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songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Anthony Scaglione NORIEGA, Appellant, v. UNITED STATES of America, Appellee. No. 22242. United States Court of Appeals Fifth Circuit. Sept. 27, 1967. Henry Gonzalez, Tampa, Fla., for appellant. Charles S. Carriere, Asst. U. S. Atty., Tampa, Fla., for appellee. Before BROWN, Chief Judge, and TUTTLE and COLEMAN, Circuit Judges. PER CURIAM: We have carefully considered the record in this appeal from a conviction of the appellant on three counts of an information charging violation of Sections 5301(c) (2) and 5606, Title 26, United States Code. Finding no error in the submission of the case to the jury and finding no error in the denial by the trial court of the motion for judgment n. o. v., we conclude that the judgment of conviction and sentence must be affirmed. See Stilinovic v. United States, 8 Cir. 1964, 336 F.2d 862, and see, as to the admission of the voluntary comments by appellant at the time of the investigation, Pennewell v. United States, 1965, 122 U.S.App. D.C. 332, 353 F.2d 870. The judgment is affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_genapel1	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 is to determine the nature of the first listed appellant. DARGER et al. v. HILL et al. No. 7656. Cireuit Court of Appeals, Ninth Circuit. March 12, 1935. GARRECHT, Circuit Judge, dissenting. Harold M. Stephens, Asst. Atty. Gen., Peirson M. Hall, U. S. Atty., and Clyde Thomas, Asst. U. S. Atty., both of Los Angeles, Cal., Carl McFarland, Mac Asbill, and A. H. Feller, Sp. Assts. to Atty. Gen., and Jerome N. Frank, Gen. Counsel, Agricultural Adjustment Administration, Arthur C. Bachrach, Sp. Advisor to Gen. Counsel, AAA, John J. Abt, Chief of Litigation Section, AAA, Donald B. MacGuineas, and M. Camper O’Neal, Attys., AAA, all of Washington, D. C. for appellants. Lewis D. Collings, Edward M. Selby, and H. C. Johnston, all of Los Angeles, Cal., for appellees. Before WILBUR and GARRECHT, Circuit Judges, and CAVAN AH, District Judge. Rehearing denied April 22, 1935. WILBUR, Circuit Judge. This is a companion case to Berdie et al. v. Kurtz et al. (C. C. A.) 75 F.(2d) 898, filed on March 4, 1935. Appellees are the owners of four dairies which distribute milk and cream at wholesale and retail in and about Los Angeles, Cal. Appellant Darger is the Market Administrator appointed by the Secretary of Agriculture to supervise the operation of the Los Angeles Milk License. Appellant Hunter was appointed by the secretary to act as presiding officer at the administrative hearings (the holding of which was enjoined by the order appealed from) to take evidence of alleged violations by appellees of the Los Angeles Milk License. Appellants Hadley and Morrison were appointed by the Secretary of Agriculture to represent him at the administrative hearings and to present evidence of such alleged violations. The facts of this case are very similar to those of Berdie et al. v. Kurtz (C. C. A.) 75 F.(2d) 898. The same section of the Agricultural Adjustment Act (section 8 (3), 7 USCA § 608 (3) and the same licenses and regulations issued by the Secretary of Agriculture are involved. The bill of complaint alleges that the Secretary of Agriculture issued orders to show cause against each of the appellees; that they thereafter filed their answers thereto and that the hearings were then set by the secretary. The bill further alleges that the hearing as to one of the appellees was commenced on July 19th, but was adjourned, before its conclusion, to July 24th. Because of the entry of the temporary restraining order in this case, no further administrative proceedings have been taken against any of the appellees since July 24th. In this case the licenses of ap-pellees have not as yet been revoked. It is contended by appellants that the bill of complaint fails to allege facts showing any danger of irreparable injury to appellees. Appellants argue that unless and until appellees’ licenses are revoked by the Secretary of Agriculture there can be no penalties imposed upon appellees and that neither the appellees nor the court below could anticipate that the secretary will exercise his discretion to revoke appellees’ licenses. We decided in the companion case that, as to those engaged solely in intrastate commerce, the Agricultural Adjustment Act (7 USCA § 601 et seq.), under which the Secretary of Agriculture purports to act, does not authorize the secretary to issue licenses or regulations. Appellees being engaged solely in intrastate commerce are not bound to obey the regulations promulgated by the Secretary of Agriculture. It is clear that the moment the regulations were adopted they purported to regulate nearly every detail of the business of appellees. These regulations, thus interpreted, deprive the ap-pellees of a constitutional right to engage in a lawful business and make the necessary contracts incident thereto. The licensing of the business of appellees and the proceedings instituted by the orders to show cause issued by the Secretary of Agriculture, looking to an ádministrative hearing held by appellants and the eventual revocation of their licenses and the imposition of penalties if they proceed in business thereafter, are without warrant in law. Under such circumstances, we think it clear that the action is maintainable. In support of this conclusion we cite without further discussion Euclid v. Amber Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468; Work v. Louisiana, 269 U. S. 250, 46 S. Ct. 92, 70 L. Ed. 259; Dobbins v. Los An-geles, 195 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 169. Appellants also claim that this suit for an injunction is premature because appellees have not exhausted the administrative remedies afforded them. • Section 8, subd. (3), 7 USCA § 608 (3), provides as follows: “The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. Any order of the Secretary suspending or revoking any such license shall be final if in accordance with law. Any such person engaged in such handling without a license as required by the Secretary under this section shall be subject to a fine of not more than $1,000 for each day during which the violation continues.” This proceeding does not furnish a remedy to the distributor who was not engaged in interstate commerce and who was not required by the statute or by the regulations to procure a license, and therefore is inapplicable to the appellees. The appellants also rely on certain regulations promulgated by the Secretary of Agriculture approved by the President of the United States on January 3, 1934, and particularly sections 600, 605 thereof. These sections authorize the person licensed under the Agricultural Adjustment Act who considers himself aggrieved by the condition of the license to make an application for modification thereof and for hearing on such application, at the discretion of the secretary, “in connection with, and as a part of, proceedings brought for the revocation or suspension of such license.” These regulations purport to deal only with persons licensed under the act and we have seen the licenses are applicable only to those persons engaging in interstate commerce. The appellees are not so engaged and are not bound to follow the procedure specified in the regulations before seeking the aid of a court of equity. The Secretary of Agriculture is not an indispensable party' to this action. This contention of appellants is adequately disposed of in the companion case, Berdie v. Kurtz (C. C. A.) 75 F.(2d) 898. There is no merit in the contention of appellants that the preliminary injunction was improvidently granted under the circumstances of this case. Order affirmed. GARRECHT, Circuit Judge (dissenting). I dissent, for the reasons given in my dissenting opinion in the case of Berdie v. Kurtz (C. C. A.) 75 F.(2d) 898, decided March 4, 1935. 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_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. KENAITZE INDIAN TRIBE, Plaintiff-Appellant, v. STATE OF ALASKA, Defendant-Appellee. No. 87-4110. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 1, 1988. Decided Oct. 24, 1988. As Amended on Denial of Rehearing and Rehearing En Banc Jan. 4, 1989. Carol H. Daniel and Donald S. Cooper, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiff-appellant. Sarah E. McCracken, Asst. Atty. Gen., Anchorage, Alaska, Larri I. Spengler, Asst. Atty. Gen., Juneau, Alaska, for defendant-appellee. Elizabeth Ann Peterson, Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for amicus. Before KOZINSKI, NOONAN and THOMPSON, Circuit Judges. KOZINSKI, Circuit Judge : We travel to the northern reaches of our circuit to resolve a dispute implicating two recurring Alaskan motifs: on the one hand, the clash between traditional and modern ways of life; on the other, fish. The Ke-naitze Indian Tribe claims that the state of Alaska is attempting to evade federal legislation creating a priority for subsistence fishing by residents of rural areas. The controversy turns on the meaning of the word “rural” as used in the Alaska National Interest Lands Conservation Act (ANIL-CA), Pub.L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of Titles 16 and 43 of the United States Code). I The Kenaitze, a tribe numbering approximately four hundred, have lived on the Kenai Peninsula, in southern Alaska, for hundreds of years. For most of their history, the Kenaitze have pursued a way of life dominated by subsistence fishing and hunting. In recent years, however, the area’s proximity to Anchorage has made the Ke-nai Peninsula a center of commercial and sport fishing, and has transformed the Peninsula’s economy to one based primarily on work for cash. Subsistence fishing has been crowded out by commercial harvesting and by sport fishing, the latter pursued with all the zeal of a Crusade. See Medred, Combat Fishing, Anchorage Daily News, May 15, 1988, at J-l (describing “Alaska streams sometimes hidden behind a wall of humanity”); Freedman, Fish Hard Die Free: Profiles in Carnage, We Alaskans (Anchorage Daily News Magazine), Aug. 7, 1988, at N-7, N-8 (“It’s said there are two kinds of people in Alaska: Those Who Fish, and Those Who Watch”); Jenkins, So Many Fishermen, So New Flies, Anchorage Daily News, Aug. 10, 1988, at B-l. In response to similar changes occurring throughout Alaska, Congress enacted ANILCA in 1980. The Act contains a number of provisions relating to conservation on federal lands, including the establishment of new units of the National Park, National Forest and National Recreation Area systems. Title VIII of ANILCA protects subsistence fishing by giving such fishing a priority over other types of fishing in federal waters in rural areas. 16 U.S.C. §§ 3111-3126 (1982 & Supp. IV 1986). Congress prefaced Title VIII with a declaration that “the continuation of the opportunity for subsistence uses by rural residents of Alaska ... is essential to Native physical, economic, traditional, and cultural existence____” Id. § 3111(1). Congress further found that because “continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened by the increasing population of Alaska [and] by increased accessibility of remote areas containing subsistence resources,” id. § 3111(3), it was necessary for Congress “to protect and provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents.” Id. § 3111(4). ANILCA accordingly provides that “the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes.” Id. § 3114. Section 3113 defines “subsistence uses” as “the customary and traditional uses by rural Alaska residents of wild, renewable resources” for a variety of uses. Id. § 3113 (emphasis added). The statute directs the Secretary of the Interior to establish the administrative structure necessary for the implementation of the statute. Id. § 3115(a)-(c). The federal regulatory scheme is to be stayed, however, if the state of Alaska enacts laws “which are consistent with, and which provide for the definition, preference, and participation specified in, sections 3113, 3114, and 3115 of this title.” Id. § 3115(d). The Secretary is to monitor the state’s performance in this regard, and to report periodically to appropriate congressional committees. Id. § 3116. ANILCA authorizes any person or organization aggrieved by the failure of the state or federal government to enforce the subsistence priority set forth in section 3114 to file a civil action for injunctive relief in federal district court. Id. § 3117. Section 3117 provides the jurisdictional basis for this lawsuit. Given the choice between federal regulation or self-regulation with federal oversight, Alaska chose the latter. The state enacted the necessary statutes in 1978, while Congress was still working on the final version of ANILCA. Pursuant to the state statutes, the state Joint Boards of Fish and Game promulgated regulations which, among other things, defined rural as describing any area other than a community with a population of 7,000 or more. Residents of these rural communities were to be afforded ANILCA’s priority for subsistence fishing. In 1982, the Secretary of the Interior certified that the state legislative program was in compliance with AN-ILCA. Letter from Secretary James Watt to Governor Jay Hammond (May 14, 1982). This certification suspended federal regulation and left the state in charge of implementing ANILCA. Soon after certification was completed, the Joint Boards of Fish and Game issued a new regulation, which materially altered the definition of rural and substantially narrowed the areas where subsistence fishing would be afforded a priority. According to the new definition, identification of a rural area depended on ten criteria, including the current pattern of subsistence uses by groups inhabiting the area. The principal effect of the new regulation was to deny the subsistence fishing priority to residents of areas dominated by a cash economy. In 1985 this regulation was invalidated by the Alaska Supreme Court as inconsistent with state law. Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168 (Alaska 1985). The Alaska Legislature revived the regulation by amending the statute to conform to it. As amended, the statute defines “rural area” to mean “a community or area of the state in which the noncommercial, customary, and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area.” Alaska Stat. § 16.05.940(25) (1987). Invalidation of the earlier regulation in Madison had caused the Interior Department to advise the Governor of Alaska that the state had fallen out of compliance with ANILCA. After the new legislation, the Assistant Secretary of the Interior for Fish and Wildlife and Parks wrote a letter to the Governor of Alaska purporting to certify that the state was once again in compliance. Letter from Assistant Secretary William Horn to Governor Bill Sheffield (Nov. 7, 1986). The Kenai Peninsula qualifies as a rural area under the state’s original definition of the term, but not under the new definition. While vast areas of the Peninsula are covered by countryside and wilderness, its economy is no longer dominated by subsistence and barter. This means that under the new state scheme, subsistence fishing in the Kenai is denied the priority provided by ANILCA. The Kenaitze, some of whom continue to engage in subsistence fishing, brought suit challenging this change in state law. The Tribe sought an order directing the state to promulgate regulations defining rural in a manner that would implement the federal subsistence priority. Along with the complaint, the Tribe filed a motion for summary judgment and asked the court for a preliminary injunction to prevent the state from enforcing its existing statutory and regulatory definition of rural. The district court denied both motions, and granted the state’s crossmotion for partial summary judgment on the issue of whether Alaska was in compliance with ANILCA. The Tribe took an interlocutory appeal from the denial of the preliminary injunction. 28 U.S.C. § 1292(a)(1) (1982). II We must first consider whether we interpret the statute de novo, or whether we owe deference to the interpretation already adopted by the Department of the Interior and the state of Alaska, as the entities charged with the statute’s enforcement. The state, supported by the Secretary as amicus, argues that we owe deference to the interpretation advanced by the Secretary. Specifically, the state points to the 1986 letter from the Assistant Secretary for Fish and Wildlife and Parks, which approves the state’s revised definition of rural. Since the Secretary is charged with implementing ANILCA, the argument goes, we should defer to his determination that the state’s definition of rural conforms with federal law. Deference to an administrative agency’s construction of a statute is appropriate, however, only where the agency is entrusted with the administration of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982). We defer, therefore, only where the agency acts pursuant to a delegation of statutory authority. The 1986 letter was not such an action. The Secretary’s responsibility in administering the Act includes an initial certification that the state has implemented a statute that complies with ANILCA and that federal regulation should accordingly be withheld. 16 U.S.C. § 3115(d). Once the state regulatory scheme is in place, the Secretary’s powers are limited to monitoring the state’s implementation of its legislative program and making periodic reports to Congress. Id. § 3116. ANILCA thereafter vests the power to approve or disapprove the state’s performance in the courts alone. Id. § 3117(a). The Assistant Secretary’s 1986 letter purporting to recertify the state’s compliance thus had no legally operative effect. Not being an exercise of the Secretary’s statutory authority, it did not constitute the type of agency action to which a court owes deference. A more interesting question is posed by the suggestion that we defer to the state’s interpretation of ANILCA. The state’s claim to deference is based on the fact that it performs functions not unlike those of a federal agency charged with implementing an Act of Congress. State law here operates like an agency regulation; state authorities, therefore, can claim to stand in the shoes of federal regulators. While this argument is not without appeal, we reject it. Deference to a federal agency’s interpretation of a statute is based in part on the expertise it possesses in implementing federal policy in the general subject area. See Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389-90, 104 S.Ct. 2472, 2479-80, 81 L.Ed.2d 301 (1984). While Alaska has a long history of managing large wilderness areas, it lacks the expertise in implementing federal laws and policies and the nationwide perspective characteristic of a federal agency. Federal agencies are also entitled to deference because their activities are subject to continuous congressional supervision by virtue of Congress’s powers of advice and consent, appropriation, and oversight. Such direct and continuous congressional supervision is absent when state authorities are doing the regulating. Most fundamentally, unlike a federal agency, the state is delegated no authority under ANILCA. The statute only provides that if the state wishes to regulate in a manner consistent with federal law, federal regulation will be withheld. ANILCA does not assign any particular functions to the state as, indeed, it could not. As a separate sovereign, the state is at all times free to refuse to regulate; Congress could not compel it to do so. If the state refuses, the Department of the Interior will step in and do the job. The state’s role is thus more accurately characterized as supplanting the federal regulatory scheme, rather than implementing it. Deference is not appropriate. We must therefore determine the statute’s meaning on our own. It is to this task we now turn. III This case boils down to what Congress meant when it legislated a priority for “customary and traditional uses by rural Alaska residents of wild, renewable resources.” 16 U.S.C. § 3113 (emphasis added). The state has selected an unusual definition of the term rural, a definition that excludes most areas normally understood to be covered by the term. As Alaska defines the word, an area is rural only if its economy is dominated by subsistence fishing and hunting; it excludes areas characterized primarily by a cash economy, even though a substantial portion of the residents may engage in subsistence activities. The state’s definition would exclude practically all areas of the United States that we think of as rural, including virtually the entirety of such farming and ranching states as Iowa and Wyoming. The state argues that its definition of rural best promotes ANILCA’s policy of protecting the subsistence way of life by excluding areas where that way of life has already been supplanted by a cash economy. The state’s argument stands the process of statutory construction on its head. We look to policy in interpreting the statutory language; we do not rewrite the language to conform to the policy. While statutory words sometimes have more than one meaning, and interpreting the statute may require judgment as to which of these meanings Congress contemplated, an interpreting body may not invent a completely new meaning for a statutory term. Any other rule of construction would rob statutes of binding force and allow free rein to those who implement federal statutes to do what they wish rather than what Congress directed. The term rural is not difficult to understand; it is not a term of art. It is a standard word in the English language commonly understood to refer to areas of the country that are sparsely populated, where the economy centers on agriculture or ranching. See Webster’s Third New International Dictionary 1990'(1981). More broadly, rural is the antonym of urban and includes all areas in between cities and towns of a particular size. See id. The term has been used by the federal government in a variety of other contexts, all of them consistent with conventional understanding. The U.S. Census Bureau, for example, divides the population into two categories. The urban population consists of people living in communities of 2,500 or more, while the rural population comprises everyone else. U.S. Dep’t of Commerce, Bureau of the Census, 1980 Census of Population, vol. I, ch. B, part 3, at A-2. Many federal statutes use the word rural in its conventional sense. See, e.g., 42 U.S.C. § 1395ww(d)(2)(D) (Supp. IV 1986) (for purposes of computing Social Security payments to hospitals for inpatient hospital services, “rural area” defined as any area outside a metropolitan area); 42 U.S.C. § 1490 (Supp. IV 1986) (for purposes of applying Title V of Housing Act of 1949, “rural area” defined as “any open country, or any place, town, village, or city which is not part of or associated with an urban area” and where the population does not exceed certain limits). The Federal Communications Commission and the Federal Housing Administration similarly define rural in terms of an area’s population. See National Cable Television Ass’n v. FCC, 747 F.2d 1503, 1507 (D.C.Cir.1984); 7 C.F.R. § 1944.10 (1988). We are aware of no federal statute or regulation that uses the word rural in any sense other than the commonly accepted one. The state contends, nevertheless, that its definition of the term is appropriate in the context of ANILCA because it best serves the congressional goal of protecting the traditional subsistence way of life in areas where that way of life is predominant. Even if we agreed that this approach more clearly accomplishes the purpose behind ANILCA — a proposition we would be reluctant to endorse — Congress passes laws, not purposes. What matters is not some general purpose that may have motivated the lawmakers but the means they chose to achieve that end. The fact that we can conceive of a better way of accomplishing what we think may have been the congressional purpose does not give us license to ignore the means Congress actually adopted. Here Congress did not limit the benefits of the statute to residents of areas dominated by a subsistence economy. Instead, it wrote broadly, giving the statutory priority to all subsistence users residing in rural areas. To accept the state’s contorted definition of rural would materially change the sweep of the statute, second-guessing the congressional policy judgment embodied in ANILCA. This we may not do. The state’s definition of rural would also lead to an inconsistency within the statute. ANILCA establishes not one but two levels of priority. The first, already discussed, gives subsistence users living in rural areas priority over other users. But the statute then goes on to consider the possibility of fish and wildlife shortages so severe that even subsistence uses must be curtailed. In such a situation, certain subsistence users enjoy a priority over others. Which subsistence users receive this benefit? Those who can establish “customary and direct dependence upon the [fish and wildlife] populations as the mainstay of livelihood.” 16 U.S.C. § 3114(1). Under the state’s approach, this provision would be robbed of all meaning. Because the state’s narrow interpretation of section 3113 limits the benefits of ANILCA’s general priority to residents of areas where subsistence fishing is the mainstay of livelihood, anyone who qualifies for those benefits would also qualify for the more restrictive priority of section 3114(1). We cannot adopt a statutory interpretation that renders one portion of the statute redundant when there is another interpretation that avoids such redundancy. Congress quite clearly intended that section 3113 encompass a larger class of beneficiaries than section 3114(1). Giving the term rural its conventional meaning accomplishes this while the state’s interpretation does not. Even if the state’s interpretation were otherwise permissible, we would have to reject it in the name of internal statutory consistency. The state nevertheless places heavy reliance on ANILCA’s legislative history which, the state argues, overcomes all other considerations. But legislative history is not a panacea; it cannot overcome the structural and semantic problems discussed above. As the Supreme Court said with respect to this very statute, “[w]hen statutory language is plain, and nothing in the Act’s structure or relationship to other statutes calls into question this plain meaning, that is ordinarily ‘the end of the matter.’ ” Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1408, 94 L.Ed.2d 542 (1987) (citation omitted). See also Bethesda Hosp. Ass’n v. Bowen, — U.S. -, 108 S.Ct. 1255, 1258, 99 L.Ed.2d 460 (1988); United States v. Taylor, — U.S. -, 108 S.Ct. 2413, 2423, 101 L.Ed.2d 297 (1988) (Scalia, J., concurring in part) (where meaning of statute is clear, “there is no justification for resort to the legislative history”). Congress has used a simple term, one that is not reasonably susceptible to the interpretation the state advances. The legislative history, even if it were relevant, could not infuse a statutory term with a meaning to which it is not susceptible. We conclude therefore that the state’s redefinition of rural does not comport with section 3113. Alaska has failed to enforce the statute’s subsistence priority; the state is not in compliance with ANILCA. IV We end as we began. This is a case involving a clash of lifestyles and a dispute over who gets to fish. Congress, using clear language, has resolved this dispute in favor of the Kenaitze who choose to pursue the traditional subsistence way of life by giving them priority in federal waters. The state has attempted to take away what Congress has given, adopting a creative redefinition of the word rural, a redefinition whose transparent purpose is to protect commercial and sport fishing interests. The state is not required to regulate pursuant to ANILCA. If it does so, however, it is bound to implement the statute as Congress passed it, not as some of its citizens would prefer that it had been passed. If Alaska believes that the subsistence priority is too generous, or interferes too severely with commercial and recreational fishing, its elected federal representatives can attempt to amend the statute. The state may not achieve the same objective through indirection. We reverse the judgment of the district court and remand for entry of a preliminary injunction. Judge Thompson joins this opinion in its entirety. Judge Noonan joins parts I, II and IV. . Early drafts of Title VIII protected only subsistence uses by Native Alaskans. When the state advised Congress that the Alaska Constitution might bar the enforcement of a preference extended only to Natives, Congress broadened the preference to include all "rural residents.” 126 Cong.Rec. 29,278-79 (1980) (statement of Rep. Udall). The state's subsequent narrowing of the definition of "rural residents” to exclude the native villages here, see pp. 314-15 infra, is thus more than a little ironic. . Counsel for the state graphically described the situation at oral argument: "The Kenai Peninsula has Sears, Safeway stores and malls." True enough. Yet the Kenai has a long way to go before it approaches anything resembling an urban community. Its 25,000 inhabitants are spread over an area of 16,000 square miles, roughly the size of New Hampshire and Vermont combined. The World Almanac 573, 418 (1988). “The scenery is varied and beautiful. The massive peaks and broad ice fields of the Kenai Mountains form the spine of the peninsula, dropping away to the great forested plateau of the western area. Its many lakes, rivers and streams make the Kenai a prime sportfish-ing destination." The Milepost 336 (40th ed. 1988). . Plaintiffs sued only the state, not the Secretary of the Interior. As noted, this type of lawsuit is authorized by ANILCA, 16 U.S.C. § 3117, and is designed to bring state regulation into compliance with federal law. . The Secretary delegated the authority to make this determination to the Assistant Secretary for Fish and Wildlife and Parks. U.S. Dep’t of the Interior, Departmental Manual 209 DM 6.1 (May 2, 1983) (No. 2489). . Although section 3117(a) requires the "exhaustion of any State or Federal (as appropriate) administrative remedies which may be available,” it is clear in context that "Federal (as appropriate) administrative remedies” refers to remedies that would exist if the state had not supplanted ANILCA’s regulatory scheme with its own. Because the state has accepted section 3115(d)’s invitation to supersede federal regulation, there is no federal administrative remedy for a plaintiff to exhaust. The state, moreover, makes no claim that the Kenaitze have failed to exhaust any available state administrative remedies. .While we need not defer to the Secretary, his views are nevertheless valuable to the court in light of the Secretary’s intimate familiarity with the statutory scheme and his supervisory responsibilities over the federal lands in question. We have given the Secretary’s views, as expressed in the government’s amicus brief, due consideration. . The state does not, of course, claim to be rewriting the statutory language. No one ever admits to taking a blue pencil to an Act of Congress. But precisely the same end is achieved through creative interpretation. Assigning exotic definitions to statutory terms alters the statute just as surely and effectively as changing the statutory language. . The state argues that article IV, section 4 of the Constitution, which “guarantee[s] to every State in this Union a Republican Form of Government," and the tenth amendment, which reserves to the states powers not delegated to the federal government, preclude a federal court from directing the state to amend its laws to make them consistent with ANILCA. Whether or not this proposition is correct, it has no relevance here. We do not purport to be directing the state to amend its laws; it is free to eschew any further entanglement with the federal government by advising the Department of the Interior that it is withdrawing from its role in administering ANILCA. . ANILCA provides that “[IJocal residents and other persons and organizations who are prevailing parties in an action filed pursuant to this section shall be awarded their costs and attorney’s fees." 16 U.S.C. § 3117(a). In the interest of convenience and economy, we instruct the district court on remand to award the Kenaitze an amount equal to their attorneys' fees for bringing this action, including this appeal. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". FOX & COMPANY, a partnership; F. H. Brandhorst; W. J. Grace; W. Knepper; A. L. McWilliams; S. Salniker; and D. M. Schuessler, Appellants, v. Vincent SCHOEMEHL, individually and as Mayor of the City of St. Louis; John Temporiti, individually and as Chief of Staff of Mayor Vincent Schoemehl; Peat, Marwick, Mitchell & Co., Appellees. No. 81-1884. United States Court of Appeals, Eighth Circuit. Submitted Jan. 14, 1982. Decided Feb. 24, 1982. Lewis, Rice, Tucker, Allen & Chubb, Andrew Rothschild, St. Louis, Mo., for respondent Peat, Marwick, Mitchell & Co. Joseph R. Niemann, City Counselor, Judith A. Ronzio, argued, Associate City Counselor, St. Louis, Mo., for appellees Schoemehl and Temporiti. Carroll J. Donohue, argued, Mark G. Arnold, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., for appellants. Before BRIGHT, ROSS and STEPHENSON, Circuit Judges. ROSS, Circuit Judge. Plaintiffs brought this action under 42 U.S.C. § 1983 alleging that plaintiffs were dismissed from their positions as city auditors for the City of St. Louis, Missouri for political reasons in violation of the first amendment. The district court 519 F.Supp. 849, held that because plaintiffs were not public employees they were not protected from political dismissal. We affirm. FACTS Plaintiffs are a public accounting firm and its partners. They were appointed by Mayor James F. Conway of the City of St. Louis, Missouri to audit the books and records of the St. Louis Board of Education for the fiscal year ended June 30,1981. Mayor Conway appointed plaintiffs pursuant to Mo.Rev.Stat. § 165.181 (1981) which states in relevant part: At the close of each fiscal school year, the mayor of the city shall appoint one or more expert accountants, who shall examine the books, accounts and vouchers of the secretary and treasurer, auditor, commissioner of school buildings and all . other departments of expenditure of the board of the metropolitan district and shall make due report thereof to the may- or and board of education of the city. Following the election of defendant Vincent Schoemehl as mayor, plaintiffs were dismissed as city auditors and were replaced by defendants, Peat, Marwick, Mitchell & Co. Count I of plaintiffs’ complaint alleged that defendant Vincent Schoemehl and his Chief of Staff, John Temporiti, dismissed plaintiffs as city auditors solely because of plaintiffs’ political affiliation. Plaintiffs stated that they had not supported Mayor Schoemehl in his mayoral campaign whereas Peat, Marwick, Mitchell & Co. had made financial contributions to the campaign. Counts II and III charged defendants Schoemehl, Temporiti and Peat, Marwick, Mitchell & Co. with tortious interference with plaintiffs’ contractual rights. The district court in an order and memorandum dated August 7, 1981, dismissed Count I for failure to state a cause of action. Counts II and III were dismissed for lack of federal subject matter jurisdiction because the contract claims were pendent to Count I. Plaintiffs appeal. DISCUSSION Plaintiffs argue they are protected from dismissal based on their political affiliation by the Supreme Court’s holdings in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod the Supreme Court held that political dismissal of nonconfidential, nonpolicymaking, public employees violated the first amendment. Elrod v. Burns, supra, 427 U.S. at 349, 96 S.Ct. at 2678. Bran- ti v. Finkel, supra, 445 U.S. at 520, 100 S.Ct. at 1295. Defendants argue that Elrod and Branti do not protect plaintiffs from political dismissal because plaintiffs are not public employees. We agree with defendants. In Sweeney v. Bond, 669 F.2d 542, at 545 (8th Cir. 1982), reh’g denied (Feb. 4, 1982), this court stated that “Elrod and Branti were limited to dismissals of.public employees for partisan reasons. We are not willing to extend the patronage decisions to cases which do not involve public employees.” Taking the facts as alleged in the complaint to be true we must assume that Mayor Schoemehl’s dismissal of plaintiffs was politically motivated. Additionally, the parties do not dispute the fact that plaintiffs are not public employees but are independent contractors. Therefore, based on this court’s recent decision in Sweeney, we affirm the district court’s dismissal of plaintiffs’ complaint. The plaintiffs’ complaint is dismissed for the reasons that Count I fails to state a cause of action and Counts II and III do not support independent federal subject matter jurisdiction. . The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri. . Nickens v. White, 536 F.2d 802, 803 (8th Cir. 1976). . Plaintiffs argue that the Supreme Court’s decision in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) is controlling in this case. In Lefkowitz the Court held that a state could not compel testimony in violation of the fifth amendment under the threat of loss of government contracts. The Court held that contractors as well as employees were protected by the fifth amendment. Id. at 83, 94 S.Ct. at 325. We decline to extend Lefkowitz’s fifth amendment protection of contractors to the present first amendment case. We note that the Supreme Court limited its rulings in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) to public employees. It is not for this court to expand upon that ruling. We note further that Chief Justice Burger and Justices Stewart, Powell and Rehnquist joined Justice White in the Lefkowitz case holding that a state could not compel testimony in violation of the fifth amendment. Chief Justice Burger and Justices Powell and Rehnquist dissented in Elrod, arguing that the governmental interest in a patronage system outweighed a public employee’s first amendment rights. Elrod v. Burns, supra, 427 U.S. at 387, 96 S.Ct. at 2696. In Branti, Justices Stewart, Powell and Rehnquist dissented, again arguing that the government had a significant interest in the patronage system. It is therefore apparent that a different analysis may apply in weighing governmental interests against first amendment rights, as in cases such as this, and against fifth amendment rights as were at issue in Lefkowitz. . The parties indicated at oral argument that a breach of contract action had been filed in state court based on the facts alleged in the present complaint. This court’s decision in no way affects the validity of any possible contractual claims which may exist under state law. We find only that the complaint fails to state a cognizable claim under federal law. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_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. Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased, v. YANKEE LINES, a Corporation, Appellant. No. 11511. United States Court of Appeals Third Circuit. Argued March 10, 1955. Decided July 15, 1955. Hastie, Circuit Judge, dissented. Robert E. Kline, William C. Walker, Pittsburgh, Pa. (Dickie, McCamey, Chil-cote, Reif- & Robinson, Pittsburgh, Pa., on the brief), for appellant. A. H. Rosenberg, Pittsburgh, Pa. (Rosenberg & Rosenberg, Pittsburgh, Pa., on the brief), for appellee. Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges. McLAUGHLIN, Circuit Judge. Plaintiff’s decedent was killed as a result of a collision in Pennsylvania between the automobile he was operating and a tractor trailer owned by and operated for appellant: Nine months after this action' had been commenced' suits were filed in the' state court on behalf of the passengers in the Kimmel car against plaintiff as administratrix of her deceased husband’s estate and Yankee Lines. Those cases' were consolidated and tried. The jury found negligence on the part of both Kimmel and Yankee Lines and awarded verdicts against both defendants. The state trial judge on motion entered judgment n. o. v. in favor of Yankee Lines and allowed the verdicts against Kimmel to stand. This suit was tried thereafter in due course and resulted in a verdict in favor of the plaintiff. On motions for a new trial and for judgment n. o. v. appellant urged that the verdict in the federal court was against the weight of the evidence and that the state court judgment had resolved the issue of negligence making it res ad judicata. The first point need not concern us long. There was evidence from which the jury could have concluded as it did that the Yankee Lines driver caused the accident by his negligence and that Kimmel was not contributorily at fault. Those were matters for the jury. Since this is a diversity case we look to Pennsylvania law for the answer to the second question, whether recovery here is barred by the state court judgments. There is no appellate opinion directly in point but a common pleas decision of that state which is quite close to the situation before us squarely holds that a verdict against two joint defendants in an action such as the state court suit above mentioned does not foreclose the negligence issue as to the defendants in a later suit between them. Chenger v. Peccan, 1953, 88 Pa.Dist. & Co. 186. That opinion, while not controlling, is entitled to some weight. National Foam System v. Urquhart, 3 Cir., 1953, 202 F.2d 659. The common pleas decision relied on Section 82 of the Restatement of Judgments, which says: “The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings, as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves.” (Emphasis supplied.) An illustration given under Comment b to this section is particularly apropos to our case: “1. A and B are driving automobiles, which collide. C, a passenger in B’s car, sues A and B. Whether the judgment is in favor of or against C as to either or both A and B, the issues as to negligence or other element of the cause of action are not res judicata in a subsequent action by A against B for damage to his car.” Appellant leans heavily on Simodejka v. Williams, 1948, 360 Pa. 332, 62 A.2d 17. In that case, however, the former suit arose under Pennsylvania’s third-party practice rule. Thus instead of the parties being co-defendants in the first suit they were adversaries, i. e. third-party plaintiff and third-party defendant. On this basis the Pennsylvania Supreme Court properly distinguished the Restatement’s nonadversary rule as well as an earlier Pennsylvania case, Jordan v. Chambers, 1910, 226 Pa. 573, 75 A. 956, which had refused to apply the doctrine of res adjudicata in a subsequent suit between two co-defendants who had been successful in an ejectment action brought against them. This is not the first time the federal courts have applied Pennsylvania law to this particular problem. In Hassenplug v. Victor Lynn Lines, 3 Cir., 1947, 163 F.2d 828, affirming, D.C.E.D.Pa.1947, 71 F.Supp. 70, the representatives of a deceased automobile passenger had recovered a judgment against decedent’s driver and the owner of a truck, the latter being the second vehicle involved in the fatal collision. This court, in a per curiam affirmance, refused to apply the doctrine of res adjudicata in the subsequent suit brought by decedent’s driver against the truck owner. In Greer v. Stanislau, D.C.E.D.Pa.1953, 118 F.Supp. 494, two automobiles collided on the streets of Philadelphia. A land owner brought suit for damages in the Municipal Court of Philadelphia County against the two drivers as joint tortfeasors. Greer did not contest the action and the jury returned a verdict against Greer but exonerated Stanislau. Greer then sued Stanislau in the federal district court. The latter’s motion to dismiss, on the res ad-judicata ground was denied. In his opinion Judge Ganey cited the Simodejka case, quoted Section 82 of the Restatement of Judgments and concluded: “We think the Pennsylvania Courts would follow this section of the Restatement.” The Greer case was not appealed. See also Hornstein v. Kramer Bros. Freight Lines, 3 Cir., 1943, 133 F.2d 143. Exactly the same problem was before the Minnesota Supreme Court in Bunge v. Yager, 1952, 236 Minn. 245, 52 N.W. 2d 446, 451. What that court said about its contribution and cross-claim procedure could also be said by us about the law of Pennsylvania: “Our statutes, as well as our new rules, simply provide a method whereby the right's and liabilities of co-parties mazy be litigated in an action in which they are aligned on the same side of the litigation, thereby preventing a multiplicity of suits. But where action is not taken to bring co-parties into an adversary relationship, their rights and liabilities as against each other are not ■ determined, nor is the determination of their liability to a third party a bar to a subsequent action by one of the codefendants against the other to recover damages which he may have suffered as a result of the same tort.” (Emphasis supplied.) For cases in other jurisdictions to the same effect, see 152 A.L.R. 1066-1072 (1944); 9 Blashfield, Cyclopedia of Automobile Law-and Practice, Section 5835 (1955). There is more than technicality behind the Restatement illustration. The state court suits were brought to obtain compensation for injuries suffered by the passengers in the present plaintiff’s car. The right of contribution which either defendant there might have been able to assert against the other is entirely collateral to the subject matter of the present cause of action based upon the personal injuries and wrongful death suffered by plaintiff’s decedent. The fact is that no such contribution right was asserted under the pleadings. Nor did plaintiff assert in the prior suit a separate cross-claim against her co-defendant for the injuries and death suffered by her decedent. Plaintiff, acting within Her rights, chose to remain in a non-adversary position with her co-defendant in the first suit. To preclude her now from litigating her cause of action would in effect superimpose a mandatory cross-claim rule on Pennsylvania practice. We think the Restatement rule is sound and that the Pennsylvania courts would follow it. The judgment below will be affirmed. . “When Williams, in answering George’s [the plaintiff in the first suit] complaint, also brought in Michael as additional defendant, he, Williams, pursuant to Rule 2255 [of the Pennsylvania rules] [12 P.S. Appendix], became a plaintiff as against Michael and Michael became a defendant opposed to Williams; * * * in other words, as the rule provided, they became adverse parties as to each other * Simodejka v. Williams, supra, 360 Pa. at page 335, 62 A.2d at page 18. . Appellant also urges upon us Section 68 of the Restatement of Judgments which pertains to the doctrine known as “collateral estoppel”. That contention was also made before the Minnesota Supreme Court. As there indicated, Section 68 must be read in conjunction with Section 82. When that is done it is clear that the collateral estoppel doctrine is likewise limited to subsequent suits between adverse parties in the prior suit or their privies. Any exception to this principle such as where a person has accepted the benefits of a prior judgment bears no relevancy to the instant situation. Cf. Livesay Industries v. Livesay Window Co., 5 Cir., 1953, 202 F.2d 378, certiorari denied 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369. National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 1940, 110 F.2d 138, while containing broader language, is factually sui generis. . Mere assertions in separate answers that the other defendant is the one at fault does not make the defendants adversaries. Pearlman v. Truppo, 1932, 10 N.J.Misc. 477, 159 A. 623; see also Cooke v. Kilgore Mfg. Co., D.C.N.D.Ohio, 1954, 15 F.R.D. 465. 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_subevid	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". COMMISSIONER OF INTERNAL REVENUE v. CELANESE CORPORATION OF AMERICA. No. 8570. United States Court of Appeals District of Columbia. Argued Dec. 10, 1943. Decided Jan. 17, 1944. Mr. Joseph M. Jones,' Sp. Asst, to the-Atty. Gen., with whom Messrs. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., were on the brief for petitioner. Messrs. J. P. Wenchel, Chief Counsel, and C. E. Lowery, Sp. Atty.,, Bureau of Internal Revenue, both of Washington, D. C., also entered appearances for petitioner. Mr. E. Barrett Prettyman, of Washington, D. C., with whom Messrs. Fred R^ Angevine, of New York City, F. G. Await,, and Raymond Sparks, both of Washington, D. C., were on the brief, for respondent. Before GRONER, C. J., and EDGER-TON and DOBIE JJ. Sitting by assignment of the Chief Justice of the 'United States, pursuant to the provisions of the Act of December 29, 1942, entitled “An Act to amend the Judicial Code to authorize the Chief Justice of the United States to assign circuit judges to temporary duty in circuits other than their own.” 56 Stat. 1094, 28 U.S.C.A. §§ 17-20, 22, 23. GRONER, C. J. This is a tax case in which the Commissioner determined deficiencies against respondent, as a withholding agent, of $14,-074.20, with penalties of $3,518.55 for 1937, and of $7,253.08 and penalties of $1,831.27 for 1938. The Tax Court held that there was no duty on respondent to withhold the tax. The Commissioner appealed. The question in the case is whether payments made by respondent to one Henri Dreyfus, a nonresident alien, were subject, in the two years in question, to the income tax withholding provisions of the Revenue Acts j and the answer turns upon whether the payments were royalties for the use of patents or were payments on their purchase price. The facts were stipulated in the Tax Court and for present purposes may be stated as follows: Henri and Camille Dreyfus were in November, 1918, citizens and residents of Switzerland. They had invented and owned certain secret manufacturing processes upon which patents had been granted by the United States. On November 30, 1918, they contracted with respondent’s predecessor corporation to assign and deliver to it all of such patents, with full and exclusive right and authority to manufacture and sell in the United' States, its territories and dependencies, Mexico, Cuba and South America. The contract was executed by the Dreyfuses in London. A cotemporaneous contract provided for their employment as Managing Directors of the corporation for a period of fifteen years. Pursuant to the terms of the first mentioned contract, the Dreyfuses executed written assignments of “the whole of the exclusive right, title and interest in and to each and all of said letters patent * * * and in and to the inventions therein described and claimed, the same to be held by the said, the American Cellulose & Chemical Manufacturing Company, Ltd. (respondent’s predecessor), for its own use and behoof and for the use and behoof of its successors, assigns, or legal representatives, subject to the terms and conditions of the said agreement of the 30th of November, 1918.” Camille Dreyfus subsequently became an American citizen and is not concerned with the appeal. His brother, Henri Dreyfus, continued a nonresident alien and at no time had an office or engaged in any trade or business in the United States. In 1937 and 1938 respondent paid Henri Dreyfus $140,742.04 and $72,530.79, respectively, under the 1918 sales contract. It did not withhold income tax on these payments. If the payments were made in the purchase of personal property, as was decided by the Tax Court, then respondent is not subject to the income tax withholding provisions. But the Commissioner claims that the payments were not purchase money payments, but were in fact royalties for the use of patents, (Sec. 119, Acts 1936, 1938, 26 U.S.C.A.Int.Rev.Acts, pages 876-879). If that be true, then admittedly respondent would be subject to the withholding provisions of the Act. The November, 1918, sales agreement, after reciting the circumstances under which the Dreyfuses obtained the patents and that respondent, called “the Purchaser”, desired to acquire them “to use, enjoy and exploit them in the Purchaser’s area,” provided that in consideration of the delivery by the Purchaser to the sellers of 150,000 shares of the Purchaser’s fully paid, non-assessable common stock and the payment of six per cent (three per cent to each of the brothers) of the Purchaser’s net profits to be paid in each year in which there should be payments of dividends to stockholders — “The Vendors hereby assign and make over to the Purchaser and its successors and assigns, the said processes and the full benefit thereof with the full and exclusive right and authority to manufacture and sell in the Purchaser’s area, namely, in the United States of America, its territories and dependencies and also similar rights in Mexico, Cuba, and the countries of South America provided patents are taken out by the purchasers in any of tbe said countries in which purchasers may wish to do business (but not elsewhere) articles made under, by or in accordance with the said processes or any of them,” etc. And the stipulated facts show that in accordance with the quoted provision, the Vendors did assign in writing the whole of their exclusive right, title, and interest in the patents within the described territory to the Purchaser, and that the assignments were accepted and recorded in the United States Patent Office and that the Purchaser has uninterruptedly had and used the same and their extensions as its own property for a quarter of a century. Considered in this aspect there can he no manner of doubt that the parties intended to effect a purchase and sale of the patents and not a royalty use. The 1918 contract confirms this purpose in unmistakable language, and this was the conclusion reached by the Tax Court. The stipulation, that Court said, categorically provides that the patents and processes covered in the 1918 contract were transferred to the petitioner before the tax years in question; and there is no reason to believe that when the parties drew their contract they intended to provide for licenses and royalties when they expressly provided for sale and price. This reasoning seems to us in all respects sound, and when it is considered that we were recently told by the Supreme Court, that the judicial function is exhausted when there is found to be a rational basis for the decision of the Tax Court, the conclusion reached by that Court, supported, as here we think it is, by the stipulated facts and the established law, necessarily forecloses the question, unless there is something else in the record which of itself impels a different result. The Commissioner’s case is, in the main, based on such a claim. He says that, notwithstanding the words of outright conveyance and sale, or the intention of the parties to make a purchase and sale, there are in the contract restrictions and limitations on the transfer which indicate that it was in law no more than a licensing agreement. To support this he points to various provisions from which he concludes that an absolute sale was not accomplished, since, as he thinks, respondent might, as the result of one or another of these provisions, in the contingencies named, lose the patents and the Vendors recover them. We find no merit in the claim. Most of the language to which the Commissioner alludes embraces precautionary provisions in the protection of the rights of the parties, respectively, under the contract. None of it affects the intent and purpose of the contract to vest immediately in the Purchaser absolute title to the patents. The clause most seriously challenged by the Commissioner is that the Vendors shall have the right to cancel the agreement and terminate the rights of the Purchaser if within ten years from the date of the agreement the Purchaser shall be dissolved and placed in bankruptcy or receivership. A quick answer to this is that the ten year period expired in 1928, without the happening of any of the conditioned events. The installment payments on the purchase price and the ownership rights of the Purchaser under the contract have continued unchallenged until now. Obviously, no right to demand a reconveyance of the patents can arise now under this clause. At most, the provision was intended to fix a definite period within which to determine whether the enterprise would succeed, with the right reserved to the Vendors, at their option, to retake in the event of bankruptcy. But, in no aspect, was this more than a condition subsequent whereby a title already vested might become divested. Since the named contingency never arose, and the condition long ago became obsolete, no more need be said on the subject. (Restatement, Property, Sec. 24). Other language provides that in the event of liquidation, the Vendors shall ■•be entitled to the payment of a capital sum representing the capitalized value of the percentages payable to the Vendors, but does not provide for a return of the patents. And so also the provision that the Purchaser will keep the patents in full force and effect, in default of which the Vendors have the right at the Purchaser’s expense to work the patents, is just another condition subsequent — looking to requiring the Purchaser to make such continuous use of the patents that the installments of the purchase price may be paid. In short, the various provisions to which we have referred, as well as the others referred to by the Commissioner, are provisions of a reciprocal nature in which each of the parties was seeking the most certain means of securing to the Purchaser the exclusive possession and use of the patents $vhich it had bought and to the sellers that they should be so used as to assure as far as possible payment of the installments which were a part of the consideration of the sale. Nor is there any more substance to the Commissioner’s claim that the clause which bound the Vendors, if called on by the Purchaser and at the Purchaser’s expense, to take proper action to prevent any one, acting without Purchaser’s sanction, from using the patents, is in derogation of the rights of Purchaser as owner. This provision reserved no rights in the Vendors and while it may have been redundant, its purpose obviously was to cover contingencies which might at the moment have been overlooked or not foreseen. But clearly it was to protect the interest of Purchaser against such contingencies as should arise. As counsel very well suggest, it was analogous to a covenant to defend title, a common provision in most deeds of conveyance of real property. The Commissioner’s final point— not raised or discussed in the Tax Court but which, in deference to the decision of the Supreme Court in the Hormel case, we notice — is that even if the transfer was-technically a full assignment, the payments under the contract are nevertheless subject to the broad provisions of the withholding statute section 143(b). The argument to support this theory is that the duty of withholding is not determined by ascertaining that the payments are “technical royalties,” but that the obligation exists in any case in which a seller of an invention still has an interest in the successful exploitation of the patent. But the trouble with this is that the statute itself makes the distinction and expressly declares a different rule for “royalties for the use of a patent” and for payments received in consideration of “the sale of personal property” which would necessarily include the sale of a patent. § 143(b), § 119(e), Revenue Acts of 1936 and 1938, respectively. The Treasury Regulations make this distinction clear. Article 212-l-(a) of Regulations 94 and 101 provides that the gross income of a nonresident alien individual not engaged in-trade or business within the United States and not having an office or place of business therein at any time during the taxable year, does not include profits derived from the effecting of transactions in the United States, including inter alia, profits derived from the sale within the United States of personal property or real property located therein. And Article 143-2 of Regulations 94 and 101 provides that the income derived from the sale in the United States of property, whether real or personal, is not fixed or determinable annual or periodical income; and hence not subject to the 10 per cent tax under the provisions of section 143(b) on income from annual or periodical gains and profits. Nothing more, we think, need be said to show the error of the argument on which the Commissioner’s case in this last respect rests. Accordingly, we are of opinion that the Tax Court was clearly right in holding the amounts paid by respondent corporation to Dreyfus were installments of the purchase price of the patents covered by the 1918 contract and were not royalties or income from which respondent was required to withhold the tax. Affirmed. § 143 (b), Revenue Act of 1936, 49 Stat. 1700; and § 143 (b), Revenue Act of 1938, 52 Stat. 511, 26 U.S.C.A. Int.Rev.Code, § 143(b). Treasury Department Regulations (Art. 212-1 (a) of Regs. 94, 101, etc.) Littlefield v. Perry, 21 Wall. 205, 220, 221, 22 L.Ed. 577; United States v. General Elec. Co., 272 U.S. 476-489, 47 S.Ct. 192, 71 L.Ed. 362; Rotorite Corp. v. Commissioner, 7 Cir., 117 F.2d 245; Commissioner v. Hopkinson, 2 Cir., 126 F.2d 406, 409, 410. Dobson v. Commissioner, 64 S.Ct. 239, 88 L.Ed. —. In tbe last cited case Mr. Justice Jackson very well says that no administrative decisions are entitled to greater weight than those of the Tax Court. I am in accord with the statement, but its significance to me lies in the reason given to sustain it. This is, that the Tax Court “is independent, and its neutrality is not clouded by prosecuting duties. Its procedures assure fair hearing. Its deliberations are evidenced by careful opinions. * * * It has established a tradition of freedom from 'bias and pressures. * * * Its members not infreguently bring to their task long legislative or administrative experience in •their subject. * * * Individual cases are disposed of wholly on records publicly made, in adversary proceedings, and the court has no responsibility for previous handling.” That the given reason indubitably impels the conclusion, no intelligent person will gainsay. And if this be true, why then should it not be a rule of general application? Why, if the present trend of diminishing power in the courts to review administrative decisions is to continue — as I think is implicit in the recent decisions of the Supreme Court — would it not materially aid in the re-establishment of public confidence, alike in all administrative tribunals, if the pattern of fitness so carefully drawn by Mr. Justice Jackson were adopted by the legislature and written into their respective constitutions? Certainly, no less than this will afford protection to the citizen in the lawful pursuit of his business, and it should not be forgotten that protection and patriotism, in the true spirit of union, are reciprocal. In this paragraph I speak only for myself. Hormel v. Helvering, 312 U.S. 552, 556, 557, 61 S.Ct. 719, 85 L.Ed. 1037. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casesource	158	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. MAINE et al. v. THIBOUTOT et vir. No. 79-838. Argued April 22, 1980 Decided June 25, 1980 BreNNAN, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 11. James Eastman Smith, Assistant Attorney General of Maine, argued the cause for petitioners. With him on the briefs was Richard S. Cohen, Attorney General. Robert Edmond Mittel argued the cause for respondents. With him on the brief were Susan Calkins and Hugh Calkins A brief of amici curiae urging reversal was filed by Edward G. Biester, Jr., Attorney General, and Robert E. Kelly and Allen C. Warshaw, Deputy Attorneys General, for the Commonwealth of Pennsylvania, joined by officials for their respective States as follows: Francis X. Bettotti, Attorney General of Massachusetts, and Garrick F. Cole, Assistant Attorney General; John J. Degnan, Attorney General of New Jersey, and Andrea Silkowitz, Deputy Attorney General; Thomas D. Rath, Attorney General of New Hampshire; M. Jerome Diamond, Attorney General of Vermont, and Benson Scotch, Assistant Attorney General; Dennis J. Roberts II, Attorney General of Rhode Island, AUen P. Rubine, Deputy Attorney General, and John S. Foley and Eileen G. Cooney, Special Assistant Attorneys General; and Richard S. Gebelein, Attorney General of Delaware, and Regina M. Small, State Solicitor. Briefs of amici curiae urging affirmance were filed by Bruce J. Ennis for the American Civil Liberties Union et al.; and by Carol Goodman for the Volunteer Lawyers Project of the Boston Bar Association et al. Mr. Justice Brennan delivered the opinion of the Court. The case presents two related questions arising under 42 U. S. C. §§ 1983 and 1988. Respondents brought this suit in the Maine Superior Court alleging that petitioners, the State of Maine and its Commissioner of Human Services, violated § 1983 by depriving respondents of welfare benefits to which they were entitled under the federal Social Security Act, specifically 42 U. S. C. §602 (a) (7). The petitioners present two issues: (1) whether § 1983 encompasses claims based on purely statutory violations of federal law, and (2) if so, whether attorney’s fees under § 1988 may be awarded to the prevailing party in such an action. I Respondents, Lionel and Joline Thiboutot, are married and have eight children, three of whom are Lionel’s by a previous marriage. The Maine Department of Human Services notified Lionel that, in computing the Aid to Families with Dependent Children (AFDC) benefits to which he was entitled for the three children exclusively his, it would no longer make allowance for the money spent to support the other five children, even though Lionel is legally obligated to support them. Respondents, challenging the State’s interpretation of 42 U. S. C, §602 (a)(7), exhausted their state administrative remedies and then sought judicial review of the administrative action in the State Superior Court. By amended complaint, respondents also claimed relief under § 1983 for themselves and others similarly situated. The Superior Court’s judgment enjoined petitioners from enforcing the challenged rule and ordered them to adopt new regulations, to notify class members of the new regulations, and to pay the correct amounts retroactively to respondents and prospectively to eligible class members. The court, however, denied respondents’ motion for attorney’s fees. The Supreme Judicial Court of Maine, 405 A. 2d 230 (1979), concluded that respondents had no entitlement to attorney’s fees under state law, but were eligible for attorney’s fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988. We granted certiorari. 444 TJ. S. 1042 (1980). We affirm. II Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.) The question before us is whether the phrase “and laws,” as used in § 1983, means what it says, or whether it should be limited to some subset of laws. Given that Congress attached no modifiers to the phrase, the plain language of the statute undoubtedly embraces respondents’ claim that petitioners violated the Social Security Act. Even were the language ambiguous, however, any doubt as to its meaning has been resolved by our several cases suggesting, explicitly or implicitly, that the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law. Rosado v. Wyman, 397 U. S. 397 (1970), for example, “held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.” Edelman v. Jordan, 415 U. S. 651, 675 (1974). Monell v. New York City Dept. of Social Services, 436 U. S. 658, 700-701 (1978), as support for its conclusion that municipalities are “persons” under § 1983, reasoned that “there can be no doubt that § 1 of the Civil Rights Act [of 1871] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights.” Similarly, Owen v. City of Independence, 445 U. S. 622, 649 (1980), in holding that the common-law immunity for discretionary functions provided no basis for according municipalities a good-faith immunity under § 1983, noted that a court “looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes.” Mitchum v. Foster, 407 U. S. 225, 240, n. 30 (1972), and Lynch v. Household Finance Corp., 405 U. S. 538, 543, n. 7 (1972), noted that § 1983’s predecessor “was enlarged to provide protection for rights, privileges, or immunities secured by federal law.” Greenwood v. Peacock, 384 U. S. 808, 829-830 (1966), observed that under § 1983 state “officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well.” The availability of this alternative sanction helped support the holding that 28 U. S. C. § 1443 (1) did not permit removal to federal court of a state prosecution in which the defense was that the state law conflicted with the defendants’ federal rights. As a final example, Mr. Justice Stone, writing in Hague v. CIO, 307 U. S. 496, 525-526 (1939), expressed the opinion that § 1983 was the product of an “extension] to include rights, privileges and immunities secured by the laws of the United States as well as by the Constitution.” While some might dismiss as dictum the foregoing statements, numerous and specific as they are, our analysis in several § 1983 cases involving Social Security Act (SSA) claims has relied on the availability of a § 1983 cause of action for statutory claims. Constitutional claims were also raised in these cases, providing a jurisdictional base, but the statutory claims were allowed to go forward, and were decided on the merits, under the court’s pendent jurisdiction. In each of the following cases § 1983 was necessarily the exclusive statutory cause of action because, as the Court held in Edelman v. Jordan, 415 U. S., at 673-674; id., at 690 (Marshall, J., dissenting), the SSA affords no private right of action against a State. Miller v. Youakim, 440 U. S. 125, 132, and n. 13 (1979) (state foster care program inconsistent with SSA); Quern v. Mandley, 436 U. S. 725, 729, and n. 3 (1978) (state emergency assistance program consistent with SSA); Van Lare v. Hurley, 421 U. S. 338 (1975) (state shelter allowance provisions inconsistent with SSA); Townsend v. Swank, 404 U. S. 282 (1971) (state prohibition against AFDC aid for college students inconsistent with SSA); King v. Smith, 392 U. S. 309, 311 (1968) (state cohabitation prohibition inconsistent with SSA). Cf. Hagans v. Lavine, 415 U. S. 528, 532-533, 543 (1974) (District Court had jurisdiction to decide whether state recoupment provisions consistent with SSA) ; Carter v. Stanton, 405 U. S. 669, 670 (1972) (District Court had jurisdiction to decide whether state absent-spouse rule consistent with SSA). In the face of the plain language of § 1983 and our consistent treatment of that provision, petitioners nevertheless persist in suggesting that the phrase “and laws” should be read as limited to civil rights or equal protection laws. Petitioners suggest that when § 1 of the Civil Rights Act of 1871, 17 Stat. 13, which accorded jurisdiction and a remedy for deprivations of rights secured by “the Constitution of the United States,” was divided by the 1874 statutory revision into a remedial section, Rev. Stat. § 1979, and jurisdictional sections, Rev. Stat. §§563 (12) and 629 (16), Congress intended that the same change made in § 629 (16) be made as to each of the new sections as well. Section 629 (16), the jurisdictional provision for the circuit courts and the model for the current jurisdictional provision, 28 U. S. C. § 1343 (3), applied to deprivations of rights secured by “the Constitution of the United States, or of any right secured by any law providing for equal rights.” On the other hand, the remedial provision, the predecessor of § 1983, was expanded to apply to deprivations of rights secured by “the Constitution and laws,” and § 563 (12), the provision granting jurisdiction to the district courts, to deprivations of rights secured by “the Constitution of the United States, or of any right secured by any law of the United States.” We need not repeat at length the detailed debate over the meaning of the scanty legislative history concerning the addition of the phrase “and laws.” See Chapman v. Houston Welfare Rights Organization, 441 U. S. 600 (1979); id., at 623 (Powell, J., concurring); id., at 646 (White, J., concurring in judgment); id., at 672 (Stewart, J., dissenting). One conclusion which emerges clearly is that the legislative history does not permit a definitive answer. Id., at 610-611; id., at 674 (Stewart, J., dissenting). There is no express explanation offered for the insertion of the phrase “and laws.” On the one hand, a principal purpose of the added language was to “ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute.” Id., at 637 (Powell, J., concurring). On the other hand, there are no indications that that was the only purpose, and Congress’ attention was specifically directed to this new language. Representative Lawrence, in a speech to the House of Representatives that began by observing that the revisers had very often changed the meaning of existing statutes, 2 Cong. Rec. 825 (1874), referred to the civil rights statutes as “possibly [showing] verbal modifications bordering on legislation,” id., at 827. He went on to read to Congress the original and revised versions. In short, Congress was aware of what it was doing, and the legislative history does not demonstrate that the plain language was not intended. Petitioners’ arguments amount to the claim that had Congress been more careful, and had it fully thought out the relationship among the various sections, it might have acted differently. That argument, however, can best be addressed to Congress, which, it is important to note, has remained quiet in the face of our many pronouncements on the scope of § 1983. Cf. TV A v. Hill, 437 U. S. 153 (1978). Ill Petitioners next argue that, even if this claim is within § 1983, Congress did not intend statutory claims to be covered by the Civil Eights Attorney’s Fees Awards Act of 1976, which added the following sentence to 42 U. S. C. § 1988 (emphasis added): “In any action or proceeding to enforce a provision of sections 1981, 1982, 1988, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U. S. C. 1681 et seq.] or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964 [42 U. S. C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Once again, given our holding in Part II, supra, the plain language provides an answer. The statute states that fees are available in any § 1983 action. Since we hold that this statutory action is properly brought under § 1983, and since § 1988 makes no exception for statutory § 1983 actions, § 1988 plainly applies to this suit. The legislative history is entirely consistent with the plain language. As was true with § 1983, a major purpose of the Civil Rights Attorney’s Fees Awards Act was to benefit those claiming deprivations of constitutional and civil rights. Principal sponsors of the measure in both the House and the Senate, however, explicitly stated during the floor debates that the statute would make fees available more broadly. Representative Drinan explained that the Act would apply to § 1983 and that § 1983 “authorizes suits against State and local officials based upon Federal statutory as well as constitutional rights. For example Blue against Craig, 505 F. 2d 830 (4th Cir. 1974).” 122 Cong. Rec. 35122 (1976). Senator Kennedy also included an SSA case as an example of the cases “enforcing] the rights promised by Congress or the Constitution” which the Act would embrace. Id., at 33314. In short, there can be no question that Congress passed the Fees Act anticipating that it would apply to statutory § 1983 claims. Several States, participating as amici curiae, argue that even if § 1988 applies to § 1983 claims alleging deprivations of statutory rights, it does not apply in state courts. There is no merit to this argument. As we have said above, Mar tinez v. California, 444 U. S. 277 (1980), held that § 1983 actions may be brought in state courts. Representative Drinan described the purpose of the Civil Rights Attorney’s Fees Awards Act as “authorizing] the award of a reasonable attorney’s fee in actions brought in State or Federal courts.” 122 Cong. Rec. 35122 (1976). And Congress viewed the fees authorized by § 1988 as “an integral part of the remedies necessary to obtain” compliance with § 1983. S. Rep. No, 94-1011, p. 5 (1976). It follows from this history and from the Supremacy Clause that the fee provision is part of the § 1983 remedy whether the action is brought in federal or state court. Affirmed. Petitioners also argue that jurisdiction to hear. § 1983 claims rests exclusively with the federal courts. Any doubt that state courts may also entertain such actions was dispelled by Martinez v. California, 444 U. S. 277, 283-284, n. 7 (1980). There, while reserving the question whether state courts are obligated to entertain § 1983 actions, we held that Congress has not barred them from doing so. The State did not appeal the judgment against it. The Supreme Judicial Court remanded to allow the Superior Court to exercise its discretion under § 1988 to determine the appropriate disposition of the fee request. Where the plain language, supported by consistent judicial interpretation, is as strong as it is here, ordinarily “it is not necessary to look beyond the words of the statute.” TV A v. Hill, 437 U. S. 153, 184, n. 29 (1978). In his concurring opinion in Chapman v. Houston Welfare Rights Organization, 441 U. S. 600 (1979), Me. Justice Powell’s argument proceeds on the basis of the flawed premise that Congress did not intend to change the meaning of existing laws when it revised the statutes in 1874. He assumed that Congress had instructed the revisers not to make changes, and that the revisers had obeyed those instructions. In fact, the second section of the statute creating the Revision Commission, 14 Stat. 75, mandated that the commissioners “mak[e] such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text.” Furthermore, it is clear that Congress understood this mandate to authorize the Commission to do more than merely “copy and arrange in proper order, and classify in heads the actual text of statutes in force.” 2 Cong. Rec. 825 (1874). We have already decided that the “customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance” cannot be taken at face value. United States v. Price, 383 U. S. 787, 803 (1966) (holding that the revisers significantly broadened the forerunner of 18 U. S. C. §242). There is no inherent illogic in construing § 1983 more broadly than § 1343 (3) was construed in Chapman v. Houston Welfare Rights Organization, supra. It would only mean that there are statutory rights which Congress has decided cannot be enforced in the federal courts unless 28 U. S. C. §1331 (a)’s $10,000 jurisdictional amount is satisfied. The States appearing as amid suggest that Hutto v. Finney, 437 U. S. 678 (1978), left open the issue whether Congress, exercising its power under §5 of the Fourteenth Amendment, could set aside the States’ Eleventh Amendment immunity in statutory as opposed to constitutional cases. Hutto, however, concluded alternatively that the Eleventh Amendment did not bar attorney’s fee awards in federal courts because the fee awards are part of costs, which “have traditionally been awarded without regard for the State’s Eleventh Amendment immunity.” Id., at 695. No Eleventh Amendment question is present, of course, where an action is brought in a state court since the Amendment, by its terms, restrains only “[t]he Judicial power of the United States.” In Blue v. Craig, the plaintiffs claimed that North Carolina’s Medicaid plan was inconsistent with the SSA. “In a case now pending, officials accepted Social Security Act funds for years for certain medical screening programs when in fact they had no such programs in most of the State. Bond v. Stanton, 528 F. 2d 688 (7th Cir. 1976).” 122 Cong. Rec. 33314 (1976). In the same list of examples, Senator Kennedy included La Raza Unida v. Volpe, 57 F. R. D. 94 (ND Cal. 1972), in which plaintiffs demonstrated violations of “the Department of Transportation Act of 1966 and various sections of 23 U. S. C. dealing with housing displacement and relocation.” Id., at 95. The Committee Reports are in accord. The Senate Report recognized that actions under § 1983 covered by the Act would include suits “redressing violations of the Federal Constitution or laws.” S. Rep. No. 94-1011, p. 4 (1976). The House Report, after suggesting that a party prevailing on a claim which could not support a fee award should be entitled to a determination on an attached claim covered by § 1988 in order to determine eligibility for fees, recognizes that a special problem is presented because “[i]n some instances . . . the claim with fees may involve a constitutional question. . . .” H. R. Rep. No. 94-1558, p. 4, n. 7 (1976). The negative pregnant is that in other instances the claim with fees need not involve a constitutional question. The state courts which have addressed this issue have reached that same result. 405 A. 2d 230, 239 (Me. 1979) (case below); Ramirez v. County of Hudson, 169 N. J. Super. 455, 404 A. 2d 1271 (1979); Tobeluk v. Lind, 589 P. 2d 873 (Alaska 1979); Young v. Toia, 66 App. Div. 2d 377, 413 N. Y. S. 2d 530 (1979); Lange v. Nature Conservancy, Inc., 24 Wash. App. 416, 422, 601 P. 2d 963, 967 (1979); Board of Trustees v. Holso, 584 P. 2d 1009 (Wyo. 1978); Thorpe v. Durango School District, 41 Colo. App. 473, 591 P. 2d 1329 (1978), cert. granted by Colorado Supreme Court (1979). If fees were not available in state courts, federalism concerns would be raised because most plaintiffs would have no choice but to bring their complaints concerning state actions to federal courts. Moreover, given that there is a class of cases stating causes of action under § 1983 but not cognizable in federal court absent the $10,000 jurisdictional amount of §1331 (a), see n. 6, supra, some plaintiffs would be forced to go to state courts, but contrary to congressional intent, would still face financial disincentives to asserting their claimed deprivations of federal rights. 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_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Inez DE AMODIO, Petitioner in No. 13740, John Amodio (Marquis deAmodio), Petitioner in No. 13741, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 13740, 13741. United States Court of Appeals Third Circuit. Argued Feb. 8, 1962. Decided Feb. 21, 1962. William W. Scott, Jr., Pittsburgh, Pa. (Lee W. Eckels, Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for petitioners on review. Robert L. Waters, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Attorneys, Department of Justice, Washington, D. C., on the brief), for respondent. Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges. GOODRICH, Circuit Judge. I. The first question in this litigation is whether the taxpayers, who are brother and sister, can, for the years 1953 and 1954, be taxed as individuals on the capital gains of a trust of which they are the sole beneficiaries. The Tax Court said that they could be so taxed; hence these appeals. 