period. Evidently it was plaintiff’s theory that the presence of the iron bar was due to the fact that debris was not always promptly cleaned up and that evidence to that effect over a long period of time was evidence of failure to furnish a safe place to work. There was no proof that defendant knew or should have known of this bolt, except such as might be inferred from the fragmentary evidence of temporary cleanups of debris. We need not decide whether the evidence admitted was proper proof of a condition of which defendant was bound to take notice, for it was submitted to the jury. Our question is rather whether the court abused its discretion in limiting the period as to which testimony was proper to 3 or 4 months. Of course, the trial court has a sound discretion in ruling on admissibility of evidence, in cases such as this. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Sivert v. Pennsylvania R. Co., 7 Cir., 197 F.2d 371. And, upon examination of the record, we find that plaintiff has made no showing of abuse of that discretion. In this connection, we think this bar comes within the same category as did the plank in Wetherbee v. Elgin, J. & E. Ry. Co., 7 Cir., 191 F.2d 302, 306, 307, where we said: “Here the board was a new threat to safety, not something about which the railroad itself had previous knowledge, even though boards had on some previous occasions been found on or near tracks of the Ruberoid plant.” We think that plaintiff here could not prove notice of an unsafe place to work by evidence of the occasional temporary .presence of general debris. If the conditions mentioned had been permanent rather than spasmodic, obviously, proof of their continuance, for a long period of time, would have been proper, as we held in Beattie v. Elgin, J. & E. Ry. Co., 217 F.2d 863. But such is not the case here. Accordingly we can not say as a matter of law, that the court abused its discretion in ruling that evidence of debris and its periodic removal for an indefinite 3 or 4 years was too remote to warrant an inference of constructive notice of the temporary presence of a movable piece of metal, 2 inches in diameter and 6 or 8 inches long, if that was what plaintiff expected to prove. Furthermore, we doubt that plaintiff is in a position to assign error upon the court’s ruling. This is because he made no offer of any specific happenings he expected to prove prior to the 4 months. Davis v. R. K. O. Radio Pictures, 8 Cir., 191 F.2d 903; Rubino v. Commissioner of Internal Revenue, 6 Cir., 226 F.2d 291, 296; Williams v. Commissioner of Internal Revenue, 8 Cir., 44 F.2d 467; Federal Surety Co. v. Standard Oil Co., 8 Cir., 32 F.2d 119, 120. While he did object to being limited to a period of 3 or 4 months, plaintiff made no formal offer of proof, and we do not know what he expected to prove. In Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038, 1042, 1043, the court said: “This rule requiring a party who seeks to review the ruling of a court on rejection of testimony to make a proffer of proof is not a mere arbitrary technical rule, but a practical one, very essential to the orderly administration of justice. For instance, the witness Bush was asked what his physical condition was when he finally left defendant’s employment. If this court were permitted to decide as an abstract proposition that the question was a proper one, and should reverse the case for that reason, and it were remanded for a new trial, and the witness should then testify that he was in perfect physical condition when he left the work, the futility of a reversal would appear, and a manifest injustice would have been done the defendant.” And in Shama v. United States, 8 Cir., 94 F.2d 1, 5, the court held that: “The ruling on this objection is not reviewable in this court because no offer of proof was made, and we are not advised as to what the answer would have been.” So here, in the absence of any showing as to what the witness would have said, if allowed to answer, error cannot be successfully urged. Plaintiff complains also of the court’s refusal to permit his attending physician to testify as to what plaintiff said to him in reciting the history of the latter’s accident. Irrespective of whether this evidence was rightly or wrongly excluded, it cannot be urged here as prejudicial error, for the reason that by its verdict for defendant the jury made unnecessary and irrelevant any determination of damages for the injuries plaintiff had suffered. The judgment is Affirmed. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. INMATES OF ORIENT CORRECTIONAL INSTITUTE, Plaintiffs-Appellants, v. OHIO STATE ADULT PAROLE AUTHORITY, et al., Defendants-Appellees. No. 90-3543. United States Court of Appeals, Sixth Circuit. Argued Feb. 12, 1991. Decided March 26, 1991. Lawrence J. Greger (argued), Marlena L. Pankowski, Greger & Ovington, Dayton, Ohio, for plaintiffs-appellants. Allen P. Adler (argued), and Frederick C. Schoch, Asst. Attys. Gen., Steven W. Ritz, Office of the Atty. Gen. of Ohio, Columbus, Ohio, for defendants-appellees. Before NELSON and SUHRHEINRICH, Circuit Judges, and HACKETT, District Judge. The Honorable Barbara K. Hackett, United States District Judge for the Eastern District of Michigan, sitting by designation. DAVID A. NELSON, Circuit Judge. This is an appeal from the denial of a preliminary injunction in a federal civil rights action brought under 42 U.S.C. § 1983 by a group of parole-eligible Ohio prison inmates. Each of the plaintiff inmates received a hearing before a board of the Ohio Adult Parole Authority. In each instance the hearing resulted in a decision to grant parole “on” or at some indeterminate time “after” a specified date (commonly called the “on or after date”), subject to approval of an acceptable out-of-prison placement plan by the Authority’s Parole Supervision Section. Primarily because of a shortage of space in the limited number of halfway houses that accept sex offenders, it proved difficult to find acceptable placements for the plaintiffs in this case. Each of the plaintiffs who testified at the injunction hearing appears to fall in the “hard to place” category, and each of them testified either that his on or after date had been rescinded or that rescission was threatened. Rescission of an on or after date is not preceded by a formal hearing, under Ohio’s practice, although it is the policy of the parole board to hold a hearing soon after rescission has occurred. The hearing gives the inmate an opportunity to present documents and to discuss his placement problem directly with the board; the inmate is not entitled to call witnesses, however, or to be represented by counsel. Alleging that rescission of on or after dates without prior notice and opportunity for an evidentiary hearing violates due process rights guaranteed by the federal constitution, the plaintiffs sought an interlocutory injunction to bar rescission pending determination of the merits of their lawsuit. The district court declined to grant such an injunction, holding that the plaintiffs had failed to sustain their “initial burden” (see N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 167 (6th Cir.1989)) of showing a substantial likelihood of success on the merits. For reasons well stated in the comprehensive opinion filed by the district court, the court concluded, among other things, that Ohio law gives a prison inmate no constitutionally protected liberty interest in being released at a time related to his on or after date. We agree. We shall affirm the denial of the injunction on this ground, without reaching the question whether, as the district court also concluded, the plaintiffs had no likelihood of succeeding in a § 1983 action because their sole federal remedy lies in habeas corpus. I The Due Process Clause of the Fourteenth Amendment, which imposes the same restraints on the states that the corresponding clause of the Fifth Amendment imposes on the national government, prohibits “any State [from] depriving] any person of life, liberty, or property, without due process of law....” No right to due process arises, under this language, except where a state undertakes to deprive a person of one or more of the three interests specified: life, liberty, or property. It is “liberty,” of course, with which we are concerned in the case at bar. Although incarceration itself represents a quintessential deprivation of liberty, lawful incarceration does not extinguish all of a prisoner’s constitutionally protected liberty. Prison inmates retain what the Supreme Court has characterized as “a residuum of liberty,” Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983) (citing Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974)), despite the fact that inmates are not at liberty in the normal sense. If state law entitles an inmate to release on parole, moreover, that entitlement is a liberty interest which is not to be taken away without due process. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the context of a statute providing that the Nebraska parole board “shall” release parole-eligible inmates unless one of several factors specified in the statute should be found to exist. The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner “must, instead, have a legitimate claim of entitlement to it.” Id. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). And only state law can create this “legitimate claim of entitlement;” the federal constitution protects such claims, but does not create them. “There is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence.” Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. II The law of Ohio gives a convicted person no legitimate claim of “entitlement” to parole before the expiration of a valid sentence of imprisonment. This remains true even after the Ohio Adult Parole Authority has approved the prisoner’s release on parole on or after a specified date. Thus in Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), a post- Greenholtz case, the Supreme Court of the United States squarely held that the Ohio Adult Parole Authority’s rescission of a decision to grant parole on or after a specified date did not constitute a deprivation of “liberty” within the meaning of that term as used in the Due Process Clause. There has been no relevant change in Ohio’s law since the decision in Jago. That case, unlike this one, happened to involve “shock” parole, but nothing turns on the distinction. This court has recognized ever since Greenholtz that Ohio Rev.Code § 2967.03 — the statute under which the plaintiffs in the instant case hope to be released — “is purely discretionary.” Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979). The statute says that the Ohio Adult Parole Authority “may ... grant a parole to any prisoner, if in its judgment there is reasonable ground to believe that, if ... the prisoner is paroled, such action would further the interests of justice and be consistent with the welfare and security of society.” Ohio Rev.Code § 2967.03 (emphasis supplied). The grant of discretion contained in this statute is, obviously, very broad indeed. The operative verb is permissive, not mandatory; to say that the Adult Parole Authority “may grant” parole is not to say that it must grant parole. There are regulations, as we shall see, that prescribe certain limitations on the affirmative power to grant parole, but those limitations in no way detract from the fact that under Ohio’s system, as in the situation considered by the Supreme Court in Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983), the decisionmaker “can deny the requested relief for any constitutionally permissible reason or for no reason at all.” Id. (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring)) (emphasis supplied). Where the power of denial is this broad, “the State has not created a constitutionally protected liberty interest.” Olim, 461 U.S. at 249, 103 S.Ct. at 1747. The Sixth Circuit decision that was before the Supreme Court for review in Jago — a decision reported at 641 F.2d 411 (1981)—acknowledged, as the Supreme Court noted (454 U.S. at 16, 102 S.Ct. at 33), that “[pjarole for Ohio prisoners lies wholly within the discretion of the [Ohio Adult Parole Authority],” and that “[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F.2d at 414. Although a majority of the Sixth Circuit panel nonetheless concluded that a constitutionally protected liberty interest could arise from “mutually explicit understandings,” id. at 416, this conclusion was rejected by the Supreme Court: “We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon ... ‘mutually explicit understandings’_” Jago, 454 U.S. at 17, 102 S.Ct. at 34. We do not doubt that in the case at bar it was understood by all concerned that the plaintiffs would be released around the time of their on or after dates, assuming out-of-prison placements acceptable to the Parole Supervision Section could be found. The record does not disclose what understanding, if any, the parole authorities may have had as to the likelihood that acceptable placements could be found. The plaintiffs themselves, however, may well have understood that they were likely to be released — and we can appreciate their disappointment that the hopes and expectations attendant upon the setting of on or after dates should have been frustrated. But as the Supreme Court explicitly told us in Jago, it would be wrong to find that understandings based on the setting of on or after dates can create any constitutionally protected liberty interest. Although the power to deny parole is purely discretionary as far as Ohio’s statutes are concerned, the state’s administrative regulations must also be considered. If Ohio’s regulations created an explicit presumption of entitlement to release on parole — as Tennessee’s regulations formerly did, see Mayes v. Trammell, 751 F.2d 175,178 (6th Cir.1984)—or if the Ohio regulations otherwise used “ ‘mandatory language’ in connection with ‘specific substantive predicates’ ” for release on parole, see Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.1986) (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)), the regulations alone could create a protected liberty interest. But absent “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow,” the regulations could not create a liberty interest. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989). “[Wjithin the context of the instant case,” as the district court said in the decision now before us for review, “Thompson would require language in the Ohio scheme expressly mandating that once an inmate is granted parole and given an ‘on or after’ date, he must be released absent a showing of specific factors (or, alternatively, that an inmate's 'on or after’ parole status will not be rescinded absent the finding of such factors). There is no such language in the Ohio parole scheme.” (Emphasis in original.) We can find no such language in the Ohio scheme either. Ohio Admin.Code § 5120:1-1-07 (a section captioned “Procedure for release on parole, furlough, and shock parole”) provides that “[a]n inmate may be released on or about the date of his eligibility for release” unless one or more circumstances specified in the regulation is found to exist. (Emphasis supplied.) “May,” to repeat, is permissive, not mandatory; a regulation saying that an inmate “may” be released in the absence of specified factors simply does not say that the inmate must be released if none of the specified factors is present. It is true, as the plaintiffs point out, that the chapter of the Ohio Administrative Code containing § 5120:1-1-07 also contains a “Statement of policy” that concludes with this language: “Decision making involves the exercise of discretion. Unlimited discretion is to be eliminated. Necessary discretion is to be structured. Whenever feasible, persons directly affected by the decision making process shall be given notice and an opportunity to be heard prior to the decision becoming final. Fairness and equity shall be the standards by which inmates, releasees, staff and the public are treated.” Ohio Admin.Code § 5120:1-1-02(G). We are not persuaded that the substantive provisions of Ohio Admin.Code § 5120:1-1-07 should be read as meaning something other than what they say simply because a policy section of the administrative code says that “unlimited” discretion is to be eliminated and necessary discretion is to be “structured.” Discretion to grant parole certainly has been limited by § 5120:1-1-07, even though discretion to deny parole is limited only by constitutional considerations (the Fourteenth Amendment’s prohibition against denying any person the equal protection of the laws, e.g.)— and the parole board’s necessary discretion is certainly “structured” in the sense that its exercise involves the hearing process mentioned at the outset of this opinion. The district court concluded that rescission hearings of the sort described in the testimony of the Chief of the Adult Parole Authority provided “an opportunity to be heard prior to the decision [on rescission] becoming final,” as required by Ohio Admin.Code § 5120:1-1-02(G), because “inmates are given a hearing before the Parole Board prior to the journalization (in its minutes) of its decision to rescind.” The testimony on which this conclusion was based is not a model of clarity, and we are not certain that the district court interpreted the testimony correctly. Even if journalization were to occur prior to the rescission hearing, however, it would make no difference from a constitutional standpoint. It is clear that “procedural requirements alone cannot establish a liberty interest,” Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.1986), and a violation of state regulations requiring a particular kind of hearing cannot violate the Due Process Clause absent some independent basis for finding a “liberty interest” that has been taken away. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). The last of the regulatory provisions on which the plaintiffs rely in support of their claim to a liberty interest is Ohio Admin. Code § 5120:1-1-02(D). That section reads as follows: “The release procedures in these Administrative Regulations provide for orienting the inmate toward release, the preparation for the Parole Board of all data pertinent to the case, a release hearing based upon careful study of such data under procedures which insure fairness and rational decision making, formulation and investigation of a satisfactory release plan, release under professional supervision, and return to confinement for those who violate the terms and conditions of their release and are unwilling or unable to readjust satisfactorily under supervision.” Nothing in this language suggests to us that efforts to formulate a satisfactory release plan must inevitably be successful, or that the investigation of whatever release plan might be proposed by the inmate must inevitably lead to a finding that the proposed plan is “satisfactory.” The plaintiffs stress the fact that in “orienting” them toward release, the state transferred them to a minimum security prison, Pickaway Correctional Institute, where they were assigned to a pre-release dormitory. (One of the plaintiffs testified that he had less freedom there than at the “closed security” institution from which he had been transferred, but other witnesses, including the chief of the parole authority, testified that conditions were less restrictive at the pre-release dormitory than at the institutions from which the plaintiffs had come. The district court, not surprisingly, accepted the latter testimony as true.) Transfer to a pre-release center may buttress an inmate’s subjective expectation that he will be released on parole, but such a transfer obviously cannot create a legitimate claim of entitlement to release. Neither can the transfer create any liberty interest in remaining at the pre-release center following rescission of the on or after date. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Ill It became clear in the oral argument of this appeal that the plaintiffs’ fundamental complaint is not, in fact, a complaint with the “process” followed by the state; the plaintiffs’ real complaint is with the state’s failure to provide enough halfway houses (or similar facilities) to insure a satisfactory out-of-prison placement for every inmate the parole board would be willing to release if a satisfactory placement could be found for him. Plaintiffs’ counsel even went so far as to suggest that a federal court could require the state to build and staff more halfway houses, if the court should decide that more halfway houses would be desirable. The United States Constitution vests no such power in the federal courts, of course. More halfway houses can be provided directly by the people, through voluntary action, or by the people’s elected representatives, through the appropriation of public funds, but they cannot be provided by judicial fiat. Poets, to borrow Shelley’s phrase, may be “the unacknowledged legislators of the world,” but federal judges are not. Although the Eighth and Fourteenth Amendments empower the judicial branch of the federal government to order a stop to infliction of cruel and unusual punishments, there is no claim of any such punishments having been inflicted here. And even if there were such a claim, there would still be nothing in the Constitution authorizing us to require the State of Ohio to maintain the kind of facilities for parole that the plaintiffs would like to see. We have no power, indeed, to require the State of Ohio to maintain any parole system at all. See Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2103 (“A state may ... establish a parole system, but it has no duty to do so”). As a matter of legislative policy, an expanded system of parole may well have much to commend it. None of us can be comfortable with the fact that our country imprisons a higher percentage of its citizens — and keeps them in prison longer— than virtually any other civilized nation. The district court, in dicta that formed a sort of coda to its opinion, spoke to this general subject with some passion: "If the state of Ohio and its citizens do not soon realize that the problems of crime can only be dealt with by dealing with the causes of same, the poverty, the ignorance, the drug addiction, the alcoholism, the educational and psychological deprivation and the like, our crime problem cannot and will not decrease. Indeed, unless all of us realize that the problems of crime cannot be solved simply by building more and more prisons and by locking up people therein and literally ‘throwing the key away,’ none of us should be surprised that inmates from our prison system, once released, will once again violate the criminal laws to an alarming degree.” The discussion that preceded this passage in the district court’s opinion also provides food for thought — and may, for some people, tend to confirm the wisdom of the Founders in leaving legislative questions to the legislature. After noting that the plaintiffs have committed crimes that are particularly reprehensible, the district court said that because the plaintiffs “have served the minimum sentence prescribed by law ... [t]hey have paid their debt to society.” That debt having been paid, the court went on to observe, it is both sad and paradoxical that “these prison inmates can find no safe harbor — no one to take them in, no halfway house facility willing to accept them and no facility in the outside world, in society, that can adequately treat those very conditions which caused them to offend against society in the first instance.” No compassionate person could disagree, surely, with the thought that the plight of these plaintiffs is a sad one. But so was the plight of their victims — the women they raped, the children they molested, the people they kidnapped. The plaintiffs’ debt to their victims can be forgiven, no doubt, but one wonders whether such a debt can ever truly be “paid.” And it is not solely for punishment, of course, that society imprisons people who commit crimes of violence; society imprisons them to protect itself against further violence at their hands. If, as the district court suggested, long prison terms mean that “inmates from our prison system, once released, will once again violate the criminal laws to an alarming degree,” at least it would seem indisputable that society will have little to fear from them for as long as they remain in prison. Halfway houses that choose not to accept people with records like the plaintiffs’ are not necessarily acting irrationally. There is an obvious risk that, given the opportunity, a man who has molested a child once will do it again — and it is a “fact,” according to the United States Supreme Court, “that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago_” Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2107. Society has a right of self-protection, and the degree of risk that society is willing to tolerate is ultimately a question for society itself. We judges may not always be happy with society’s choices, but unless the Constitution itself be violated, we must accept them. There is probably room for debate, finally, over the extent to which the State of Ohio and its citizens are capable of identifying, much less correcting, the “conditions” that “caused” the plaintiffs to commit the crimes for which they were imprisoned. It is apparent that crime often flourishes, in our society, where there is poverty and ignorance. Most people who suffer from poverty and ignorance do not commit sex crimes, however — and some people who do commit such crimes are neither poor nor ignorant. The dividing line between good and evil, as Solzhenitsyn reminds us in one of his novels, cuts through every human heart. One would like to believe that no human being would ever act on an evil impulse if we could somehow find a universal cure for poverty, ignorance, and the like, but it may not be true — and such a cure remains elusive in any event. Ohio and its citizens are likely to find themselves struggling for a long time to come to terms with the types of policy questions to which the district court alluded. For the reasons stated, the denial of the preliminary injunction sought by the plaintiffs is AFFIRMED. . Of the five inmates who testified, the first had been convicted of aggravated assault and rape, the second had been convicted on one count of rape and two of sexual battery, the third had been convicted of attempted rape, the fourth (the only one never found guilty of a sex crime) had been convicted of aggravated robbery and kidnapping, and the fifth had been convicted of corruption of a minor. The chief of Ohio's Adult Parole Authority testified that “many kinds of sex offenders are extremely recidivistic,” and he answered "yes” when asked if “the hard-to-place issue arises most often in the placement of sex offender inmates.” Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_stpolicy	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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". Grady HAMRICK, Appellant, v. AEROJET-GENERAL CORPORATION, INDUSTRIAL SYSTEMS DIVISION, an Ohio Corporation, Appellees. No. 73-1053. United States Court of Appeals, Fourth Circuit. Submitted Oct. 13, 1975. Decided Nov. 12, 1975. Martin C. Bowles, Charleston, W. Va., and Bennett R. Burgess, St. Albans, W. Va., for appellant. John S. Haight, Charleston, W. Va., for appellee. Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. PER CURIAM: Plaintiff-appellant seeks reversal of the decision of the District Court denying him relief for personal injuries which he allegedly suffered as the result of defendant-appellee’s negligence. The complaint was filed in the Court of Common Pleas of Kanawha County, West Virginia, and was removed by the defendant to the United States District Court for the Southern District of West Virginia on the basis of diversity of citizenship. The trial court, sitting without jury, found that the defendant was not negligent, and that the plaintiff himself was guilty of contributory negligence and assumption of risk. Defendant, Aerojet, was a general contractor which had undertaken a construction project for Union Carbide Corporation. The plaintiff was instructed by his employer, Dougherty Company, Inc., one of defendant’s subcontractors, to report to the Union Carbide construction site. Upon arrival, finding it necessary to ascend to the third floor of the project, he chose to utilize the “man-lift” instead of a staircase which was equally accessible. The “man-lift” is a conveyor belt which stands perpendicular to the ground, has footholds and handles which allow persons to secure themselves, and serves as a crude mode of elevator. Having mounted the lift, the plaintiff failed to realize that he had gone beyond floor level of the top floor, and was approaching the point at which the belt would make a 180 degree turn and begin its descent. As a consequence, he was forced to jump off the lift. Upon impact with the floor, appellant sustained serious damage to his ankle. Appellant alleged in the District Court that Aerojet was negligent in several regards, most notably in that they failed to mark the floors adjacent to the path of the man-lift. In support of his claim, he cited West Virginia Code Chapter 21, Article 3, §§ 1-3, which requires that employers take certain precautionary measures to protect employees from injury from mechanical apparatus. Although West Virginia treats the violation of such a statute as prima facie negligence if it is the proximate cause of injury, Tarr v. Keller Lumber and Construction Co., 106 W.Va. 99; 144 S.E. 881 (1928), the District Court properly noted that the Supreme Court of West Virginia has held the above-mentioned statutory provision to be applicable only to the employer-employee situation. See Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 838, 156 S.E.2d 297, 302 (1967). There is no dispute as to the fact that appellant and Aerojet did not stand in the relationship of employer and employee. Additionally, the District Court reasoned that the statutory language indicated a legislative intent to make the safety requirements applicable to operational industrial facilities, not to those which are merely under construction. Since the statute speaks to owners of places of employment “now or hereafter constructed,” W.Va. Code, c. 21, art 3, § 1, we feel that such an interpretation is proper. Although not unambiguous, the West Virginia Supreme Court seemed to concur in this construction. See Chenoweth v. Settle Engineers, Inc., supra at 838, 156 S.E.2d at 302. The trial judge thus examined the duty owed to the plaintiff in accordance with the common law of West Virginia. Appellant urges that through the doctrines of “reasonable convenience” or “mutual advantage” he was owed the duty of reasonable care, rather than the lesser duty of refraining from willful and wanton conduct. On the authority of Perkins v. Henry J. Kaiser Company, 236 F.Supp. 484, (S.D.W.Va.1964), aff’d, 339 F.2d 703, the District Judge found neither theory to be applicable to the instant case. “Mutual advantage” requires that the owner of the apparatus receive advantage from the permitted use by another of that particular piece of equipment. Id. at 487. It is clear from the record that plaintiff could have chosen just as easily to use the stairs for his two-story ascent, and that no benefit accrued to Aero as a result of his decision to use the “man-lift.” “Reasonable convenience” is pertinent where it is foreseeable that use of the mechanism would be reasonably necessary for the subcontractor to perform the functions owed his general contractor. Id.; See also Pettyjohn v. Basham, 126 Va. 72, 100 S.E. 813 (1919). The existence of the equally accessible stairway negates the applicability of this doctrine as well. The trial court found that Aero violated no duty owed the plaintiff-appellant. Additionally, it was found that plaintiff was contributorily negligent in his failure to observe that the “man-lift” had reached the top floor. We cannot say that these findings are clearly erroneous. See Rule 52, F.R.Civ.P. Nor do we find any error of law. Since the findings of an absence of defendant’s negligence and appellant’s contributory negligence adequately dispose of the instant case, we express no opinion as to the propriety of the trial court’s decision that appellant’s action also constituted assumption of risk. Accordingly, the judgment of the District Court is affirmed. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_1_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". CITY DISPOSAL SYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 81-1406. United States Court of Appeals, Sixth Circuit. Argued June 14, 1982. Decided July 22, 1982. Theodore R. Opperwall, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for petitioner. Elliott Moore, Deputy Associate Gen. Counsel, Howard E. Perlstein, N. L. R. B., Washington, D. C., Harris Berman, Complianee Officer N. L. R. B., Region 7, Detroit, Mich., for respondent. Before LIVELY and JONES, Circuit Judges, and CECIL, Senior Circuit Judge. PER CURIAM. Petitioner seeks review and the National Labor Relations Board seeks enforcement of an order holding that City Disposal Systems, Inc. (the Company) violated Section 8(a)(1) of the National Labor Relations Act by discharging its former employee, James Brown, in disregard of his Section 7 rights. The Board’s order relied upon the Interboro doctrine, although it noted that this Circuit has rejected the doctrine. City Disposal Systems, Inc., 256 N.L.R.B. No. 73 (June 9, 1981). We grant the petition for review and deny enforcement. City Disposal Systems hauls garbage for the City of Detroit from a drop-off point to a land fill some 37 miles away. The garbage is hauled by tractor-trailers. Normally a driver is assigned to a certain tractor-trailer; however, when this vehicle is in for repairs, the driver may be reassigned to another vehicle. James Brown was a driver for the Company. He normally drove truck number 245. On May 12, 1979, Brown had a near accident with truck number 244 driven by Frank Hamilton when the brakes on 244 would not stop the truck at the land fill. Hamilton took 244 back to the drop-off point. With Brown present, mechanics told Hamilton that the truck would be fixed over the weekend or the first thing Monday morning. Brown’s truck, 245, also had a problem with its fifth wheel which was to be fixed by Sunday. Brown returned to work at 4:00 a. m. Monday, May 14. He took his truck out to the land fill and found that the fifth wheel continued to cause problems. Brown returned to the drop-off point, talked to the mechanics, and learned that his truck could not be fixed that day. He then spoke to a supervisor, Jasmund, who told him to punch out and go. home after confirming that his truck would not be fixed. Brown punched out but remained in the driver’s room. Jasmund returned and requested Brown to drive number 244. Brown said he would not do so since 244 had a brake problem. Jasmund instructed Brown to go home and the two had words. Another supervisor, Bob Madary, came on the scene. When Brown repeated that 244 had problems, Madary pointed out that all the trucks had problems and if the Company dealt with them all it would be unable to move the garbage. Brown testified that he replied, “Bob, what you going to do, put the garbage ahead of the safety of the men?” Madary was unmoved. Brown left work. Later he was notified that the Company had listed his as a voluntary quit. Subsequently Brown, a member of Local 247, International Brotherhood of Teamsters, Changers, Warehousemen and Helpers (the Union), filed a grievance seeking reinstatement and citing provisions in the collective bargaining agreement giving employees the right to refuse to operate unsafe equipment. The Union found no merit in his grievance and refused to process the grievance beyond the early stages of the contractual grievance procedure. The Interboro doctrine, as we understand it, holds that an individual enforcing rights under the labor contract is engaged in concerted activity protected by Section 7 even though he is acting solely for his own purposes since the labor contract itself is the product of concerted activity and the action of the employee is an extension of that process. Aro, Inc. v. NLRB, 596 F.2d 713, 716 (6th Cir. 1979); See NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (8th Cir. 1970); Interboro Contractors, Inc., 157 N.L. R.B. 1295 (1966), enf’d, 388 F.2d 495 (2d Cir. 1967). Courts have recognized tension between the Interboro doctrine and the plain language of Section 7. See, e.g., Kohls v. NLRB, 629 F.2d 173, 177 (D.C.Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1390, 67 L.Ed.2d 363 (1981); NLRB v. Northern Metals Co., 440 F.2d 881, 884 (3rd, Cir. 1971). Section 7 requires that the employee engage in “concerted activities.” An individual does not act in concert with himself. To test whether an action is concerted, we adhere to the criteria set forth by Judge Phillips in Aro, Inc.: For an individual claim or complaint to amount to concerted action under the Act it must not have been made solely on behalf of an individual employee, but it must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement. 596 F.2d at 718; see NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442, 445 (6th Cir. 1981). There is no evidence in the record that Brown acted or asserted an interest on behalf of anyone other than himself. Brown did not attempt to warn other employees not to drive the truck he believed to be unsafe, even though the evidence established that there was a bulletin board on which employees informed their co-workers of problems with equipment. Likewise, Brown did not go to his union representative in an effort to avoid driving the truck he considered unsafe. While Brown’s isolated comment alluded to the safety of all the men, it was not relied on by the Board to evidence concerted action. In view of the vague and general nature of the comment, and the absence of evidence that Brown informed other drivers or his union that number 244 was unsafe, we do not accept the comment as substantial evidence of concertedness. Compare NLRB v. Lloyd A. Fry Roofing Co., supra, and NLRB v. Guernsey-Muskingum Electric Co-operative, Inc., 285 F.2d 8 (6th Cir. 1960) with Bay-Wood Industries, Inc. v. NLRB, 666 F.2d 1011 (6th Cir. 1981); United Parcel Services v. NLRB, 654 F.2d 12 (6th Cir. 1981) and Aro, Inc. v. NLRB, supra. The Union made no effort to protest the use of the truck. Pursuit of Brown’s claim that he was discharged in violation of the labor agreement by the Union is to be distinguished from union activities with respect to the equipment Brown believed to be unsafe. The discharge claim asserts a different interest at a later time. It neither tends to prove nor disprove that when Brown complained he was seeking to represent the Union or other individual employees. The District of Columbia Circuit relied upon similar facts to those present here in finding that an employee’s actions could not reasonably be perceived as concerted in Kohls v. NLRB, 629 F.2d at 177. We are in complete agreement with the analysis therein expressed by Judge Edwards as to this issue. Having found no substantial evidence that the employee’s actions were concerted within the meaning of Section 7, we need not address the other arguments raised by the Company. Accordingly, the Company’s petition for review is Granted and the Board’s cross-petition for enforcement is Denied. . Section 8(a)(1) provides: 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], Section 7 provides in part: Employees shall have the right ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.. .. 29 U.S.C. §§ 157 & 158 (1976). . See Interboro Contractors, Inc., 157 NLRB 1295 (1966), enf’d, 388 F.2d 495 (2d Cir. 1967). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_usc2sect	255	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 31. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES v. TURNER. No. 8971. Circuit Court of Appeals, Eighth Circuit. Jan. 28, 1931. Peter B. Garberg, U. S. Atty., of Fargo, N. D. Before KENYON and GARDNER, Circuit Judges, and HUNGER, District Judge. MUNGER, District Judge. Christina P. Turner, the appellee, filed a bill against the United States praying that her title to a tract of land in North Dakota be quieted as against any claims of the United States and for an injunction against any disturbance of her title and possession and for general relief. She alleged ownership by purchase from F. C. Turner in 1922, and possession thereafter. She also alleged that a mistake was made in the deed executed by F. C. Turner by which he undertook to convey this land to her, so that the deed described another tract of land. There were other allegations of the recovery of a judgment by the United States against F. C. Turner, the issuance of an execution under the judgment, a levy on and sale of this land, and the issuance of a certificate pursuant to the sale, but no allegation of the value of the land. An answer was filed for the United States by the district attorney, and a decree was entered in the case quieting the plaintiff’s title and granting the injunction as prayed. At the following term, the United States filed a motion in the case to vacate the decree. Counsel for both parties submitted this motion to the court. The motion was overruled, and from that order this appeal is prosecuted. The motion to vacate the decree alleged that the United States had title to the land prior to the decree because of a sale of the land to it under an execution in satisfaction of a judgment against F. C. Turner, the record owner of the land at the time the judgment was entered, and alleged that the court was without jurisdiction to enter the decree, as there had been no consent of the United States to the prosecution of the suit, and that the appearance of the district attorney had not expressed the consent of the United States. The government of the United States is not subject to suit without its consent; its consent is expressed only by a statute permitting suits against it; and the courts cannot go beyond the letter of such consent, where such consent has been expressed. United States v. Clarke, 8 Pet. 436, 8 L. Ed. 1001; Schillinger v. United States, 155 U. S. 163, 15 S. Ct. 85, 39 L. Ed. 108; Nassau Smelting Works v. United States, 266 U. S. 101, 45 S. Ct. 25, 69 L. Ed. 190; Morrison v. Work, 266 U. S. 481, 45 S. Ct. 149, 69 L. Ed. 394. Any claim of jurisdiction to enter the decree rendered is founded upon the provisions of that part of section 24(20) of the Judicial Code (28 U. S. Code § 41(20), 28 USCA § 41(20) which gives the District Court jurisdiction. “Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in- respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable.” In construing similar prior acts of Congress giving to the Court of Claims jurisdiction to hear and determine all claims founded upon any act of Congress or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, the Supreme Court held that only suits for the recovery of money from the United States could bo maintained. The court said: “It will be seen by reference to the two acts of Congress on this subject, that the only judgments which the 'Court of Claims are authorized to render against the government, or over which the Supreme Court have any jurisdiction on appeal, or for the payment of which by the Secretary of the Treasury any provision is made, are judgments for money found due from the government to the petitioner. And, although it is true that the subject-matter over vdiick jurisdiction is conferred, both in the act of 1855 and of 1863, would admit of a much more extended cognizance of cases, yet it is quite clear that the limited power given to render a judgment necessarily restrains the general terms, and confines the subject-matter to cases in which the petitioner sets up a moneyed demand as due from the government.” United States v. Alire, 6 Wall. 573, 575, 18 L. Ed. 947. The Act of March 3, 1887, sometimes called the Tucker Act (24 Stat. 505), provided for the bringing of suits against the government of the United States either in the Court of Claims or in the Circuit or District Courts of the United States. The Court of Claims was given jurisdiction of all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in eases not sounding in tort, in respect of which claims the party would be entitled to redress against'the United States either in a court of law, equity, or admiralty, if the United States were suable, the District Courts of the United States were given concurrent jurisdiction with the Court of Claims of such matters where the amount of the claim did not exceed $1,000, and the Circuit Courts were given concurrent jurisdiction where the claim exceeded $1,000 and did not exceed $10,000. The Supreme Court in United States v. Jones, 131 U. S. 1, 9 S. Ct. 669, 671, 33 L. Ed. 90, in considering this statute, after referring to the decree in United States v. Alire, said: “The sections of the act of 1863 referred to in this opinion are still in force, not being repealed by the act of 1887, which only repeals ‘all laws and parts of laws inconsistent’ therewith. Section 5, relating to appeals, is transferred to section 707 of the Revised Statutes, giving an appeal to this court ‘where the amount in controversy exceeds $3,000;’ and section 7, relating to the mode of paying judgments out of a general appropriation, and allowing interest where a judgment is affirmed, is contained in sections 1089, 1090 of the Revised Statutes. These sections are still the law on the subjects to which they relate, being necessary to the completion of the system, and not being supplied by any other enactments. Indeed, they are expressly retained. The fourth section of the act of 1887 declares that ‘the jurisdiction of the respective courts of the United States proceeding under this act, including the right of exception and appeal, shall be governed by the law now in force, in so far as th,e same is applicable, and not inconsistent with the provisions of this act;’ and the ninth section declares ‘that the plaintiff or the United States, in any suit brought under the provisions of this act, shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made, and upon the conditions and limitations therein contained.’ These provisions undoubtedly include the court of claims as well as the district and circuit courts. So, in relation to interest, section 10 declares that ‘from the date of such final judgment or decree interest shall be computed thereon at the rate of four per cent, per annum, until the time when an appropriation is made for the payment of the judgment or decree.’ It seems, therefore, that in the point of providing only for money decrees and money judgments, the law is unchanged, merely being so extended as to inelude claims for money arising out of equitable and maritime as well as legal, demands. We do not, think that it was the intention of congress to go farther than this. Had it been, some provision would have been made for carrying into execution decrees for specific performance, or for delivering the possession of property recovered in kind. The general scope and purport of the act are against any farther extension than that here indicated. The expression in the fifth section, referring to ‘money or any other thing claimed, or the damages sought to be recovered,’ on which so much reliance is placed by the appellees, cannot outweigh the considerations referred to, and operate to introduce entirely new fields of jurisdiction. It is one of those general expressions which must be restrained by the more special and definite indications of intention furnished by the context. “We cannot yield to the suggestion that any broader jurisdiction as to subject-matter is given to the circuit and district courts than that which is given to the court of claims. It is clearly the same jurisdiction — ‘concurrent jurisdiction’ only — within certain limits as to amount; and the language in which those limits are expressed furnishes an additional argument in favor of the conclusion which we have reached. It is declared ‘that the district courts of the United States shall have concurrent jurisdiction with the court of claims * * * where the amount of the claim does not exceed $1,000,’ etc. This language is properly applicable only to a money claim. Had anything but money been in the legislative mind the language would have been, ‘where the amount or value of the thing claimed does not exceed $1,000,’ etc.” An examination of the portions of the statutes cited by the court, and which were regarded by it as determinative of the questions, shows that the substance of sections 1089 and 1090 of the Revised Statutes as to the mode of paying judgments and as to the allowance of interest when a judgment is affirmed are now embraced in 31 U. S. Code §§ 225 and 226 (31 USCA §§ 225, 226). The portion of section 10 of the Act of March 3, 1887, quoted in the opinion, relating to interest after final judgment, is found in 28 U. S. Code, § 765 (28 USCA § 765). The portion of section 2 -giving the District Courts concurrent jurisdiction with the Court of Claims when the amount of the claim does not exceed $1,000 is now expressed in 28 U. S. Code § 41(20), 28 USCA § 41(20), as jurisdiction “of all claims not exceeding $10,000.” The provisions of section 707 of the Revised Statutes (section 242 Jud. Code [36 Stat. 1157]), giving an appeal to the Supreme Court when more than $3,000 was involved, was repealed and superseded by the Act of February 13, 1925 (section 13, 43 Stat. 941); (43 Stat. 939, 28 U. S. Code, § 288 [28 US CA § 288]), limiting the jurisdiction of the Supreme Court, but the main provisions of the statutes relied upon by the court remain substantially unchanged, and are persuasive that the provisions of section 24(20) o'f the Judicial Code (28 USCA § 41(20) do not give jurisdiction to a District Court to enter a decree quieting, the title to lands or to grant an injunction restraining the United States from trespassing upon lands, in a suit brought against the government. United States v. McLemore, 4 How. 286, 11 L. Ed. 977; Hill v. United States, 9 How. 386, 13 L. Ed. 185; Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599; Holmes v. United States (D. C.) 78 F. 513; Welch v. Hamilton (D. C.) 33 F.(2d) 224. The appearance in such a suit by the district attorney would not confer the consent of the United States to such a decree. A court has the inherent power to vacate its judgments or decrees which are rendered without jurisdiction, upon motion made either at the term at which the judgment is rendered or after-wards. Pollitz v. Wabash R. Co. (C. C.) 180 F. 950; United States v. Wallace (D. C.) 46 F. 569; Shuford v. Cain, 1 Abb. U. S. 302, Fed. Cas. No. 12,823; Harris v. Hardeman, 14 How. 334, 14 L. Ed. 444; United States v. One Essex Touring Automobile (D. C.) 276 F. 28; In re Dennett (C. C. A.) 221 F. 350; 1 Freeman on Judgments, § 98; 34 Corp. Jur. 217. A judgment .may be entirely void, even though the court might have jurisdiction of the parties and of the subject-matter. As was said by the court in Windsor v. McVeigh, 93 U. S. 274, 282, 23 L. Ed. 914: “The doctrine invoked by counsel, that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil or criminal; or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character, such as arise on navigable waters, or relate to the testamentary disposition of estates; or to the use of particular process in the enforcement of their judgments. Norton v. Header [Fed. Cas. No. 10,351], Circuit Court for California. Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the eases supposed, would not be merely erroneous; they would be absolutely void, because the court in rendering them would transcend the limits of its authority in those cases.” See, also, Standard Oil Co. v. Missouri, 224 U. S. 270, 32 S. Ct. 406, 56 L. Ed. 760, Ann. Cas. 1913D, 936. But all courts recognize that, where the court has no jurisdiction over the subject-matter, the judgment is not merely voidable, but is absolutely void. 33 Corp. Jur. 1075. Mr. Freeman in his work on Judgments states: “A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree, then, is in reference to its validity. For if it be null, no action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in a,ny legislative.or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered, or in some other action.” 1 Freeman on Judgments, § 117. Because the original decree in this case was void, the suit in which it was mistakenly entered was still pending, and the appellant had the right to ask that the entry of such a decree as had been rendered should be stricken from the records of the court as an impediment to a proper disposition of the suit. See Harris v. Hardeman, supra. While such an impediment existed, the refusal of the court to vacate the void decree was a final order which determined the rights of the parties in that suit. The parties appeared before the court and submitted to the court the motion to vacate the decree. As the lack of jurisdiction to make the decree rendered was apparent on the face of the record, we think the court erred in refusing to vacate the decree. The order will be reversed and the case will be remanded, with directions to the trial court to vacate the decree of October 23, 1929, and for any further proceedings not inconsistent with the conclusions which have been stated. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 31? Answer with a number. Answer:
songer_counsel2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Freddie DAVIS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee. No. 83-8384. United States Court of Appeals, Eleventh Circuit. Sept. 30, 1987. Rehearing and Rehearing En Banc Denied Nov. 25,1987. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee. Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellee, cross-appellant. Before HILL and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge. HILL, Circuit Judge: Ralph Kemp, Warden of the Georgia Diagnostic Center, appeals to this court from an order of the district court granting Freddie Davis’ petition for a writ of habeas corpus, and thus prohibiting his execution unless the state holds a resentencing hearing within 180 days. Davis has filed a cross-appeal from the order of the district court denying relief as to the other grounds set forth in his petition. We affirm the order of the district court denying relief as to the grounds raised by Davis in his cross-appeal and reverse the order granting relief on the grounds addressed by the state’s appeal. Davis was indicted in Meriwether County, Georgia, on charges of murder and rape; at his trial in March 1977, the jury found him guilty of both crimes. At his sentencing hearing, the jury found an aggravating circumstance, see O.C.G.A. § 17-10-30(b)(2), and the judge sentenced Davis to death for the murder and life imprisonment for the rape. Davis appealed his convictions and sentence to the Georgia Supreme Court. In February 1978, that Court upheld Davis’ convictions but vacated his death sentence. See Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978). At Davis’ second sentencing hearing in May 1978, the jury found two statutory aggravating circumstances, see O.C.G.A. § 17-10-30(b)(2) & (b)(7), and the judge sentenced Davis to death. Davis appealed to the Georgia Supreme Court, which affirmed the death sentence. See Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979). The United States Supreme Court vacated the second death sentence and remanded the case to the Georgia Court for reconsideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). See Davis v. Georgia, 446 U.S. 961, 100 S.Ct. 2934, 64 L.Ed.2d 819 (1980). The Georgia Court reinstated the death sentence, see Davis v. State, 246 Ga. 432, 271 S.E.2d 828 (1980), and the Supreme Court denied certiorari. See Davis v. Georgia, 451 U.S. 921,101 S.Ct. 2000, 68 L.Ed.2d 312 (1981). Davis then filed a petition for a writ of habeas corpus in state superior court. The state court denied this petition on February 5, 1982, and the Georgia Supreme Court denied Davis’ application for a certificate of probable cause on March 24, 1982. The United States Supreme Court again denied certiorari. See Davis v. Georgia, 459 U.S. 891, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982). On December 15,1982, Davis filed a petition for a writ of habeas corpus in federal district court. The court denied this petition on December 20, 1982. Davis, with new counsel, filed various pleadings with the district court, which he characterized as amended petitions, in an effort to raise new claims. Although the district court found the petitions to be successive and an abuse of the writ, on December 23, 1982, the court agreed to reconsider the case. On April 8, 1983, the court granted Davis the above-described partial relief. This appeal was held in abeyance pending four en banc opinions affecting the outcome of this case. With the Supreme Court’s denial of certiorari on March 2, 1987 in Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (llth Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987), the appeals in these four cases became final. Accordingly, we proceed to analyze the issues set forth in Davis’ petition. I Davis raised three of his claims on appeal for the first time in his second federal habeas petition. The state contends that the district court improperly considered Davis’ second petition after finding it to be a successive petition and an abuse of the writ. We hold that, under the controlling case law, the district judge did not abuse his discretion in considering the issues raised in the successive petition in this case. As the Supreme Court has stated, the district courts are responsible for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a. second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power— and, if the ends of justice demand, the duty — to reach the merits. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2625, 91 L.Ed.2d 364 (1986) (“the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances”); Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981). In his order, the district judge specifically cited Sanders and Potts. We thus conclude that, despite his decision that Davis had abused the writ, the district judge relied on the proper grounds in exercising his discretion, concluding that the “ends of justice” justified considering Davis’ amended petition. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. II The district court granted the writ because it found the closing argument of the prosecutor at Davis’ sentencing hearing unconstitutional under our decision in Hance v. Zant, 696 F.2d 940 (11th Cir.1983). In Hance, the court found unconstitutional arguments made by the prosecutor which were similar to the arguments delivered in this case. The decision in Hance, however, has been largely overruled. Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985) (en banc), vacated on other grounds, — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); see Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc), cert, denied, — U.S.-, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc). Generally the court engages in a two step process in determining whether a habeas petitioner is entitled to relief based upon a prosecutor’s arguments. First, we consider whether the prosecutor’s arguments were improper. Second, we consider whether any arguments found improper were so prejudicial as to render the trial fundamentally unfair. As we noted in Brooks, 762 F.2d at 1400, “it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair.” The Supreme Court has recently reaffirmed the standard to be employed in reviewing a prosecutor’s argument: The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the re-suiting conviction a denial of due process.” Donnelly v. De Christoforo, 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id. at 642, 94 S.Ct. at 1871. Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying this standard, we conclude that the prosecutor’s closing arguments did not render Davis’ trial fundamentally unfair. Davis primarily attacks six portions of the prosecutor’s arguments which he considers unconstitutional. During the sentencing phase, the prosecutor analogized the role of the jury and the role of soldiers fighting for their country: I know it’s difficult and an unpleasant thing. Nobody would like to recommend the death penalty for anybody else, but people, unfortunately, are faced with difficult times, having to do difficult things. Every one who goes into the armed services has a difficult duty. Oftentimes these men have to go into battle and fight and get killed although they might be opposed to the practice of killing. But, in order to protect our country and preserve it, keep it where it is and keep it free, they must occasionally go into battle and kill people. It’s the same principal that applies here, and I submit, Freddie Davis and people like him are just as much as an enemy of this country as soldiers who have fought against this country in war. In fact, even more because these soldiers are fighting for their own country. Freddie Davis has no such motives. His motives are self-motivations, greed, lust or what have you. Let’s not feel sorry for Freddie Davis. There has been no evidence whatsoever presented by Freddie Davis to repute [sic] or dispute or rebute [sic] any evidence that we have submitted. The evidence that we have submitted must be taken as true because you have no other evidence presented to you. That’s it. In Brooks, we found improper an argument that was similar in some respects to the argument quoted above but was in other respects more egregious. We noted that “the analogy of the death penalty to killing in a war was appropriate insofar as it implied that imposing death, while difficult, is at times sanctioned, by the state because of compelling reasons (national security or deterring crime).” 762 F.2d at 1412. We found the particular analogy drawn in Brooks to be improper, as it “undermine[d] the crucial discretionary element required by the Eighth Amendment.” Id. at 1413. In that case, however, “[t]he improper aspect of the argument was the suggestion that the jurors should forego an individualized consideration of Brooks’ case and instead choose execution because he was part of the broad ‘criminal element’ terrorizing American society.” Id. at 1414. The excerpt quoted above included no such suggestion. Instead, the prosecutor emphasized the evidence in this particular case and the duty of the jury to impose a sentence of death if they deemed it appropriate under the particular circumstances of the crime Davis committed. The prosecutor thus avoided the argument held improper in Brooks. Also challenged is the prosecutor’s argument concerning the deterrent value of the death penalty: We do know this, that in the last 10 or 12 years, since we haven’t had but one death penalty in the whole United States, violent crimes have increase [sic] tremendously. They are running rampant in this country. You cannot pick up the newspaper, listen to the television, or radio, read a magazine or anything about the news without reading about some vile, horrible, unspeakable crime. These crimes are happening in much more frequency now than they did while we were imposing the death penalty on people who committed these crimes. That’s just the facts of life. We do know that this is happening. This argument was not improper. Arguments by the prosecutor that the death penalty serves as a deterrent are proper. Brooks, 762 F.2d at 1407 (“In deciding whether to impose the death penalty in a particular case, it is appropriate for a jury to consider whether or not the general deterrence purpose of the statute is served thereby.”); Drake, 762 F.2d at 1449; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505; Collins v. Francis, 728 F.2d 1322, 1339 (11th Cir.1984). One of the stronger arguments relied upon by defense attorneys during the sentencing phase of a death case is that nothing would be served by taking the defendant’s life. The prosecutor is permitted to rebut such an argument. The constitution does not require one-sideness in favor of the defendant. Davis contends the prosecutor’s arguments are presumably based on studies not in evidence. In Brooks, the prosecutor was permitted to argue that the increasing crime rate had been produced by the state’s failure to have executed anyone in recent years. Reference to the increasing crime rate was permissible without statistical proof, because such information was within the common knowledge of jurors. Implicit within the state legislature’s decision to enact a death penalty statute is the determination that the death penalty serves valid purposes of deterrence and retribution. Thus, the court in Brooks concluded that: “[t]he prosecutor need not adduce evidence... to prove the link between death and deterrence. An argument... urging jurors to consider the deterrent effect of the penalty is not improper.” Brooks, 762 F.2d at 1409. Retribution is also a permissible factor which the jury may consider in imposing death. Brooks, 762 F.2d at 1407; Tucker, 762 F.2d at 1484; Tucker, 762 F.2d at 1505. The prosecutor’s arguments seeking to justify the execution of Freddie Davis based upon society's legitimate interest of purging itself of this wrong was a permissible argument. The prosecutor made the following argument: But, by feeling sorry for him, we neglect and overlook another aspect of the case. We completely ignore and neglect and overlook what happened to Miss Coe. What happened to her? For 35 or 40 minutes these people were in her house in which she was undergoing tortures that we can’t imagine. We can’t imagine what happened to her. No one within his wildest dreams can imagine what she went through. This type of sympathy directed toward Freddie Davis, ladies and gentlemen is false sympathy because it only looks at one side of the coin. One side of the story. To ignore Frances Coe and feel only for this defendant, I submit, would be a disgrace and an injustice and an outrage. That people can commit crimes like this in this country and not receive the punishment that they deserve is a disgrace and an outrage. Something this whole country has to be ashamed of, and ladies and gentlemen, I submit one of the main reasons that we have so many crimes like this in this country and we have them because of sympathy on the part of jurors toward people who commit the crime. This argument was merely an effective means of emphasizing the purposes of retribution and deterrence served by this statute. The prosecutor also invoked both general and specific deterrence again in his conclusion: The death penalty is called for. Ask yourselves this question, how would you feel living in this community if you looked out of your window one night and saw Freddie Davis walking down the street coming up toward your house. If that wouldn’t put a feeling of cold terror in your heart, what would? One thing and one thing only will stop or reduce this type of crime from happening is that jurors must do their duty and stand up and be counted and tell Freddie Davis and people like him that they have had enough. That we are going to execute you if you participate in crimes like this. If you don't do it, why should they ever stop doing it? Why should they? If you are not willing to impose the death penalty in this case or cases like this, what will ever stop these people from committing these types of horrible, unspeakable crimes. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held that the future dangerousness of a defendant is a proper consideration in imposing death. See Tucker, 762 F.2d at 1507; Bowen v. Kemp, 769 F.2d 672, 679 (11th Cir.1985). In the above quoted excerpt, the prosecutor dramatically illustrated this future dangerousness. In Brooks, the prosecutor brought this very matter home to the jury by asking, “Who’s daughter will be killed next?” We found such an argument to be constitutional, concluding that: “A legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims.” Brooks, 762 F.2d at 1412. The argument made in this case is no more emotion laden than the imagery created by the prosecutor in Brooks. Davis also attacks two portions of the prosecutor’s arguments which he argues tend to lessen the jury’s role in the sentencing process. The prosecutor argued: This is an important task. It’s a task that only the jury can decide. This is a task, a decision, that is so important that only the people, the people themselves, can decide this. The people decide this in the person of your twelve citizens picked from this county, twelve upstanding, intelligent citizens, as the law requires and decide what you think should be done. Punishment can’t be decided by the Sheriff. You can’t blame him if the person doesn’t get the electric chair. You can’t blame the judge if he doesn’t give him the electric chair, you can’t blame the District Attorney or the Governor or the GBI. The Governor doesn’t sentence, nor the State Legislature or the State Appeal Court or anybody else. This decision, what a sentence will be, is to be decided by a jury and only be decided by you, by this jury. A similar argument was made toward the conclusion of the prosecutor’s argument: What this case comes down to is a question of duty. You must do your duty as you see fit as the citizens of this country. And I — this is a difficult thing to do at times. Everyone else has had a duty in this case. The other people have done their duty as well as they saw fit. The citizens who found Miss Coe, found her body, they did their duty by bringing this to light. The officers, GBI, the Sheriff's office, Sheriff Branch, Mr. Bert Davis, they did their duty as well as it could be done, and we are very fortunate, ladies and gentlemen, to have people like this working for you. I think you realize that. All the witnesses who testified in the case, officers, or people reported the crime or Crime Lab — the Crime Lab did its duty and they did their duty by performing the tests that they did and coming and testifying about it. The Grand Jury did its duty by returning an indictment. The Judge did his duty deciding on the legal points that came up and with intelligence. The juries — first jury did its duty by finding this one guilty of the offenses that he committed. I have attempted to do my duty by trying to bring the truth out to you and let you know what happened. It’s your duty and nobody else’s you can’t delegate it to anyone else. No one else but you and your duty is clear, and to not find — not recommend the death penalty is to leave your duty undone and only halfway complete this case. These arguments bear some resemblance to an argument made by the prosecutor in Tucker v. Kemp, 762 F.2d 1480 (11th Cir. 1985): [The defense attorney will] mention that, well, can you sleep well if this man is executed? Won’t it bother you if you ever read about it or hear about it whenever it happens? But I for one want to tell you that you are not the ones who did it if he is executed. It does not rest on your shoulders, ladies and gentlemen. Policemen did their duty and they went out and made the case. The grand jury down there did its duty and it indicted him and charged him with these horrible offenses. The district attorney’s office prosecuted the case, located the witnesses, and brought them in. The judge, the court came in and presided at the trial. And ladies and gentlemen, you are the last link in this thing, and if this man suffers the death penalty it’s no more up to you than it is to anybody else, the grand jury or the police, or the district attorney’s office. All of us are coming in and doing our duty. In Tucker, the Court concluded that such an argument was improper because it “suggested] that the jury is only the last link in a long decision” to impose death and therefore trivializes the jury’s importance. Tucker, 762 F.2d at 1485-86. In Brooks v. Kemp, the en banc court also considered a prosecutor’s argument which is remarkably similar to the argument made in the present case: Now I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s rough, it would be hard for me to do. Can I take somebody’s life? Well the truth, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does. How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that's when he took his own life. He’s a grown man, and he knew what he was doing. This argument was found to be proper because it did not minimize the role of the jury as the prosecutor had sought to do in Tucker, rather the argument emphasized the responsibility of the jury. In the present case, the prosecutor’s arguments are more closely analogous to the argument made in Brooks rather than the argument used by the prosecutor in Tucker. Here, the jury was instructed as to the importance of its task. The prosecutor informed the jury that they alone could determine the appropriate sentence and that this task could not be delegated. In Dutton v. Brown, 788 F.2d 669, 675 (10th Cir.1986) the United States Court of Appeals for the Tenth Circuit considered a prosecutor’s argument which informed the jury that they were not “functioning as individuals” but functioning as part of the legal system in the same manner that the judge and district attorney performed their roles within this system. The court held that such an argument did not diminish the jury’s responsibility: [T]he statement of the prosecutor was not constitutionally impermissible. The statement was not designed to, nor did it, suggest to the jury that it was not ultimately responsible for deciding [the defendant’s] punishment. The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility. The same must be said concerning the arguments delivered in this case. It certainly was not improper for the prosecutor to argue that the jury should return a verdict of death in this particular case. Accordingly, the argument by the prosecutor in this case was proper. Finally, even if we were to find the prosecutor’s argument to be improper, Davis’ sentencing proceeding was not rendered fundamentally unfair. In Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985), the court concluded that the prosecutor’s “last link” argument was improper but proceeded to find the argument was not so egregious as to create a constitutional error. The decision in Tucker, however, was vacated and remanded by the Supreme Court in light of the Supreme Court’s subsequent decision in Caldwell v. Mississippi, 472 U.S. 320, 105 5. Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the court reversed a death sentence where the jury was informed that a sentence of death is not final and the sentence would be subject to automatic review by the State Supreme Court. In so ruling, the Court, per Justice Marshall, wrote: In this case, the state sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eight Amendment requires. Id., 105 S.Ct. at 2646. On remand, the Tucker court concluded that its previous holding was consistent with Caldwell. Tucker v. Kemp, 802 F.2d 1293 (11th Cir. 1986) (en banc), cert, denied, — U.S.-, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987). The court noted that “[vjiewing the entire sentencing proceeding, there can be little doubt that the jury understood it had the sole responsibility to determine the sentence to be received by petitioner.” Id. at 1296; see also Coleman v. Brown, 802 F.2d 1227, 1238 (10th Cir.1986) (“[W]e do not find that this ‘last link’ remark made during the guilt stage of the trial — even taken together with the prosecutor’s persistent attempts to evoke sympathy for [the] victims and his comments on matters not in evidence — rose to the level of constitutional error.”). In the present case, the prosecutor’s closing arguments repeatedly emphasized the role played by the jury. The prosecutor began by informing the jury that only they could impose death. Later in his argument, the prosecutor commented: If you think that the aggravated circumstances are there, but you think he should get life, then, that’s your prerogative and you can give him life. It’s totally your decision. Defense counsel began his arguments by commenting upon the “very awesome responsibility” to which the prosecutor had referred. Furthermore, the judge informed the jury it had the discretion of imposing life even if the statutory aggravating factors were proven beyond a reasonable doubt. In light of these circumstances, we conclude that “the jury was fully apprised of and appreciated the decision that it alone had to make — whether to impose a sentence of death or one of life imprisonment.” Tucker, 802 F.2d at 1297. The sentencing proceeding was not fundamentally unfair. Ill Davis argues that, given the facts and procedural posture of his case, he should not have been put on trial again for his life. He contends that the evidence produced at his guilt/innocence trial failed to demonstrate beyond a reasonable doubt that he committed the offense of rape. At Davis’ first sentencing hearing, the state relied on only the subsection (b)(2) aggravating circumstance — murder committed in connection with the rape. Thus, Davis argues that the state could not resentence him to death after his first sentencing hearing because, given the lack of evidence to prove the rape, the double jeopardy clause bars placing him again on trial for his life. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). We will consider the constitutional validity of both his rape conviction and his resentencing together. When a habeas petitioner raises a sufficiency of the evidence claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). At trial, the state produced evidence that the victim had been forcibly assaulted around the vaginal area. Although the medical examiner testified that he found no sperm and only trace elements of seminal fluid, the position of the victim’s body — sweater open, slip pulled up, pantyhose and panties pulled down — was entirely consistent with the jury’s conclusion that a rape occurred. Davis argues that the injury could have been accomplished with a foreign object such as a stick. Although this may be true, a reasonable juror could have found beyond a reasonable doubt that the victim was raped. Davis argues that, although a juror could conclude that the victim was raped, the state introduced no evidence tending to show that Davis, as opposed to his co-defendant Spraggins (who was tried separately), committed the crime. We agree that the state failed to exclude all doubt that Davis, as a principal, committed the rape himself; however, the evidence clearly placed him in the victim’s house at the time of the crime. Although both Davis and Spraggins testified that the victim was not raped (assertions controverted by the evidence), Spraggins testified that Davis was not only present during the crime but that Davis instructed Spraggins as to how next to torture and kill the victim. Davis had a cut on his hand; and blood matching Davis’ blood type, but not Spraggins’, was found in the victim's bedroom and in other portions of the house. Given this evidence, the jury properly could decide that either Davis or Spraggins raped the victim and that the other participated as an aider and abetter, thus making him guilty as a principal under O.C.G.A. § 16-2-20. The judge gave the appropriate jury charge. Thus, we reject both Davis’ contention that his rape conviction lacks validity and his contention that the invalidity voids his death sentence. IV In a somewhat related claim, Davis next argues that the double jeopardy clause, as construed in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), prevents the state from relying on an aggravating circumstance to support his death sentence at his second sentencing hearing (the subsection (b)(7) circumstance) not relied on at his first sentencing hearing. Davis is not entitled to relief on this claim. The recent Supreme Court decision in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), disposes of this issue. In Poland, the trial judge had found as an aggravating factor that the murder was “especially heinous, cruel, or depraved,” and imposed a sentence of death. The judge, however, concluded that the crime did not fall within the “pecuniary gain” aggravating circumstance because the murder was not a contract killing. The Arizona Supreme Court found the evidence insufficient to support a finding that the murder was especially heinous; the court, however, concluded that the trial judge could have found that the crime was committed for pecuniary gain. At Poland's second sentencing, the prosecution presented additional evidence as to the “especially heinous” and “pecuniary gain” aggravating factors. The prosecutor also introduced evidence concerning a third aggravating circumstance — conviction of a previous violent felony. At the second sentencing, the trial judge found all three aggravating circumstances present and resentenced Poland to death. The Supreme Court held that the reimposition of the death penalty was not precluded by the Double Jeopardy Clause. Concluding that the defendant had never been “acquitted” of the death penalty, the court noted that the prosecutor was writing upon a “clean slate” in seeking a sentence of death at the second sentence hearing. The Supreme Court stated: We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has “decided that the prosecution has not proved its case” that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance. Such an approach would push the analogy on which Bullington is based past the breaking point. Aggravating circumstances are not separate penalties or offenses, but are “standards to guide the making of [the] choice” between the alternative verdicts of death and life imprisonment. Id. at 438, 101 S.Ct., at 1858. Thus, under Arizona’s capital sentencing scheme, the judge’s finding of any particular aggravating circumstance does not of itself “convict” a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not “acquit” a defendant (i.e., preclude the death penalty). It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer’s finding, albeit erroneous, that no aggravating circumstance is present is an “acquittal” barring a second death sentence proceeding. Arizona v. Rumsey, [467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984).] [The] concern with protecting the finality of acquittals is not implicated when, as in this case, a defendant is sentenced to death, i.e., “convicted.” There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has. Davis has at no time been “acquitted” of the death penalty. Therefore, at his second sentencing hearing, the prosecution was free to introduce any and all aggravating circumstances supported by the evidence. V At Davis’ second hearing, the jury found the aggravating circumstance that the crime was “outrageously or wantonly vile, or an aggravated battery to the victim.” O.C.G.A. § 17-10-30(b)(7). Davis contends that application of the (b)(7) circumstance in this case is unconstitutional under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), because the trial judge failed to give a limit ing instruction to the jury and because the facts of this case do not provide a basis for distinguishing this murder from any other murder on the basis of subsection (b)(7). Both arguments are without merit. We have previously rejected the contention that the trial judge must give a limiting instruction. Westbrook v. Zant, 704 F.2d 1487, 1504 (11th Cir.1983); Stanley v. Zant, 697 F.2d 955, 971 (11th Cir.1983). In this case, as in Stanley, the instruction directed the jury that they must find that the murder involved “torture, depravity of mind on the part of the defendant and aggravated battery on the defendant [sic].” Cf. Stanley, 697 F.2d at 971-72. Thus, there is not a possibility here, as there was in Godfrey, that “the jury [might] find depravity of the mind even absent any serious physical abuse of the victim before death.” Id. at 971. Davis thus has no basis for a faulty-instruction claim absent a requirement for a limiting instruction. Given the review conducted by the Georgia Supreme Court, however, we would uphold application of the circumstance in this case even if the instruction had been stated in the disjunctive. As we noted in Westbrook, “the 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. THE DUTRA GROUP, Petitioner v. Christopher BATTERTON No. 18-266 Supreme Court of the United States. Argued March 25, 2019 Decided June 24, 2019 Seth P. Waxman, Washington, DC, for Petitioner. David C. Frederick, Washington, DC, for Respondent. Preston Easley, Law Offices of, Preston Easley APC, San Pedro, CA, David C. Frederick, Brendan J. Crimmins, Benjamin S. Softness, Lillian V. Smith, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Respondent. Barry W. Ponticello, Renee C. St. Clair, England, Ponticello & St. Clair, San Diego, CA, Seth P. Waxman, Paul R. Q. Wolfson, David M. Lehn, Christopher Asta, Edward Williams, Drew Van Denover, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Petitioner. Justice ALITO delivered the opinion of the Court. By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed "in the manner of a common law court." Exxon Shipping Co. v. Baker, 554 U.S. 471, 489-490, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). Thus, where Congress has not prescribed specific rules, federal courts must develop the "amalgam of traditional common-law rules, modifications of those rules, and newly created rules" that forms the general maritime law. East River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864-865, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). But maritime law is no longer solely the province of the Federal Judiciary. "Congress and the States have legislated extensively in these areas." Miles v. Apex Marine Corp., 498 U.S. 19, 27, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). When exercising its inherent common-law authority, "an admiralty court should look primarily to these legislative enactments for policy guidance." Ibid. We may depart from the policies found in the statutory scheme in discrete instances based on long-established history, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424-425, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), but we do so cautiously in light of Congress's persistent pursuit of "uniformity in the exercise of admiralty jurisdiction." Miles, supra, at 26, 111 S.Ct. 317 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) ). This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In Miles, which concerned a wrongful-death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society. 