34 T.C. 894 (1960). Inez DeAmodio and John Amodio are the sole beneficiaries of a trust set up by them in 1947. Under the trust agreement the trustee had the power to determine whether money or property coming into his possession should be treated as corpus or income. One-half the net income of the trust was payable to each of the taxpayers for life, payments to be made monthly. If one of the beneficiaries should die without leaving lawful issue, all interest in the corpus and income was to pass to the survivor. If the first to die left lawful issue, his or her share was to go to such issue. The trust could be amended or terminated at any time by the joint action of the beneficiaries. In 1953 the trust realized a net long-term capital gain of $33,018.68 and in 1954 a similar gain of $0.80. The Tax Court decided that the Amodios were taxable as individuals on these long-term capital gains, placing its reliance on section 166 of the Internal Revenue Code of 1939, 26 U.S.C. § 166 (now Int.Rev.Code of 1954, § 676, 26 U.S.C. § 676). While we think the Tax Court was correct in this, we think there is equally good reason for resting the result on section 167(a) (2) of the 1939 Code (now Int.Rev.Code of 1954, § 677 (a) (1)). This section provides that the grantor is taxable on the income of a trust which may in the discretion of a nonadverse party be distributed to him. It is of no consequence that the income was not so distributed if, in fact, it could be. The trustee in this case is an independent nonadverse party. This is a Texas trust and under Texas law a trustee could, as provided in this trust instrument, distribute these capital gains to the beneficiaries. We really do not see that there is anything more to the case on this point than what has just been said. It fits precisely into the words of the statute aided by the Texas law regulating trustee authority. The conclusion of the Tax Court under section 166 is an equally sound ground for the result reached. The statutory provision is that where there exists the power, in the grantor alone or in conjunction with a nonadverse party, to re-vest in the grantor title to any part of the corpus of a trust the grantor will be taxable on the income of that part of the trust. When the powers of the beneficiaries of this trust, outlined above, are kept in mind, we think here again the case fits clearly within the provisions of the statute. Much point is made on behalf of the taxpayers that these beneficiaries had interests adverse to each other. A long analysis is made of the First Circuit decision in Welch v. Bradley, 130 F.2d 109, 143 A.L.R. 1108 (1942). This the taxpayers say is distinguishable from their case. The Government, in addition to discussing the Bradley case, cites Cochran v. United States, 62 F.Supp. 872, 105 Ct.Cl. 628 (1945). Both decisions have to do with the problem in this case. But rather than reading what a court did about someone else’s trust, we think it better to concentrate our attention on the facts of this ease. These two grantor-beneficiaries shared equally in the income. In the event that the first should die without issue the survivor took all. If the first to die did leave lawful issue then his share was to go to such issue. Amendments or termination of the trust could be effected by the joint action of both beneficiaries. If either one demanded a payment provided for from the trust corpus an equal amount was to go to the other. We cannot see how this brother and sister had interests adverse to each other so far as this trust was concerned. It seems to us, therefore, that the case is as perfect a section 166 example as it is of section 167. II. The second question has to do only with John Amodio. He is domiciled in Switzerland but is subject to taxation in the United States because he was engaged, through agents, in the ownership and management of income-producing real property in this country. This is not disputed. Certain amounts were withheld by domestic withholding agents pursuant to section 1441 of the 1954 Code. There was also collected from him in Switzerland a tax on the income he derived from the United States activities. With regard to the computations involving these amounts, we fail to understand what the fuss is about. The Commissioner’s calculations and the taxpayer’s calculations come out the same to the last cent. The jurisdiction of the federal courts is confined to cases and controversies and if the parties have no controversy as to the amount of this tax, we think we have no authority to discuss the matter. The decisions of the Tax Court will be affirmed. . The history of the vesting of ownership of the so-called “Wainright Trust” prior to the time when these taxpayers became the sole beneficiaries, as related by the Tax Court, 34 T.C. at 895, is not relevant to the questions in this case. . Paragraph 5(i) of the trust agreement provided that the trustee should have power “to determine whether money or property coming into possession of the Trustee shall be treated as corpus or income, and to charge or apportion any expense or loss to corpus or income, as the Trustee may deem proper.” . Section 167 (a) of the 1939 Code provides, in part, that “where any part of the income of a trust * * * may, in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income, be distributed to the grantor; * * * then such part of the income of the trust shall be included in computing the net income of the grantor.” . See Trust Agreement, para. 5(i), note 2 supra; Vernon’s Tex.Civ.Stat.Ann. art. 7425b — 26; St. Mark’s Episcopal Church, Mt. Pleasant, Tex. v. Lowry, 271 S.W.2d 681 (Tex.Civ.App.1954). . Section 166 of the 1939 Code provides, in part, that “where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested * * * in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, * * * then the income of such part of the trust shall be included in computing the net income of the grantor.” 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_trialpro	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 court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Consuelo MERCADO, Plaintiff-Appellant, v. AUSTIN POLICE DEPARTMENT, Defendant-Appellee. No. 84-1471. United States Court of Appeals, Fifth Circuit. March 14, 1985. James M. Simons, Austin, Tex., for plaintiff-appellant. Robert Icenhauer-Ramirez, Asst. City Atty., Austin, Tex., for defendant-appellee. Before RUBIN and HILL, Circuit Judges, and HINOJOSA , District Judge. District Judge of the Southern District of Texas sitting by designation. ALVIN B. RUBIN, Circuit Judge: The plaintiff filed this Title VII suit, contending that she was discharged by the City of Austin because of her national origin and in retaliation for filing an EEOC complaint seven years earlier. After hearing her testimony, the judge asked her counsel what additional evidence he would offer in support of her case. Counsel’s response to the judge’s question did not indicate that he would offer anything but cumulative or irrelevant testimony. He made no proffer of evidence, either then or in his subsequent motion for a new trial. At the conclusion of the plaintiff’s testimony, the district judge invited the defendant to move for involuntary dismissal of the case pursuant to Fed.R.Civ.P. 41(b) and then granted the motion. While the procedure was unconventional, we conclude that the plaintiff was not denied due process of law and has shown no prejudice as a result of the procedure followed. Accordingly, we affirm. I. Consuelo Mercado testified in support of her claims and was cross-examined at length. Appraising her credibility, which the district court was best qualified to assess, the district court found that she simply did not establish the requisite elements of her charge of discrimination or retaliation. She made vague assertions that she was treated differently from other supervisors, testified that she was not asked for her opinion very often or invited to birthday parties, and referred to trifling deemed slights. On cross-examination, counsel for defendant prodded her into admitting that: (1) she really did not personally know how the City had treated a number of the other supervisors; (2) her supervisors allowed her to discuss her complaints directly with high ranking officials more often than they allowed other supervisors to do; (3) there were numerous problems with her performance, which were well documented in written evaluations, such as poor communication with her subordinates, failure to take constructive criticism appropriately or at all, accosting one of her subordinates in the parking lot, threatening her subordinates with the placing of damaging memos in their files if they talked to each other, and filing a negative report on one of her subordinates because the subordinate had done more than her share of the work and had helped a new employee with his work. Defense counsel impeached Mercado’s credibility in many ways. She admitted that a key Police Department supervisory official whom she charged with prejudice against Mexican-Americans was in fact married to a Mexican-American. She also admitted that she chose to be discharged rather than to accept assistance from the City’s personnel department in locating a nonsupervisory job with the City of comparable pay grade and job classification. In sum, the evidence garnered on cross examination from Mercado herself was so damaging that, after she left the stand, virtually no later witness could have helped her to establish a prima facie case. After hearing Mercado, the district judge addressed her counsel and asked whether he had any further witnesses. Counsel said he planned to call two expert witnesses and three employees of the Austin Police Department. The judge then informed Ms. Mercado’s counsel that the reason for making his inquiry was “that based upon the testimony this court has heard so far, the court is inclined at the present time to dismiss this case outright. I can find absolutely no basis on testimony of the plaintiff for the complaints contained in the complaint.” The court added, If you had any witnesses that might establish a prima facie case of some kind, which you have not done in the court’s view on the basis of the plaintiff’s testimony, the court would be willing to spend more time on this. I’m not going to continue to waste time not only of this court, which has many other cases to handle, but the staff of this court, to take evidence in a case unless you have got more than I have heard in the last half day. Counsel’s only reply was: I can’t represent to the court that the police department witnesses that we would call — and they would be the three that I have enumerated earlier — would add anything different than what the plaintiff has testified to. I just think they would add corroborative— Except for a vague statement that one of the experts might produce evidence about a pattern of discrimination, counsel made no proffer of any kind. Even surprise at these events on April 9, 1984, does not explain why no proffer was later made when, on April 19, counsel for Mercado sought a new trial. The pretrial order states that a list of witnesses would be filed but none was filed with the court although counsel states he gave a list to opposing counsel. There was, therefore, no way in which the district court might have known that there was other evidence favorable to Mercado. Even now, in brief and at oral argument counsel has not stated any specific way in which the testimony of the witnesses mentioned to the court would have established the requisite elements of Mercado’s case. The brief engages only in speculation: “The other witnesses the Plaintiff proposed to call might well have supplied any missing links in her prima facie case.” This is not a case in which counsel lacked time to prepare. It had been pending on the court’s docket for nearly two years. Mercado had twice sought and received extensions of time to complete discovery. In January, 1984, she asserted to the trial court that discovery had been completed. She then sought an order compelling the defendant to answer interrogatories on March 16. On March 23, that motion was denied but the defendant was ordered to give her access to the records containing the information sought by her interrogatories. That same day, the judge granted Mercado’s motion for a continuance so that she could gather that information. Then on the Sunday afternoon prior to the Monday-morning trial, she served a subpoena duces tecum, requesting the same statistical data to which the trial judge had given her access in March. At trial, the district judge refused to enforce this subpoena which was clearly designed to subvert and defeat the objective of his March 23 order. II. Fed.R.Evid. 103(a) forbids an appellate court to predicate error on a ruling excluding evidence “unless a substantial right of the parties is affected, and ... in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.” Moreover, we have repeatedly held that, when a trial judge excludes the testimony of a witness in whole or in part, we cannot determine that there was error in the exclusion if the appellant made no offer of proof in the court below. Because Mercado’s counsel had taken depositions of at least some of the witnesses who might have been called, had been granted access to the Police Department’s records (although he had not taken advantage of this access), and over a two-year period had received extensions for further discovery, we find no excuse for his failure either to make an oral offer of proof sufficiently specific to satisfy the judge or to direct the judge’s attention to some testimony in one of the depositions to indicate the type of specific testimony that would have been forthcoming. In the absence of any list of witnesses with an indication of the nature of their testimony, any proffer of evidence, and any statement of counsel concerning what the evidence might be, it would have been a sheer waste of time for the court to indulge counsel in the suggested ritual by allowing him to adduce duplicative and unhelpful testimony or to fish for material to support his case. Thus, the judge’s exclusion of the lay witnesses from the police department, pursuant to Fed.R.Evid. 403, was not an abuse of discretion, for counsel’s own statement implied, if it did not state directly, that these witnesses would add nothing new to Mercado’s testimony. Mercado’s expert witness, as stated in her counsel’s resume, would have expressed the opinion that discrimination “was an element of” the personnel action taken. Although counsel stated that the expert’s opinion was based upon Mercado’s testimony and upon additional materials, the district court judge had previously noted that an expert was not the kind of witness that could aid Mercado in forging the missing links in her case. The explanation of the testimony that would be elicited from the expert disclosed nothing that, if adduced, was likely to convince the judge, Fed.R.Evid. 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise, Whether an expert will assist the trier of fact to understand the testimony is a preliminary question for the trial court and its determination is “largely committed to that court.” That court has what we have described as “wide discretion” in deciding the matter, particularly when the court sits as trier of fact, for the district judge is th^n in the best position to know whether expert testimony would help him understand the case. Rule 41(b) allows the defendant to move for a dismissal after the plaintiff has completed the presentation of his evidence. When such a motion is made, the judge “must weigh and evaluate the evidence as if he were making findings of fact at the conclusion of the case,” and he may not reject the “uncontradicted and unimpeached testimony of the only witness presented at the trial until that time ..., unless [the] testimony was inherently incredible, ... suspicious or inherently improbable____” The judge’s dismissal of Mercado’s case did not transgress these rules, for Mercado’s testimony was neither unimpeached nor, given her own testimony on cross examination, uncontradicted. “It is not absolutely necessary that dismissal be delayed until the close of plaintiff’s case.” Stating that, while “the interests of justice will [ordinarily] be better served if involuntary dismissals for failure to show right to relief are not ordered until the close of plaintiff’s case,” the Third Circuit has approved an involuntary dismissal prior to the close of the plaintiff’s ease because the plaintiff’s remaining evidence was insufficient to establish the cause of action that the plaintiff alleged. The First Circuit has likewise affirmed SU(dl a dismissal as being “well within the purview of the district court’s power to manage its own affairs and to serve the interests of judicial economy.” Like the First Circuit’ we believe that “Mhe facts hfrem reveal °ne of the rare and exception-a cases in which a court is justified in dismissing the action before the completion Piainfiff s case. The judge’s findings of fact are amply supported by the record. It was not an abuse of the district judge’s discretion and, under the circumstances, it was a proper exercise of his duty to conduct the trial process economically and efficiently to administer the coup de grace to what he found to be a hopeless case. For these reasons, the judgment is AFFIRMED. . 42 U.S.C. § 2000e, et seq. . See Espino v. City of Kingsville, 676 F.2d 1075, 1078-79 (5th Cir.1982); Liner v. J.B. Talley & Co., 618 F.2d 327, 331 (5th Cir.1980); Meredith v. Hardy, 554 F.2d 764, 765 (5th Cir.1977). . See generally 21 C. Wright & K. Graham, Federal Practice and Procedure § 5040, at 210-13 (1977). . See Gulf States Util. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.1981); see also Golden Bear Distrib. Sys. of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944, 951 (5th Cir.1983). . See Fed.R.Evid. 104(a). . 11 J. Moore & H. Bendix, Moore’s Federal Practice § 702.10[3], at VII-29 (1982) (footnote omitted). . Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 535, 536 (5th Cir.1974); see also 11 J. Moore & H. Bendix, supra note 6, at VII-30 (footnotes omitted). . See, e.g., Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1271 (9th Cir.1980). . Benton v. Blair, 228 F.2d 55, 58 (5th Cir.1955). . Id. at 58-59. . Crawford v. Western Elec. Co., 614 F.2d 1300, 1311 (5th Cir.1980). . 5 J. Moore, J. Lucas & J. Wicker, Moore’s Federal Practice 1f 41.13[1], at 41-163 n. 5 (1984). . Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 482 n. 15 (3d Cir.1979). . Id. at 482. . D.P. Apparel Corp. v. Roadway Express, Inc., 736 F.2d 1, 4 (1st Cir.1984). . Id. at 4. . See Robinson v. M/V Merc Trader, 477 F.2d 1331, 1332 (5th Cir.1973) (factual findings in Rule 41(b) dismissal for failure to show right to relief reviewed under clearly erroneous standard); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2376, at 248 (1971) (same). Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". CONTINENTAL CASUALTY COMPANY, Appellant, v. William T. MUSGROVE, Appellee. No. 19122. United States Court of Appeals Fifth Circuit. July 6, 1962. See also 191 F.Supp. 1. Reid B. Barnes, Birmingham, Ala., Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel, for appellant. Charles A. Poellnitz, Florence, Ala., Mitchell, Poellnitz & Cox, Florence, Ala., of counsel, for appellee. Before HUTCHESON, CAMERON and GEWIN, Circuit Judges. CAMERON, Circuit Judge. Appellant Continental Casualty Company sued appellee Musgrove in a diversity action to recover damages sustained by appellant in defending a suit brought by Mrs. Gladys Leith Holmes for the death of her husband Oliver "Wendell Holmes, which suit was based upon an oral binder of insurance made by Musgrove as agent for appellant which purported to extend coverage on the life of said Holmes while he was piloting an airplane. This Court held that Musgrove had no authority to bind Continental as he essayed to do and reversed a judgment which had been rendered against the insurance company upon the basis of Musgrove’s binder, Continental Casualty Company v. Holmes et al., 5 Cir., 1959, 266 F.2d 269. In the action before us, Continental claimed in its original complaint that it was wrongfully required to expend the sum of $25,000.00 in the successful defense of that suit based, as aforesaid, upon the unwarranted and illegal action of its agent, Musgrove, in issuing the binder on Holmes’ life. Musgrove filed a motion to dismiss the complaint against him on the ground that attorneys’ fees were not recoverable in a suit by an insurance company against its agent under the laws of Alabama, asserting that the sum included as attorneys’ fees should be stricken from the complaint and that the balance of the claim was less than ten thousand dollars. The complaint was in effect amended so as to present to the court below, as the sole issue involved, the question of the collectibility of attorneys’ fees. This question will, therefore, be discussed in advance of a detailed consideration of the procedural question of whether the amount involved did really measure up to the minimum amount necessary to confer federal jurisdiction. We think that the court below correctly held that under Alabama law as established in the case of Phoenix Insurance Co. v. Seegers, 1915, 192 Ala. 103, 68 So. 902, attorneys’ fees were not collectible. The facts of the Seegers case are identical with those in the present case, and we are convinced that the Seegers case is still the law of Alabama. As pointed out in the opinion of the lower court, the case has been cited with approval (on another point) as late as March, 1957 in British General Insurance Co., Ltd. v. Simpson Sales Co., 265 Ala. 683, 93 So.2d 763; and its authority has never been questioned in any decision of an Alabama court. Appellant cites a number of cases holding contrary to the Seegers case, but they are all from other states. The textbooks cite the Seegers case as announcing the minority rule and as aligning the State of Alabama with the minority. Cf. 16 Appleman, Insurance, § 8781, pp. 210-211; 82 C.J., Insurance, § 152, p. 1074, including Note 25; and 44 C.J.S. Insurance § 159, pp. 834-835. The rule in Alabama, as stated in Seegers, is thus epitomized in the first syllabus: “1. Insurance ^83 — Liability of Agent — -Expenses of Suit. “In an action by an insurance company against its agent to recover the amount which it had been compelled to pay on a policy issued by the agent without authority, the plaintiff’s claim of attorney’s fees for defending the suit against it on its policy was properly stricken.” The District Judge, a competent and experienced Alabama lawyer, made a detailed study of the Seegers case and exactly what was involved in it. The appellant supplied the court below with certain original papers from the court files in Seegers and the trial court considered those papers along with all available data concerning that case which would reveal the true meaning and extent of its holding. The opinion of the court below is carefully prepared, and shows that the court applied the teachings of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in following the law announced by the Supreme Court of Alabama in the decision of the case on this point, citing also City of Albertville, Ala. v. United States Fidelity & Guaranty Company, 5 Cir., 1959, 272 F.2d 594, along with Matthiesen v. Northwestern Mutual Insurance Co., 5 Cir., 1961, 286 F.2d 775. Being convinced that the court was correct in its holding under the law of Alabama, we do not find it necessary to discuss the-cases from other states relied upon by appellant. We think that the record in the' court below was sufficient to support its holding that the amount involved did not in fact measure up to the minimum requirements of jurisdiction. While the complaint initially stated that Continental claimed $25,000 as damages against Musgrove, when the issue was presented to the Judge, it was clear that, stripped of the item of attorneys’ fees, Continental’s claim was less than half of the jurisdictional minimum. The trial court held a pre-trial conference and entered an order defining the issues, a portion of which is reproduced in the margin. The “admissions by the plaintiff as to the amount of damages incurred” were filed by the plaintiff in the form of an itemization of plaintiff’s damages, showing full details of what each item included. The aggregate was $21,417.43, of which, by the plaintiff’s admissions, less than $5,000.00 was expended for items other than payments to the attorneys. The final order entered by the court below analyzed the amounts claimed as damages by Continental, and concluded that, eliminating what had been paid to the attorneys, the remainder was less than the amount necessary to vest jurisdiction in the court. The trial court, accordingly struck the items making up the attorneys’ fees and dismissed the claim for the balance. This, we think, was in consonance with the Federal Rules of Civil Procedure and applicable decisions of the Supreme Court, e. g., Bell v. Preferred Life Assurance Society of Montgomery, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; and Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890. Finding, therefore, that the judgment of the court below was right, it is Affirmed. . “Defendant moves to strike tlie damages as to attorneys’ fees, and it appears that this motion is well taken under the authority of Phoenix Insurance Co. v. Seegers, 192 Ala. 103, 68 So. 902. Accordingly, the motion to strike the claim for attorneys’ fees be and the same is hereby granted and the same is hereby stricken. “The defendant asserts that without the attorneys’ fees, the jurisdiction of the Court is lacking as to tbe jurisdictional amount. The Court will reserve a ruling on this matter pending admissions by the plaintiff as to the amount of damages incurred. “It is, therefore, ordered by the Court that all of the above named allowances and agreements be, and the same are hereby binding upon all parties in the above styled cause, unless this order be hereafter modified by the Court * * * " 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Appellant, v. Major J. HARRICK, Eddie Ahwash, Phillip Asseff, Joseph Andrew Sadd, Harry Edgar Whittington, George William McClaski, Henry Austin Drury, Fayes Howard Moses, Appellees. No. 78-5009. United States Court of Appeals, Fourth Circuit. Argued July 19, 1978. Decided Sept. 7, 1978. Robert B. King, U. S. Atty., Charleston, W. Va. (James S. Arnold, Charleston, W. Va., Mary S. Feinberg, Asst. U. S. Attys., Roanoke, Va., on brief), for appellant. James B. McIntyre, Charleston, W. Va., for appellees. Before BUTZNER, RUSSELL and WIDENER, Circuit Judges. BUTZNER, Circuit Judge: The United States takes this interlocutory appeal as authorized by 18 U.S.C. § 3731 from the district court’s pre-trial order suppressing evidence on the ground that the affidavit accompanying the application for a search warrant was insufficient to justify the magistrate’s issuance of the warrant. We reverse. I The defendants were indicted on three counts relating to illegal gambling activities in violation of 18 U.S.C. §§ 371, 1952(a)(3), 1955, and 2. At their trial, the government planned to introduce gambling paraphernalia seized at a pool room during a search by officers of the Charleston, West Virginia, police department under a warrant issued by a judge of the Charleston Municipal Court. Evidence presented at the suppression hearing disclosed that Samuel Elmore, a Charleston police officer, applied for the search warrant. In support of his application, he executed an affidavit on oath before a municipal judge. The affidavit alleged violations of the code of the City of Charleston and specified that “Tip Tickets, Tip Books, Monies, and other Gambling Paraphernalia” were concealed at The Diamond Billiards, the location of which was precisely described. As the basis for its allegations, the affidavit recited: . That an agent working under the supervision of Samuel Elmore, a Charleston City Police Officer on the 4th day of February 1977, did enter the Diamond Billiards, described above and while inside did purchase tip tickets being sold by Robert Legg, contrary to the City Ordinances of the City of Charleston, Kanawha County West Virginia. In addition, Officer Elmore furnished the city magistrate an unsworn statement prepared by the undercover agent mentioned in the affidavit. This agent was also present at the magistrate’s office. After the magistrate received the statement, he administered an oath to the agent as a witness, but before the agent testified, Officer Elmore left the room to speak to someone else. Subsequently, the magistrate issued the warrant. At the suppression hearing, the government, without objection, represented to the court that the magistrate had no independent recollection of the application for the warrant but that he could testify that he always personally examined undercover agents before issuing warrants on the basis of information supplied by them. The government declined to call the agent to testify because it wished to keep his identity secret. Therefore, no evidence was presented at the suppression hearing about the agent’s testimony before the magistrate. Granting the motion to suppress, the district court ruled that the government had failed to show that the magistrate possessed a sufficient basis, obtained under oath or affirmation, for crediting the information offered in support of the issuance of the warrant. The court also ruled that" the affidavit did not contain a sufficient basis for concluding that the seller of the tickets possessed a proprietary interest in the premises to be searched or that others on those premises knew of the sale or were engaged in similar activity. II An affidavit offered to show probable cause for the issuance of a search warrant may be based on hearsay when there is “substantial basis for crediting the hearsay.” Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). This basis can be established by affidavits which disclose to the magistrate the underlying circumstances that (1) caused the informant to conclude that the objects of the search are in the premises to be searched, and (2) caused the affiant to believe that the informant is credible or his information is reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements of Aguilar can be met by corroborating evidence of which the affiant has personal — not hearsay — knowledge or by reasonable inferences that establish a substantial basis for relying on the hearsay evidence furnished by the informant. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 580-81, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The standards formulated by these cases derive from the fourth amendment’s essential requirement that sufficient underlying information be presented to allow a “neutral and detached” magistrate, not the police officer seeking the warrant, to draw the necessary inferences to find probable cause. See Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. 1509. Aguilar, Spinelli, and Harris dealt with situations where only the police officer, not the informant, appeared before the magistrate. Nevertheless, we believe that their basic principles can be applied to sustain the warrant in this case. Ill There can be no doubt that there was a literal compliance with the fourth amendment’s requirement that evidence offered to show probable cause for the issuance of a search warrant must be supported by “oath or affirmation.” The magistrate administered oaths to Officer Elmore and the undercover agent before the warrant was issued. There can also be no question about the sufficiency of information furnished the magistrate concerning the reasons why the undercover agent believed the objects of the search were in the premises to be searched. Elmore’s affidavit discloses that the basis of the agent’s knowledge was his purchase of gambling tickets in the premises. Here, as in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the affidavit relates the observation of the informant. Personal observations of this nature are sufficient to satisfy Aguilar’s first test because they fully explain the underlying circumstances for believing that the premises contain contraband. See United States v. Harris, 403 U.S. at 581, 91 S.Ct. 2075. The difficulty which primarily concerned the district court was the paucity of information about the agent’s reliability. We believe, however, that the lack of direct evidence of the agent’s testimony before the magistrate does not render the search warrant invalid. Elmore averred that the agent was working under his supervision. This in itself is an indication of credibility. The recitation of this fact in the affidavit establishes that the undercover agent was not a casual tipster — he was selected by the officer to assist in the gambling investigation under his supervision. The record contains nothing that could have caused the magistrate to conclude that the police employed an unreliable undercover agent. When an officer applies for a search warrant based on information supplied by fellow officers, it is unnecessary for him to vouch the reasons he has for believing his informants are reliable. Cf. United States v. Welebir, 498 F.2d 346, 349 n.2 (4th Cir. 1974). In view of the undercover agent’s selection and supervision and of the fact that there is no ground for suspecting his reliability, we believe that the same principle applies here. Moreover, Officer Elmore instructed the undercover agent to meet him at the magistrate’s office so that official could satisfy himself about the truth of the agent’s account of the purchase of gambling tickets which Elmore had related in his affidavit. Elmore’s presentation of the agent to the magistrate for examination under oath is a convincing demonstration of the officer’s confidence in the agent’s reliability. It was also the best possible means of affording the magistrate the opportunity to make a detached assessment of the truth of the information contained in Elmore’s affidavit. Even though the agent’s testimony cannot be reconstructed by the magistrate or Elmore, the fact that the magistrate did not issue the warrant until after he had administered an oath to the undercover agent justifies the inference that he was satisfied with the truth of the agent’s account contained in Elmore’s affidavit. We therefore conclude that the second test required by Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), has been met. IV We also conclude that the warrant was not defective because it lacked allegations linking the seller of the gambling tickets more closely to the premises or implicating others on the premises in the illegal activity. Testing the affidavit in the “commonsense and realistic fashion” repeatedly endorsed by the Supreme Court, we cannot label as unreasonable or constitutionally impermissible the magistrate’s conclusion that these premises were apt to have been more than incidentally connected with the illegal transaction that allegedly took place there. See United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The order of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. . The district court permitted the officer to testify that he gave the statement to the magistrate, but it excluded the statement because there was no proof that the magistrate read it or that the agent testified as to its authenticity. . The fourth amendment to the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Jerry L. CAVEN and Thomas O’Donnell d/b/a States Investment, a partnership, Plaintiffs/Appellees, and Timothy Wayne d/b/a Timothy Wayne and Associates, Intervenor Plaintiff/Appellee/Cross Appellant, v. AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF COLORADO, Defendant/Appellant. Nos. 85-1517, 85-1551. United States Court of Appeals, Tenth Circuit. Jan. 25, 1988. F. James Donnelly (Charles A. Miller, with him on briefs), of Stutz, Dyer, Miller and Delap, Denver, Colo., for plaintiffs/ap-pellees. Howard L. Slavin, Denver, Colo., for in-tervenor plaintiff/appellee/cross appellant. Gregory B. Kanan of Rothgerber, Appel, Powers & Johnson, Denver, Colo. (Thomas M. Domme and Elizabeth T. Wald of Roth-gerber, Appel, Powers & Johnson, Denver, Colo., and John J. Keilbach of Preston, Altman, Parlapiano, Keilbach & Lytle, Pueblo, Colo., with him on briefs), for defendant/appellant. Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and BRIMMER, District Judge . Chief Judge, U.S. District Court for the District of Wyoming, sitting by designation. STEPHEN H. ANDERSON, Circuit Judge. In this diversity action, American Federal Savings appeals from an award of damages to Jerry Caven for breach of contract. We reverse. Timothy Wayne & Associates appeals from a directed verdict in favor of American Federal Savings in the same action. We affirm. I. In 1972, American Federal Savings and Loan Association of Colorado (“American Federal”) agreed to finance the purchase of real estate and the construction of apartments in Pueblo, Colorado. The borrower executed a loan agreement with American Federal, subject to a contemporaneous Deed of Trust that included the following provision regarding transfer of ownership of the property: “In the event the property securing this loan or any portion thereof is proposed to be sold or conveyed or becomes the subject of any agreement to sell prior to the maturity hereof, the proposed transferee shall be subject to the prior approval of the holder. In such event, the holder shall be provided with documentation to include, but not limited to, copies of: purchase or transfer agreement; management agreement, if any; financial and income statements of the proposed transferee, and a report on the credit standing of the proposed transferee from an approved professional credit reporting agency. The holder shall review the documentation to ascertain transferee’s management skills (or skills of a professional manager to be retained by transferee), credit worthiness and ability to repay this Deed of Trust in accordance with the terms and provisions contained herein. Holder shall have the right to approve any such proposed transferee; however, approval shall not be unreasonably withheld. If, however, such approval is withheld, but not unreasonably, and the transfer, sale or conveyance is nevertheless consummated, the entire indebtedness shall immediately become due and payable at the option of the holder. In any event, no such transfer shall be permitted until construction is completed and a certifícate of occupancy issued.” R.Vol. I at 11 (emphasis added). In July, 1977, Jerry Caven purchased the apartments and assumed the American Federal loan, subject to the original Deed of Trust. At the time of the purchase the Deed of Trust was supplemented by a modification agreement between Caven and American Federal. The modification agreement altered the interest rates on the underlying promissory note, provided for a late payment charge and included the following provision under the heading “Transfer of Ownership:” “If there shall be any change in the ownership of said premises without the written consent of the Association being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of the Association. If the Association consents to such change of ownership, then the current transfer fee shall be due and payable to the association.” R.Vol. I at 14 (emphasis added). The modification agreement also included the following provision, as the final paragraph: “This agreement is supplementary to said Note and Deed of Trust. All of the provisions of the Note and Deed of Trust, including the right to declare the principal and accrued interest due for any cause specified therein, shall remain in full force and effect except as specifically herein modified. ...” R.Vol. I at 14 (emphasis added). In 1982, Caven sought to sell the apartments. He retained Timothy Wayne & Associates (“Wayne”), the intervenor plaintiff below, as brokers. On August 18, 1982, Caven entered into a contract with Donald Macy and Donald Egan to sell the apartments for a purchase price of $3,160,-000.00. Caven forwarded the contract and financial information concerning the potential purchasers to American Federal. American Federal responded by (1) requesting more detailed financial information, and (2) demanding a substantial increase in the interest rates. Caven countered by arguing that American Federal had no right to increase the interest rate. American Federal disputed that argument and stated that it would not consent to any assumption of the loan and required that the loan be liquidated when the property was sold. As a result, Macy and Egan withdrew from the contract. Caven subsequently sold the apartments on a cash basis to another purchaser for $2,800,000.00 and instituted this diversity action against American Federal for breach of contract. Wayne intervened as a plaintiff alleging breach of contract and tortious interference with contract, claiming as damages his lost commission on the aborted sale to Macy and Egan. Prior to trial, Caven and American Federal both moved for summary judgment based on their interpretations of the language in the Deed of Trust and modification agreement. Caven argued that the modification agreement did not “specifically modify” the language of the Deed of Trust, and that American Federal had no power to condition an assumption of the loan on an increase in interest rates. American Federal argued that the provision in the modification agreement was an “absolute due on sale clause” that replaced the earlier provision and gave American Federal the power to disapprove an assumption of the loan for any reason. The district court below granted partial summary judgment to Caven, holding that the language in the modification agreement did not specifically modify “either the procedural aspects of how the information shall be presented to [American Federal], nor the fact that approval shall not be [unreasonably withheld. It specifically does not affect those provisions.” R.Vol. IV at 6. Trial proceeded to a jury to determine whether American Federal had complied with the provisions of the Deed of Trust. Caven’s breach of contract claim went to the jury and the jury returned a verdict in Caven’s favor for $300,000.00. The trial court granted American Federal’s motion for a directed verdict against Wayne, holding that, under Colorado law, he could not succeed on the interference with contract claim. American Federal appeals from the trial court’s partial summary judgment for Caven, from the judgment entered for Ca-ven, and from the denial of its motion for judgment notwithstanding the verdict. Wayne appeals from the directed verdict against him. II. We turn first to the partial summary judgment granted to Caven. “When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986) (citations omitted). The parties do not dispute the material facts, thus we are left to determine if the district court correctly applied the substantive law. “In reviewing the trial court’s construction of the contract, it should be noted that ordinarily the construction of a contract is a question of law for the court.” Resort Car Rental Sys., Inc. v. Chuck Ruwart Chevrolet, Inc., 519 F.2d 317, 320 (10th Cir.1975). See also Union Rural Elec. Ass’n, Inc. v. Public Util. Comm., 661 P.2d 247, 251 (Colo.1983) (“Interpretation of contract language is generally a question of law.”); Stroh-Mc Investments v. Bowens, 725 P.2d 33, 34 (Colo.Ct.App.1986) (“Interpretation of the language of a contract is a question of law for the court.”). In reviewing a question of law, we are not bound by the district court’s conclusions. See Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 734 (9th Cir.1980); C. Wright and A. Miller, Federal Practice and Procedure, Civil § 2588, at 750 (1971) (“the interpretation and the construction of written contracts are matters of law and freely reviewable as such”). See also Reynolds v. Farber, 40 Colo.App. 467, 577 P.2d 318, 320 (1978) (“Since the construction of a written instrument is a question of law, this court is not bound by the trial court’s interpretation.”). In this diversity action, we look initially to Colorado law for guidance in interpreting this contract. The parties cite a variety of rules and principles of contract construction used in Colorado. No decision by the Colorado courts directs us to only one permissible conclusion in the interpretation of the specific language of this contract. However, we find certain principles helpful. First, where “the language used is plain, clear, and no absurdity is involved, we must declare and enforce the instrument as written.” Fuller & Co. v. Mountain States Investment Builders, 37 Colo.App. 201, 546 P.2d 977, 980 (1975). Second, “[w]e must adopt a construction of the agreement that will give effect to all of its provisions.” Union Rural, 661 P.2d at 252. See also Oriental Refining Co. v. Hollenbeck, 125 Colo. 77, 240 P.2d 913, 916 (1952) (“each and every part and portion of a contract is to be given effect, if possible”). Finally, the parties have not cited, nor have we found, any clear statement of the Colorado courts on the effect of a modification agreement, but we believe the following statement by the Utah Supreme Court correctly states general contract law relating to modification agreements: “It is well-settled law that the parties to a contract may, by mutual consent, alter all or any portion of that contract by agreeing upon a modification thereof. Where such a modification is agreed upon, the terms thereof govern the rights and obligations of the parties under the contract, and any pre-modification contractual rights which conflict with the terms of the contract as modified must be deemed waived or excused.” Rapp v. Mountain States Telephone and Telegraph Co., 606 P.2d 1189, 1191 (Utah 1980) (footnotes omitted). This same principle was stated by the District of Columbia Court of Appeals in Egan v. McNamara, 467 A.2d 733, 740 (D.C.1983): “a contract containing a term inconsistent with a term of an earlier contract between the same parties regarding the same subject matter should be interpreted to rescind the inconsistent term in the earlier contract.” We believe that the Colorado Supreme Court would apply those general principles. With those principles in mind, we turn to the language of the modification agreement. The terms of that agreement are plain. “If there shall be any change in the ownership ... without the written consent of [American Federal] being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of [American Federal].” R.Vol. I at 14 (emphasis added). The modification agreement includes no conditions or limitations on American Federal’s right to disapprove an assumption of the loan. In our view, this language “specifically modifies” the procedural requirements and the limitation of the Deed of Trust providing that approval of the transferee may not be “unreasonably withheld.” In addition to the plain language of the agreement, we find two arguments persuasive. First, the parties executed a modification agreement. We assume that they wanted to change the prior terms of their contract. See South Florida Beverage Corp. v. Figueredo, 409 So.2d 490, 496 (Fla.Dist.Ct.App.1981) (“It may be presumed, however, than an amendment to an agreement is designed to serve some useful function, and its existence is strong evidence, therefore, that the contract was changed from what the parties believed and intended was provided before.”), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982). The interpretation urged by Caven, and adopted by the district court, adds nothing to the terms of the original Deed of Trust and renders the cited portion of the modification agreement meaningless. We do not believe the parties intended to adopt modifying language without any force. The second argument is closely related. Under Colorado law, we are urged to give effect to all provisions of a contract. Union Rural, 661 P.2d at 252. This principle is violated by an interpretation of the agreement that renders the transfer of ownership provisions in the modification agreement without effect. Thus, we face conflicting provisions in the original contract and modification. We choose to enforce the provision in the later agreement, which is by its very nature, intended to modify the earlier agreement. Accordingly, we conclude that American Federal had the absolute right and power to call the loan to Caven due and payable upon any transfer, and it was entitled to a summary judgment to that effect. III. Colorado recognizes the tort of intentional interference with contractual relations. Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 690 P.2d 207, 210 (Colo.1984). At trial, Wayne argued that American Federal induced Macy and Egan to breach the purchase contract with Caven, resulting in the loss of a real estate commission to Wayne. Colorado relies on the provisions of the Restatement (Second) of Torts §§ 766, 767 (1977) to define the elements of that tort. Trimble v. City and County of Denver, 697 P.2d 716, 725-26 (Colo.1985); Memorial Gardens, 690 P.2d at 210. Specifically, the Colorado Supreme Court has held that a party may not be held liable for the intentional interference with contractual relations unless that party’s conduct was “improper.” Trimble, 697 P.2d at 726; Memorial Gardens, 690 P.2d at 210. At the close of the trial below, the district court granted American Federal’s motion for a directed verdict against Wayne, holding that, as a matter of law, Wayne was unable to show that American Federal’s actions were improper. Normally, we would review the directed verdict viewing the evidence and all reasonable inferences that can be drawn from that evidence most favorably to the non-moving party. See Brown v. Reardon, 770 F.2d 896, 902 (10th Cir.1985). In this case, however, we have already determined that American Federal had an absolute right to insist on an increase in the interest rate under the terms of the modification agreement. That decision renders Wayne’s claim and appeal moot. For under Colorado law, “[n]o liability attaches [for intentionally interfering with contractual relations] where the act claimed to have caused the breach is undertaken in the exercise of an absolute right, that being conduct which the actor has a definite legal right to engage in without qualification.” Radiology Professional Corp. v. Trinidad Area Health Ass’n, Inc., 39 Colo.App. 100, 565 P.2d 952, 954 (1977) (citation omitted). The district court’s orders granting partial summary judgment for Caven, denying summary judgment for American Federal, and denying American Federal’s motion for judgment notwithstanding the verdict are REVERSED. The district court’s order granting a directed verdict against Wayne is AFFIRMED. . In 1980, the parties signed a second modification agreement. American Federal extended the payment dates on a personal loan to Caven, and in return, Caven agreed to an increase in the interest rate on the underlying loan. For purposes of this dispute, the relevant language of the second agreement is identical and this opinion will reference only one "modification agreement." . On appeal, Caven advances several creative interpretations of the provision designed to give it an effect consistent with the Deed of Trust. For example, we are urged to read it as a “gap filling" provision, effective only in the case where the borrower transfers the property without notice to the lender. We have considered this, and other arguments, carefully and find that the plain language of the agreement cannot support the reading urged by Caven. . Restatement (Second) of Torts § 767 (1977) specifies the factors to be considered in determining whether an actor’s conduct in intentionally interfering with a contract is improper: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties. 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_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. BIVINS et al. v. BOARD OF COM’RS OF WABAUNSEE COUNTY, KAN. No. 804. Circuit Court of Appeals, Tenth Circuit. July 24, 1933. Earl H. Hatcher, of Topeka, Kan. (James E. Smith and Schuyler W. Jackson, both of Topeka, Kan., R. E. Underwood, R. C. Johnson, J. B. Dooley, and E. A. Simpson, all of Amarillo, Tex., and James R. Tolbert, of Hobart, OkL, on the brief), for appellants. A. E. Carroll, of Alma, Kan. (E. W. Stuewe, of Alma, Kan., on the brief), for appellee. Before LEWIS and PHILLIPS, Circuit Judges, and POLLOCK, District Judge. LEWIS, Circuit Judge. Appellants, residents and citizens of Texas, complain that the District Court dismissed on demurrer their action to recover $3,711.42 paid as taxes assessed and levied on 3,94.1 head of their cattle while being pastured in Wabaunsee county, Kansas, during the spring and summer of 1929. Additional facts pleaded are: About May 1st, 1929, appellants shipped the cattle from Texas to Wabaunsee county. The contract of carriage was from a point in Texas to the cattle market in Missouri with feeding privileges en route in the state of Kansas, the cattle to be reloaded thereafter and carried to destination. They were reloaded in the following September and carried on, but while they were in Kansas they were assessed, and the tax officials would not permit them to be moved until the tax was paid. Appellants paid the tax under duress. They contend that the statute of Kansas, as construed by the supremo court of that state, which purports to authorize the assessment and levy, is void because in conflict with clause 1, § 2, article 4, U. S. Constitution, and with section 1 of the Fourteenth Amendment to said Constitution ; also because the statute violates section 1, article 11 of the Constitution of Kansas, in that it does not provide a uniform and equal rate of assessment and taxation. They set up and relied on these constitutional provisions, national and state, in their complaint. Paragraph “V” of the complaint alleges: “That said cattle before being removed from the said state of Texas, on or about the 1st day of May, 1929, were with the other property of the plaintiffs listed for taxation for the year 1929 in said State of Texas and general ad valorem taxes under the laws of the said State of Texas were assessed against said cattle. That all taxes and charges of every kind and character whatsoever, due The State of Texas or any of the municipalities or other local organizations of government under the laws of the State of Texas, were fully paid and discharged by these plaintiffs prior to the entrance of any of said cattle into or through the State of Kansas as herein set forth and their pretended assessment for taxation in Kansas.” The general statutes of Kansas provide that all property in that state shall be-listed, valued and assessed as .of March 1st each year; but this assessment wab made under a special statute enacted in 1899. There have been some amendments; but its first section (Rev. St. Kan. 1923, 79 — 314) is this: “When any personal property shall be located in any county in this state after the 1st day of March of any year which shall acquire an actual situs therein before the 1st day of September, such property is taxable therein for that year, and shall be assessed and placed on the tax roll and the tax collected as provided by this act.” It will be observed said section says that “any personal property” located in any county in the state after the 1st day of March which acquires an actual situs therein before September 1st shali be subject to taxation. The broad language of the section, including all personal property so located, met the objection to a prior statute of the state (Laws Kan. 1881, e. 34, § 1) which provided: “When any stock shall be driven into any county of this state * * * from beyond the boundaries of this state, for the purpose of grazing therein, at any time prior to the first day of December of any year, such stock shall be liable to be assessed for all taxes leviable in that county for that year, the same as if the owner thereof resided and held said stock in such county on the first day of March of that year.” The Supreme Court of Kansas in Graham v. Chautauqua County, 31 Kan. 473, 2 P. 549, 551, 552, held that statute to be in conflict with said section 1 of article 11 of the Constitution of Kansas. Judge Brewer, later Associate Justice of the United States Supreme Court, delivered the opinion in that case, and speaking for the court, he summarized the argument in support of objections made to< the statute, to-wit, that all personal property in the state on the first of March is listed for taxation, and that there was no general provision for taxing property brought into the state after the first of March, and the statute was an attempt to tax certain kinds of property when brought into the state for certain purposes, that if this was done the rate of assessment and taxation would not be uniform and equal, and that in order to support the statute all property brought into the state after the first of March must be listed for taxation, that no statute could be sustained which attempted to east'the entire burden of taxation on one class of personal property, and if -this be true with respect to the entire year it should be applied also to a portion of the year. Having so stated the argument, he said: “We think this argument is sound, and that if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property after the first of March, any more than it can as to property on that day. * * * “We conclude, therefore, that the statute, so far as it attempts to provide for the listing of cattle brought into the state after the first of March for the purpose of grazing therein, is a departure from the constitutional rule of uniformity in matters of taxation, and cannot be upheld.” The second section of said special statute (now section 79 — 315, Rev. St. Kan. 1923) is this: “Whenever any live stock shall be located in this state for the purpose of grazing, it shall be deemed to have acquired an actual situs therein as contemplated by this act.” The third section of said special act appears in the Revised Statutes as section 79— 316. It was amended at a special session in 1930 (chapter 14, § 1 [Rev. St. Supp. 1931, 79 — 316]), after this controversy arose. We now quote it, so far as material here, so as to show the section prior to and after the amendment of 1930. The clause in brackets was added by the amendment of 1930, and the clause italicized was omitted in that amendment. “79 — 316. When any person, association or corporation shall settle or organize in any county in this state, and bring personal property therein after the 1st day of March and prior to the 1st day of September in any year [or when any nonresident owner shall bring property into the state between such dates], it shall be the duty of the assessors to list and return such property for taxation that year, unless the owner thereof shall show to the assessors, under oath, and by producing a copy of the assessment, duly certified to by the proper officers of state or county in whieh said property was assessed, that the same property has been listed for taxation for that year in some other county in this state or in some other state or territory of the United States in which property is required to be listed for taxation on or before March 1 m each yea/r.” It is thus seen that under said third section prior to the amendment of 1930, the only persons who were relieved from the payment of taxes on personal property brought into the state after March 1st were new settlers ; but the Supreme Court of Kansas in its opinion in Mosby v. Board of Commissioners, 98 Kan. 594, 158 P. 657, 658, delivered on July 8, 1916, held that a resident of Kansas who brought personal property (live stock) into the state after March 1st and prior to September 1st came within the statute and the property so brought in could not be taxed, whereas the property of a nonresident under like conditions -was subject to taxation. Mos-by was a resident of Missouri. In 1913 he purchased 300 steers in Oklahoma and kept them in that state until the following May. About March 1st, 1914, the officers in Oklahoma levied a tax on the steers, and Mosby paid it later in the year. About May 1st, 1914, Mosby moved the cattle to a ranch owned by him in Greenwood County, Kansas, and shortly afterwards the assessors in that county placed the cattle on the tax roll, and levied a tax against them. He did not know his cattle had been so taxed until the following January when a tax warrant was placed in the hands of the sheriff, who was about to sell the cattle for taxes. To avoid this and tinder protest Mosby paid the amount of the taxes, and then sued to recover it. A demurrer to his complaint was overruled by the trial court, and Mosby recovered judgment. Mos-by’s cattle had been taken into Kansas for the purpose of grazing there, and they were assessed and taxed under this special statute. The Supreme Court in reversing the judgment in favor of Mosby said: “The section [third of the special act] referred to has been interpreted to mean that the property of residents brought into the state after March 1st and before September 1st, which has been taxed elsewhere for that year, is not subject to taxation here, but that the property of nonresidents brought into the state during the period is subject to taxation.” It therefore held the statute (as thus construed) not to be an unjust discrimination against the nonresident owner, nor did it offend the equal protection limitations of the Federal Constitution. We must accept the statute as it was thus construed by the highest court of the state, but we cannot agree to the conclusion of that court that as thus eonstrued it did not offend the federal guaranties. It is true that the court relied upon two of its prior decisions in which it had held that resident taxpayers, who resided in Kansas prior to March 1st and brought cattle into the state, were not liable to the tax under the special statute on a ground lying outside of the special statute, that is, on the ground that it was shown or inferred that such resident taxpayer had listed for taxation all of his property in Kansas on March 1st, and a part or all of the property so listed and taxed must have been converted into the purchase of the cattle that were brought from outside the state; but that fact, if it be a fact, was none the less a discrimination prohibited by the Federal Constitution as between resident and nonresident. The amendment of said section 3 by the act of 1930 must have been an effort to eliminate that discrimination, and to offset the construction given to said section 3 in the Mosby Case. In Hull v. Johnston, 64 Kan. 170, 67 P. 548, 549, the court in discussing this special statute said: “We may also take into consideration the well-known evil which it was designed to cure, and that the lawmakers thereby purposed to provide a method in such cases whereby such property should be taxed. Nonresidents were in the habit of bringing into this state personal property after the 1st of March — the time fixed by the general law as the date- at which to tax — and then before the next March to remove it, and thus wholly escape taxation; this being especially true with reference to live stock brought into the state for grazing purposes.” But violation of federal guaranties cannot be a legitimate means to cure a claimed evil. This statute as we now have it after the last amendment, plus the exemption given in the Mosby Case to residents who were such on March 1st, comes dangerously near bringing it under the rule announced by Judge Brewer in the Graham Case. The guaranties of section 2, article 4, U. S. Constitution and the Fourteenth Amendment thereto and their application are exhaustively considered in Blake v. McClung, 172 U. S. 239, 19 S. Ct. 165, 43 L. Ed. 432. In Power Mfg. Company v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 679, 71 L. Ed. 1165, it is said: “The clause in the Fourteenth Amendment forbidding a state to deny to any person within its jurisdiction the equal protection of the laws is a pledge of the protection of equal laws.” ■ In Re Jarvis, 66 Kan. 329, 71P. 576, 577, the court had under consideration a statute of the state which made it a misdemeanor for anyone to deal as a peddler without paying for and procuring a license from the county clerk, but exempted from its operation an owner of goods who peddled them in the county in which he was a resident taxpayer or in any county immediately adjoining thereto. The court said: “The statute therefore attempts to impose a tax upon nonresidents of the state, from which certain residents of the state are exempted by the fact of such residence. This is an obvious discrimination in favor of the resident and against the nonresident, and is repugnant to section 2 of article 4 of the federal constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The Supreme Court of Vermont in Sprague v. Fletcher, 69 Vt. 69, 37 A. 239, 37 L. R. A. 840, had under consideration a statute which restricted to residents of the state the right to deduct from personal taxes debts owing by them. A nonresident, who had personal property in the state, was denied the right of deduction, and it was held that the denial was a discrimination against the nonresident forbidden by said section 2 of article 4. Reversed with directions to vacate the order sustaining the demurrer and dismissing the complaint. 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_respond1_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 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". Irving MARIASH, Plaintiff-Appellant, v. Charles MORRILL and Bernard Berwick, Defendants, and David R. Pokross et al., Defendants-Appellees. No. 889, Docket 73-2587. United States Court of Appeals, Second Circuit. Argued April 18, 1974. Decided May 10, 1974. Irving Mariash (Harry H. Lipsig, New York City, on the brief), plaintiff-appellant pro se. Frederick A. Nieoll, New York City (Rogers Hoge & Hills, New York City, on the brief; W. Hubert Plummer, New York City, of counsel), for defendantsappellees. Before KAUFMAN, Chief Judge, CLARK, Associate Justice, and SMITH, Circuit Judge. United States Supreme Court, retired, sitting by designation. IRVING R. KAUFMAN, Chief Judge: Although the Securities Exchange Act of 1934 [1934 Act] is hardly a model of precision, the statute does speak with atypical clarity in authorizing nationwide service of process. We thus find erroneous the district court’s dismissal of this complaint, alleging in substance a violation of Section 10(b) of the 1934 Act — not for improper venue (Fed.R. Civ.P. 12(b)(3)) and not for failure to state a claim (Fed.R.Civ.P. 12(b)(6)) —but for lack of jurisdiction over the person of the moving defendants (Fed. R.Civ.P. 12(b)(2)), all of whom had been personally served in Massachusetts. Convinced that there is nothing so extraordinary about this case to justify such disposition, and after concluding that no alternative grounds for dismissal can be supported on the record before us, we reverse. I Since this appeal comes to us at a very early stage in the litigation, we have had, by necessity, to glean the facts from the barest skeleton of a record— the complaint and affidavits in support of and in opposition to the motion to dismiss — fleshed out only minimally by the depositions of plaintiff-appellant Irving Mariash and defendant-appellee A. Warren Wilkinson, taken to shed some additional light on that motion. In late November 1967, six men, including defendant Charles Morrill, organized Viatron Computer System Corporation [Viatron] under the laws of Massachusetts. The founders selected the Boston firm of Peabody, Brown, Rowley & Story [Peabody, Brown] to serve as legal counsel to the corporation. Defendants David Pokross and Wilkinson, partners in Peabody, Brown, were invited, moreover, to serve as Director and “Clerk,” respectively, of Viatron. Presumably, to avoid the costs of compliance with the registration requirements of Section 5 of the Securities Act of 1933 [1933 Act], 15 U.S.C. § 77e, the organizing group elected to obtain initial capitalization through a private placement exempt from registration under Section 4(2) of the 1933 Act, 15 U.S.C. § 77d(2). Accordingly, the founders sought out friends and relatives who would be willing to purchase Viatron stock, bearing a restrictive legend (so-called “letter stock”), for investment purposes only-. In the late fall of 1967, Dr. Edward Bennett, one of the original organizers and President of Viatron, approached his uncle, Mariash, in New York City about investing in Viatron stock. Bennett explained to Mariash that the Via-tron securities were of a restricted nature and could not be freely traded unless and until Viatron’s counsel, Peabody, Brown, considered it proper to release the restrictions. Authorization for that release, moreover, would take the form of an opinion letter, issued by Peabody, Brown, to Viatron’s transfer agent. With these limitations in mind, Mariash purchased 250 shares of Via-tron stock for $25,000. Following a series of stock splits, Mariash’s total share holdings multiplied to 50,000 shares of restricted, Viatron stock. Among the other private placement sales which occurred during this period of initial capitalization was one by Morrill to his cousin, defendant Bernard Burwick. Burwick purchased 78,600 shares of Viatron for an amount not disclosed in the record — all of which, like Mariash’s, were of a restricted nature. On July 20, 1970, some time after Viatron had floated a public issue of its common stock, Dr. Bennett was removed from the position of President of the company. Shortly thereafter, with the market for Viatron stock falling, Mariash contacted Morrill and, subsequently, Peabody, Brown, demanding an opinion letter authorizing the release of his shares’ restrictions. He urged, as grounds for his request, that Bennett’s removal represented a “change of circumstances,” which entitled Mariash to alter his investment status and sell his shares. Mariash claims he first spoke to Wilkinson about obtaining such opinion letter by telephone on August 11, 1970. Wilkinson, in his deposition, stated that Mariash did not speak with him until August 17. There is agreement, however, that the first letter sent to Wilkinson by Mariash, concerning preparation of an opinion letter, was dated August 14,1970. Following receipt of this letter, Wilkinson told Mariash that he would be reluctant to prepare an opinion letter without a supporting opinion by independent New York counsel. Mariash then obtained an opinion letter from Breed, Abbott & Morgan, while Mariash’s broker, F. I. duPont, Glore Forgan & Co. [duPont], secured a similar letter from its counsel, Carter, Ledyard & Milburn. Both letters, dated August 20, were promptly mailed to Wilkinson in Boston. On August 24, 1970, Wilkinson drafted an opinion letter, addressed to Viatron’s transfer agent, First National City Bank [FNCB] in New York City, authorizing the removal of the restrictive legend on Mariash’s 50,000 shares of Viatron stock. The August 24 letter was received by FNCB in New York on August 26. More importantly, according to Mariash’s deposition testimony, he did not receive his copy of the opinion letter until August 26. Upon its receipt, he stated, he immediately brought the letter to duPont to provide the basis for his request that his Viatron stock be offered for sale on the open market. To his chagrin, however, he was informed by duPont that such sale would now be difficult because a large block of approximately 75,000 shares had already been placed on the market. After some inquiry, Mariash learned that this large block of Viatron stock had been offered for sale by Goodbody & Co. on behalf of Bernard Burwick. Burwick, like Mariash, required, as a prerequisite to the sale of his “letter stock,” an opinion letter from Peabody, Brown authorizing the transfer agent to remove the restrictive legend. Indeed, Burwick had tried to obtain such a letter in late 1969 but when his counsel, Ropes & Gray, balked at issuing a supporting opinion, Peabody, Brown refused the request. It appears from the record that Burwick was similarly unsuccessful at that time in his effort to secure a “no action” letter from the Securities Exchange Commission which, we understand, would also have facilitated sale of the restricted stock. On August 26, 1970, however, Burwick visited Wilkinson once again, and repeated his request for the necessary opinion letter. To support his “change of circumstances” justification for the letter, Bur-wick proffered a medical certificate, dated August 25, 1970, reporting Burwick’s poor health. After Wilkinson telephoned Ropes & Gray and learned that this time it would agree to provide a supporting opinion, he agreed to furnish the requisite opinion letter to Burwick. The record is silent as to when Bur-wick’s opinion letter, dated August 26, reached FNCB, or for that matter, when Burwick received it, although we note that, unlike Mariash’s opinion letter, a copy of the Burwick opinion letter was prepared for Burwick’s broker, Goodbody & Co. In any event, according to Mari-ash’s version of the facts, when he arrived at his broker’s office in New York some time on August 26, Goodbody & Co. had already announced for sale Bur-wick’s 78,600 shares of Viatron stock. It cannot reasonably be disputed, moreover, that the market value of Viatron facing Mariash had been depressed by Bur-wick’s prior offer to sell his large block of stock. On January 31, 1973, Mariash, a New York resident, filed a complaint in the Southern District of New York against Morrill, Burwick, and twelve members of Peabody, Brown, including Pokross and Wilkinson. The complaint, sprinkled with the usual number of hortatory terms, alleged inter alia that the defendants had breached their contractual agreement with Mariash by unreasonably delaying issuance of his opinion letter, and that the defendants, in the words of the complaint: secretly and maliciously conspired to favor the defendant, Berwick [sic], a relative of defendant, Morrill, and issued to him with full knowledge of its illegality,- and unknown to plaintiff, an “opinion letter” unjustifiably and unlawfully releasing his 75,000 shares of restricted stock, all to the detriment of the market price of Yiatron, and to the detriment of the plaintiff, and all in violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. In lieu of filing an answer to the complaint, the Peabody, Brown defendants moved, pursuant to Fed.R.Civ.P. 12(b)(2) and (3), to dismiss the complaint for lack of personal jurisdiction and improper venue, respectively, or, in the alternative, for a change of venue to the United States District Court in Massachusetts on the ground of inconvenience, 28 U.S.C. § 1404(a). After argument was heard on April 27, 1973, the court ordered that depositions be taken of Mariash and one of the moving defendants for the limited purpose of determining Peabody, Brown’s “contacts” with New York. Reargument, following depositions of Mariash and Wilkinson, was heard on July 20. On September 5, 1973, the district judge, in a brief, unreported opinion, granted the motion to dismiss, pursuant to Rule 12(b)(2), for lack of in person-am jurisdiction over the Peabody, Brown defendants. The lower court rejected Mariash’s claim that Peabody, Brown was “doing business” in New York through the agency of Dr. Bennett, in the course of his solicitation of Mariash in New York City, thereby eliminating the applicability of New York’s long arm statute, N.Y.C.P.L.R. § 302(a)(1). The court also rejected Mariash’s alternative contention that personal service in Massachusetts was authorized by Section 27 of the 1934 Act, 15 U.S.C. § 78aa, stating, without explanation: Section 27 is no more than a grant of subject matter jurisdiction to the federal district courts — competence to hear a suit arising under the Act — ■ and a statement of the venue requirements to be followed when such suits are brought. It does not deal with jurisdiction of the persons named as defendants in a given case, (emphasis added) II Without reaching the question of in personam jurisdiction under New York law, and, of course, without expressing any views on the ultimate merit of Mariash’s claims, we cannot accept the district court’s interpretation of Section 27 of the 1934 Act. It is simply too late in the day to argue that Section 27 does not authorize nationwide service of process on any individual named in the complaint, provided, of course, the complaint states a claim under the 1934 Act. In this respect, the language of the statute is clear: Any suit or action to enforce any liability or duty created by this title or rules and regulations thereunder, . may be brought in any such district [wherein any act or transaction constituting the violation occurred] or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. 15 U.S.C. § 78aa (emphasis added). And, the decisions of this Court amply support this interpretation. See, e. g. International Controls Corp. v. Vesco, 490 F.2d 1334 (2d Cir. 1974), cert. denied - U.S. -, 94 S.Ct. 2644, 41 L.Ed.2d 236, (validity of nationwide service of process under the 1934 Act not contested); Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1340 (2d Cir. 1972). To be sure, as Judge Friendly noted in Leasco, Congress, in providing for nationwide service of process, remains subject to the constraints of the Due Process clause of the Fifth Amendment. Thus, the service authorized by statute must be reasonably calculated to inform the defendant of the pendency of the proceedings in order that he may take advantage of the opportunity to be heard in his defense. See e. g. Hanson v. Denckla, 357 U.S. 235, 245, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It is undisputed in this instance that the Peabody, Brown defendants received such notice through personal service in Massachusetts. Appellees respond, however, by arguing that notice and an opportunity to be heard is not sufficient, for “it is still necessary that defendants have the requisite ‘minimal contacts’ with the State which would exercise its jurisdiction over them. Hansen (sic) v. Denckla, 357 U.S. 235 [78 S.Ct. 1228, 2 L.Ed.2d 1283] (1958).” Brief of Appellees at 15 (emphasis added). Mere statement of this contention reveals its fatal flaw: It is not the State of New York but the United States “which would exercise its jurisdiction over them [the defendants].” And plainly, where, as here, the defendants reside within the territorial boundaries of the United States, the “minimal contacts,” required to justify the federal government’s exercise of power over them, are present. Indeed, the “minimal contacts” principle does not, in our view, seem particularly relevant in evaluating the constitutionality of in personam jurisdiction based on nationwide, but not extraterritorial, service of process. It is only the latter, quite simply, which even raises a question of the forum’s power to assert control over the defendant. Ill We turn next to whether venue is proper in the Southern District of New York- — a question raised by the defendants-appellees below, but not reached by the district court. The portion of Section 27 of the 1934 Act already quoted provides for venue: in any . . . district [wherein any act or transaction constituting the violation occurred] or in the district wherein the defendant is found or is an inhabitant or transacts business In this instance, it is conceded that none of the defendants was either an “inhabitant” of New York or had been “found” in the Southern District. We need not decide, moreover, whether the Peabody, Brown firm “transacts business” in New York City because we believe it clear that “an act or transaction constituting the [alleged] violation [has] occurred” in the Southern District of New York. In Hooper v. Mountain States Securities Corp., 282 F.2d 195, 204-205 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961), the Fifth Circuit concluded that “any use of instrumentalities of the mails or other interstate facilities made within the forum district constituting an important step in [the] consummation [of the fraudulent scheme] is sufficient” for venue to lie in that district. More importantly, perhaps, because of appellees’ assertion to the contrary, the Hooper court added that “it is [not] necessary that a false or deceptive or fraudulent paper be sent or statement made through the use of the mails or interstate communication facilities.” Hooper v. Mountain States Securities Corp., supra, 282 F.2d at 204 (emphasis added). Indeed, in International Controls Corp. v. Vesco, supra, we held that the act of the transfer agent in mailing the spin-off dividend to the ICC shareholders from New York City, an essential element in the alleged fraudulently induced spin-off — although an act not fraudulent per se — was sufficient to establish venue in the Southern District of New York. Id. at 1347. In this case, reading Mariash’s complaint liberally, as we must in considering any motion to dismiss, see Scheuer v. Rhodes, - U.S. -, -, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), he claims a violation of Section 10(b) and Rule 10b-5 through Peabody, Brown’s alleged manipulation of the market in Viatron stock by deliberately enabling Burwick to reach the market with his large block of previously restricted shares before Mariash could. Critical to the success of this alleged scheme was the ability to control the timing of the respective sales — control made possible by the requirement that each shareholder of “letter stock” obtain an opinion letter, from Viatron’s counsel, authorizing the transfer agent to remove the restrictive legend. So, once again, as in Vesco, the role of the transfer agent, located in New York City, is pivotal, and certainly a step of sufficient “importance” to satisfy the Hoover test for venue, which we adopted in Vesco. IV Finally, we must address ourselves to the passing claim, made by appellees for the first time on appeal, that Mariash “has failed totally to come forward with anything other than his own assertions which even suggest the defendant attorneys might have been guilty of wrongdoing.” Supplemental Memorandum of Appellees at 3. We construe this claim as requesting us, in effect, to grant summary judgment relief, although neither side had moved for it in the district court. It is well settled, however, that the lack of a proper adversary foundation for consideration of this request requires that we not entertain it. See Fountain v. Filson, 336 U.S. 681, 682-683, 69 S.Ct. 754, 93 L.Ed. 971 (1949); 6 J. Moore, Federal Practice 56.12 at 2243-46 (2d ed. 1974). Certainly, the opposing party should be given an opportunity in the district court to respond to a request for such drastic relief, which rests on the now unilateral and gratuitous assertion that the material facts are undisputed. This Court, needless to say, is not the proper forum for adducing a rebuttal. Accordingly, finding appellees’ prayer for the relief sought here inappropriate, and there being no basis upon which to predicate dismissal of this complaint, we reverse and remand to the district court for further proceedings not inconsistent with this opinion. . 15 U.S.C. § 78a et seq. . 15 U.S.C. § 78aa. . 15 U.S.C. § 78j(b). . Section 4, 15 U.S.C. § 77<3, states: The provisions of section 5 shall not apply to— (2) transactions by an issuer not involving any public offering .... . The complaint against one of the Peabody, Brown defendants, Dean W. Carlston, has been dismissed by stipulation of the parties. . Congressional power to authorize nationwide service of process in cases involving the enforcement of federal law is beyond question. See American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts, Official Draft (1965) at 191; 3A J. Moore, Federal Practice If 22.13 at 3100 n. 2 (2d ed. 1974). . Certainly this is true where, as here, federal jurisdiction is conferred by federal statute and not by the parties’ diverse citizenship. We express no view on the relevant source of jurisdictional power — state or federal — where the latter is the case. But * compare American Law Institute, supra at 191-95 with National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 329-333, 84 S.Ct. 411, 11 L.Ed .2d 354 (1964) (Black, J. dissenting). . In Hanson v. Denckla, supra, the Supreme Court enunciated the following raison d’§tre for the “minimal contacts” principle: They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had . . . “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Hanson v. Denckla, supra, 357 U.S. at 251. . Leasco Data Processing Equipment Corp. v. Maxwell, supra, is not to the contrary. In Leasco, the validity of nationwide service of process was not at issue, but rather, the propriety of true extraterritorial service of process under the 1934 Act — service of process on foreign citizens living abroad. Accordingly, when Judge Friendly referred to the “minimal contacts” line of cases, he did so in considering whether the foreign defendants (Fleming Ltd. and Chalmers, Impey & Co.) had sufficient connection with the United States to satisfy the “minimal contacts” required to legitimate extraterritorial service of process by a State. . Section 10 of the 1934 Act provides, in pertinent part: 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. . Rule 10b-5, 17 CFR § 240.10b-5, provides, in relevant part: 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, (a) To employ any device, scheme, or artifice to defraud, (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. . We flatly reject appellees’ argument that if we permit venue to rest on the mailing of a “release letter” to the transfer agent, then venue would be proper “in any jurisdiction to which such letter may be distributed.” Suffice to say that, on the facts of this case, all we need hold is that venue is proper in the district in which the transfer agent is located. In short, the proverbial “slippery slope” simply does not arise on the facts here presented. . It is abundantly clear from the record below and the briefs on appeal that appellees did not then nor do they now attack the sufficiency of Mariasli’s Section 10(b) claim. Appellees’ main brief glosses over this crucial, threshold question by stating: It is not even necessary to decide if plaintiff’s bizarre theory states a claim under the securities laws. The simple facts absolutely foreclose any finding of wrongdoing by defendants. Brief of Appellees at 15. Indeed, in an effort to focus attention on the sufficiency of the complaint, we requested supplementary memoranda on this precise point. Once again, however, appellees went beyond the face of the allegations to a factual appraisal of the merits of Mariash’s claim, arguing: Should this Court elect to consider the sufficiency of the Complaint, we urge the evidence submitted by plaintiff fails to demonstrate any genuine issue of fact which merits the perpetuation of plaintiff’s claim. Supplemental Memorandum of Appellees at 3. We should add that our independent review of the complaint satisfies us that Mariash has stated a claim under Section 10(b) of the 1934 Act. Although we have repeatedly held that mere negligence on the part of the defendants will not support a claim for damages under Section 10(b), see e. g. Lanza v. Drexel, 479 F.2d 1277, 1301-1302 (2d Cir. 1973) (en banc) and cases cited therein, Mariash’s claim of deliberate market manipulation alleges far more than mere negligence by Peabody, Brown. Proof of those allegations is, of course, quite another matter, but one which we do not consider at this stage of the litigation. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_petitioner	019	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. CAMPBELL, COMMISSIONER OF AGRICULTURE OF GEORGIA, et al. v. HUSSEY et al. No. 42. Argued November 14-15, 1961. Decided December 18, 1961. G. Hughel Harrison, Assistant Attorney General of Georgia, and Denmark Groover, Jr. argued the cause for appellants. With them on the briefs were Eugene Cook, Attorney General, Gordon Knox, Frank S. Twitty and Chris B. Conyers, Deputy Assistant Attorneys General. Homer S. Durden, Jr. argued the cause for appellees. With him on the brief were Darius N. Brown and William J. Neville. Sherman L. Cohn, by special leave of the Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick and Alan S. Rosenthal. Mr. Justice Douglas delivered the opinion of the Court. This is a suit brought by owners and operators of tobacco warehouses in Georgia to enjoin officials of Georgia from enforcing certain provisions of the Georgia Tobacco Identification Act. Ga. Laws 1960, No. 557, p. 214. A three-judge court was convened, 28 U. S. C. §§ 2281, 2284, and it granted the relief. 189 F. Supp. 54. The case is here by direct appeal. 