498 U.S. at 23, 111 S.Ct. 317. And in Atlantic Sounding, after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. 557 U.S. at 407, 129 S.Ct. 2561. Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions. I In order to determine the remedies for unseaworthiness, we must consider both the heritage of the cause of action in the common law and its place in the modern statutory framework. A The seaman's right to recover damages for personal injury on a claim of unseaworthiness originates in the admiralty court decisions of the 19th century. At the time, "seamen led miserable lives." D. Robertson, S. Friedell, & M. Sturley, Admiralty and Maritime Law in the United States 163 (2d ed. 2008). Maritime law was largely judge-made, and seamen were viewed as "emphatically the wards of the admiralty." Harden v. Gordon, 11 F.Cas. 480, 485 (No. 6,047) (CC Me. 1823). In that era, the primary responsibility for protecting seamen lay in the courts, which saw mariners as "peculiarly entitled to"-and particularly in need of-judicial protection "against the effects of the superior skill and shrewdness of masters and owners of ships." Brown v. Lull, 4 F.Cas. 407, 409 (No. 2,018) (CC Mass. 1836) (Story, J.). Courts of admiralty saw it as their duty not to be "confined to the mere dry and positive rules of the common law" but to "act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend[ed], they act[ed] as courts of equity." Ibid. This Court interpreted the Constitution's grant of admiralty jurisdiction to the Federal Judiciary as "the power to... dispose of [a case] as justice may require." The Resolute, 168 U.S. 437, 439, 18 S.Ct. 112, 42 L.Ed. 533 (1897). Courts used this power to protect seamen from injury primarily through two causes of action. The first, maintenance and cure, has its roots in the medieval and renaissance law codes that form the ancient foundation of maritime common law. The duty of maintenance and cure requires a ship's master "to provide food, lodging, and medical services to a seaman injured while serving the ship." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). This duty, "which arises from the contract of employment, does not rest upon negligence or culpability on the part of the owner or master, nor is it restricted to those cases where the seaman's employment is the cause of the injury or illness." Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938) (citations omitted). The second claim, unseaworthiness, is a much more recent development and grew out of causes of action unrelated to personal injury. In its earliest forms, an unseaworthiness claim gave sailors under contract to sail on a ship the right to collect their wages even if they had refused to board an unsafe vessel after discovering its condition. See, e.g., Dixon v. The Cyrus, 7 F.Cas. 755, 757 (No. 3,930) (Pa. 1789) ; Rice v. The Polly & Kitty, 20 F.Cas. 666, 667, (No. 11754) (Pa. 1789). Similarly, unseaworthiness was a defense to criminal charges against seamen who refused to obey a ship master's orders. See, e.g., United States v. Nye, 27 F.Cas. 210, 211, (No. 15906) (CC Mass. 1855); United States v. Ashton, 24 F.Cas. 873, 874-875, (No. 14470) (CC Mass. 1834). A claim of unseaworthiness could also be asserted by a shipper to recover damages or by an insurer to deny coverage when the poor condition of the ship resulted in damage to or loss of the cargo. See The Caledonia, 157 U.S. 124, 132-136, 15 S.Ct. 537, 39 L.Ed. 644 (1895) (cataloging cases). Only in the latter years of the 19th century did unseaworthiness begin a long and gradual evolution toward remedying personal injury. Courts began to extend the cases about refusals to serve to allow recovery for mariners who were injured because of the unseaworthy condition of the vessel on which they had served. These early cases were sparse, and they generally allowed recovery only when a vessel's owner failed to exercise due diligence to ensure that the ship left port in a seaworthy condition. See, e.g., The Robert C. McQuillen, 91 F. 685, 686-687 (Conn. 1899) ; The Lizzie Frank, 31 F. 477, 480 (SD Ala. 1887) ; The Tammerlane, 47 F. 822, 824 (ND Cal. 1891). Unseaworthiness remained a suspect basis for personal injury claims until 1903, when, in dicta, this Court concluded that "the vessel and her owner are... liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship." The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903). Although this was the first recognition of unseaworthiness as a personal injury claim in this Court, we took pains to note that the claim was strictly cabined. Ibid. Some of the limitations on recovery were imported from the common law. The fellow-servant doctrine, in particular, prohibited recovery when an employee suffered an injury due to the negligent act of another employee without negligence on the part of the employer. Ibid. ; see, e.g., The Sachem, 42 F. 66 (EDNY 1890) (denying recovery based on fellow-servant doctrine). Because a claimant had to show that he was injured by some aspect of the ship's condition that rendered the vessel unseaworthy, a claim could not prevail based on "the negligence of the master, or any member of the crew." The Osceola, supra, at 175, 23 S.Ct. 483 ; see also The City of Alexandria, 17 F. 390 (SDNY 1883) (no recovery based on negligence that does not render vessel unseaworthy). Instead, a seaman had to show that the owner of the vessel had failed to exercise due diligence in ensuring the ship was in seaworthy condition. See generally Dixon v. United States, 219 F.2d 10, 12-14 (C.A.2 1955) (Harlan, J.) (cataloging evolution of the claim). B In the early 20th century, then, under "the general maritime law... a vessel and her owner... were liable to an indemnity for injuries received by a seaman in consequence of the unseaworthiness of the ship and her appliances; but a seaman was not allowed to recover an indemnity for injuries sustained through the negligence of the master or any member of the crew." Pacific S. S. Co. v. Peterson, 278 U.S. 130, 134, 49 S.Ct. 75, 73 L.Ed. 220 (1928) ; see also Plamals v. S. S. "Pinar Del Rio," 277 U.S. 151, 155, 48 S.Ct. 457, 72 L.Ed. 827 (1928) (vessel was not unseaworthy when mate negligently selected defective rope but sound rope was available on board). Because of these severe limitations on recovery, "the seaman's right to recover damages for injuries caused by unseaworthiness of the ship was an obscure and relatively little used remedy." G. Gilmore & C. Black, The Law of Admiralty § 6-38, p. 383 (2d ed. 1975) (Gilmore & Black). Tremendous shifts in mariners' rights took place between 1920 and 1950. First, during and after the First World War, Congress enacted a series of laws regulating maritime liability culminating in the Merchant Marine Act of 1920, § 33, 41 Stat. 1007 (Jones Act), which codified the rights of injured mariners and created new statutory claims that were freed from many of the common-law limitations on recovery. The Jones Act provides injured seamen with a cause of action and a right to a jury. 46 U.S.C. § 30104. Rather than create a new structure of substantive rights, the Jones Act incorporated the rights provided to railway workers under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. 46 U.S.C. § 30104. In the 30 years after the Jones Act's passage, "the Act was the vehicle for almost all seamen's personal injury and death actions." Gilmore & Black § 6-20, at 327. But the Jones Act was overtaken in the 1950s by the second fundamental change in personal injury maritime claims-and it was this Court, not Congress, that played the leading role. In a pair of decisions in the late 1940s, the Court transformed the old claim of unseaworthiness, which had demanded only due diligence by the vessel owner, into a strict-liability claim. In Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), the Court stated that "the exercise of due diligence does not relieve the owner of his obligation" to provide a seaworthy ship and, in the same ruling, held that the fellow-servant doctrine did not provide a defense. Id., at 100, 101, 64 S.Ct. 455. Mahnich's interpretation of the early cases may have been suspect, see Tetreault 397-398 ( Mahnich rests on "startling misstatement" of relevant precedents), but its assertion triggered a sea-change in maritime personal injury. Less than two years later, we affirmed that the duty of seaworthiness was "essentially a species of liability without fault... neither limited by conceptions of negligence nor contractual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94-95, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) (citations omitted). From Mahnich forward, "the decisions of this Court have undeviatingly reflected an understanding that the owner's duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). As a result of Mahnich and Sieracki, between the 1950s and 1970s "the unseaworthiness count [was] the essential basis for recovery with the Jones Act count preserved merely as a jury-getting device." Gilmore & Black § 6-20, at 327-328. The shifts in plaintiff preferences between Jones Act and unseaworthiness claims were possible because of the significant overlap between the two causes of action. See id., § 6-38, at 383. One leading treatise goes so far as to describe the two claims as "alternative 'grounds' of recovery for a single cause of action." 2 R. Force & M. Norris, The Law of Seamen § 30:90, p. 30-369 (5th ed. 2003). The two claims are so similar that, immediately after the Jones Act's passage, we held that plaintiffs could not submit both to a jury. Plamals, supra, at 156-157, 48 S.Ct. 457 ("Seamen may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both"). We no longer require such election. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 222, n. 2, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958). But a plaintiff still cannot duplicate his recovery by collecting full damages on both claims because, "whether or not the seaman's injuries were occasioned by the unseaworthiness of the vessel or by the negligence of the master or members of the crew,... there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong." Peterson, 278 U.S. at 138, 49 S.Ct. 75 ; see also 2 Force, supra, §§ 26:73, 30:90. II Christopher Batterton worked as a deckhand and crew member on vessels owned and operated by the Dutra Group. According to Batterton's complaint, while working on a scow near Newport Beach, California, Batterton was injured when his hand was caught between a bulkhead and a hatch that blew open as a result of unventilated air accumulating and pressurizing within the compartment. Batterton sued Dutra and asserted a variety of claims, including negligence, unseaworthiness, maintenance and cure, and unearned wages. He sought to recover general and punitive damages. Dutra moved to strike Batterton's claim for punitive damages, arguing that they are not available on claims for unseaworthiness. The District Court denied Dutra's motion, 2014 WL 12538172 (CD Cal., Dec. 15, 2014), but agreed to certify an interlocutory appeal on the question, 2015 WL 13752889 (CD Cal., Feb. 6, 2015). The Court of Appeals affirmed. 880 F.3d 1089 (C.A.9 2018). Applying Circuit precedent, see Evich v. Morris, 819 F.2d 256, 258-259 (C.A.9 1987), the Court of Appeals held that punitive damages are available for unseaworthiness claims. 880 F.3d at 1096. This holding reaffirmed a division of authority between the Circuits. Compare McBride v. Estis Well Serv., L. L. C., 768 F.3d 382, 391 (C.A.5 2014) (en banc) (punitive damages are not recoverable), and Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (C.A.1 1994) (same), with Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (C.A.11 1987) ("Punitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seaworthy ship..."). We granted certiorari to resolve this division. 586 U.S. ----, 139 S.Ct. 627, 202 L.Ed.2d 454 (2018). III Our resolution of this question is governed by our decisions in Miles and Atlantic Sounding. Miles establishes that we "should look primarily to... legislative enactments for policy guidance," while recognizing that we "may supplement these statutory remedies where doing so would achieve the uniform vindication" of the policies served by the relevant statutes. 498 U.S. at 27, 111 S.Ct. 317. In Atlantic Sounding, we allowed recovery of punitive damages, but we justified our departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and cure. 557 U.S. at 411-414, 129 S.Ct. 2561 (discussing cases of piracy and maintenance and cure awarding damages with punitive components). We were explicit that our decision represented a gloss on Miles rather than a departure from it. Atlantic Sounding, supra, at 420, 129 S.Ct. 2561 ("The reasoning of Miles remains sound"). And we recognized the importance of viewing each claim in its proper historical context. " '[R]emedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures.' " 557 U.S. at 423, 129 S.Ct. 2561. In accordance with these decisions, we consider here whether punitive damages have traditionally been awarded for claims of unseaworthiness and whether conformity with parallel statutory schemes would require such damages. Finally, we consider whether we are compelled on policy grounds to allow punitive damages for unseaworthiness claims. A For claims of unseaworthiness, the overwhelming historical evidence suggests that punitive damages are not available. Batterton principally relies on two cases to establish that punitive damages were traditionally available for breach of the duty of seaworthiness. Upon close inspection, neither supports this argument. The Rolph, 293 F. 269, 271 (ND Cal. 1923), involved a mate who brutally beat members of the crew, rendering one seaman blind and leaving another with impaired hearing. The central question in the case was not the form of damages, but rather whether the viciousness of the mate rendered the vessel unseaworthy. The Rolph, 299 F. 52, 54 (C.A.9 1924). The court concluded that the master, by staffing the vessel with such an unsuitable officer, had rendered it unseaworthy. Id., at 55. To the extent the court described the basis for the damages awarded, it explained that the judgment was supported by testimony as to "the expectation of life and earnings of these men." 293 F. at 272. And the Court of Appeals discussed only the seamen's entitlement "to recover an indemnity" for their injuries. 299 F. at 56. These are discussions of compensatory damages-nowhere does the court speak in terms of an exemplary or punitive award. The Noddleburn, 28 F. 855, 857-858 (Ore. 1886), involved an injury to a British seaman serving on a British vessel and was decided under English law. The plaintiff in the case was injured when he fell to the deck after being ordered aloft and stepping on an inadequately secured line. Id., at 855. After the injury, the master neglected the man's wounds, thinking the injury a mere sprain. Id., at 856. The leg failed to heal and the man had to insist on being discharged to a hospital, where he learned that he would be permanently disabled. Ibid. As damages, the court awarded him accrued wages, as well as $ 1,000 to compensate for the loss in future earnings from his disability and $ 500 for his pain and suffering. Id., at 860. But these are purely compensatory awards-the only discussion of exemplary damages comes at the very close of the opinion, and it is clear that they were considered because of the master's failure to provide maintenance and cure. Ibid. (discussing additional award "in consideration of the neglect and indifference with which the libelant was treated by the master after his injury " (emphasis added)). Finally, Batterton points to two other cases, The City of Carlisle, 39 F. 807 (Ore. 1889), and The Troop, 118 F. 769 (Wash. 1902). But these cases, like The Noddleburn, both involve maintenance and cure claims that rest on the willful failure of the master and mate to provide proper care for wounded sailors after they were injured. 39 F. at 812 ("master failed and neglected to procure or provide any medical aid or advice... and was contriving and intending to get rid of him as easily as possible"); 118 F. at 771 (assessing damages based on provision of Laws of Oleron requiring maintenance). Batterton characterizes these as unseaworthiness actions on the theory that the seamen could have pursued that claim. But, because courts award damages for the claims a plaintiff actually pleads rather than those he could have brought, these cases are irrelevant. The lack of punitive damages in traditional maritime law cases is practically dispositive. By the time the claim of unseaworthiness evolved to remedy personal injury, punitive damages were a well-established part of the common law. Exxon Shipping, 554 U.S. at 491, 128 S.Ct. 2605. American courts had awarded punitive (or exemplary) damages from the Republic's earliest days. See, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (1784) ; Coryell v. Colbaugh, 1 N.J.L. 77, 78 (1791). And yet, beyond the decisions discussed above, Batterton presents no decisions from the formative years of the personal injury unseaworthiness claim in which exemplary damages were awarded. From this we conclude that, unlike maintenance and cure, unseaworthiness did not traditionally allow recovery of punitive damages. B In light of this overwhelming historical evidence, we cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress's clearly expressed policies. Therefore, we must consider the remedies typically recognized for Jones Act claims. The Jones Act adopts the remedial provisions of FELA, and by the time of the Jones Act's passage, this Court and others had repeatedly interpreted the scope of damages available to FELA plaintiffs. These early decisions held that "[t]he damages recoverable [under FELA] are limited... strictly to the financial loss... sustained." American R. Co. of P. R. v. Didricksen, 227 U.S. 145, 149, 33 S.Ct. 224, 57 L.Ed. 456 (1913) ; see also Gulf, C. & S. F. R. Co. v. McGinnis, 228 U.S. 173, 175, 33 S.Ct. 426, 57 L.Ed. 785 (1913) (FELA is construed "only to compensate... for the actual pecuniary loss resulting" from the worker's injury or death); Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 68, 33 S.Ct. 192, 57 L.Ed. 417 (1913) (FELA imposes "a liability for the pecuniary damage resulting to [the worker] and for that only"). In one particularly illuminating case, in deciding whether a complaint alleged a claim under FELA or state law, the Court observed that if the complaint "were read as manifestly demanding exemplary damages, that would point to the state law." Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352, 354, 36 S.Ct. 126, 60 L.Ed. 324 (1915). And in the years since, Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA. Miller v. American President Lines, Ltd., 989 F.2d 1450, 1457 (CA6 1993) ; Wildman v. Burlington No. R. Co., 825 F.2d 1392, 1395 (C.A.9 1987) ; Kozar v. Chesapeake & Ohio R. Co., 449 F.2d 1238, 1243 (C.A.6 1971). Our early discussions of the Jones Act followed the same practices. We described the Act shortly after its passage as creating "an action for compensatory damages, on the ground of negligence." Peterson, 278 U.S. at 135, 49 S.Ct. 75. And we have more recently observed that the Jones Act "limits recovery to pecuniary loss." Miles, 498 U.S. at 32, 111 S.Ct. 317. Looking to FELA and these decisions, the Federal Courts of Appeals have uniformly held that punitive damages are not available under the Jones Act. McBride, 768 F.3d at 388 ("[N]o cases have awarded punitive damages under the Jones Act"); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1507, n. 9 (C.A.5 1995) (en banc); Horsley, 15 F.3d at 203 ; Miller, supra, at 1457 ("Punitive damages are not... recoverable under the Jones Act"); Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (C.A.9 1984). Batterton argues that these cases are either inapposite or wrong, but because of the absence of historical evidence to support punitive damages-evidence that was central to our decision in Atlantic Sounding -we need not reopen this question of statutory interpretation. It is enough for us to note the general consensus that exists in the lower courts and to observe that the position of those courts conforms with the discussion and holding in Miles. Adopting the rule urged by Batterton would be contrary to Miles's command that federal courts should seek to promote a "uniform rule applicable to all actions" for the same injury, whether under the Jones Act or the general maritime law. 498 U.S. at 33, 111 S.Ct. 317. C To the extent Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure, we are unpersuaded. In contemporary maritime law, our overriding objective is to pursue the policy expressed in congressional enactments, and because unseaworthiness in its current strict-liability form is our own invention and came after passage of the Jones Act, it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas. See id., at 36, 111 S.Ct. 317 (declining to create remedy "that goes well beyond the limits of Congress' ordered system of recovery"). We are particularly loath to impose more expansive liabilities on a claim governed by strict liability than Congress has imposed for comparable claims based in negligence. Ibid. And with the increased role that legislation has taken over the past century of maritime law, we think it wise to leave to the political branches the development of novel claims and remedies. We are also wary to depart from the practice under the Jones Act because a claim of unseaworthiness-more than a claim for maintenance and cure-serves as a duplicate and substitute for a Jones Act claim. The duty of maintenance and cure requires the master to provide medical care and wages to an injured mariner in the period after the injury has occurred. Calmar S. S. Corp., 303 U.S. at 527-528, 58 S.Ct. 651. By contrast, both the Jones Act and unseaworthiness claims compensate for the injury itself and for the losses resulting from the injury. Peterson, supra, at 138, 49 S.Ct. 75. In such circumstances, we are particularly mindful of the rule that requires us to promote uniformity between maritime statutory law and maritime common law. See Miles, supra, at 27, 111 S.Ct. 317. See also Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) (declining to recognize loss-of-society damages under general maritime law because that would "rewrit[e the] rules that Congress has affirmatively and specifically enacted"). Unlike a claim of maintenance and cure, which addresses a situation where the vessel owner and master have "just about every economic incentive to dump an injured seaman in a port and abandon him to his fate," in the unseaworthiness context the interests of the owner and mariner are more closely aligned. McBride, supra, at 394, n. 12 (Clement, J., concurring). That is because there are significant economic incentives prompting owners to ensure that their vessels are seaworthy. Most obviously, an owner who puts an unseaworthy ship to sea stands to lose the ship and the cargo that it carries. And if a vessel's unseaworthiness threatens the crew or cargo, the owner risks losing the protection of his insurer (who may not cover losses incurred by the owner's negligence) and the work of the crew (who may refuse to serve on an unseaworthy vessel). In some instances, the vessel owner may even face criminal penalties. See, e.g., 46 U.S.C. § 10908. Allowing punitive damages on unseaworthiness claims would also create bizarre disparities in the law. First, due to our holding in Miles, which limited recovery to compensatory damages in wrongful-death actions, a mariner could make a claim for punitive damages if he was injured onboard a ship, but his estate would lose the right to seek punitive damages if he died from his injuries. Second, because unseaworthiness claims run against the owner of the vessel, the ship's owner could be liable for punitive damages while the master or operator of the ship-who has more control over onboard conditions and is best positioned to minimize potential risks-would not be liable for such damages under the Jones Act. See Sieracki, 328 U.S. at 100, 66 S.Ct. 872 (The duty of seaworthiness is "peculiarly and exclusively the obligation of the owner. It is one he cannot delegate"). Finally, because "[n]oncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries," Exxon Shipping, 554 U.S. at 497, 128 S.Ct. 2605, allowing punitive damages would place American shippers at a significant competitive disadvantage and would discourage foreign-owned vessels from employing American seamen. See Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat'l L. 391, 396, n. 24 (2004) (listing civil-law nations that restrict private plaintiffs to compensatory damages). This would frustrate another "fundamental interest" served by federal maritime jurisdiction: "the protection of maritime commerce." Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 25, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (internal quotation marks omitted; emphasis deleted). Against this, Batterton points to the maritime doctrine that encourages special solicitude for the welfare of seamen. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. See, e.g., Harden, 11 F.Cas. at 485 ; Brown, 4 F.Cas. at 409. The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine's apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as dependent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law. It is not sufficient to overcome the weight of authority indicating that punitive damages are unavailable. IV Punitive damages are not a traditional remedy for unseaworthiness. 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_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Appellee, v. Donald John GAMBERT, Appellant. No. 13808. United States Court of Appeals, Fourth Circuit. Argued May 8, 1970. Decided Nov. 10, 1970. Harvey L. Golden, Columbia, S. C. (Court-appointed), for appellant. Thomas F. Batson, Asst. U. S. Atty. (Joseph O. Rogers, Jr., U. S. Atty., on brief), for appellee. Before BOREMAN and WINTER, Circuit Judges, and WOODROW W. JONES, District Judge. BOREMAN, Circuit Judge: Donald John Gambert was convicted on August 2, 1968, of interstate transportation of a stolen motor vehicle in violation of the Dyer Act, 18 U.S.C. § 2312, and was sentenced on August 29, 1968, to imprisonment for two years. This conviction was reversed on appeal and the case was remanded for a new trial because of an improper argument to the jury by the Assistant United States Attorney. Upon retrial, over which a different judge of the same court presided, Gambert was again found guilty and was sentenced to a term of three years. Appellant attacks his conviction on two grounds. He contends that the district court prejudiced his case by (1) overruling two objections to the prosecutor’s argument to the jury and by sustaining an objection by the prosecutor during closing argument by defense counsel; and (2) that the court erred in denying his motion to dismiss and in failing to enter a judgment of acquittal after the presentation of the evidence on the ground that he was inappropriately charged under the Dyer Act. A careful review of the record discloses no support in law or fact for these contentions and the judgment of conviction is affirmed. Appellant also attacks his sentence, claiming that the two-year sentence imposed at his first trial represented the maximum sentence which could be imposed after conviction at his retrial. We agree that the imposition of the three-year sentence upon retrial was error. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), decided prior to the imposition of the three-year sentence under challenge here, the Supreme Court held that there is no absolute constitutional bar to imposing a more severe sentence after appeal and upon conviction at a new trial. The Court made it clear, however, that due process of law prohibits the imposition of a greater sentence for the purpose of punishing the defendant for prosecuting a successful appeal and that, since the fear of such punishment may have an unconstitutional “chilling effect” upon a defendant’s exercise of his right to appeal, due process requires that this fear be allayed. The Court stated: “[Wjhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” North Carolina v. Pearce, supra, at p. 726, 89 S.Ct. at p. 2081. Here there can be no claim that the greater sentence imposed upon Gambert represented an attempt to punish him for successfully appealing his prior conviction, nor does he make such a claim. The record indicates that the district judge, at the time of sentencing, either had no information at all or was misinformed as to the extent of the earlier sentence. The initial question then is whether the procedural rule announced in Pearce extends to a situation where it is clear that vindictiveness played no part in sentencing upon reconviction. The- constitutional bases upon which Pearce rests are the violations of due process inherent in either vindictiveness on the part of the trial judge upon re-sentence or fear of possible vindictiveness by a defendant contemplating an appeal. Thus, it would appear that there would be no violation of either constitutional safeguard where a resentencing judge acts without information, whether through inadvertence or even intentional failure to make inquiry, and imposes a greater sentence upon reconviction. However, the procedural rule formulated and announced in Pearce unequivocally requires that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Pearce further requires that these reasons assigned by the court “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding,” a standard which plainly discountenances, the imposition of a greater sentence by a judge who takes a subjective view of identical facts different from that of the first sentencing judge and concludes that the very nature of the offense warrants more severe punishment. We cannot escape the conclusion that the rule announced in Pearce thus goes further than its constitutional geneses. In effect, it assures a defendant whose conduct after the initial sentencing does not reflect adversely upon his “life, health, habits, conduct, and mental and moral propensities,” that he has nothing to fear in exercising his right to appeal. It is our view that a defendant should not be deprived of this assurance by the failure of the judge at his second trial to acquaint himself with the results of the first. Wé hold that the procedural rule announced in Pearce is applicable in the instant case. Twelve days after pronouncing sentence, the district judge who presided at the retrial entered an order in which he undertook to comply with Pearce by assigning reasons for increasing Gambert’s sentence. The judge stated: “This Court concluded that a three (3) year sentence was warranted in light of the defendant’s own testimony, whereas in the first trial the Court did not have the benefit of his testimony in passing sentence since the defendant did not testify in that trial. This Court had before it in imposing sentence the defendant’s own contentions, inconsistencies -and incredible explanations not before the previous sentencing Court. This Court considered a more severe sentence justified in light of the new évidence adduced at the second trial through defendant’s own testimony.” While we entertain no doubt that new evidence adduced at the second trial would, under some circumstances, justify increasing the length of the sentence originally imposed,, Pearce, supra p. 723, 89 S.Ct. 2072, and that such evidence could possibly be found “where the defendant takes the stand at the second trial and produces an impression as to guilt contrary to that intended,” United States v. Coke, 404 F.2d 836, 843 (2 Cir. 1968), this new evidence ordinarily would serve to justify a greater sentence only where it “reveals the crime to have been more dastardly or the defendant to have played a much larger role than was first supposed.” United States v. Coke, supra, p. 842. Testimony of the defendant at his second trial which reveals “inconsistencies and incredible explanations not before the previous sentenciiig Court” does not constitute “identifiable conduct” of the type contemplated by Pearce. The explanation here given for the increased sentence clearly implies added punishment of the defendant, without due process of law, for the commission of another crime, the crime of perjury. While it does not appear from the record the amount of time which the defendant may have served it does appear that following his first conviction, after incarceration for a period of about six days, he was released on bail. Although the judgment of conviction is affirmed the case is remanded to the district court for resentencing to a term not in excess of two years with the direction that the defendant be given credit for all time served pursuant to either the first or second sentence. Conviction affirmed. Remanded for resentencing. . Sentence was delayed pending receipt of the probation officer’s report of investigation. . United States v. Gambert, 410 F.2d 383 (4 Cir. 1969). The factual background may be found in the cited decision. . THE COURT: * * * to the custody of the Attorney General for a period of three years. MR. GOLDEN: May it please the court, I was under the impression that since he received a sentence of two years last time he could not receive a sentence in excess of two years this time. THE COURT: He was sentenced to two years before? MR. GOLDEN: Yes, sir. THE COURT: Is that correct? THE CLERK: Yes, sir, I’m sorry. . Williams v. New York, 337 U.S. 241,245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). The quoted language lifted from Williams was made applicable to factual situations of the instant type in North Carolina v. Pearce, 395 U.S. 711, at 723, 89 S.Ct. 2072, at 2079. 23 L.Ed.2d 656. . In Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), involving the imposition of- a greater sentence after retrial in 1966, the Supreme Court granted certiorari and requested counsel to brief and argue the retroactivity of North Carolina v. Pearce. Subsequently, the Court dismissed the writ of certiorari as improvidently granted on the ground that facts which had emerged after the grant of the writ disclosed no claim that the greater sentence upon retrial was an attempt to punish defendant for successfully appealing his prior conviction for the same offense. The Court stated: [T]he dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, “I have never contended that Judge Pugh was vindictive.” 