28 U. S. C. § 1253. The provisions of the Georgia Act that are challenged concern type 14 flue-cured leaf tobacco. It is defined in § 1 of the Act as “that flue-cured leaf tobacco grown in the traditional loose-leaf area which consists of the State[s] of Georgia, Florida, and Alabama.” By § 13 (A) of the Act type 14 tobacco received in a warehouse for sale shall be marked with a “white sheet ticket.” Sales at these warehouses are sales within the competence of Congress to regulate. As stated in Mulford v. Smith, 307 U. S. 38, 47: “In Georgia nearly one hundred per cent, of the tobacco so sold is purchased by extra-state purchasers. In markets where tobacco is sold to both interstate and intrastate purchasers it is not known, when the grower places his tobacco on the warehouse floor for sale, whether it is destined for interstate or intrastate commerce. Regulation to be effective, must, and therefore may constitutionally, apply to all sales." Congress in 1935 enacted the Tobacco Inspection Act, 49 Stat. 731, 7 U. S. C. § 511, and in its declaration of purpose, § 2, 7 U. S. C. § 511a, stated: . . the classification of tobacco according to type, grade, and other characteristics affects the prices received therefor by producers; without uniform standards of classification and inspection the evaluation of tobacco is susceptible to speculation, manipulation, and control, and unreasonable fluctuations in prices and quality determinations occur which are detrimental to producers and persons handling tobacco in commerce; such fluctuations constitute a burden upon commerce and make the use of uniform standards of classification and inspection imperative for the protection of producers and others engaged in commerce and the public interest therein.” (Italics added.) By § 511b the Secretary of Agriculture is authorized “to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, which standards shall be the official standards of the United States . . . .” (Italics added.) Detailed standards have been prescribed by the Secretary. As to the “type” of tobacco, the regulations state: “. . . Tobacco which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco.” 7 CFR, 1961 Cum. Supp., § 29.1096. (Italics added.) Type 14 is defined as “That type of flue-cured tobacco commonly known as Southern Flue-cured or New Belt of Georgia, Florida, and Alabama, produced principally in the southern section of Georgia and to some extent in Florida and Alabama.” 7 CFR, 1961 Cum. Supp., § 29.1100. (Italics added.) The regulations also provide that the classification of the tobacco by type be placed on a federal inspection certificate and announced at the time the lot is offered in the auction (7 CFR § 29.80, 7 CFR, 1961 Cum. Supp., § 29.1144) — an identification made by a blue ticket. The question is whether the federal scheme of regulation has left room for Georgia to identify type 14 tobacco with a white tag when it is grown in Georgia, Florida, or Alabama. It is earnestly argued that there is no conflict between Georgia’s regulation and the federal law, as all that Georgia requires is that type 14 tobacco, grown in Georgia, be labeled as such. In that connection it is pointed out that type 14 tobacco as defined by the federal regulations includes tobacco “produced principally” in Georgia, Florida, and Alabama and that labeling it by its geographical origin merely supplements the federal regulation and does not conflict with it. We do not have here the question whether Georgia’s law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one “official” standard — one that is “uniform” and that eliminates all confusion by classifying tobacco not by geographical origin but by its characteristics. In other words, our view is that Congress, in legislating concerning the types of tobacco sold at auction, preempted the field and left no room for any supplementary state regulation concerning those same types. As we have seen, the Federal Tobacco Inspection Act in § 2, 7 U. S. C. § 511a, says that “uniform standards of classification and inspection” are “imperative for the protection of producers and others engaged in commerce and the public interest therein.” The House Report No. 1102, 74th Cong., 1st Sess., reviewed at length the harm to growers that resulted from the absence of regulations governing the “grades” of tobacco sold on the auction market. “There are between 60 and 100 grades in a single type of tobacco, and it is not practical for a farmer to familiarize himself with the technical factors on which these grades are based . . . .” Id., p. 2. The need for “a definite standard” of grading, id., p. 2, or of “standard grades,” id., p. 4, was repeated over and again. The importance of a “standard grade” was emphasized in the debates on the floor of the House. Congressman Hancock stated that this legislation provided that tobacco on the auction market “would be inspected by competent judges of tobacco in Government employ and graded according to United States standards of quality . . . .” 79 Cong. Rec. 11870. Congressman Mitchell added that “Standard grades would serve as a guide to farmers in classifying their tobacco for market.” Id., 11878. The Senate Report No. 1211, 74th Cong., 1st Sess., based its approval of the bill on a report made by the Department of Agriculture. After stating that the purpose of the bill was to provide “uniform standards” for the protection of farmers, the report added: “The bill would authorize the Secretary of Agriculture to establish standards for tobacco by which its type, grade, size, condition, or other characteristics may be determined, and the standards so established would be the official standards of the United States for such purpose.” Id., p. 1. The Act, as we have seen, adopts that view by making the “type, grade, size, condition” given inspected tobacco “the official standards of the United States." § 3, 7 U. S. C. § 511b. The regulations are precise and unequivocal in saying what those “official standards” are. Among other things they say, as already noted, that tobacco “which has the same characteristics and corresponding qualities, colors, and lengths shall be treated as one type, regardless of any factors of historical or geographical nature which cannot be determined by an examination of the tobacco.” 7 CFR, 1961 Cum. Supp., § 29.1096. Tobacco is includable in type 14, regardless of where it may have been grown, provided it meets the specifications of that type. We have then a case where the federal law excludes local regulation, even though the latter does no more than supplement the former. Under the definition of types or grades of tobacco and the labeling which the Federal Government has adopted, complementary state regulation is as fatal as state regulations which conflict with the federal scheme. Missouri Pacific R. Co. v. Porter, 273 U. S. 341, 346; Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230; Hood & Sons v. Du Mond, 336 U. S. 525, 543. Affirmed. Mr. Justice Whittaker concurs in the result. Of the several infirmities which Georgia’s law is alleged to have, only one was reached by the lower court, namely, the constitutionality of the law in light of the requirements of the Commerce Clause. The complaint also challenged the constitutionality of the law on the grounds that it violated both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. Plainly the case was one to be heard by a three-judge court. See Florida Lime Growers v. Jacobsen, 362 U. S. 73. The manner of sale is described in Townsend v. Yeomans, 301 U. S. 441, 446; Gurrin v. Wallace, 306 U. S. 1, 7-8; American Tobacco Co. v. United States, 328 U. S. 781, 800. The court below stated: “The Georgia statute defines Type 14 tobacco on the basis of geographical origin and upon no other basis. If it is grown in Georgia, it would be Type 14 under the Georgia law and be given a white tag; while if it came from the other side of the Savannah River in South Carolina it would not be Type 14 and would be given a blue tag. . . . “Both the purpose and effect of the Georgia enactment were to make a distinction at the markets, by the color tags, between tobacco grown in Georgia and that grown elsewhere. The effect was to create a wide disparity of price between the two groups of tobacco, the Carolina growers receiving a much lower amount. This resulted in losses of business to the plaintiff warehousemen.” 189 F. Supp. 54, 59. 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_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. UNITED STATES of America, Plaintiff-Appellee, v. Aundra O. MAGEE, Defendant-Appellant. No. 78-5089. United States Court of Appeals, Sixth Circuit. Submitted Oct. 13, 1978. Decided Nov. 2, 1978. John D. O’Connell, Detroit, Mich. (Court-appointed-CJA), for defendant-appellant. James K. Robinson, U. S. Atty., Ellen Ritteman, Detroit, Mich., for plaintiff-appellee. Before WEICK and EDWARDS, Circuit Judges, and LAWRENCE, District Judge. Honorable Alexander A. Lawrence, United States District Judge for the Southern District of Georgia, sitting by designation. PER CURIAM. Appellant Magee seeks reversal after a conviction by a jury on one count of smuggling goods into the United States, in violation of 18 U.S.C. § 545 (1976), and an additional count of conspiracy to do so under 18 U.S.C. § 371 (1976). The evidence at trial showed that Magee, traveling in a car driven by one Jenkins, sought to enter the United States from Canada after Jenkins had told the customs inspector that they had nothing to declare. On inspection, $1,400 worth of clothes, which Magee admitted he had purchased in Canada, were discovered. Appellant’s principal argument on appeal is that the regulation of the Customs Service was so overbroad and vague as to deny him due process. Our review of the statute, 18 U.S.C. § 545 and two regulations, 19 C.F.R. § 148.11 and 19 C.F.R. § 123.3, indicates no such lack of specificity or overbreadth. Further, the District Judge did not err in admitting statements of Magee’s co-conspirator, Jenkins, and there was ample evidence to corroborate defendant’s own admissions. The judgments of conviction are affirmed. 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_caseorigin	212	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. UNITED STATES v. FLORIDA No. 52, Orig. Decided March 17, 1975 Decree entered May 24, 1976 DECREE The joint motion for entry of a decree is granted. For the purpose of giving effect to the decision and opinion of this Court announced in this case on March 17, 1975, 420 U. S. 531, and to the Supplemental Report of the Special Master filed January 26, 1976, it is Ordered, Adjudged, and Decreed as Follows: 1. As against the State of Florida, the United States is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean more than 3 geographic miles seaward from the coastline of that State and extending seaward to the edge of the Continental Shelf, and the State of Florida is not entitled to any interest in such lands, minerals, and resources. As used in this decree, the term, “coastline” means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, as determined under the Convention on the Territorial Sea and the Contiguous Zone, 15 U. S. T. (Pt. 2) 1606. 2. As against the United States, the State of Florida is entitled to all the lands, minerals, and other natural resources underlying the Atlantic Ocean extending seaward from its coastline for a distance of 3 geographic miles, and the United States is not entitled, as against the State of Florida, to any interest in such lands, minerals, or resources, with the exceptions provided by Section 5 of the Submerged Lands Act, 43 U. S. C. § 1313. 3. As against the State of Florida, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico more than 3 marine leagues from the coastline of that State; the State of Florida is not entitled to any interest in such lands, minerals, and resources. Where the historic coastline of the State of Florida is landward of its coastline, the United States is additionally entitled, as against the State of Florida, to all the lands, minerals, and other natural resources underlying the Gulf of Mexico more than 3 marine leagues from the State’s historic coastline (but not less than 3 geographic miles from its coastline), and the State of Florida is not entitled to any interest in such lands, minerals, and resources. As used in this decree, the term “historic coastline” refers to the coastline as it existed in 1868, as to be determined by the parties. 4. As against the United States, the State of Florida is entitled to all the lands, minerals, and other natural resources underlying the Gulf of Mexico extending seaward for a distance of 3 marine leagues from its coastline or its historic coastline, whichever is landward, but for not less than 3 geographic miles from its coastline; the United States is not entitled, as against the State of Florida, to any interest in such lands, minerals, or resources, with the exceptions provided by Section 5 of the Submerged Lands Act, 43 U. S. C. § 1313. 5. For the purpose of this decree, the Gulf of Mexico lies to the north and west, and the Atlantic Ocean to the south and east, of a line that begins at a point on the northern coast of the island of Cuba in 83° west longitude, and extends thence to the northward along that meridian of longitude to 24°35' north latitude, thence eastward along that parallel of latitude through Rebecca Shoal and the Quicksands Shoal to the Marquesas Keys, and thence through the Florida Keys to the mainland at the eastern end of Florida Bay, the line so running that the narrow waters within the Dry Tortugas Islands, the Marquesas Keys, and the Florida Keys, and between the Florida Keys and the mainland, are within the Gulf of Mexico. 6. There is no historic bay on the coast of the State of Florida. There are no inland waters within Florida Bay, or within the Dry Tortugas Islands, the Marquesas Keys, and the lower Florida Keys (from Money Key to Key West), the closing lines of which affect the right of either the United States or the State of Florida under this decree. 7. Jurisdiction is reserved by this Court to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_adminrev	O	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". HAIGLER v. UNITED STATES. No. 3735. United States Court of Appeals Tenth Circuit. Feb. 9, 1949. BRATTON, Circuit Judge, dissenting. Ralph Carr, of Denver, Colo., for appellant. Henry E. Lutz, of Denver, Colo. (Max M. Bulkeley, of Wray, Colo., on the brief), for appellee. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. The appellant, Burt E. Haigler, appeals from a conviction and sentence for wilfully, knowingly and unlawfully attempting to defeat and evade his income tax liability for the calendar year 1941, by filing or causing to be filed a false and fraudulent return in violation of Section 145(b) of the Internal Revenue Code, 26 U.S.C.A. § 145(b). The principal, and we think decisive, question here is whether the trial court erroneously excluded proffered testimony tending to negative any wilful intent to defeat and evade his income tax liability. Wilfulness being an essential element of the offense charged, evidence showing or tending to show lack of it, is a defense, and is admissible for that purpose. See Dearing v. United States, 10 Cir., 167 F.2d 310; One 1941 Buick Sedan v. United States, 10 Cir., 158 F.2d 445; Hargrove v. United States, 5 Cir., 67 F.2d 820, 90 A.L.R. 1276; Annotation 90 A.L.R. 1280. We have said that where, as here, motive or bad purpose is an essential element of the offense charged, the accused may not only directly testify that he had no such motive or purpose, but he may, within rational rights, “buttress such statement with testimony of relevant circumstances, including conversations had with third persons or statements made by them, tending to support his statement * * Miller v. United States, 10 Cir., 120 F.2d 968, 980. See also Underhill’s Criminal Evidence, 4th Ed., Sec. 138. The proof in support of the indictment was to the effect that the appellant is a rancher and sheepman living near Monte Vista, Colorado, where he operates a large sheep ranch, and about 2000 acres of irrigated land. As a part of his ranching activities, he also grazes large herds of sheep in Eastern Colorado and Western Kansas. During the year 1941, he received approximately $19,000, which he did not include in his income tax return for that year. Approximately $15,000 of this amount was the proceeds of the sale of some old ewes, some with lambs, then on pasture in Western Kansas. This money was deposited in the Beaty Bank at Manzanola, Colorado, where he had never previously done any banking business. $2,114.82 was represented by a check dated October 13, 1941, for sheep sold in Kansas City, which was not deposited in the First State Bank of Alamosa, where he usually did business, until February 19, 1942; a check in the sum of $171 for pelts; another for $450 for sheep; 'and another check for $78.33, which he cashed and did not deposit. The proof showed that this additional income, together with the returned income of $30,001.99, would increase his tax liability for the year 1941, approximately $10,000. For the purp’ose of showing intent and motive, the government also introduced evidence to the effect that appellant failed to include $6,780 of his income for 1939 in his return for that year, and that this sum, in the form of a check, had likewise been deposited in a bank where he was not accustomed to doing business. Cross-examination of government witnesses developed the fact that in the Fall of 1941, appellant purchased approximately $13,000 worth of young sheep, giving a check therefor on his account in the Beaty Bank; that some time in April or May of 1942, after his income tax return had been prepared and filed, he told Mr. Carter, his accountant, on the streets of Monte Vista, that he had about $5,000 in a bank in the Arkansas River Valley which he had not reported; that Carter then told him it would make a material difference in his tax liability, and that he should-file an amended return; that because of the press of business in Colorado Springs, he did not have time to make it, but if appellant would furnish the data, he would amend the return, and that the appellant agreed to do so. Carter further testified that he spoke to a deputy collector concerning it, and asked him to prepare an amended return when the information was available, but that no information was furnished to him by Haigler until the Fall of 1942, and no amended return was filed. He also testified that he did not know of the $2,114.82 check until he came, to prepare the return for the taxable year 1942, and did not include it in the 1942 return because it was not income for that year. On cross-examination, counsel for the appellant sought to elicit from the internal revenue agents, Haigler’s explanation to-them for not having returned the income in question. The government objected to this inquiry on the grounds that Haigler was seeking to prove his “side of the story by government witnesses.” From cross-examination of government witnesses, and from questions asked of defense witnesses, it is plain that the theory of the appellant’s defense was that he understood, and that it was generally understood among sheepmen, that if an old herd of sheep was sold and replaced in the same year with a new herd, the taxable income was the difference between the sale price of the old herd, and the purchase price of the new; that he called to the attention of his auditor the balance of approximately $5,000 in the account about thirty days after his income tax return had been filed, and that he understood or was led to believe, that it would be reflected in an amended return. Counsel for the appellant insisted that this testimony was admissible for the purpose of showing his lack of intent to defeat or evade his income tax liability. The court, however, sustained objections to any testimony concerning his understanding of the law applicable to his income tax liability, on the grounds that his intent would be judged by his acts, and not by what he understood to be their consequences. In sustaining objections to repeated efforts of counsel to show the appellant’s understanding of his tax liability for the transactions involved, the court made it undeniably plain that' appellant’s understanding of the applicable law was no defense; that “everybody is on notice of what the law is, and ignorance of the law is no excuse, as you know.” Unconvincing as it may be, this testimony was plainly admissible as bearing upon the essential element of intent to commit the offense charged, and we think it was error to exclude it. The appellant was permitted to testify that he reported the $5,000 balance in the Beaty Bank to his auditor, who told him that it would be necessary to make a “supplemental return,” and that later in the summer, when he again mentioned it, Carter told him that he -had reported it to Mr. Admire, a deputy collector, who would “make out the assessment.” Fie further testified that the check for $2,114.82 received in October of 1941, and not deposited until February 1942, had been misplaced in an old billfold which he had quit using, but that he did not knowingly fail to deposit it during the year in which it was received for the purpose of evading payment of income tax thereon. He was also permitted to testify that although he received, cashed, and did not report, the other checks involved; he had no purpose or intent to evade the payment of income taxes. He was permitted to testify that in his interviews with the revenue agents during their investigation, he told them that he had deposited the proceeds of the sale of the old ewes in the Beaty Bank to keep it separate from his other accounts, so that he could use it to replace the old ewes with young ewes in the fall, and that he considered this transaction merely a “trade,” for which there was no tax liability. Thus, appellant was permitted, indirectly, to adduce the theory of his defense by stating what he had told the investigators in explanation of his acts. But this bit of testimony did not change the theory upon which he was tried. In its instructions to the jury, the trial court repeatedly referred to intent as the gist of the offense charged, and of the necessity of finding beyond a reasonable doubt that the appellant intentionally evaded or attempted to evade his income tax liability. The jury was instructed that wilful intent was an essential element of the proof of the crime charged, and that in order to justify a verdict of guilty, it was necessary to prove, not only that a false return had been filed, but that the appellant caused the return to be made with knowledge that it was fraudulent, and with the wilful intention of evading his obligation under the statute. But the jury was also told that every citizen was presumed to know the law, and that ignorance of the law was no-excuse or justification for its violation in any particular. We think it irreconcilably inconsistent to say in one breath that guilty knowledge of the consequences of the act done is the essence of the offense, and in the next breath say that ignorance of the consequences of those acts is no excuse. See Hargrove v. United States, supra; Annotation, 90 A.L.R. 1280. We are convinced that the appellant did not have -a fair trial, and the judgment is reversed. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
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. ROCK v. ARKANSAS No. 86-130. Argued March 23, 1987 Decided June 22, 1987 Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O’Connor, and Scalia, JJ., joined, post, p. 62. James M. Luffman argued the cause and filed briefs for petitioner. J. Steven Clark, Attorney General of Arkansas, argued the cause for respondent. With him on the brief was Clint Miller, Assistant Attorney General. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Shirley A. Nelson and Garrett Beaumont, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance. David M. Heilbron and Christopher Berka filed a brief for the Product Liability Advisory Council et al. as amici curiae. Justice Blackmun delivered the opinion of the Court. The issue presented in this case is whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as a defendant in a criminal case. I Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. A dispute had been simmering about Frank’s wish to move from the couple’s small apartment adjacent to Vickie’s beauty parlor to a trailer she owned outside town. That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat. App. 98, 103-104. When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, Tr. 230, and cried to a sergeant who took her in charge, “please save him” and “don’t let him die.” Id., at 268. The police removed her from the building because she was upset and because she interfered with their investigation by her repeated attempts to use the telephone to call her husband’s parents. Id., at 263-264, 267-268. According to the testimony of one of the investigating officers, petitioner told him that “she stood up to leave the room and [her husband] grabbed her by the throat and choked her and threw her against the wall and... at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him.” Id., at 281. Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice by Doctor Bettye Back, a licensed neuropsychologist with training in the field of hypnosis. Id., at 901-903. Doctor Back interviewed petitioner for an hour prior to the first hypnosis session, taking notes on petitioner’s general history and her recollections of the shooting. App. 46-47. Both hypnosis sessions were recorded on tape. Id., at 53. Petitioner did not relate any new information during either of the sessions, id., at 78, 83, but, after the hypnosis, she was able to remember that at the time of the incident she had her thumb on the hammer of the gun, but had not held her finger on the trigger. She also recalled that the gun had discharged when her husband grabbed her arm during the scuffle. Id., at 29, 38. As a result of the details that petitioner was able to remember about the shooting, her counsel arranged for a gun expert to examine the handgun, a single-action Hawes.22 Deputy Marshal. That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the trigger’s being pulled. Tr. 662-663, 711. When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner’s testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner’s testimony to “matters remembered and stated to the examiner prior to being placed under hypnosis.” App. to Pet. for Cert, xvii. At trial, petitioner introduced testimony by the gun expert, Tr. 647-712, but the court limited petitioner’s own description of the events on the day of the shooting to a reiteration of the sketchy information in Doctor Back’s notes. See App. 96-104. The jury convicted petitioner on the manslaughter charge and she was sentenced to 10 years’ imprisonment and a $10,000 fine. On appeal, the Supreme Court of Arkansas rejected petitioner’s claim that the limitations on her testimony violated her right to present her defense. The court concluded that “the dangers of admitting this kind of testimony outweigh whatever probative value it may have,” and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se. 288 Ark. 566, 573, 708 S. W. 2d 78, 81 (1986). Although the court acknowledged that “a defendant’s right to testify is fundamental,” id., at 578, 708 S. W. 2d, at 84, it ruled that the exclusion of petitioner’s testimony did not violate her constitutional rights. Any “prejudice or deprivation” she suffered “was minimal and resulted from her own actions and not by any erroneous ruling of the court.” Id., at 580, 708 S. W. 2d, at 86. We granted certiorari, 479 U. S. 947 (1986), to consider the constitutionality of Arkansas’ per se rule excluding a criminal defendant’s hypnotically refreshed testimony. II Petitioner’s claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. This, of course, is a change from the historic common-law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial. See generally 2 J. Wigmore, Evidence §§576, 579 (J. Chadbourn rev. 1979). The principal rationale for this rule was the possible untrustworthiness of a party’s testimony. Under the common law, the practice did develop of permitting criminal defendants to tell their side of the story, but they were limited to making an unsworn statement that could not be elicited through direct examination by counsel and was not subject to cross-examination. Id., at §579, p. 827. This Court in Ferguson v. Georgia, 365 U. S. 570, 573-582 (1961), detailed the history of the transition from a rule of a defendant’s incompetency to a rule of competency. As the Court there recounted, it came to be recognized that permitting a defendant to testify advances both the “ ‘detection of guilt’” and “‘the protection of innocence,’” id., at 581, quoting 1 Am. L. Rev. 396 (1867), and by the end of the second half of the 19th century, all States except Georgia had enacted statutes that declared criminal defendants competent to testify. See 365 U. S., at 577 and n. 6, 596-598. Congress enacted a general competency statute in the Act of Mar. 16, 1878, 20 Stat. 30, as amended, 18 U. S. C. § 3481, and similar developments followed in other common-law countries. Thus, more than 25 years ago this Court was able to state: “In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case.” Ferguson v. Georgia, 365 U. S., at 582. The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony: “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added.) In re Oliver, 333 U. S. 257, 273 (1948). See also Ferguson v. Georgia, 365 U. S., at 602 (Clark, J., concurring) (Fourteenth Amendment secures “right of a criminal defendant to choose between silence and testifying in his own behalf”). The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U. S. 14, 17-19 (1967). Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 119-120 (1974). Moreover, in Faretta v. California, 422 U. S., at 819, the Court recognized that the Sixth Amendment “grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’” (Emphasis added.) Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the Amendment,” ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness. The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U. S. 222, 230 (1971), the Court stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Id., at 225. Three of the dissenting Justices in that case agreed that the Fifth Amendment encompasses this right: “[The Fifth-Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’... The choice of whether to testify in one’s own defense... is an exercise of the constitutional privilege.” Id., at 230, quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964). (Emphasis removed.) Ill The question now before the Court is whether a criminal defendant’s right to testify may be restricted by a state rule that excludes her posthypnosis testimony. This is not the first time this Court has faced a constitutional challenge to a state rule, designed to ensure trustworthy evidence, that interfered with the ability of a defendant to offer testimony. In Washington v. Texas, 388 U. S. 14 (1967), the Court was confronted with a state statute that prevented persons charged as principals, accomplices, or accessories in the same crime from being introduced as witnesses for one another. The statute, like the original common-law prohibition on testimony by the accused, was grounded in a concern for the reliability of evidence presented by an interested party: “It was thought that if two'persons charged with the same crime were allowed to testify on behalf of each other, ‘each would try to swear the other out of the charge.’ This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court’s interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.” (Footnote omitted.) Id., at 21, quoting Benson v. United States, 146 U. S. 325, 335 (1892). As the Court recognized, the incompetency of a codefendant to testify had been rejected on nonconstitutional grounds in 1918, when the Court, refusing to be bound by “the dead hand of the common-law rule of 1789,” stated: “ ‘[T]he conviction of our time [is] that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court....’” 388 U. S., at 22, quoting Rosen v. United States, 245 U. S. 467, 471 (1918). The Court concluded that this reasoning was compelled by the Sixth Amendment’s protections for the accused. In particular, the Court reasoned that the Sixth Amendment was designed in part “to make the testimony of a defendant’s witnesses admissible on his behalf in court.” 388 U. S., at 22. With the rationale for the common-law incompetency rule thus rejected on constitutional grounds, the Court found that the mere presence of the witness in the courtroom was not enough to satisfy the Constitution’s Compulsory Process Clause. By preventing the defendant from having the benefit of his accomplice’s testimony, “the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Emphasis added.) Id., at 23. Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony. In Chambers v. Mississippi, 410 U. S. 284 (1973), the Court invalidated a State’s hearsay rule on the ground that it abridged the defendant’s right to “present witnesses in his own defense.” Id., at 302. Chambers was tried for a murder to which another person repeatedly had confessed in the presence of acquaintances. The State’s hearsay rule, coupled with a “voucher” rule that did not allow the defendant to cross-examine the confessed murderer directly, prevented Chambers from introducing testimony concerning these confessions, which were critical to his defense. This Court reversed the judgment of conviction, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may “not be applied mechanistically to defeat the ends of justice,” but must meet the fundamental standards of due process. Ibid. In the Court’s view, the State in Chambers did not demonstrate that the hearsay testimony in that case, which bore “assurances of trustworthiness” including corroboration by other evidence, would be unreliable, and thus the defendant should have been able to introduce the exculpatory testimony. Ibid. Of course, the right to present relevant testimony is not without limitation. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id., at 295. But restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify. IV The Arkansas rule enunciated by the state courts does not allow a trial court to consider whether posthypnosis testimony may be admissible in a particular case; it is a per se rule prohibiting the admission at trial of any defendant’s hypnotically refreshed testimony on the ground that such testimony is always unreliable. Thus, in Arkansas, an accused’s testimony is limited to matters that he or she can prove were remembered before hypnosis. This rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced. In this case, the application of that rule had a significant adverse effect on petitioner’s ability to testify. It virtually prevented her from describing any of the events that occurred on the day of the shooting, despite corroboration of many of those events by other witnesses. Even more importantly, under the court’s rule petitioner was not permitted to describe the actual shooting except in the words contained in Doctor Back’s notes. The expert’s description of the gun’s tendency to misfire would have taken on greater significance if the jury had heard petitioner testify that she did not have her finger on the trigger and that the gun went off when her husband hit her arm. In establishing its per se rule, the Arkansas Supreme Court simply followed the approach taken by a number of States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable. Other States that have adopted an exclusionary rule, however, have done so for the testimony of witnesses, not for the testimony of a defendant. The Arkansas Supreme Court failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake. Although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, many courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony. Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report). The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled. Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 333-342 (1980). Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. See, e. g., People v. Hughes, 59 N. Y. 2d 523, 533, 453 N. E. 2d 484, 488 (1983); see generally R. Udolf, Forensic Hypnosis 11-16 (1983). The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. See Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical and Experimental Hypnosis 311, 335-336 (1979). These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked. Id., at 336. Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject’s own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions. The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant’s advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce. We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant’s testimony that the defendant is unable to prove to be the product of prehypnosis memory. A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections. The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified. But it has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial. In this case, the defective condition of the gun corroborated the details petitioner remembered about the shooting. The tape recordings provided some means to evaluate the hypnosis and the trial judge concluded that Doctor Back did not suggest responses with leading questions. See n. 3, supra. Those circumstances present an argument for admissibility of petitioner’s testimony in this particular case, an argument that must be considered by the trial court. Arkansas’ per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his own behalf. The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Another officer reported a slightly different version of the events: “She stated that she had told her husband that she was going to go outside. He refused to let her leave and grabbed her by the throat and began choking her. They struggled for a moment and she grabbed a gun. She told him to leave her alone and he hit her at which time the gun went off. She stated that it was an accident and she didn’t mean to shoot him. She said she had to get to the hospital and talk to him.” Tr. 388. See also id., at 301-304, 337-338; App. 3-10. Doctor Back’s handwritten notes regarding petitioner’s memory of the day of the shooting read as follows: “Pt states she & husb. were discussing moving out to a trailer she had prev. owned. He was ‘set on’ moving out to the trailer — she felt they should discuss. She becfame] upset & went to another room to lay down. Bro. came & left. She came out to eat some of the pizza, he wouldn’t allow her to have any. She said she would go out and get [something] to eat he wouldn’t allow her — He pushed her against a wall an end table in the corner [with] a gun on it. They were the night watchmen for business that sets behind them. She picked gun up stated she didn’t want him hitting her anymore. He wouldn’t let her out door, slammed door & ‘gun went off & he fell & he died’ [pt looked misty eyed here — near tears]” (additions by Doctor Back). App. 40. The full pretrial order reads as follows: “NOW on this 26th day of November, 1984, comes on the captioned matter for pre-trial hearing, and the Court finds: “1. On September 27 and 28,1984, Defendant was placed under hypnotic trance by Dr. Bettye Back, PhD, Fayetteville, Arkansas, for the express purpose of enhancing her memory of the events of July 2, 1983, involving the death of Frank Rock. “2. Dr. Back was professionally qualified to administer hypnosis. She was objective in the application of the technique and did not suggest by leading questions the responses expected to be made by Defendant. She was employed on an independent, professional basis. She made written notes of facts related to her by Defendant during the pre-hypnotic interview. She did employ post-hypnotic suggestion with Defendant. No one else was present during any phase of the hypnosis sessions except Dr. Back and Defendant. “3. Defendant cannot be prevented by the Court from testifying at her trial on criminal charges under the Arkansas Constitution, but testimony of matters recalled by Defendant due to hypnosis will be excluded because of inherent unreliability and the effect of hypnosis in eliminating any meaningful cross-examination on those matters. Defendant may testify to matters remembered and stated to the examiner prior to being placed under hypnosis. Testimony resulting from post-hypnotic suggestion will be excluded.” App. to Pet. for Cert. xvii. When petitioner began to testify, she was repeatedly interrupted by the prosecutor, who objected that her statements fell outside the scope of the pretrial order. Each time she attempted to describe an event on the day of the shooting, she was unable to proceed for more than a few words before her testimony was ruled inadmissible. For example, she was unable to testify without objection about her husband’s activities on the morning of the shooting, App. 11, about their discussion and disagreement concerning the move to her trailer, id., at 12, 14, about her husband’s and his brother’s replacing the shock absorbers on a van, id., at 16, and about her brother-in-law’s return to eat pizza, id., at 19-20. She then made a proffer, outside the hearing of the jury, of testimony about the fight in an attempt to show that she could adhere to the court’s order. The prosecution objected to every detail not expressly described in Doctor Back’s notes or in the testimony the doctor gave at the pretrial hearing. Id., at 32-35. The court agreed with the prosecutor’s statement that “ninety-nine percent of everything [petitioner] testified to in the proffer” was inadmissible. Id., at 35. The removal of the disqualifications for accused persons occurred later than the establishment of the competence to testify of civil parties. 2 J. Wigmore, Evidence § 579, p. 826 (J. Chadbourn rev. 1979). This was not due to concern that criminal defendants were more likely to be unreliable than other witnesses, but to a concern for the accused: “If, being competent, he failed to testify, that (it was believed) would damage his cause more seriously than if he were able to claim that his silence were enforced by law. Moreover, if he did testify, that (it was believed) would injure more than assist his cause, since by undergoing the ordeal of cross-examination, he would appear at a disadvantage dangerous even to an innocent man.” Id., at 828. The Arkansas Constitution guarantees an accused the right “to be heard by himself and his counsel.” Art. 2, § 10. Rule 601 of the Arkansas Rules of Evidence provides a general rule of competency: “Every person is competent to be a witness except as otherwise provided in these rules.” Ferguson v. Georgia struck down as unconstitutional under the Fourteenth Amendment a Georgia statute that limited a defendant’s presentation at trial to an unsworn statement, insofar as it denied the accused “the right to have his counsel question him to elicit his statement.” 365 U. S., at 596. The Court declined to reach the question of a defendant’s constitutional right to testify, because the case did not involve a challenge to the particular Georgia statute that rendered a defendant incompetent to testify. Id., at 572, n. 1. Two Justices, however, urged that such a right be recognized explicitly. Id., at 600-601, 602 (concurring opinions). Before Ferguson v. Georgia, it might have been argued that a defendant’s ability to present an unsworn statement would satisfy this right. Once that procedure was eliminated, however, there was no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, could be vindicated only by affording a defendant an opportunity to testify before the factfinder. This right reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify. See, e. g., Gagnon v. Scarpelli, 411 U. S. 778, 782, 786 (1973) (probation revocation); Morrissey v. Brewer, 408 U. S. 471, 489 (1972) (parole revocation); Goldberg v. Kelly, 397 U. S. 254, 269 (1970) (termination of welfare benefits). On numerous occasions the Court has proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right. See, e. g., Nix v. Whiteside, 475 U. S. 157, 164 (1986); id., at 186, n. 5 (Blackmun, J., concurring in judgment); Jones v. Barnes, 463 U. S. 745, 751 (1983) (defendant has the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to... testify in his or her own behalf”); Brooks v. Tennessee, 406 U. S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”). Numerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify. See, e. g., Chambers v. Mississippi, 410 U. S., at 302 (“In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”); Washington v. Texas, 388 U. S. 14, 23, n. 21 (1967) (opinion should not be construed as disapproving testimonial privileges or nonarbitrary rules that disqualify those incapable of observing events due to mental infirmity or infancy from being witnesses). The rule leaves a trial judge no discretion to admit this testimony, even if the judge is persuaded of its reliability by testimony at a pretrial hearing. Tr. of Oral Arg. 36 (statement of the Attorney General of Arkansas). The Arkansas Supreme Court took the position that petitioner was fully responsible for any prejudice that resulted from the restriction on her testimony because it was she who chose to resort to the technique of hypnosis. 288 Ark. 566, 580, 708 S. W. 2d 78, 86 (1986). The prosecution and the trial court each expressed a similar view and the theme was renewed repeatedly at trial as a justification for limiting petitioner’s testimony. See App. 15, 20, 21-22, 24, 36. It should be noted, however, that Arkansas had given no previous indication that it looked with disfavor on the use of hypnosis to assist in the preparation for trial and there were no previous state-court rulings on the issue. See, e. g., Contreras v. State, 718 P. 2d 129 (Alaska 1986); State ex rel. Collins v. Superior Court, County of Maricopa, 132 Ariz. 180, 207-208, 644 P. 2d 1266, 1293-1294 (1982); People v. Quintanar, 659 P. 2d 710, 711 (Colo. App. 1982); State v. Davis, 490 A. 2d 601 (Del. Super. 1985); Bundy v. State, 471 So. 2d 9, 18-19 (Fla. 1985), cert. denied, 479 U. S. 894 (1986); State v. Moreno, 68 Haw. 233, 709 P. 2d 103 (1985); State v. Haislip, 237 Kan. 461, 482, 701 P. 2d 909, 925-926, cert. denied, 474 U. S. 1022 (1985); State v. Collins, 296 Md. 670, 464 A. 2d 1028 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N. E. 2d 1190 (1983); People v. Gonzales, 415 Mich. 615, 329 N. W. 2d 743 (1982), opinion added to, 417 Mich. 1129, 336 N. W. 2d 751 (1983); Alsbach v. Bader, 700 S. W. 2d 823 (Mo. 1985); State v. Palmer, 210 Neb. 206, 218, 313 N. W. 2d 648, 655 (1981); People v. Hughes, 59 N. Y. 2d 523, 453 N. E. 2d 484 (1983); Robison v. State, 677 P. 2d 1080, 1085 (Okla. Crim. App.), cert. denied, 467 U. S. 1246 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 110, 436 A. 2d 170, 177 (1981); State v. Martin, 101 Wash. 2d 713, 684 P. 2d 651 (1984). See State v. Ture, 353 N. W. 2d 502, 513-514 (Minn. 1984). The Arkansas court relied on a California case, People v. Shirley, 31 Cal. 3d 18, 723 P. 2d 1354, cert. denied, 459 U. S. 860 (1982), for much of its reasoning as to the unreliability of hypnosis. 288 Ark., at 575-578, 708 S. W. 2d, at 83-84. But while the California court adopted a far stricter general rule — barring entirely testimony by any witness who has been hypnotized — it explicitly Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