398 U.S. at 320-321, 90 S.Ct. at 1731. Moon, stands for the proposition that an issue does not arise as to the retroactive application of the ' constitutional standards of Pearce where there is no claim of vindictiveness on the part of the resentencing judge. Moon would appear to have no precedential value to us in deciding in the instant case whether, prospectively, a resentencing judge must in every instance obey the rule of Pearce and assign reasons to justify the imposition of an increased sentence. The question of whether the procedural rule announced in Pearce is applicable to cases which arose prior to that decision should be left for consideration and disposition in a ease where the retroactive application of the constitutional tases for the rule is squarely presented. 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_othcrim	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Richard Lee GILPIN, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 13327. United States Court of Appeals Sixth Circuit. May -14, 1959. Richard Lee Gilpin, in pro. per. Russell E. Ake, U. S. Atty., Cleveland, Ohio, Richard M. Colasurd, Asst. U. S. Atty., Toledo, Ohio, for appellee. Before MARTIN, Chief Judge, SIMONS, Circuit Judge, and BOYD, District Judge. PER CURIAM. Appellant, who is confined in the Federal Correctional Institution at Milan, Michigan, has appealed from his conviction in the District Court for the Northern District of Ohio, Western Division. Prior to consideration of this appeal, appellant’s request, filed April 17, 1959, for the assignment of counsel to represent him in this proceeding, was overruled as having already been heard and properly denied in an opinion dated March 28, 1959, 6 Cir., 265 F.2d 203, by Judge Miller of this Court. There being no merit in the points raised by appellant in his brief, the judgment of the district court is affirmed. 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_habeas	B	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 ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent. No. 11399. United States Court of Appeals Third Circuit. Argued Oct. 8, 1954. Decided Nov. 19, 1954. Isadore Glauberman, Jersey City, N. J., for appellant. Charles V. Webb, Jr., Newark, N. J., C. William Caruso, Newark, N. J., on the brief, for respondent. Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges. McLAUGHLIN, Circuit Judge. Petitioner and Joseph Grillo had been convicted in a New Jersey state court of first degree murder arising out of an armed robbery. Since there had been no recommendation for mercy by the jury, under the state law the convictions carried mandatory death sentences. A third participant had also been found guilty of murder but as to him a jury recommendation of mercy had resulted in a life sentence. On the particular phase of the case with which we are here- concerned there had been an application to the state court for a new trial which had been denied. The state supreme court affirmed'that, decision on June 28, 1954. Some time thereafter execution of appellant and Grillo was set for the week of August 15, 1954. During the interval the attorneys who had represented them withdrew from such representation. Appellant’s present attprneys came into the matter August 12,1954, a Thursday. On the next day on behalf of appellant, they made three separate applications to Justices Black, Jackson and Clark for a stay of execution pending application for .certiorari. They .were advised Saturday of the refusal, bf the ápplications. Sunday intervened and. the following day, Monday, they appeared before the district judge on duty at Newark seeking an order directing appellee to show cause why a writ of habeas corpus should not be granted. At that time while a definite day and time for the executions had not as yet been announced counsel expected that they might occur the next day, Tuesday. Under the circumstances the coming into the federal court was entirely proper. To wait until steps could be taken to exhaust the remedy of a formal petition for certiorari would have rendered the federal habeas corpus “process ineffective to protect the rights of the prisoner” as is stated in the alternative clause of the governing statute, 28 U.S.C. § 2254. Appellant and Grillo would have both been dead long since. See. Thomas v. Teets, 9 Cir., 1953, 205 F.2d 236, certiorari denied 346 U.S. 910, 74 S.Ct. 240; United States ex rel. Jackson v. Ruthazer, 2 Cir., 1950, 181 F.2d 588, certiorari denied 339 U.S. 980, 70 S.Ct. 1027, 94 L.Ed. 1384. There had been no prior application for habeas corpus to the district court on the grounds alleged in the petition. Those grounds were that a trial juror’s fraudulent concealment on voir dire of allegedly disqualifying facts and his untruthful answers with respect thereto indicated such bias and prejudice on his part that DeVita was deprived of a fair trial by an impartial jury contrary to the Fourteenth Amendment of the Federal Constitution. The facts so concealed or. falsified were stated to be that the juror had himself been a victim of a strikingly similar armed robbery within a'.year., of. the trial and that as a result he knew a number of detectives who it is strongly inferred were from the same specialized field of criminal investigation in the municipality which had been .the locale of both offenses. While, ás will, be seen, examination of the'merits of petitioner’s allegations is not now indicated it should be noted that a primary defense trial objective for all three defendants had been to obtain a jury recommendation of life imprisonment. As has been stated the petition was filed in the district court August 16, 1954 and application for the writ or a rule to show cause why it should not be issued was made to the sitting district judge that same day. After presentation by counsel the district judge declared a recess. That same afternoon he returned to the bench and read his written decision. In it he stated that the court conceived the Supreme Court opinion in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, “to be the leading case on the problem with which the court is presented now, * * He then said: “In the Brown v. Allen case the Supreme Court said, ‘Application to district courts on grounds determined adversely to the applicant by the state court should result in a refusal of the writ without more if the court is satisfied by the record that the slate process has given fair consideration to the issues and the offered evidence and has resulted in a satisfactory conclusion.’ ” (Emphasis supplied.) He further stated: “Now, the only record which the Court has before it now is the opinion which Mr. Glauberman was good enough to give me, written by Justice Burling.” (Emphasis supplied.) The court concluded from the above that: “ * * * my primary consideration in this application, Mr. Glauberman and Mr. Alper, is to see whether state process has given fair consideration to the issues presented here, * * .” (Emphasis supplied.) Thereafter the district judge for four typewritten pages quoted from the state court opinion and, quite obviously convinced by that language, stated: “So it is quite apparent that the court did give ample and full consideration to the question which you now raise here, and under Brown versus Allen it is clear what my duty is under the circumstances * * •****•» “Therefore, I shall have to deny the writ peremptorily, * (Emphasis supplied.) Further on in the opinion the district judge remarked that the state courts “have much more time to consider thp merits that you have raised before me than this court has. I realize the peremptory job that I have so I must dispose of it peremptorily and courageously as is my duty.” (Emphasis supplied.) At the end of his opinion the judge said he would allow a certificate of probable cause and in his order dismissing the petition appears the following: “ * * -» probable cause for appeal is hereby certified.” Both sides agree that the Brown v. Allen doctrine was controlling in the district court. We are in accord with that theory. The underlying facts are simple. The district judge made no attempt to dispose of the petition as insufficient on its face or absent the “record”. See Mr. Justice Frankfurter’s separate opinion in Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 443, and Mr. Justice Jackson’s concurrence, 344 U.S. at page 647, 73 S.Ct. 430. Cf. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. Specifically he examined what he accepted as the state court record in the DeVita case or a substitute therefor but which unfortunately consisted solely of the opinion in that proceeding. In his opinion above referred to he makes it plain that he intended to and believed he had in fact considered the merits of the application. What he did actually was to examine the opinion and from that satisfy himself that the state court had given fair consideration to the issues raised by the petition as Brown v. Allen requires and that it had arrived at the satisfactory conclusion made necessary by the same decision. That the district judge regarded the petition as raising a substantial question or questions is further evidenced by his certification of the action as possessing probable cause for appeal. Appellee argues that this was motivated by the heart rather than the head. Though of no moment in the face of the solemn certification for appeal it is difficult to adopt such construction in the light of the judge's comment immediately prior to his allowance of the certificate in which he decried the cruelty of constant stays in capital cases where there had been convictions. The state court opinion on which the district judge completely relied was not the “record” alluded to in Brown v. Allen, supra. Footnote 19, 344 U.S. at page 464, 73 S.Ct. at page 411, to that opinion makes this evident. The first sentence of that comprehensive exposition of just what the “record” means reads: “When an application for habeas corpus by a state prisoner is filed in a federal district court after the exhaustion of state remedies, including a certiorari to this Court, it rests on a record that was made in the applicant’s effort to secure relief through the state from imprisonment, allegedly in violation of federal constitutional rights.” The final sentence of the footnote states: “If useful records of prior litigation are difficult to secure or unobtainable, the District Court may find it necessary or desirable to hold limited hearings to supply them where the allegations of the application for habeas corpus state adequate grounds for relief.” And see Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 869-870, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C.W.D.Pa.1948, 81 F.Supp. 861, 864, 871, affirmed 3 Cir., 1949, 174 F.2d 480. The state court opinion does refer to certain evidence and does draw certain factual and legal conclusions therefrom. But without ever seeing the transcript of the state trial it is not enough to take that opinion as the record and from it adjudge that “ * * * the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion.” Brown v. Allen, supra, 344 U.S. at page 463, 73 S.Ct. at page 410. Since the district judge conscientiously construed it his duty to examine the state court record he should have made sure that it was produced before him and, after studying the entire record, should have determined whether the state court had given fair consideration to the issues raised by the petition and had arrived at a satisfactory conclusion thereon. On appeal, with the original record before us, we would be in a position to pass upon the merits. In the instant situation where the district judge thought it necessary to inquire into the merits of the application but apparently felt himself so circumscribed by the time element that he rendered his decision on the basis of what he had then before him of the state court proceedings, namely, the state court opinion alone, we think it sound law and good practice that this case be remanded to the district court for proper examination of the state court, record on which it is based. In United States ex rel. McLeod v. Garfinkel, 202 F.2d 392 we reversed the district court’s denial of a writ for habeas corpus because the determination was founded on evidence not before the court. We remanded the cause for further proceedings. In the appeal at bar the finding of the district judge that the state court had given fair consideration to the particular issues raised by the petition and to the evidence connected with these issues and had reached a satisfactory conclusion was not founded on any original evidence at all for there was none before the court. In United States ex rel. Thompson v. Dye, 3 Cir., 208 F.2d 565, 566, after hearing the district judge declined to issue a writ. We reversed and remanded because he had made no finding as to which of the accounts he believed saying “the omitted finding goes to the very essence of the complaint of fundamental unfairness.” It might be that even in the existent circumstances if the petition on its face were frivolous or patently without justification we could so declare it but we do not so find. Nor do we find any abuse of discretion in the district judge’s decision to investigate the merits of the petition. See Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392; Baker v. Ellis, 5 Cir., 1952, 194 F.2d 865. Irrespective of the offenses for which they were convicted, DeVita and Grillo were not only entitled to a fair trial on their guilt or innocence but on the all important specific issue of a mercy recommendation by the jury which if given meant their lives would be spared. Since it is alleged that petitioner was tried by a jury that was not impartial on this issue and since the district judge decided without abuse of his discretion to investigate the merits of the application, it is the letter and the spirit of the Fourteenth Amendment that either the original state court record be itself carefully scrutinized or a hearing he held before any conclusion as to the alleged fundamental unfairness of the state court trial is reached. See United States ex rel. Trowbridge v. Pennsylvania, 3 Cir., 1953, 204 F.2d 689; United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, certiorari denied, Maroney v. U. S. ex rel. Darcy, 346 U.S. 865, 74 S.Ct. 103; United States ex rel. Daverse v. Hohn, 3 Cir., 1952, 198 F.2d 934,. certiorari denied 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Ex parte Jacobs, D.C.S.D.N.Y.1954, 123 F.Supp. 393. The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The stay of execution will be continued pending issuance of a new stay by the district court. . N.J.S.A. 2A:113-4. . State v. Grillo, 16 N.J. 103, 106 A.2d 294. . See 28 U.S.C. § 2243. . Appellee states that under the cireumstancés of the case the issues on this appeal are: “* * * was not the District.; Court justified in accepting the opinion of the New Jersey Supreme Court as the ‘record’ for its determination on whether the writ should issue, and did not the Court below properly deny the writ without plenary hearing?” . The district judge may have mistakenly assumed that he was under a duty of disposing of the issue immediately. His authority to issue a stay both before and after final judgment is clear from 28 U.S.C. § 2251 which reads: “A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.” So instead of being forced to take “the only record which the court has' before it now”, i. e. the state court opinion, the district judge could have stayed the execution pending his disposition of the application. During the period of the stay he could then have seen to it that the true state court record was brought before him. . The latter requirement was not specifically discussed by the district judge. . See O’Brien v. Lindsay, 1 Cir., 1953, 202 F.2d 418, 421; cf. our opinion in this action on application for stay, 214 F.2d 823. . In United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, relied on by appellee, the trial and appellate state court records were before the district court. . This is far from being a mere technicality. For example, the state supreme court opinion says, State v. Grillo, supra, 16 N.J. at pages 114-115, 106 A.2d at page 300,: “Einally Grillo asserted on this appeal that Kuhnle had falsely denied that he knew ‘any of the State’s officers or personnel.’ This point finds no support in the record except insofar as stated in the newspaper article * * . “ * * it is a fair inference that even if the juror had occasional city police protection, that he answered the question as any reasonable person would do when not versed in the law, namely that ‘State’s officers or personnel’ meant State of New Jersey officials or employees and not City of Newark police or County of Essex officials.” (Emphasis supplied.) Without looking at the state record it would be impossible for the district judge to know whether this point did find any other support in the record and whether the state supreme court’s conclusion was “a fair inference.” 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:

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