sc_petitioner	215	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES DEPARTMENT OF JUSTICE et al. v. JULIAN et al. No. 86-1357. Argued January 19, 1988 Decided May 16, 1988 Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, MaRshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed a dissenting opinion, in which White and O’Connor, JJ., joined, post, p. 15. Kennedy, J., took no part in the consideration or decision of the case. Edwin S. Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Cohen, Leonard Schaitman, and Sandra Wien Simon. Eric R. Glitzenstein argued the cause for respondents. With him on the briefs were Katherine A. Meyer and Alan B. Morrison. Chief Justice Rehnquist delivered the opinion of the Court. Respondents in this case are prison inmates who sued under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, for disclosure of their presentence investigation reports. These reports are prepared by a probation officer for use by the district court at sentencing; they contain background information about a defendant and the circumstances of his offense. After sentencing, the reports are typically transmitted to the Bureau of Prisons and then to the Parole Commission for eventual use in determining whether a prisoner should be released on parole. The courts below ordered petitioners — the Department of Justice and the Parole Commission — to disclose the reports. The question we are now called on to decide is whether the FOIA requires that these presentence investigation reports be disclosed by petitioners or whether the reports fall under one of the FOIA’s statutory exemptions. Rule 32(c) of the Federal Rules of Criminal Procedure outlines the requirements for preparation and disclosure of a presentence report for a criminal defendant who has been adjudged guilty. Rule 32(c)(1) provides that before imposition of sentence the probation service of the district court shall make an investigation into the defendant’s background and the circumstances of the offense. The results of the investigation are compiled into a report, which under Rule 32(c)(2) must contain the defendant’s prior criminal record, a description of the circumstances of the offense and the defendant’s behavior, a discussion of the loss or harm suffered by any victims of the offense, and any other information that might aid the court in sentencing, including the restitution needs of the victim. The Rule also specifies the procedure by which the court is to disclose the report and its contents to a defendant. Rule 32(c)(3)(A) states that “[a]t a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report... exclusive of any recommendation as to sentence.” The court may not disclose, however, portions of the report that contain “diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm,” physical or otherwise, to the defendant or other persons.” Ibid. If the report does contain this type of information, the court is required to give orally or in writing a summary of the factual information that has been withheld and that is to be relied on in determining an appropriate sentence. Once the report has been disclosed, the defendant and his counsel are to be given an opportunity to comment on the report and to introduce evidence showing that the report contains factual inaccuracies. Rule 32(c)(3)(E) also provides that “[a]ny copies of the pre-sentence investigation report made available to the defendant and his counsel and the attorney for the government shall be returned to the probation officer immediately following the imposition of sentence or the granting of probation, unless the court, in its discretion otherwise directs.” After the defendant is sentenced, a copy of the presentence report is typically transmitted to the Bureau of Prisons, where it may be used in determining a defendant’s classification as an inmate, see 28 CFR §§524.10, 524.12(e) (1987), choosing an appropriate treatment program, or deciding eligibility for various privileges. See Brief for Petitioners 7 (citing Fennell & Hall, Due Process at Sentencing, 93 Harv. L. Rev. 1615, 1679 (1980)). A copy of the presentence report is also transmitted to the United States Parole Commission pursuant to § 2(e) of the Parole Commission and Reorganization Act of 1976 (Parole Act), 18 U. S. C. § 4205(e), which makes it the “duty of the... probation officers” to furnish “information available to such officer... concerning any eligible prisoner or parolee” to the Commission upon request. The Parole Commission is then required by statute to consider the report, among other documents, in making a parole decision. § 4207(3). The Parole Act also requires that, at least 30 days before a scheduled parole hearing, the prisoner be provided with “reasonable access to [the] report or other document to be used by the Commission in making” its parole determination. § 4208(b). As in Rule 32(c)(3)(A), however, the Act exempts from this disclosure requirement the same three categories of information — diagnostic opinions, confidential information, and potentially harmful information — that were protected from disclosure by the district court. The Act also requires that if any such information is excluded from disclosure, it is the duty of the Commission (or any other agency) “to summarize the basic contents of the material withheld... and furnish such summary to the inmate.” §4208(c)(3); see also 28 CFR § 2.55(c) (1987). The Parole Act does not contain, however, any express requirement that the inmate return all or any copies of the documents to which he is given “reasonable access.” The present case stems from two separate requests by individual inmates for copies of their presentence reports. In 1984, respondent Kenneth Michael Julian, an inmate in federal prison in Arizona, asked the Parole Commission to furnish him with a copy of his presentence report. When his request was denied, Julian brought this FOIA suit against the Department of Justice in the United States District Court for the District of Arizona. In a brief order, the District Court granted Julian’s motion for summary judgment and ordered the Government to comply with his request. In 1984, respondent Margaret J. Wallace, then an inmate in federal prison in California, filed a FOIA request with the Parole Commission for all of the Commission’s records pertaining to her. The Commission honored her request in large part, but refused to turn over a copy of her presentence report. Wallace then filed suit against the Parole Commission in the United States District Court for the Northern District of California. This court, too, ordered that the pre-sentence report be released. The two cases were consolidated on appeal before the United States Court of Appeals for the Ninth Circuit, which affirmed the judgment in each. 806 F. 2d 1411 (1986). After first stating that the presentence reports are “agency records” for purposes of the FOIA, the court rejected the Government’s contentions that presentence reports are exempt from disclosure under both 5 U. S. C. § 552(b)(3) (Exemption 3) and § 552(b)(5) (Exemption.5). While certain parts of the presentence reports may be withheld pursuant to Rule 32(c)(3) and the Parole Act, 18 U. S. C. § 4208(c), the court found that “neither Exemption 3 nor Exemption 5 provides a blanket exemption for presentence investigation reports” when the FOIA request is made by the subject of the presentence report. 806 F. 2d, at 1416. The court also rejected the Government’s argument that the FOIA’s disclosure requirements were superseded by the special statutory procedures for obtaining presentence reports set out in Rule 32(c) and the Parole Act. Because this decision of the Court of Appeals conflicts with an earlier decision of the United States Court of Appeals for the District of Columbia Circuit, see Durns v. Bureau of Prisons, 256 U. S. App. D. C. 156, 804 F. 2d 701, rehearing en banc denied, 257 U. S. App. D. C. 30, 806 F. 2d 1122 (1986), cert. pending, No. 86-6550, and because it raises several important statutory issues, we granted certiorari, 482 U. S. 926 (1987), and we now affirm. The system of disclosure established by the FOIA is simple in theory. A federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b). See United States v. Weber Aircraft Corp., 465 U. S. 792, 793-794 (1984). Congress created these exemptions because it “realized that legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U. S. 615, 621 (1982); see also CIA v. Sims, 471 U. S. 159, 167 (1985). Nonetheless, “[t]he mandate of the FOIA calls for broad disclosure of Government records,” id., at 166, and for this reason we have consistently stated that FOIA exemptions are to be narrowly construed, see Abramson, supra, at 630; Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). With this principle in mind, we turn to consider whether, as the Government contends, presen-tence investigation reports are exempted from disclosure under either FOIA Exemption 3 or Exemption 5. Exemption 3 of the FOIA permits agencies to withhold matters that are “specifically exempted from disclosure by statute..., provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” § 552(b)(3). The Government argues that this Exemption applies to pre-sentence reports because Rule 32(c) and the Parole Act are statutes that specifically exempt the reports from disclosure and that “refer to particular types of matters to be withheld.” To some extent this is clearly true: both the Rule and the Parole Act specifically exempt from disclosure any information in the report that relates to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties. See Rule 32(c)(3)(A); 18 U. S. C. § 4208(c). This information is thus exempt from disclosure under the FOIA. Beyond this, however, neither the Rule nor the Act satisfies the requirements of Exemption 3. Both provisions have been recently changed, not to protect the presentence report from disclosure, but to ensure that it would be disclosed to the defendant who is about to be sentenced or who is up for parole. For example, in 1966, Rule 32(c) was amended to give sentencing courts the discretion to disclose the reports to defense attorneys and prosecutors. The Advisory Committee Notes indicate that the purpose of this amendment was: “[T]o make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” 18 U. S. C. App., p. 625, 39 F. R. D. 69, 194 (1966). Congress amended the Rule again in 1974, this time changing it to state that “[bjefore imposing sentence the court shall upon request permit the defendant, or his counsel..., to read the report of the presentence investigation,” Pub. L. 94-64, 89 Stat. 376 (emphasis added). In 1983, after an empirical study revealed that “the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information,"Advisory Committee Notes, 18 U. S. C. App., p. 996 (1982 ed., Supp. IV), 97 F. R. D. 245, 307 (1983), Congress made additional changes in the Rule. It made disclosure of the report mandatory by eliminating the request requirement; it authorized disclosure to both the defendant and defense counsel; and it required that disclosure be made at a reasonable time before sentencing. All of this makes clear that the Rule serves two purposes: it prevents disclosure of the three categories of information described above, but it facilitates disclosure of the balance of the report to the defendant. Similarly, the provision of the Parole Act dealing with presentence reports is also designed to ensure that much of the information on which a parole decision is to be based, including the presentence report, be disclosed to the potential parolee. In line with this intent, Congress expressly required that all prisoners be furnished with “reasonable access” to the pertinent documents at least 30 days before a parole hearing. § 4208(b). The Government argues that while Congress did intend that defendants be given some access to their presentence reports, it also sought to limit that access by requiring that all copies of reports that are furnished pursuant to Rule 32(c) be returned to the court, unless the court directs otherwise. Fed. Rule Crim. Proc. 32(c)(3)(E). As stated in the Advisory Committee Notes, the purpose of this provision was “to insure that [the reports] do not become available to unauthorized persons.” 18 U. S. C. App., p. 627, 62 F. R. D. 271, 325 (1974). Admittedly this provision does qualify somewhat the defendant’s access to his or her presentence report when that report is furnished by the district court in the context of sentencing, but in our opinion it does not convert the Rule, a part of which is essentially designed to mandate disclosure, into a statute that “specifically exempt[s] from disclosure” for purposes of Exemption 3 of the FOIA. And, the Parole Act, which governs the Parole Commission’s duties in regard to disclosure of presentence reports, does not itself contain a similar provision. The Act only requires that “reasonable access” to the report be given; there is no express limitation on an inmate’s power to retain a copy of the report. Even if we assume, as the Government suggests, that the Parole Act implicitly adopts the restriction contained in Rule 32(c)(3)(E), this would still not convert § 4208 into an Exemption 3 statute. Exemption 3 permits an agency to withhold only those parts of a presentence report that are expressly protected by Rule 32(c)(3)(A) or 18 U. S. C. § 4208(c); the remaining parts of the reports are not covered by this exemption, and thus must be disclosed unless there is some other exemption which applies to them. The Government also relies on Exemption 5 of the FOIA to support withholding of the requested documents. This Exemption makes the FOIA inapplicable to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U. S. C. § 552(b)(5). In the past, we have interpreted this somewhat Delphic provision as “incorporating] the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 184 (1975); see also FTC v. Grolier Inc., 462 U. S. 19, 26-27 (1983); Weber Aircraft Corp., 465 U. S., at 799. As we stated in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 149 (1975), Exemption 5 “exempt[s] those documents, and only those documents, normally privileged in the civil discovery context.” See also H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (the purpose of Exemption 5 is to ensure that “any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public”). Accordingly, “[t]he test under Exemption 5 is whether the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” Grolier, supra, at 26. Both parties agree that in both civil and criminal cases the courts have been very reluctant to give third parties access to the presentence investigation report prepared for some other individual or individuals. See, e. g., United States v. McKnight, 771 F. 2d 388, 390 (CA8 1985); United States v. Anderson, 724 F. 2d 596, 598 (CA7 1984); United States v. Charmer Industries, Inc., 711 F. 2d 1164, 1173-1176 (CA2 1983); Hancock Brothers, Inc. v. Jones, 293 F. Supp. 1229 (ND Cal. 1968). As the Government points out, one reason for this is the fear that disclosure of the reports will have a chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report. See, e. g., United States v. Martinello, 556 F. 2d 1215, 1216 (CA5 1977). A second reason is the need to protect the confidentiality of the information contained in the report. Accordingly, the courts have typically required some showing of special need before they will allow a third party to obtain a copy of a presentence report. See, e. g., Charmer, supra, at 1174-1176 (following Hancock Brothers, Inc. v. Jones, supra, in concluding that a report may not be disclosed “in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice”). There is no indication, however, that similar restrictions on discovery of presentence investigation reports have been recognized by the courts when the individual requesting discovery is the subject of the report. Indeed, there seem to be no reported judicial decisions on the subject. By itself, of course, the fact that there are no cases directly on point with respect to this particular category of requests for information is not conclusive evidence that no discovery privilege should be recognized in this situation. From our perspective, however, it appears that the reasoning of the cases denying disclosure to third-party requesters would have little applicability to a request by a defendant to examine his own report, particularly in light of Rule 32(c)’s specific mandate that the report be disclosed to the defendant during sentencing. We note in addition that most privileges of the sort described in Exemption 5 arise as a result of judicial decision. See, e. g., United States v. Reynolds, 345 U. S. 1, 7-8 (1953). But unless the privilege is constitutionally rooted, Congress may determine for itself which privileges the Government may avail itself of and which it may not. Here, the thrust of the disclosure portions of Rule 32(c) and the Parole Act speaks so strongly against the existence of a privilege on the part of the Government when the request is from the subject of the report that we think it accurate to say that Congress has strongly intimated, if it has not actually provided, that no such privilege should exist. The Government contends nonetheless that because Exemption 5 applies to documents that “would not be available by law to a party... in litigation with the agency” (emphasis added), we cannot construe Exemption 5 in such a way as to make an agency’s duty to disclose a presentence report turn on the nature or identity of the requester. The Government points to our reasoning in Grolier, where we held that documents that were privileged under the work-product doctrine were not “routinely” available for Exemption 5 purposes even though it was possible for some parties seeking discovery to obtain access to the document by showing “substantial need.” 462 U. S., at 27. As we stated, “[wjhether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to ‘routine’ disclosure.” Ibid. Such a result, “by establishing a discrete category of exempt information, implements the congressional intent to provide ‘workable’ rules.” Ibid.; see also EPA v. Mink, 410 U. S. 73, 79 (1973) (the exemptions are “plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed”). Contrary to the Government’s contention, however, nothing in Grolier, or in the language of Exemption 5, requires that, even though Congress has spoken in the manner that it has, a privilege against disclosure must nonetheless be extended to all requests for these reports, or to none at all. Grolier held that the fact that a claim of privilege might be overridden in a particular case by special circumstances did not mean that discovery was “routinely available” within the meaning of Exemption 5. We reaffirm that holding, but we decline the Government’s invitation to extend i1>to circumstances in which there is no basis for a claim of privilege from disclosure against one class of requesters, although there is a perfectly sound basis for resisting disclosure at the behest of another class of requesters. The fact that no one need show a particular need for information in order to qualify for disclosure under the FOIA does not mean that in no situation whatever will there be valid reasons for treating a claim of privilege under Exemption 5 differently as to one class of those who make requests than as to another class. In this case, it seems clear that there is good reason to differentiate between á governmental claim of privilege for presentence reports when a third party is making the request and such a claim when the request is made by the subject of the report. As we noted above, there simply is no privilege preventing disclosure in the latter situation. Even under our ruling in Grolier, therefore, discovery of the reports by the defendants themselves can be said to be “routine.” Affirmed. Justice Kennedy took no part in the consideration or decision of this case. No presentence investigation is required if, with the permission of the court, the defendant waives the report, or if the court finds that there is already sufficient information in the record to enable a meaningful exercise of the court’s sentencing discretion. If the court finds that no report is necessary, it must explain this finding on the record. Fed. Rule Crim. Proc. 32(c)(1). This use of the presentenee report by the Bureau of Prisons is not required by statute, although it has 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_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Plaintiff-Appellee, v. Darlina K. FRANCE, Defendant-Appellant. No. 87-1282. United States Court of Appeals, Ninth Circuit. Argued Nov. 10, 1988. Submitted July 7, 1989. Decided Sept. 13, 1989. See also, 666 F.Supp. 1421. Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendant-appellant. Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Before NELSON, REINHARDT and WIGGINS, Circuit Judges. REINHARDT, Circuit Judge: Darlina France shot her husband after an argument. The event appears to have been merely the most violent moment in a relationship that had for some time been less than idyllic. Since the shooting occurred on the military base where the couple lived, it fell within the “special territorial jurisdiction” of the United States, see 18 U.S.C. § 113, and made France liable for a federal offense. The Government charged her with assault with intent to murder, assault resulting in serious bodily injury, 18 U.S.C. § 113(a), (f), and using a firearm in the commission of a felony, 18 U.S.C. § 924(c). She was found guilty on two assault-related charges and on the weapons count. The conviction under § 924(c) carried with it a five-year mandatory prison term, without the possibility of probation or parole. Because of the circumstances surrounding the offense, events in the district court, and concerns about the constitutionality of § 924(c) as applied to France, we ordered supplemental briefing in this case after argument. In the interim, the Supreme Court decided Gomez v. United States, — U.S.-, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), holding that it is reversible error for federal magistrates to conduct jury selection in felony trials. A magistrate conducted the voir dire in France’s trial. We conclude that France’s case falls within the Gomez rule, and we reverse her conviction. We address the broader concerns which we have had about this case only in passing at the end of our discussion. I The Government and France offer starkly disparate pictures of the events which led up to the shooting. The Government emphasizes that France had apparently been involved in violent incidents with her two previous husbands and that she was angered when, the day before the shooting, her husband had knocked over their Christmas tree and, on the day of the shooting, had taken a beer from her. At trial, France described the situation somewhat differently. She recounted a history of physical abuse at the hands of a previous husband and described how, in the midst of an argument and just prior to the shooting, her current husband had attacked her. The parties stress different facts concerning the actual shooting as well. The Government makes much of the fact that Mr. France was about 20 feet from his wife when he was shot, while France highlights the fact that her husband had turned around and was beginning to walk toward her once more when she fired. Whatever the case, France shot her husband in the shoulder with a gun he had bought for her some months before. She then went to her husband and told one of her two daughters to call an ambulance. At this point, France appears to have made several contradictory statements, repeating to law enforcement officers that she had not meant to shoot her husband, while also stating that “he [her husband] took my beer and that was the last straw.” At trial, Mr. France testified that he believed the shooting to have been accidental, given the gun’s light trigger pull. He also testified that he and his wife had reconciled, that they loved each other and that he had asked that she not be prosecuted. The Government refused to accede to this request and chose to prosecute France under § 924(c), which carries a mandatory five-year prison sentence without possibility of probation or parole, as well on the two felony assault counts. Jury selection was conducted by a federal magistrate, without objection from France. The jury convicted France of assault with a deadly weapon, a lesser included offense of assault with intent to commit murder under 18 U.S.C. § 113(a), assault resulting in serious bodily injury under 18 U.S.C. § 113(f), and using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c). Then followed a most enlightening sentencing hearing. Judge Kelleher, expressing understandable hostility to his obligation to impose a five-year, no-probation, no-parole sentence on France, criticized the statute’s relegation of the sentencing judge to an individual who gives only a “pro forma performance.” He continued by stating that he “might as well go fishing on the day of the sentence and ask the clerk to pronounce sentence.” He explicitly told France that he felt her case did not warrant a sentence of five years in prison without the possibility of parole. He then imposed the sentence required by § 924(c), sentencing France to concurrent three-year terms of probation for her two convictions under § 113. France appealed. We ordered supplemental briefing on issues concerning the constitutionality of § 924(c), and allowed the National Association of Criminal Defense Lawyers to file an amicus curiae brief on France’s behalf. Meanwhile, the Supreme Court decided Gomez. We then granted the motion of France’s attorney, a public defender, to file a supplemental brief concerning Gomez, and ordered the government to respond. As we conclude that the decision in Gomez requires us to reverse France’s conviction, we do not reach the constitutional issues ably briefed by the parties. II A. Gomez In Gomez, the Supreme Court examined whether a provision of the Federal Magistrates Act (“Act”) which allows magistrates to perform “such additional duties as are not inconsistent with the Constitution and laws of the United States,” 28 U.S.C. § 636(b)(3), empowers magistrates to conduct jury selection in felony trials. 109 S.Ct. at 2239. The Court noted that Gomez and the other petitioners had initially objected to having a magistrate conduct voir dire and jury selection, but had never demonstrated or claimed that they were prejudiced by the magistrate’s action. Id. After examining the structure and history of the Act, the Gomez court concluded that jury selection was not within the “ ‘range of duties’ that Congress intended magistrates to perform.” Id. at 2242 (quoting Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976)). The Court emphasized three factors in reaching its result. First, it noted that Congress had specifically authorized magistrates “to conduct trials of civil matters and of minor criminal cases” and determined that this “carefully defined grant of authority” “should be construed as an implicit withholding of the authority to preside at a felony trial.” 109 S.Ct. at 2245. Second, it examined in detail the role that jury selection occupies in a criminal trial, observing that it represented a “critical stage of the criminal proceeding,” with voir dire the “primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice.” Id. at 2246 (citing Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137-38, 36 L.Ed. 1011 (1892), and Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981)). Finally, the Court discussed the degree to which the individual who conducts voir dire must make sensitive evaluations of “not only spoken words but also [the] gestures and attitudes of all participants to ensure the jury’s impartiality,” and expressed “serious doubts that a district judge could review the[ese] functions] meaningfully.” 109 S.Ct. at 2247. Based on these observations, the court concluded that Congress had not given magistrates the power to conduct jury selection in a felony trial. The Court, in the final portion of its opinion, stated clearly that “a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside,” id. at 2248, placed the error in Gomez in the category of errors that “ “can never be treated as harmless.” ’ ” Id. (quoting Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2056, 95 L.Ed.2d 622 (1987) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967))). It thus ended its opinion by ruling that Gomez error was not susceptible to harmless error analysis. 109 S.Ct. at 2248. Having described the rationale and holding of Gomez, we turn now to the task of applying it to France’s case. B. Application of Gomez When we ordered the government to respond to the Gomez brief filed by France’s public defender, we specifically mandated that the government address issues of retroactivity and waiver. We have reviewed the government’s arguments and conclude (1) that Gomez must be applied (at least) to all convictions not yet final, and (2) that the fact that France did not object to the magistrate conducting jury selection does not serve to waive her right to a reversal under Gomez. (1) The Supreme Court has made clear that “as a rule, judicial decisions apply ‘retroactively.’ ” Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984) (“Stumes ”) (quoting and citing Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 877, 35 L.Ed.2d 29 (1973)). Retroactivity is “most appropriate” in those cases where a new rule “is designed to enhance the accuracy of criminal trial.” Stumes, 465 U.S. at 643, 104 S.Ct. at 1342 (new constitutional rule); see . also Williams v. United States, 401 U.S. 646, 653 & n. 6, 91 S.Ct. 1148, 1152 & n. 6, 28 L.Ed.2d 388 (1971) (plurality opinion). Although the Court has usually discussed retroactivity in the context of new constitutional rules, we believe that the analysis of Stumes and Williams applies to Gomez as well. The Supreme Court, although its decision was, in the end, one of statutory construction, made clear that its holding was compelled by the notion that any other result might well run afoul of the Constitution by authorizing the deprivation of one of the “basic rights” of a criminal defendant. See Gomez, 109 S.Ct. at 2241, 2246-48. Moreover, the Gomez court’s explicit discussion of the potential for incurable error in jury selection should magistrates select a jury in a felony trial over which a district judge would ultimately preside, id. at 2247, demonstrates that its decision was grounded in notions of trial “accuracy,” making the Gomez rule precisely the sort of holding “most appropriate” for retroactive application. Stumes, 465 U.S. at 643, 104 S.Ct. at 1341. Finally, we note that the question resolved in Gomez had never previously been addressed by the Supreme Court. Indeed, the Court explictly noted the conflict among the courts of appeals on the question, citing two of our own cases (which it ultimately overruled, infra) as examples of the view it rejected. 109 S.Ct. at 2240 & n. 7. The Gomez result thus represents a newly announced rule concerning the conduct of felony trials. As such, it is a rule which must be applied retroactively. In the words of the Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) {“Griffith”)- [A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final, with no exception for cases in which the rule constitutes a “clear break” with the past. Accordingly, we conclude that the rule announced in Gomez v. United States must be applied “to all cases pending on direct review or not yet final” on July 7, 1989, the date on which the mandate in Gomez issued. “Final” in this context refers to “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith, 107 S.Ct. 712 n. 6. (2) We next turn to the question whether France waived her right to reversal under Gomez by not raising an objection to having the magistrate select the jury for her trial. The government relies on two aspects of Gomez to support the view that we should find waiver here. It first notes that the Court stated (in its recitation of the facts) that the petitioners in Gomez did object when magistrates selected their juries. 109 S.Ct. at 2239. Second, the government quotes a snippet of the concluding sentence in Gomez where the Court stated that harmless error analysis would not apply in a case “in which, despite the defendant’s objection ... [a magistrate] exceeds his jurisdiction by selecting a jury.” Id. at 2248. The government suggests that these observations are sufficient to demonstrate that contemporaneous objection is required to preserve one’s right to challenge the magistrate’s conduct of voir dire at some later point. We do not find the government’s argument persuasive. Looking first to the Gomez decision itself, we find absolutely no indication in the tenor or the text of the opinion to suggest that the Court relied on, or did more than note — in the interest of providing a full and accurate description of the facts before it— the fact the petitioners had objected to the magistrate’s conducting voir dire. The snippet recited above merely recapitulates the facts of the case as a descriptive matter. We do not think that the passage can reasonably be read to suggest that the Court intended to limit the broad, definitive rule it announced to the precise facts before it. We have a far more tangible reason for our holding, however. As the Gomez court itself noted, our court had previously ruled in two cases that it was not error for magistrates to conduct voir dire in felony trials. 109 S.Ct. 2240 n. 7 (citing United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986)). Thus the uniform, settled rule applicable to France at the time of her trial was that the magistrate was empowered to select her jury. As Gomez now informs us, our view was erroneous. The only question, therefore, is whether France should be penalized for abiding by the controlling law at the time. We have held in two decisions en banc that a party does not waive its right to challenge a jury instruction if it fails to register a contemporaneous objection— even when contemporaneous objection is required by procedural rule — if there is a “solid wall of circuit authority” which would have prevented the district court from correcting the alleged error. Guam v. Yang, 850 F.2d 507, 512 n. 8 (9th Cir. 1988) (en banc) (“Yang II ”); United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970) (en banc) (Fed.R.Crim.P. 30) (“Scott ”). The justifications for this rule are simple. Objecting in the trial court to a clearly defined rule of the circuit is futile, inasmuch as the trial court cannot overrule authority binding on it. Furthermore, requiring parties to object to aspects of the trial that have already been approved by the court of appeals would work the “ ‘unhappy result’ ” of “ ‘encouraging] defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned.' ” Yang II, 850 F.2d at 512 n. 8 (quoting Scott, 425 F.2d at 57-58). Even though the issue before us does not involve a failure to object to a jury instruction, we believe, contrary to the government's argument, that the rule of Yang II and Scott is not limited to the narrow facts of those cases and is applicable to France’s case. We note first that the justifications for the rule in our earlier en banc cases apply with at least equal force here. Second, and equally important, the rule announced in Gomez is one that touches on one of the most “basic rights” of the accused, the right to a fair and accurate trial. As we implied when we framed the question, supra at 227, it seems to us at best unseemly, and at worst irresponsible, to penalize France for following the law as it existed at the time her jury was selected. Finally, it is incongruous to hold that a rule that is “designed to enhance the accuracy of a criminal trial,” Stumes, 465 U.S. at 643, 104 S.Ct. at 1342, and which must, therefore, be given broad retroactive application, can be waived because a defendant did not guess that the law would change some time after the error was committed. We conclude in this case that France was presented with a “solid wall of circuit authority” and that an exception similar to that recognized in Yang II and Scott is applicable. Peacock and Bezold had already decided, erroneously, that magistrates could conduct voir dire in felony trials. Any objection to the magistrate performing voir dire in Franco’s case would, therefore, clearly have been futile. We therefore hold that France did not waive her right to object, once the Supreme Court’s decision in Gomez had been rendered, to having a magistrate select her jury. Ill Since we have concluded that the per se rule of reversal announced in Gomez applies to all cases not final when Gomez was decided and that France has not waived her ability to avail herself of that rule, we reverse her conviction. We offer only two final observations. The first concerns the government’s decision to prosecute France under § 924(c). While we understand that courts must give the Executive extremely wide latitude in choosing the statutes under which it seeks to indict and prosecute offenders, we, as the district judge apparently was, have been left with the sense that Darlina France may not be the sort of hardened, violent offender whom Congress had in mind when it enacted the Comprehensive Crime Control Act of 1984, of which § 924 was a part. See S.Rep. No. 98-225, 98th Cong., 2d Sess. 312-13, reprinted in 1984 U.S.Code Cong. & Admin. News, 3182, 3490-91. We doubt that the purposes of punishment, even society’s interest in retribution against those who violate its norms, are well served by imprisoning France for five years, separating her from her daughters and the husband, her “victim,” with whom she has apparently reconciled. See W. Shakespeare, Merchant of Venice, Act IV, scene 1, at 184 et seq. Finally, we add a word about the public defender who represented France. Throughout these lengthy proceedings, he has represented his client with vigor and diligence. His supplemental brief on the constitutionality of § 924 was both a substantial and an impressive undertaking although, ironically, it turned out to be irrelevant to our disposition of the case. His Gomez brief, which appeared only a few weeks after the decision was handed down, was equally impressive, and was disposi-tive. In an era when the offices of federal public defenders will likely bear both a greater share of the burden of defending federal defendants and a greater responsibility for securing the rights of the accused, see Caplin & Drysdale, Chartered v. United States, — U.S.-, 109 S.Ct. 2667,2677,105 L.Ed.2d 528 at 547,559 (1989) (dissenting opinion), it seems appropriate to commend exceptional effort in an unusual case. This case was unusual and the public defender’s efforts were exceptional. The conviction is REVERSED . The government in its brief advanced the view that the fact that district judges in Hawaii are “readily available" to review the behavior of magistrates during voir dire distinguishes France’s case from the situation in Gomez, We reject this argument on two grounds. First, the Supreme Court's careful description of the role of the judge in conducting voir dire, supra, does not invite the sort of distinction between “ready” and “less than ready” availability that the government seeks to draw. Either the judge is there conducting voir dire or he is not; if he is not there — no matter how close to the courtroom he may be or how soon he is consulted— the potential for "meaningful review” has been lost. See Gomez, 109 S.Ct. at 2247. Second, the Supreme Court explicitly ruled that magistrates lack the power to conduct voir dire in a felony trial. Thus, in every case in which a magistrate conducts voir dire the defendant is deprived of (in this case) her "basic” right “to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside." Id. at 2248. . As we are not called upon to decide it in this case, we leave open the question whether the Gomez decision should be afforded "complete” retroactive effect and applied to convictions pending on collateral review. See Teague v. Lane, — U.S.-, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_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. CLARK et al. v. MUTUAL LOAN & INVESTMENT CO. No. 10740. Circuit Court of Appeals, Eighth Circuit. Feb. 17, 1937. Rehearing Denied March 13, 1937. J. A. Tellier, of Little Rock, Ark., for appellants. Verne McMillen, of Little Rock, Ark., for appellee. Before SANBORN, WOODROUGH, and BOOTH, Circuit Judges. BOOTH, Circuit Judge. This is an appeal from a decree denying an adjudication in bankruptcy and dismissing the petition. Petitioners, appellants herein, creditors of the Mutual Loan & Investment Company, filed a petition on May 8, 1936, in the United States District Court for the Eastern District of Arkansas seeking to have the Company adjudicated a bankrupt. The petitioners alleged in their petition that the Loan Company, while insolvent and within four months preceding the date of the filing of the petition, namely, on January 10, 1936, committed an act of bankruptcy, to wit, “was placed in the hands of a Receiver by the Pulaski Chancery Court on January 10, 1936, on the ground of insolvency.'” The Loan Company, its officers, its receiver, and certain of its creditors, filed an answer, admitting that the Pulaski chancery court did appoint a receiver on January 10, 1936, while the Loan Company was insolvent, but denying that the appointment of said receiver constituted an act of bankruptcy. The answer further set forth that on December 23, 1935, the hoard of directors passed a resolution consenting that the Loan Company be liquidated under the provisions of section 8 of Act 109, p. 307, of the Acts of the General Assembly of Arkansas, 1931; that the state bank commissioner took possession of its office, property, and all its assets on said date; that the bank commissioner made an inventory of its assets as of December 21, 1935, and filed the same in the Pulaski chancery court on December 31, 1935, and had the case there docketed, as provided by said Act 109, p. 300. The answer further set forth that the hank commissioner filed a petition in the Pulaski chancery court on January 8, 1936, in which he alleged that the Loan Company was insolvent and prayed that the Pulaski chancery court appoint a receiver; that the Pulaski chancery court did appoint T. H. Humphreys, Jr., as receiver on January 10, 1936. It was further set forth in said answer that the bank commissioner had exclusive possession and control of the assets of the Loan Company at all times after he took charge thereof on December 23, 1935, up to the date the receiver was appointed and took charge of said assets on January 10, 1936; that the directors and stockholders of appellee were excluded from possession or control of the corporation’s assets from and after December 23, 1935, to January 10, 1936; that the Loan Company, respondent, had no chance to commit an act of bankruptcy within that period; that the act of bankruptcy was committed on December 23, 1935, on which date the company was insolvent, which act was committed more than four months before the petition was filed on May 8, 1936. The case came on for hearing in the trial court, and evidence was introduced by both the petitioning creditors and by the respondents. The petitioning creditors requested the court to make certain declarations of law, which request was overruled. The trial court then made findings of fact and conclusions of law in which he sustained the theory of respondents, and refused to adjudicate the Loan Company a bankrupt; and dismissed the petition. The findings are set out in the margin. Petitioners excepted to the findings of fact and declarations of law as made, and have brought this appeal from the decree entered. From the evidence introduced, it appears, without substantial contradiction, that on December 23, 1935, six directors of the Loan Company met pursuant to telephone call, without written notice as provided in the by-laws, and passed a resolution consenting to be liquidated by the bank commissioner, over the objection of two of the directors who were present, and without the presence or consent of the seventh director. The minutes of that meeting stated that “the President explained to the Board that since there had been so much talk and it seemed that the Directors could not get together on anything that our best course was to turn the affairs of the Company over to the State Banking Department.” No admission of insolvency was made at that time. Appellants here contend that the directors’ meeting was not valid, and that the possession by the bank commissioner of the company was an unlawful possession or trespass. Therefore, that such possession was not an act of bankruptcy. The Arkansas act under which the bank commissioner purported to take possession of the Loan Company (Acts of Arkansas, 1931) reads as follows: “Act 109. “An Act to Amend Act 354 of the Acts of 1927 to Prevent Fraud in the Sale of Securities and for Other Purposes. * * * “Section 8. Whenever the Commission shall ascertain by examination or otherwise that the assets of any investment company, which has received authority to sell securities in Arkansas under Act 354 of the Acts of 1927, shall have become impaired to such extent as to endanger or jeopardize the safety of the investments therein or that any such investment company is conducting its business in a fraudulent, illegal or unsafe manner, which will or may endanger or jeopardize the safety of investments therein, the Commission may in any such event immediately take possession of the property and assets of such investment company and said Commission shall make or have made an inventory of the assets in duplicate of said investment company, one of which shall be filed in the office of the Commission and the other in the office of the Clerk of the Chancery Court of the County in which said institution was domiciled and the Clerk of said Court shall give such case a number on the Chancery Court Docket. The officers, directors and stockholders may have sixty days from the date when the Commission takes charge of said property to make good any deficit which may exist and at the expiration of said time if said deficits have not been made good, said Commission may proceed to appoint a liquidating agent by and with the consent of the Chancellor having jurisdiction in said cause, and proceed to liquidate the assets of said company in the same manner as is now provided by law for liquidation of a corporation in receivership.” Appellants contend that insolvency is not a condition precedent which will authorize a commissioner to take possession of the assets of an investment company; that possession by the bank commissioner under said statute must be coupled with insolvency to constitute an act of bankruptcy. Appellants further contend that the appointment of a receiver for the Loan Company by the Pulaski chancery court on January 10, 1936, was a separate and independent act of bankruptcy as of said date; that under the provisions of the act, above quoted, the bank commissioner should hold the affairs of an investment company in statu quo for a period of 60 days before he attempts to liquidate them, in order that the directors and stockholders of the corporation may rehabilitate it if they see fit and are able; that in the case at bar the bank commissioner after 20 days abandoned his prerogatives under this statute and elected to follow a different course of procedure under a different act (governing the appointment of receivers for dissolved corporations; section 44 of Act 255, page 843, of the Acts of Arkansas of 1931) ; that the commissioner did not appoint a liquidating agent to succeed himself, but filed an initial pleading and instituted an independent suit in the chancery court when he asked for the appointment of a receiver; that the appointment of a receiver by the chancellor was an independent action; that, when the bank commissioner ceased to act under the statute which gave him a right to act (section 8 of Act 109) and invoked the jurisdiction of the chancery court for the appointment of a court receiver, he abandoned the liquidation under Act 109, and the appointment of a court receiver became an act of bankruptcy from which the period of four months began to run. It appears, however, that when the bank commissioner filed the inventory as of December 21, 1935, with the clerk of the chancery court of Pulaski county in the state court, it was given a number, 53029, in that court and entitled, “Mutual Loan & Investment Company, in Liquidation.” The case was given the same title and number when the receiver was appointed by the same court on January 10, 1936. There was no interregnum between the possession of the bank commissioner and the possession of the receiver. The main question presented to this court is whether finding 14 of the findings of fact of the trial court is supported by substantial evidence. The finding may be subdivided into several parts, among them: First, whether the company in question was insolvent on December 23, 1935; second, whether the taking possession on that date by the bank commissioner under the statutes of Arkansas was valid; third, whether the possession taken continued until the appointment of T. H. Humphreys, Jr., as receiver on January 10, 1936. As to the first, it is to be noted: (1) That the bank commissioner in his petition to the court under date .of January 8, 1936, alleges insolvency and refers to an inventory of the company made by the bank commissioner as of December 21, 1935, which inventory was on file with the clerk of the court. (2) That there was testimony introduced at the hearing to the same effect. (3) There was an adjudication of insolvency in the Pulaski chancery court on January 10, 1936, when the receiver was appointed. No business was transacted between the taking possession on December 23, 1935, and the appointment of the receiver on January 10, 1936. (4) That the trial court has found insolvency on December 23, 1935, in finding 14. (5) That there is no substantial evidence to the contrary. (1] Where a trial is had to the court, its finding of fact will be taken as true if there is any substantial evidence in its support. In the case of Kline v. H. Poleskin & Son (C.C.A.) 46 F.(2d) 998, 999, the court concisely states the rule as follows: “It is not necessary to cite authorities to the effect that findings of a trial judge, who has had the witnesses before him, will not be disturbed, where there is substantial evidence to sustain such findings. The rule as laid down by this court in Wingert v. President, etc., of Hagerstown Bank, 41 F.(2d) 660; 663, is that such findings will not be disturbed, ‘unless it plainly and unmistakably appears that they are wrong.’ As stated by the Supreme Court, the rule is that such a finding is unassailable if there is ‘any testimony consistent with the finding.’ Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 170, 61 L.Ed. 356.” In Chicago Motor Vehicle Co. v. American Oak Leather Co. (C.C.A.) 141 F. 518, the question arose whether the findings of insolvency were established by the evidence. The court said (page 520): “The issues were sent to the referee, as special master, ‘to hear, take proofs, and. report his conclusions,’ on the application and consent of all parties.' Thus the appellant waived its right to a jury trial, and chose submission of the controversy to the master, not as the mere recorder of the testimony, but as the tribunal of first instance to determine the ultimate facts. In such case the findings ‘are to be taken as presumptively correct,’ and are reviewable only ‘when there has been manifest error in the consideration given to the evidence or in the application of the law.’ * * * The rule so stated -is plainly applicable for just consideration of the mass of conflicting testimony introduced upon this hearing to ascertain the value of the assets, on which the question of insolvency hinges. As the referee heard the witnesses, his judgment of the relative value and credibility of their testimony is entitled to affirmance under these conditions, unless it appears that it rests upon an erroneous theory of valuation, or controlling testimony was disregarded in his conclusions. The report of the referee contains a review of the testimony, and is convincing that there was no departure from the rule of fair valuation of assets, as defined under the bankruptcy act; that the findings are well supported by competent evidence; and that the valuations submitted on behalf of the appellant were generally excessive — grossly so in respect of patents and manufacturing plant in any view. This consideration of the findings is strengthened by their confirmation upon review and full hearing in the District Court. So, were it not for the contentions in argument and briefs on behalf of the appellant that both testimony and findings are erroneously and manifestly predicated upon ‘wrecker’s prices’ and ‘scrap values,’ and not upon fair valuations as a going concern, the general rule above cited would authorize affirmance of the report and order, without reviewing the testimony on valuations; and it may well be remarked that the briefs do not clearly point out the errors complained of. “On examination, however, of the testimony referred to, it satisfactorily appears' that the evidence supports the finding of fair valuation of the aggregate of the appellant’s property, and that the complaints so earnestly pressed are not well founded.” In the case of In re Doyle (D.C.) 199 F. 247, at page 255, the court said: “I am therefore constrained to hold that the findings of fact by the special master upon conflicting testimony, uninfluenced by any mistaken conclusions of law, should not be disturbed, even though- this court but for such findings might have reached a different conclusion. Such is the rule enunciated in Re Harr (D.C.) 143 F. 421, 16 A.B.R. 213, and in numerous other cases.” In the case of In re Rome Planing-Mill Co. (D.C.) 99 F. 937, it was held that, where a petition in involuntary bankruptcy is referred to a referee in bankruptcy to find and report on the question whether the respondent was solvent or insolvent at the date of- the alleged act of bankruptcy, his conclusion, based on the examination of witnesses as to the extent of the respondent’s liabilities and the value of his property, will not be set aside by the court on review, unless plainly contrary to the evidence. As to the second point touching the validity of the taking possession by the bank commissioner, it is contended that the meeting of the board of directors which gave consent to the liquidation of the company was not called with all the requirements stated in the by-laws. The answer to this contention is: (1) That no consent by the board of directors was necessary to the taking possession by the bank commissioner; (2) that there was a waiver of the requirements for calling the meeting, by-the taking part in the business of tEe meeting without protest by those present, who constituted a majority of the directors. As to the third point, that the bank commissioner had abandoned his right to possession under section 8 of Act 109 of the Statutes of Arkansas for 1931, there is no evidence of such intention on the part of the bank commissioner. It is true that he did not wait 60 days for the company to make good any deficit, but this was unnecessary, in view of the action of the board of directors already referred to. The bank commissioner obtained the consent of the» Pulaski chancery court to a liquidation, in the form of an order by that court appointing a receiver for the company, and the bank commissioner then turned over the company and its assets to the receiver so appointed. The next question to be answered is, What was the effect of the taking possession of the assets and affairs of the company by the bank commissioner on December 23, 1935, in view of the surrounding circumstances ? We shall here assume that insolvency of the company existed on that date as we have heretofore attempted to show. What, then, was the effect of the taking possession by the bank commissioner? Bramwell v. U. S. Fidelity Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368, was a case involving primarily Rev.St § 3466 (31 U.S. C.A. § 191), but also involved the meaning of “an act of bankruptcy.” In its opinion the court said (269 U.S. 483, at page 490, 46 S.Ct. 176, 178, 70 L.Ed. 368): “The statutes of the state (sections 6221-6223) provide for the handing over of the property of insolvent banks to the state superintendent of banks to be by him administered and disposed of for the benefit of creditors. By the resolution of the directors in this case, the bank was wholly divested of the possession and control of its property and business; and the exclusive possession and control of them passed to appellant for the purpose of liquidating the debts of the bank. * * * “The effect of the resolution of the bank directors is the same as if it expressly granted and imposed upon appellant all the powers and duties in respect of the bank’s property and the liquidation of its debts that are specified in the state law. The resolution authorized and was followed by the handing over of the possession and control of all the bank’s property to be converted into money to pay the bank’s debts. The act of the directors made the bank’s insolvency notorious. * * * It must be held that * * * because of the bank’s insolvency, a trustee was put in charge of its property under a state law within the meaning of the Bankruptcy Act.” See Mothersead v. United States Fidelity & Guaranty Co., 22 F.(2d) 644 (C.C.A. 8); In re Security Savings & Loan Ass’n (D.C.) 58 F.(2d) 644; United States v. Parker (D.C.) 9 F.(2d) 473; United States v. Adams (D.C.) 9 F.(2d) 624. It is suggested that the insolvency on December 23, 1935, may have been insolvency under state statutes and not insolvency under the Bankruptcy Act (11 U. S.C.A. § 1 et seq.) ; but finding 14 of the trial court was made in a bankruptcy proceeding, and it is to be presumed that the term “insolvent” was used with the meaning given to it under the Bankruptcy Act. In view of the authorities above cited, we reach the conclusion that the taking possession by the bank commissioner on December 23, 1935, of the property and business of the Mutual Loan & Investment Company was, by reason of the insolvency of the company on that date, an act of bankruptcy on the part of the company, and that, therefore, the filing of the petition on May 8, 1936, by the appellants was not within the time prescribed by the Bankruptcy Act, and, therefore, that the petition was rightfully dismissed. We have considered the other questions raised by the parties to this appeal, but think that they do not require further discussion. The decree is accordingly affirmed. “In the matter of Mutual Loan & Investment Company, “Bankruptcy No. 4469. “Now on this day this cause comes on for hearing, and come the petitioning creditors, W. B. Clark, and others, by J. A. Tellier and George Watson, their attorneys, and come the respondents Mutual Loan & Investment Company, and others, by Verne McMillen, their attorney, and this cause is submitted to the court upon the petition, the response and the testimony of witnesses taken ore tenus at tlie bar of tlio court. “And the court being well and sufficiently advised in the premises doth find tlie facts to be as follows: “(1) The Mutual Loan & Investment Company is a monied, business or commercial corporation organized under and pursuant to the laws of tlie State of Arkansas. “(2) The Mutual Loan & Investment Company is not a municipal, railroad, insurance or banking corporation. “(3) The Mutual Loan & Investment Company is principally engaged in the loan find investment business. “(4) The Mutual Loan & Investment Company has for the greater portion of the six months next preceding the date of the filing of the petition in this case had its principal place of business in the city of Little Rock, Arkansas, within the Eastern District thereof. “(5) The Mutual Loan & Investment Company owes debts to the amount of one thousand dollars and upwards, and is insolvent. “(6) The Mutual Loan & Investment Company is neither a wage earner nor a person engaged principally in farming or the tillage of the soil. “(7) W. B. Clark and the other petitioners are creditors of said Mutual Loan & Investment Company, having provable claims against it amounting in the aggregate in excess of securities held by them to the stun of five hundred dollars. “(8) No one of tlie petitioning creditors is entitled to priority of payment of his said claim within the meaning of Section 64b of the United States Bankruptcy Act and amendment thereof [11 U.S.C.A. § 104(b)]. “(9) No one of tlie petitioning creditors received a preference within the meaning of Section 64 (b) — (a) of said law as amended [11 U.S.C.A. § 104(b) — (a)]. “(10) The petitioning creditors are qualified by reason of the nature and aggregate amount of their claims against the Mutual Loan & Investment Company. “(11) On January 10, 193.6, the Pulaski Chancery Court appointed T. H. Humphrej's, Jr., receiver of the Mutual Loan & Investment Company, a corporation, while it was insolvent. ' “(12) On May 8, 1936, W. B. Clark and others filed an involuntary petition in the United States District Court for the Eastern District of Arkansas, Western Division, sitting in bankruptcy, against the Mutual Loan & Investment Company, a corporation organized under the laws of Arkansas, praying that such corporation be adjudged an involuntary bankrupt. “(13) The petition so filed as set out in paragraph (12) above was within four months of the date of the appointment of a receiver by the Pulaski Chancery Court, while said Mutual Loan & Investment Company was insolvent. “(14) The Mutual - Loan & Investment Company was insolvent on December 23, 1935, on which said date the Bank Commissioner of the State of Arkansas took possession of the property and assets of said company under and pursuant to a resolution of its board of directors and under Section Eight of Act 109 of the Acts of the General Assembly of the State -of Arkansas for 1931, approved March 9, 1931, and continued in possession of the business and assets of said company until the appointment of T. H. Humphreys, Jr., as Receiver on January 10, 1936. “(15) There was no interregnum during which the Mutual Loan & Investment, Company resumed possession of its business and assets after the. Bank Commissioner took charge and until the receiver was appointed by the Chancery Court of Pulaski County. “(16) T. H. Humphreys, Jr., as Receiver of Mutual Loan and Investment Company has properly administered the affairs of said company and it will be to the best interest of the creditors of said company to permit the receiver to finish said work under the supervision of the Chancery Court of Pulaski County. The Court declares the law to b.e: “(1) The action of the .Bank Commissioner of the State of Arkansas in taking over the business and assets of the Mutual Loan and Investment Company while insolvent on December 23, 1935, under and pursuant to a resolution of the Board of Directors and under Section Bight of Act 109 of the Acts of Arkansas for 1931, constituted an act of bankruptcy. “(2) The appointment of T. H. Humphreys, Jr., as receiver for Mutual Loan & Investment Company by the Chancery Court of Pulaski County, Arkansas, on January 10, 1936, did not constitute a new act of bankruptcy, therefore the petition of W. B. Clark, and others was not filed within four months after an act of bankruptcy was committed by the Mutual Loan & Investment Company. “(3) The bankruptcy court may in the exercise of discretion permit the state court to finish its work under a receivership. “It is therefore considered, ordered, and adjudged that the petition of W. B. Clark and others, be and the same is hereby dismissed. “John E. Martineau, Judge.” Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_issue_9	13	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. BROTHERHOOD OF RAILROAD TRAINMEN et al. v. O’CONNELL et al. No. 158. Argued January 14, 1969. Decided May 26, 1969 Arnold B. Elkind argued the cause and filed a brief for petitioners in No. 158. David Leo Uelmen argued the cause for petitioners in No. 172. With him on the briefs were David Previant, John J. Naughton, James P. Reedy, and Gerry M. Miller. Lee LeibiJc argued the cause for respondents in each case. With him on the briefs was Ruth Weyand. Harold A. Ross filed briefs for the Brotherhood of Locomotive Engineers as amicus curiae urging reversal in both cases. Harold C. Heiss filed a brief for the Brotherhood of Locomotive Firemen & Enginemen as amicus curiae urging affirmance in both cases. Together with No. 172, Dirks et al. v. Birkholz et al., on certiorari to the United States Court of Appeals for the Seventh Circuit. Per Curiam. The judgments are vacated and the cases are remanded to the respective district courts with instructions to dismiss the cases as moot. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
songer_appel1_3_3	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 "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. LUCAS, Collector of Internal Revenue, v. ALEXANDER. Circuit Court of Appeals, Sixth Circuit. June 30, 1928. Nos. 4973, 4974. 1. Internal" revenue <®=>7(9) — Payment of endowment policy to insured held taxable (Revenue Act 1918, §§ 202, 213 [Comp. St. §§ 63361/sMj, 63361/sff]). Payment on endowment policy, made in lifetime Of insured to himself, and which was a combination of life insurance and investment, resulted in a profit to insured, taxable under Revenue Act 1918, §§ 202, 213 (Comp. St. §§ 6336%bb, 6336%ff). 2. Internal revenue <®=»7(I7) — Deduction for income tax from proceeds of endowment life policies at maturity held determinable by market value of policies on March I, 1913, and not by surrender value; “market price” Revenue Act 1918, §§ 202(a), (I), 213(b), (2); Comp. St. §§ 6336'/sbb(a), (I), 6336'/8ff(b), (2). Where plaintiff in 1899 took out two 10-payment 20 year endowment policies, payable at the end of 20 years, with accumulations at his option if he were then living or at his earlier death in the face amount if death occurred before the end of 10 years and in gradually increasing amounts if death occurred during the second 10 years and at the end of the term in 1919 he received payment of the face of the policies, with accumulated dividends,- held, that deduction for income tax purposes provided by Revenue Act 1918, § 213(b), (2), Comp. St. § 6336%ff(b), (2), was the market value of the policies on March 1, 1913, which was the discounted value of the amount in all probability payable on policies at maturity, and was not limited to the surrender value thereof, since that was not “market price,” within Revenue Act 1918, § 202(a), '(1), Comp. St. § 6336%bb (a), (1); Treasury Regulation 45, art. 72b, being inapplicable. [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Market Price.] In Error and Cross-Error to the District Court of the United States for the Western District of Kentucky; Charles I. Dawson, Judge. Action by A. J. A. Alexander against Robert H. Lucas, Collector of Internal Revenue for the District of Kentucky. To review the judgment (21 F.[2d] 68), defendant brings error, and plaintiff assigns cross-error. Judgment affirmed. Elwood Hamilton, of Louisville, Ky. (Beckham, Hamilton & Beckham, of Louisville, Ky., on the brief), for plaintiff. Edward H. Horton, Sp. Atty., Bureau of Internal Revenue of Washington, D. C. (Thos. J. Sparks, U. S. Atty., of Greenville, Ky., A. W. Gregg, Gen. Counsel Bureau of Internal Revenue, of Washington, D. C., on the brief), for defendant. Before DENISON, MACK, and MOOR-MAN, Circuit Judges. MACK, Circuit Judge. Error and cross-error from a judgment for plaintiff in the sum of $6,519.36, with interest, part of an additional assessment collected from him as income tax for the year 1919. The New York Life Insurance Company, a mutual company, issued to plaintiff, then aged 24, two policies, effective May 19, 1899, in the aggregate face amount of $100,000 called “insurance bond, with guaranteed interest.” The annual premium was $7,810. In ease of death within the first 10 years, only the face amount $100,000 was to be paid; if death occurred within the second 10 years, the amount payable would be, in excess of $100,000, a guaranteed sum, increasing year by year, and reaching a maximum of $144,300 in the twentieth year. In case of death during the year which included March 1, 1913 — that is, the year ending May 19,1913 — $114,000 would thus have been payable. If the insured was alive at the end of the twentieth year — that is, on May 19,1919 — the face of the policy became payable, and in addition thereto a cash dividend then to be apportioned by the company. Certain optional rights were given at the end of the twentieth year, hut they are not important for the purposes of this case. The policy was payable to the estate of the insured; he had the right to change the beneficiary. The guaranteed loan or cash surrender value, which began in the third year, amounted to $79,400, in the year ending May 19, 1913. In order fairly to determine the dividend apportionable at the end of 20 years, the company kept a record, called “Funds provisionally ascertained and held awaiting apportionment,” for each policy. This provisional fund increased yearly; to it were allocated the dividends that would otherwise have been paid annually, with the interest earned thereon, and the pro’ rata share of the similarly provisionally accumulated dividends of those policy holders in the same class who died before the end of the 20-year period. On March 1,1913, the company had thus provisionally set aside on its books $13,600 for plaintiff’s policies. As of that day, its accountants would have estimated that on the assumption of surplus increase during the ensuing 6 years at the same rate as during the past 14 years, the dividend payable to plaintiff if alive on May 19,1919, would be $19,428.57. The actual course of events was that the rate of increase of the surplus was accelerated during the next 6 years, so that the amount actually paid to plaintiff in 1919 was $20,797, in addition to the $100,000 face amount of the policies. Of the amount plaintiff received, he reported $17,238.35 as income for the year 1919, claiming that the remaining $103,560.-65 represented the March 1, 1913, value of his policy. The Commissioner of Internal Revenue, reauditing his return, found the taxable gain to have been $42,697, the difference between the amount received, $120,-797, and the amount paid out in premiums during the 20 years, $78,100. Yalue as of March 1, 1913, was disregarded. Pursuant to demand, plaintiff paid an additional assessment of $8,750.91 and brought this action for its return. The District Court found the taxable gain $27,209.19 over the March 1, 1913, valuation of $93,587.81, on this reasoning: As plaintiff on March 1, 1913, was normally healthy and 38 years old, the chances of his living out the full 20 years and then receiving $119,-428.57 in the policies were very good. Discounting that sum at the rate of 4 per cent, annually for the 6 years, 2 months, and 19 days, gave $93,587.81, the value on March 1, 1913, as found by the court. The applicable statutory provisions are sections 202 and 213 of the Revenue Act of 1918, 40 Stat. 1060, 1065, as follows: “Sec. 202. (a) That for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be— “(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date. * * ” Comp. St. § 6336ysbb. “See. 213. That for the purpose of this title (except as otherwise provided in section 233) the term ‘gross income’— “(a) Includes gains, profits, and income derived from * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period; but “(b) Does not include the following items, which shall be exempt from taxation under this title: “(1) The proceeds of life insurance policies paid upon the death of the insured to individual beneficiaries or to the estate of the insured; “(2) The amount received by the insured as a return of premium or premiums paid by him under life insurance, endowment, or annuity contracts, either during the term or at the maturity of the term mentioned in the contract or upon surrender of the contract. * * * ” Comp. St. § 63361/gff- Regulations 45 (1920 Edition) provide in article 72b: “During his life only so much of the amount received by an insured under life, endowment, or annuity contracts as represents a return, without interest, of premiums paid by him therefor is excluded from his gross income.” It is contended by plaintiff that the proceeds of life insurance policies are not constitutionally taxable as income, but that, if they are, then the correct method of determining the taxable gain in the present ease is to subtract from the amount received a sum equal to the face of the policy plus the dividends which had been provisionally determined by March 1, 1913. Defendant contends that the policies are taxable, at the difference between the amount received and either the amount of premiums paid or the cash surrender value on March 1, 1913. Plaintiff contends that the proceeds of life insurance policies do not constitute income within the Sixteenth Amendment. In United States v. Supplee-Biddle Hardware Co., 265 U. S. 189, 44 S. Ct. 546, 68 L. Ed. 970, the Supreme Court expressly refrained from deciding whether life insurance paid on the death of a corporate officer could constitutionally be taxed as income to the corporation which had insured him. The instant policy is an endowment; payment thereof was made in the lifetime of Alexander, to himself. The policy, like all endowment policies, was a combination of life insurance and investment. When paid, there inured a clear profit to the insured, a profit that is as much income, within the constitutional amendment, as any profit gained in a business transaction. The provisions of the 1918 act above quoted are clearly broad enough to include gains from insurance transactions other than the two specific exemptions. The second question is as to the applicability of Treasury Regulation 45, article 72b, under which the Commissioner proceeded. Attempts to support it on the ground of settled administrative practice must fail, not only because the government relies for proof of the continuity of the practice upon later regulations promulgated after the assessment in dispute and under different statutes, but also because the regulation is contrary to l.aw in so far as it attempts to regulate income tax on proceeds of insurance policies having a fair market price or value on March 1, 1913. The act which it interprets says that to ascertain gain from the disposition of property, the excess over the March 1, 1913, fair market price or value of that property should be taken. ,An insurance policy is of course property within the statute. Its value as property is not necessarily equal to its cost; it may as well be more or less. We come, then, to the question of the March 1,1913, value of the policies. Defendant contends for surrender value, on the ground that the only way the insured could have realized on his policies in 1913 was by surrendering them. Plaintiff contends for the then value to the insured because of the lack of a market price, due to their non-assignability to a stranger. That value, plaintiff further contends, was $113,600, the face of the policies plus $13,600 of surplus then provisionally credited to him on the company’s books, since it was reasonably certain that plaintiff would get at least that sum. He argues that the probability of further additions to surplus during the time plaintiff had to wait for the money neutralized the six years’ postponement of enjoyment, so that no discounting was necessary to find present value. The only reported litigation involving the valuation of an insurance policy for federal income tax purposes which has been found is Appeal of Kline, 3 B. T. A. 1138. There, the taxpayer held a policy of the New York Life Insurance Company, in the amount of $10,000, issued in 1902 and fully paid up in 1912 by ten annual premiums of $965.20, on which policy no dividends or other distribution was to be made until 1922, when the insured exercised the option to receive $14,-830.10 in cash. The surrender value March 1, 1913, was $9,070. The Commissioner based the tax for 1922 upon the difference between the surrender value on March 1, 1913, and the total paid in 1922. He was sustained by the Board of Tax Appeals. However, the sole ground of the taxpayer's appeal was that the amount of premiums paid should have been subtracted rather than the surrender value. A method similar to that employed by the District Judge in the present ease was not urged, and would have been still more unfavorable to the taxpayer. Kentucky Tobacco Products Co. v. Lucas (D. C.) 5 F.(2d) 723, involved the valuation as of March 1, 1913, for the purpose of measuring depreciation under the income tax, of a contract right to make future purchases of raw materials at highly advantageous prices. The method of valuation employed was to find how much profit would be received by the taxpayer under the contract during the years it had to run, and then to take the present value in 1913 of this amount by discounting on a 5 per cent, interest basis. Plaintiff’s situation on March 1,1913, was as follows: If he lived until 1919, he could reasonably expect then to realize about $120,-000 on the policies. The present value of that sum we may take as $93,587.81, since the details of the trial judge’s calculations are unimpeaehed. The amount payable to the estate in case of death between March 1, 1913, and May 19, 1919, would have ranged from a minimum of $114,000 to a maximum of $144,0P0. It follows, therefore, if the policy had been salable, its market value on March 1, 1913, would clearly have been nó less than $93,587.81, the then discounted value of the amount in all probability payable at maturity, inasmuch as the purchaser would have had an excellent investment, with the chance of a very heavy increase in ease the insured died before maturity. If an assignable policy were worth this amount in the market, then the nonassignable policy was worth the same amount to the insured. It is true that plaintiff could have realized only $79,400 from the policies by surrendering them. But he was under no obligation to make . this less advantageous disposition of his property. The statement in In re Newland, 18 Fed. Cas. 92, No. 10,171, approved in Hiscock v. Mertens, 205 U. S. 202, 212, 27 S. Ct. 488, 51 L. Ed. 771, that the present value of an insurance policy is its surrender value, was a dictum with reference to valuation for bankruptcy purposes. It involves wholly different considerations. The loan or surrender value of plaintiff’s policies was not a “market price.” Moreover, section 202 does not make market price the sole criteriorf; it permits deduction of fair market price or value, and since the latter phrase is set in opposition to the former value to the owner may be taken as the alternative to market price. Plaintiff Alexander’s assignments of error in No. 4974 are without merit. The attempt is made, by reasoning not entirely clear, to take the face of the policy plus the provisionally apportioned dividends as the value in 1913. If the theory of this is that plaintiff was sure to get at least that amount in 1919, there is the obvious objection that plaintiff has lost sight of the fact that a future-accruing sum must be discounted to find its present value. If, on the other hand, plaintiff’s theory is that the provisionally credited dividends in 1913 represented in part the intrinsic value of the policy, this runs counter to New York Life Insurance Co. v. Edwards, 271 U. S. 109, 46 S. Ct. 436, 70 L. Ed. 859, affirming 8 F.(2d) 851, which made clear that holders of policies such as the one here in question have absolutely no interest in such dividends until the maturities of their policies. Judgment affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_casetyp1_7-3-1	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". COMMONWEALTH NATURAL GAS CORPORATION, Appellee, v. UNITED STATES of America, Appellant (two cases). COMMONWEALTH GAS DISTRIBUTION CORPORATION, Appellee, v. UNITED STATES of America, Appellant (two cases). Nos. 11501-11504. United States Court of Appeals Fourth Circuit. Argued Dec. 8, 1967 Decided May 7, 1968. William A. Friedlander, Atty., Dept. of Justice (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, David O. Walter, Attys., Dept. of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on brief), for appellant. H. Brice Graves and Lewis F. Powell, Jr., Richmond, Va. (E. Milton Farley, III, and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellees. Before SOBELOFF, BOREMAN and WINTER, Circuit Judges. WINTER, Circuit Judge: The district judge, in a trial non-jury, held that taxpayers, a natural gas pipeline company and a natural gas distributing company, were entitled to depreciate certain pipeline costs, i. e., the costs of easements, including damages and the costs of clearing and grading easements, over a 30-year useful life, and gave judgment for tax refunds. In these appeals the government contends that the evidence will not support 30 years as a reasonable estimate of the continued availability of a supply of natural gas, so that no depreciation for these costs should be recognized, or, alternatively, that depreciation over a 30-year period was improper, and that taxpayers’ costs in clearing and grading easements should be ascribed to land, and hence, are not depreciable. We affirm the judgments from which these appeals are taken. Commonwealth Natural Gas Corporation (“Commonwealth”) transports natural gas by pipeline and sells the gas to retail distributors. It owns 350 miles of pipeline. Commonwealth Gas Distribution Corporation, a wholly-owned subsidiary of Commonwealth, owns 15 miles of pipeline and is a retail distributor of natural gas. By stipulation of the parties, all gas reserves and resources which are available or discovered east of the Rocky Mountains are a source of supply for taxpayers’ pipelines, and the parties have stipulated, further, that taxpayers will receive their fair share of these reserves and resources. The tax years in question for both taxpayers were the years 1957 to 1960, inclusive. Before turning to the main question of depreciation, we find it convenient to dispose of the subsidiary question of whether the costs of clearing and grading easements are depreciable items. These costs were incurred after acquisition of the easements in order to put the land in shape for the pipeline to be laid. Taxpayers argue therefrom that these costs constituted a part of the costs of the pipelines, depreciable as such. The government, however, contends that the costs of clearing and grading should be ascribed to the land, or the interest in land, and that depreciation, if any, would turn on that premise. The district judge assigned these costs to the pipelines themselves and not to the intangible easements. Standard and regulatory accounting procedures require treatment of these costs in varying ways. The uniform system of accounts prescribed by the Federal Power Commission requires that these costs be charged to land and land rights accounts; the State Corporation Commission of Virginia previously had a like requirement, although it now recognizes that if such costs are incurred in connection with the construction of a pipeline they constitute a part of the costs of the line. “Accounting Research Study No. 7,” published by the American Institute of Certified Public Accountants (1965) suggests that accounts for land and land rights should include the purchase cost of land and interests in land together with other incidental costs such as clearing and grading. The only direct authority on the question is Portland General Electric Co. v. United States, 189 F.Supp. 290, 305 (D.Ore.1960), aff’d per curiam, 310 F.2d 877 (9 Cir. 1962), where it was held that the costs of clearing easements for electric transmission lines in order to construct the facilities were properly attributable to the costs of the facilities and depreciated as part thereof. See also, Algernon Blair, Inc., 29 T.C. 1205, 1220-1221 (1958), where the government conceded that the costs of clearing, grading and landscaping in building a multiple housing project were directly related to the construction of depreciable assets and were subject to depreciation. We are persuaded to follow the Portland General Electric case in the case at bar, and we hold that the costs of clearing and grading are attributable to the cost of constructing the pipeline and depreciable with it. Distinguishable is Meyer v. United States, 247 F.Supp. 939 (D.Mass.1965), aff’d per curiam, 362 F.2d 264 (1 Cir. 1966), which holds demolition costs a part of the cost of site acquisition. The rationale of that holding is the prevention of tax avoidance because otherwise a part of the purchase price of the site would be allocated to the old building and a taxpayer would be entitled to an immediate deduction of the price so allocated upon demolition. There is no such consideration here. We turn, therefore, to the main questions: are the costs of the pipeline de-preciable, and is 30 years a proper period of depreciation? Depreciation, as a deduction from gross income, is allowed by § 167 of the Internal Revenue Code of 1954. The pertinent regulations are set forth below. Through the successive codes and regulations thereunder there has been, over the years, little change in the provisions now obtaining. Essentially because the regulations say that an intangible asset “may” be the subject of depreciation if its length of life can be estimated with reasonable accuracy (notwithstanding that the statute says “shall”), the government argues that “the cost of an intangible asset which is known to have a useful life of a limited or finite period may be depreciated only when the length of that period can be estimated with reasonable accuracy.” By that measure, the government argues that the district judge’s findings with regard to finiteness and 30 years as a reasonable estimate of useful life are not supported by the proof so that taxpayers’ claimed depreciation should be disallowed. Before analyzing the proof, we find it helpful to consider what the Supreme Court has said that the statute requires in order to entitle a taxpayer to sustain a deduction for depreciation. In United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054 (1927), the Supreme Court sustained the government’s argument that a depreciation allowance must be made, even though the computation was based on a “rough estimate.” At issue was the cost basis of certain oil reserves which were the subject of a sale ; it was held that the original cost of the property must be reduced by depreciation and depletion which Ludey was entitled to deduct, but did not claim, for earlier years. Four years later, in Burnet v. Niagara Falls Brewing Co., 282 U.S. 648, 51 S.Ct. 262, 75 L.Ed. 594 (1931), the test of “reasonable approximation” was approved as a test for obsolescence when the government argued that the effect of the prohibition amendment in the years immediately preceding its adoption in the brewing business could not be proved with sufficient certainty to support a deduction for obsolescence. The Ludey case was cited with approval as recently as 1966, in the case of Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 86 S.Ct. 862, 15 L.Ed.2d 751 (1966), which also cited Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960), and Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603 (1960), as recognizing that “depreciation is based on estimates as to useful life and salvage value.” Id., 383 U.S. p. 277, 86 S.Ct. at p. 866. Thus, it is clear that from the statute we must look to “estimates” which reasonably approximate what will occur; and, indeed, under certain circumstances they need be only “rough estimates.” In recognition of the inexactness which may result from resort to such sources — apparent during the useful life of the property being depreciated, at the termination of such life, or at the time of disposition of such property by sale — and which may become known by application of hindsight or by some future more exact knowledge, we must keep in mind the statement in the Fribourg Navigation case that “it is, of course, undisputed that the Commissioner may require re-determination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated.” Id., p. 277, 86 S.Ct. at 865. On review, our present task is only to determine in the light of present knowledge for the tax years in question if the district judge correctly determined that taxpayers have established useful life by the prescribed test's. The district judge made three ultimate findings that are before us on review: (a) natural gas reserves exist in nature in a finite amount, (b) natural gas reserves are depleted by use and such reserves will be available for a limited time which can be estimated with reasonable accuracy, and (c) the evidence demonstrated that 30 years was a reasonable measure of the life of the natural gas reserves available to the taxpayers for the tax years in question. The government does not contest the correctness of finding (a), nor does it contest the correctness of the part of finding (b) that natural gas reserves are depleted by use and will be available for a limited time. The whole dispute revolves about whether the finiteness of natural gas reserves as to quantity and useful life can be estimated with reasonable accuracy and, if so, whether 30 years is an accurate estimate. On these issues the taxpayers’ entire case was predicated on the testimony of Dr. Bruce C. Netschert, an economist with geological training, who termed himself an energy and fuels economist. Dr. Netschert was established to be a man of extensive and impressive qualifications in the study and assessment of present and future supplies of energy in the United States, including oil and natural gas. The government presented no evidence to controvert that adduced from Dr. Netschert. While it does not attack his credibility as such, it relies solely on the answers elicited from him on cross-examination and what it considers the general unpersuasiveness of his testimony. We will not undertake to summarize or reproduce all of Dr. Netschert’s testimony; a brief summary will suffice. Unequivocally, Dr. Netschert expressed the opinion that the useful life of natural gas reserves can be estimated with reasonable accuracy and is in the neighborhood of 30 years. The latter portion of the opinion was derived from a consideration of the ratio of proved natural gas reserves to annual production (the “R-P ratio”). As a straight mathematical computation, the R-P ratio indicates 20 years. This figure must first be adjusted downward because the initial rate of production is not maintained until exhaustion of a gas well; a gas well has a “deliverable life” of only 12 to 14 years. Conversely, the figure must next be adjusted upward because there are reserves other than proved reserves known to exist, although there is about their existence less certainty than proved reserves. These other reserves are of two types: “probable” or “possible” reserves which are known to exist but with less certainty than proved reserves and for which there has never been any compilation of reserves data on a state, regional or national basis, and gas that is presumed to exist but has as yet not been discovered although some will certainly be discovered. Taking into consideration the adjustments which must be made to the R-P ratio and “the matter of technology,” Dr. Netschert’s opinion was that 30 years useful life was a reasonable net result. His own explanation of his ultimate opinion was best expressed in response to a question by the Court, set forth in the margin. The basis for Dr. Netschert’s opinion is attacked by the government on two scores. First, it is claimed that the aspect of his testimony, wherein he admitted that in addition to proved and probable reserves there is gas presumed to exist but not yet discovered although some will certainly be discovered, destroyed the basis for his conclusion. This is so, it is argued, because there is clear recognition that the supply of gas will last beyond 30 years and, failing a reasonable estimate of how long the supply will last beyond 30 years, taxpayers have failed to meet the burden imposed on them to prove the reasonable accuracy of the claimed deduction. The answer to the argument is that the gas referred to has not yet been discovered. While there may be a degree of certainty that it will be discovered, when and in what quantities cannot be presently predicted. Until there is more certainty as to when and in what quantities these reserves of gas will be ascertainable quantities, they may not be given an existence such as to destroy the Congressional mandate that a depreciation deduction “shall be allowed.” In this regard we are persuaded by the majority and concurring opinions in Northern Natural Gas Company v. O’Malley, 277 F.2d 128 (8 Cir. 1960), a case on all fours with the instant case, which upheld a depreciation allowance. The comment of Judge Blackmun in his concurring opinion on this point is pertinent: “The Commissioner’s insistence in this case that there be a fixed and definitely limited period of time must equate only with the practical need of a measure. But that measure need not be one determined with precision accuracy and be good for all time. A ‘reasonable approximation’ or even ‘a rough estimate’, say the Niagara Falls and Ludey cases, is enough. In this light, the elements involved here, namely, proven reserves, production, reserve life index, load factor and the others, become acceptable for consideration in the absence of proof that they are wholly fallacious. These elements at first glance may seem to be difficult of application, but, if so, the difficulty bears upon only computational aspects and not upon basic eligibility. The amount of the deduction will change from year to year as proven reserves change and as additional costs of rights-of-way may be incurred. These changes are only computational but, when properly taken into account, they prevent the complete consumption, through deductions, of rights-of-way costs before the end of the rights-of-way life. There is thus no premature recovery of these costs.” Id., p. 140. See also, Shell Pipe Line Corp. v. United States, 267 F.Supp. 1014 (S.D.Tex.1967). The second ground of attack on the testimony of Dr. Netschert is its reference to an all-electric economy. It is argued that the witness predicated his opinion at least in part by theatened obsolescence and that this constituted a fatal variance in taxpayers’ cases under the familiar rule that a taxpayer may' litigate his taxes only on the grounds that were presented to or considered by the Commissioner. Samara v. United States, 129 F.2d 594, 597-598 (2 Cir.), cert. den., 317 U.S. 686, 63 S.Ct. 258, 87 L.Ed. 549 (1942). The short answer to this argument is that when the testimony of Dr. Netschert is considered in its entirety, it does not appear that he predicated his testimony on obsolescence occasioned by competition from electricity. Dr. Netschert did say that in arriving at a 30-year useful life he considered “the matter of technology.” “Matters of technology” included improvements on the consumption side (in new and increased uses of gas) and improvements on the production side (in finding and producing gas), and he was quite clear that “we have a more or less 20-25 year generation life of technology,” and that to “go beyond this period very far you begin to get into an area where all possibilities are open and where you have almost nothing to go on.” It was in connection with matters of technology that the witness speculated that there might be the all-electric economy by the end of the century and that by then “the natural gas industry would be * * * as obsolete as the buggy whip industry is today.” That increased use of electricity was a factor to be considered along with other factors, but that the conclusion of a 30-year life was not based on obsolescence, best appears from the witness’ own words, set forth below. Our review of the record satisfies us that the findings of the district judge were amply supported, particularly in view of the fact that he judged credibility by observance of manner and demeanor of the expert witness in testifying, and the inherent persuasiveness of his testimony without any evidence to controvert that testimony. We consider that the quantum and quality of that testimony satisfied the tests of what is needed to demonstrate entitlement to a deduction for depreciation. It follows that the allowance of a depreciation on the basis of a 30-year useful life for the tangible and intangible personal property in question for the years in question was correct. The judgments appealed from are Affirmed. . Internal Revenue Code of 1954: SEC. 167. DEPRECIATION. (a) General rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business, or (2) of property held for the production of income. * * * * (26 U.S.C. 1904 ed., Sec. 167.) . Treasury Regulations on Income Tax (1954 Code) : Sec. 1.167(a)-l. Depreciation in general. — (a) Reasonable alloioance. Section 167(a) provides that a reasonable allowance for the exhaustion, wear and tear, and obsolescence of property used in the trade or business or of property held by the taxpayer for the production of income shall be allowed as a depreciation deduction. The allowance is that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan (not necessarily at a uniform rate), so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property as provided in section 167(g) and § 1.167(g)-l. * * * (b) Useful life. For the purpose of section 167 the estimated life of an asset is not necessarily the useful life inherent in the asset but is the period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income. This period shall be determined by reference to his experience with similar property taking into account present conditions and probable future developments. * * * J¡í íjí Sec. 1.167(a)-3 Intangibles. If an intangible asset is known fr-om experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. * * * (26 C.F.R. Sec. 1.167 (a)-3.) . »* * * The regerves are recognized as wasting assets. The depletion affected by operation is likened to the using up of raw material in making the product of a manufacturing establishment. As the cost of the raw material must be deducted from the gross income before the net income can be determined, so the estimated cost of the part of the reserve used up is allowed. The fact that the reserve is hidden from sight presents difficulties in making an estimate of the amount of the deposits. The actual quantity can rarely he measured. It must be approximated. And because the quantity originally in the reserve is not actually known the percentage of the whole withdrawn in any year, and hence the appropriate depletion charge, is necessarily a rough estimate. But Congress concluded, in the light of experience that it was better to act upon a rough estimate than to ignore the fact of depletion.” Id., 274 U.S. p. 302, 47 S.Ct. p. 610. . “It would be unreasonable and violate that cannon [sic] of construction to put upon the taxpayer the burden of proving to a reasonable certainty the existence and amount of obsolescence. Such weight of evidence as would reasonably support a verdict for a plaintiff in an ordinary action for the recovery of money fairly may be deemed sufficient. Neither the cost of obsolescence nor of accruing exhaustion, wear and tear that is properly chargeable in any period of time can be measured accurately. A reasonable approximation of the amount that fairly may be included in the accounts of any year is all that is required. * * * ” Id. 282 U.S. p. 654, 51 S.Ct. p. 265. . Before this ratio is computed, gross production must be adjusted because some of the gas produced is reinjected into the ground and not consumed. Of the gas considered to be consumed, some is wasted or lost. Another factor which affects blind resort to the ratio is that some of the proved reserves are unrecoverable because of economic or physical circumstances. . “ * * * The Witness: Well, I think that is necessary to take into account three things. On the one hand the overstatement of the life of reserves that is inherent in the R-P ratio because of this matter of deliverability, as I explained in my testimony. In the second place it is necessary to take into account the conservativeness of the R-P ratio because it uses proved reserves whereas we know that there are other categories of reserves in addition. And on the third point I think it is necessary to consider the matter of technology on the consumption side as well as the production side. That is, I have testified repeatedly on the fact that there are, I think, a great deal, a great, very large quantities of gas remaining in this country. I have further testified that I think that this gas will or can be made available through technological improvement, through continued technological improvements in the matter of finding and producing it. Now, in this context in which I testified, as I understand it, it would be appropriate to consider not only that but also the technology as to the effects, the other side, the consuming side. And that is where I talk about the all-electric economy. Now, taking all those things into account, we have a given figure, an actual specific figure in the neighborhood of 20, as an indicated life in the R-P ratio. We have an indication of, fairly good indication, that there are other quantities of gas which would make the actual figures somewhat higher. These quantities, however, cannot — or specific measures of these quantities are not available. There are no figures equivalent to the, equivalent to the proved reserves figures having to do with these additional quantities of gas. There are estimates, but they are not estimates made on the same basis or consistent among different estimators, et cetera. So we have a fairly solid figure on the one hand, which is clearly at the low end. The question, then, is how far do we go toward the high end. That is what, if you took for example, the figure such as I myself have used, that there were at least twelve hundred trillion cubic feet of reserves, or rather of gas, probably exist in the earth’s crust in the United States, this would give you a ratio of something close to 100 by dividing the current production into it. However, this involves this matter of technology, as I have said, and considering the possibilities on both scores it seems to me that a reasonable net result is in the neighborhood of thirty years.” . A related argument is that taxpayers stipulated that as yet undiscovered gas reserves would constitute a source of supply for them. Neither we nor the district judge read taxpayers’ stipulation so broadly. . “For several reasons, one of which I have already alluded to earlier, the concept that we have a more or less 20, 25-year generation life of technology, that when you go heyond this period very far you begin to get into an area where all possibilities are open and where you have almost nothing to go on. Whereas, here, for this period, you have, as the basis, the beginning R-P ratio. You have in addition the knowledge that there are certain unspecified, unmeasured, quantities of reserves in beyond the proved reserves and you have the indicated forces at work in the matter of the use of gas versus electricity, as well as the trend at present toward increased gas use. And it is the balance of all of these that I think is properly represented by a period of 30 years.” Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property Answer:
songer_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Zebedee TATE v. EMPIRE BUILDING CORPORATION. No. 9415. Circuit Court of Appeals, Sixth Circuit June 1, 1943. W. O. Lowe, of Knoxville, Tenn., for appellant. Egerton, McAfee & Clarke, of Knoxville, Tenn., for appellee. Irving J. Levy and Bessie Margolin, both of Washington, D. G, and Jeter S. Ray, of Nashville, Tenn., for Wage and Hour Division, as amicus curiae. Before HICKS, SIMONS, and ALLEN, Circuit Judges. PER CURIAM. This cause was heard upon the transcript of the record, briefs and arguments of counsel; on consideration whereof, it is ordered and adjudged that the order appealed from-be and the same is in all things affirmed upon the authority of A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; and Johnson v. Dallas Downtown Development Co., 5 Cir., 132 F.2d 287. 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_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, Appellee, v. John G. DUDLEY, Appellant. No. 93, Docket 25179. United States Court of Appeals Second Circuit. Argued Oct. 14, 1958. Decided Nov. 5, 1958. See, also, 154 F.Supp. 623. Barry H. Garfinkel and Maurice N. Nessen, New York City, for appellant. Earl J. McHugh, New York City, Arthur H. Christy, U. S. Atty., New York City, George I. Gordon, Asst. U. S. Attys., New York City, of counsel, for appellee. Before HAND, HINCKS and WATERMAN, Circuit Judges. PER CURIAM. The defendant appeals from a judgment of Judge Weinfeld, sitting without a jury, convicting him of unlawfully receiving and selling 398 grains of heroin (21 U.S.C.A. §§ 173, 174). Two questions are raised on this appeal: (1) that the evidence as “a matter of law” was not convincing beyond a reasonable doubt; and (2) that one of judge Wein-feld’s two findings is inconsistent with the other. The evidence was the testimony of two witnesses, Latta and Lu-bert, government agents. Latta swore that he went with a woman to an apartment in Manhattan where the woman introduced him to the accused. After some talk they agreed upon the price of an ounce of heroin, and Latta gave the accused $150. The accused went into the hall; he came back in a few minutes, saying that he could not “reach his man,” and later made three or four telephone calls; and finally came back and said that he was going out to get the heroin. He left the apartment, came back about midnight, and Latta in court identified him as the person who handed Latta some white powder that proved to be heroin. Latta said that the accused was dressed in “sports clothes, slacks and a jacket and a hat.” The other witness, Lubert, met Latta with a woman close by the building into which Latta went. He stood outside, and after about two hours the accused came out, hailed a taxicab and went to a theatre on 118th Street and Seventh Avenue. About three-quarters of an hour later he came out, took another cab, went to a bar, came out, took a third cab and drove back to the apartment whence he came out originally. Later Latta came out and gave Lubert the heroin. Lubert described the dress of the accused as “a rust colored Eisenhower or suede jacket, one of those short jackets.” Upon this testimony Judge Weinfeld found that the man who sold the heroin to Latta was the defendant, relying upon the testimony of Lat-ta “as corroborated by the other agent.” ' We reaffirm what we held in United States v. Costello, 2 Cir., 1955, 221 F.2d 668, 671, and had indeed often said before; that “in all criminal prosecutions, the prosecution makes out a sufficient case to go to the jury, if the evidence would have been enough in a civil action; the only difference between the two is that in the end the evidence must satisfy the jury beyond any reasonable doubt.” See also United States v. Gonzales Castro, 2 Cir., 1956, 228 F.2d 807. This doctrine is certainly as applicable to cases tried to a judge upon waiver of a jury; for the waiver substitutes the judge for the jury in all respects. The accused must therefore be content with such protection as is afforded by the requirement that the finding presupposes the judge’s conclusion that the accused is guilty beyond any reasonable doubt. The appellant further argues that the two findings made by Judge Weinfeld in compliance with Fed.RuIes Criminal Procedure, Rule 23(c), 18 U.S.C.A., were inconsistent, because Lu-bert’s testimony did not corroborate Lat-ta’s, as the judge declared, but conflicted with it. This is completely mistaken; the testimony of the two witnesses as to the clothes worn by the accused was not in the least inconsistent. It is true that they did not use identical terms in describing his clothes; but that is quite another matter. The “jacket” that Lat-ta observed might well have been “a rust colored Eisenhower or suede jacket, one of those short jackets.” Moreover, it accords well enough with the phrase, “sport clothes.” Besides, it was highly corroborative of Latta, that the same person came out of the building into which Latta had gone shortly before, was absent for an hour or more, went in again, and that Latta shortly thereafter came out with the heroin. Judgment affirmed. The court wishes to express its thanks to the appellant’s counsel for their gratuitous services on the appeal. 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_circuit	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. ARNOLD PRODUCTIONS, INC., Plaintiff-Appellant, v. FAVORITE FILMS CORPORATION, and Nationwide Television Corporation, Defendants-Appellees. No. 10, Docket 25995. United States Court of Appeals Second Circuit. Argued Sept. 28, 1961. Decided Feb. 6, 1962. See also 291 F.2d 94. Samuel Gottlieb, New York City (Harry Giesow, Gainsburg, Gottlieb, Levitan & Cole, New York City, on the brief), for plaintiff-appellant. Harold J. Sherman, New York City (Fitelson & Mayers, New York City, on the brief), for defendant-appellee Favorite Films Corp. Winfield E. Aronberg, New York City, for defendant-appellee Nationwide Television Corp. Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.. LUMBARD, Chief Judge. Arnold Productions, Inc., the owner of two motion pictures, “Hangmen Also-Die” and “It Happened Tomorrow,” on May 27, 1947 entered into a distribution-agreement with Favorite Films Corp., which granted Favorite “the sole and exclusive right to reproduce, lease, license, sub-license, exhibit, rent, distribute and exploit [the films] * * * for reissue-purposes, for a period of seven (7) years,” and similar rights for the same-period “to lease, license, sub-license, rent, distribute and exploit [the films] * * • through and by television.” In return Favorite agreed “to use its best efforts-diligently and in good faith to exploit the-said photoplays and to obtain as wide a distribution thereof and as many exhibitions and bookings thereof as possible.”It was further provided that “This agreement is personal and cannot be assigned by the Licensee voluntarily, by operation of law or otherwise, without the consent in writing of the Licensor first obtained.” Favorite was to retain 62% percent of the receipts from the exploitation of the films, and Arnold was to receive the remainder. On March 14, 1949, Favorite entered into an agreement with Nationwide Television Corp., co-defendant in this action, constituting Nationwide its “sole and exclusive agent for the television distribution of the films” on terms substantially the same as those of the Arnold-Favorite contract. Nationwide, in turn, orally subleased the television distribution rights to its wholly-owned subsidiary, Film Equities Corp., which was subsequently succeeded by another subsidiary of Nationwide called Unity, Inc. These subsidiaries handled the actual distribution of the films and accounted directly to Favorite, retaining 25 percent of all proceeds. This is a diversity action brought by Arnold, a Delaware corporation, against Favorite and Nationwide, both New York corporations; New York law applies. Arnold claims that Nationwide was guilty of fraud against it, and that Favorite broke the contract in failing to use its “best efforts” in television distribution and in delegating the television distribution to Nationwide; it also seeks an accounting from Favorite. No question is raised of Favorite’s performance of that part of the contract covering the reissue of the films for theatre showings. Judge Murphy, in his opinion reported at 176 F.Supp. 862, granted judgment for Nationwide and for Favorite, except to the extent of requiring Favorite to account for its receipts from the licensing of the two films since the date of the last financial report to Arnold in 1955. We affirm the judgment. Arnold’s only claim against Nationwide appears to be that it conspired with Favorite to defraud Arnold by withholding records relating to the licensing of the films and refusing to return the films on receipt of Arnold’s notice of termination of the contract. We agree with Judge Murphy that there was no evidence whatsoever suggesting any fraudulent intent on Nationwide’s part. Arnold’s first claim against Favorite is that it committed a breach of the “best efforts” clause in that the methods of distribution used were not the most remunerative possible. It claims that its revenues would have been greater had the films been marketed individually rather than as parts of packages also including less desirable films owned by others. We see no reason to upset Judge Murphy’s finding of fact that there was no proof that individual promotion would have been more profitable or his alternative finding that in any event the claimed injury was not shown with sufficient definiteness to permit any calculation of damages, cf. Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756 (1919). Second, Arnold argues that it was error for the court below to limit the accounting it required of Favorite to those proceeds received from the exploitation of the films since it had last rendered Arnold an account. Arnold claims that Favorite should be compelled to account to it for all receipts from the films during the entire period of their contractual relationship. We see no reason to impose such a requirement. Indeed, we see no justification for even the limited accounting granted by the court below. “Even though an accounting were required to ascertain the amount of damages, that fact would be insufficient to support a claim for equitable relief unless a fiduciary relationship were shown * ” Terner v. Glickstein & Terner, Inc., 283 N.Y. 299, 28 N.E.2d 846 (1940). The relationship between Arnold and Favorite was one of simple contract. Arnold could, by means of familiar dis-covery devices, obtain any information in the hands of Favorite or others it needed to establish its allegations as to damages. Because there is no objection by Favorite, however, we do not disturb the allowance below of a limited accounting. Arnold’s third assignment of error, and that with which we are here primarily concerned, is that Favorite violated the contract by delegating its performance to Nationwide rather than handling the distribution itself as agreed. We find no error in Judge Murphy’s holding that Favorite did not assign the contract to Nationwide or abandon its duties under it, and thus committed no breach. It is clear that Favorite did not technically “assign” its contract in its entirety, but merely delegated a part (the extent of which we shall presently discuss) of its duties. Favorite did not purport to divest itself of its ultimate responsibility to Arnold. Although it made Nationwide its “sole and exclusive agent,” it maintained certain supervisory powers over it. It reserved “the right to designate * * a Representative, to whom you agree to submit for approval or rejection, each and all of your proposed license or sub-license agreements with respect to the Photoplays,” and it appointed its president as such representative. Thus there was no breach of the specific covenant against assignment. Rather the question is whether the delegation of performance deprived Arnold of any right to Favorite’s own services which it may have acquired explicitly from the provision that “this agreement is personal” or implicitly from the “best efforts” clause and the inherent nature of the contract. We do not find it necessary to consider whether New York would impose the same implied duty of personal service upon a contracting corporation as it would on an individual under the same circumstances, or whether this contract by its explicit terms gave Arnold the right to demand Favorite’s own services. Even if we assume that only Favorite was to give the performance called for by the contract, which was the “exploitation” of the films and the “obtaining” of bookings, we do not believe that this performance excluded such use of Nationwide’s services as Favorite made. The contract must be interpreted in light of what the record reveals about the practices of the business in which the parties were engaged, and especially what it reveals about the general understanding and course of dealings between them. It is significant that under this contract Favorite’s duties with respect to reissue of the two films to theatres were exactly the same as the television distribution duties here in question. There is no dispute that it was understood that little if any of the actual theatre distribution (possibly that in New York City, at the most) was to be done by Favorite itself; most was to be delegated to various “franchise holders” in various parts of the country, who were to do the actual work of selling films to local exhibitors. There is no indication that Favorite’s supervision over these franchise holders was any greater than its supervision over Nationwide’s television distribution. Favorite maintained the right to reject any agreements suggested by Nationwide, and there was sufficient evidence that on occasion its president actually did so with respect to television distribution to justify Judge Murphy’s finding that there was no abdication of responsibility. There is no suggestion that Arnold was endangered by lack of financial responsibility on Nationwide’s part, or in any other way not having to do with the quality of the performance it received. In any event, the concession that under the same contract distribution through franchise holders was contemplated is sufficient to foreclose any inference that Favorite’s employees were expected to do all television distribution personally. There is, indeed, testimony which would support a finding that throughout most of the term of the contract Arnold acquiesced in Favorite’s delegation of sales duties. Affirmed. . Since Nationwide, Film Equities and Unity all had common ownership and common personnel, we shall treat them as one entity, as did the court below. . “In a contract for a sales agency, the personal performance of the agent is practically always a condition precedent to the duty of the principal and employer,” and the agent cannot discharge his obligation by furnishing a substitute. 4 Corbin, Contracts 444-45 (1951); see, Paige v. Faure, 229 N.Y. 114, 127 N.E. 898, 10 A.L.R. 649 (1920); cf. Nassau Hotel Co. v. Barnett & Barse Corp., 162 App.Div. 381, 147 N.Y.S. 283 (1st Dept. 1914), aff’d mem., 212 N.Y. 568, 106 N.E. 1036 (1914). Plaintiff has made no claim that Favorite’s duty should be determined by principles of actual agency, and we see no reason to treat tbe duty as more than contractual. . There is some reason to believe that the New York courts would not permit such an implication in the case of a corporation. Wetherell Bros. v. United States Steel Co., 200 F.2d 761 (1 Cir. 1953); New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 180 N.Y. 280, 293, 73 N.E. 48, 52 (1905); New England Iron Co. v. Gilbert Elevated Ry. Co., 91 N.Y. 153, 166-167 (1883). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. 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 "private business and its executives"? Answer with a number. Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Jane KIEFFER, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee. No. 88-3473. United States Court of Appeals, Sixth Circuit. Argued March 20, 1989. Decided May 3, 1989. Alexander M. Spater, Michael S. Kolman (argued), Spater, Gittes & Terzian, Columbus, Ohio, for Jane Kieffer. David J. Young, Steven W. Tigges (argued), Murphy, Young & Smith, Columbus, Ohio, for Sears, Roebuck & Co. Before MERRITT and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. Plaintiff Jane Kieffer appeals from the judgment of the district court adopting the report and recommendation of a special master and granting summary judgment for defendant Sears, Roebuck & Company in this employment discrimination case brought under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Appellant argues, inter alia, that the district court erred in adopting the special master’s report and recommendation without holding a hearing. For the following reasons, we vacate the judgment of the district court and remand for a hearing. I. Appellant filed her complaint on April 29, 1982. She alleged that appellee discriminated against her on the basis of her sex through its promotion opportunities, the terms and conditions of employment, its failure to correct the present effects of past discrimination, and its discharge of her on March 31, 1980. On February 5, 1987, the district court granted partial summary judgment for ap-pellee on appellant’s claims concerning promotion, terms and conditions of employment, and present effects of past discrimination. The district court then referred the discharge issue to a United States Magistrate acting as a special master pursuant to 42 U.S.C. § 2000e-5(f)(5) and 28 U.S.C. § 636(b)(2). The case was tried to the special master on May 12, 13, and 14,1987. On March 3,1988, the special master issued a report and recommendation finding that appellee did not discriminate against appellant when it discharged her. Appellant filed a motion for reconsideration of the magistrate’s report and recommendation pursuant to Federal Rule of Civil Procedure 53(e)(2) and requested oral argument. On April 26, 1988, the district court adopted the report and recommendation of the special master without holding a hearing. Appellant timely appeals. II. Appellant argues, inter alia, that Rule 53 mandates that the district court hold a hearing concerning her objections before adopting the special master’s report and recommendation and, therefore, the court erred in adopting the report and recommendation without holding a Rule 53 hearing. Rule 53(e)(2) reads as follows: (2) In Non Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. In In re Wonderbowl, 424 F.2d 178 (9th Cir.1970), the Ninth Circuit was presented with a nearly identical procedural situation. In that case, the district court referred a bankruptcy matter to a special master. The district court adopted the special master’s report and recommendation without holding a hearing. The appellant challenged the district court’s order on the ground that it had failed to hold a hearing as mandated by Rule 53 and General Order in Bankruptcy 47. The court of appeals agreed and held that Rule 53 clearly gives objectors the right to be heard before the court adopts the report of a special master. Id. at 180. See also In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 739 F.2d 1169, 1172 (7th Cir.1984); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2612, at 805 (1971) (“The court must hold a hearing on the motion [objecting to the special master’s report]”). We agree. Appellee argues that a hearing was not necessary because oral argument was held before the special master and comprehensive briefs were filed with the district court addressing appellant’s objections. These arguments were expressly rejected by the Ninth and Seventh Circuits. One who files objections to the report of a Special Master thus has a right to be heard on those objections before the court acts on the report. This is so even though the objector’s arguments have been presented and considered before the Master and have been filed in writing before the court. In Re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 739 F.2d at 1172 (citing In re Wonderbowl, 424 F.2d 178). We are equally unimpressed with this argument. We do not believe that the fact that a party’s objections are comprehensively briefed avoids the plain language of the rule, which clearly states that the court may adopt the report after hearing. Accordingly, we hold that when a district court is presented with objections to the report of a special master, the objector has a right to a hearing and, therefore, we must remand this case so that the hearing which is mandated by Rule 53 can be held. In remanding this case, we note that appellant makes several arguments before this court concerning the magistrate’s handling of the evidence concerning allegedly similarly situated or comparable employees. In particular, appellant argues that the magistrate erred in determining that employees who worked in departments other than her department were not comparable employees for the purpose of showing disparate treatment. Furthermore, she argues that this alleged error was compounded by the magistrate’s inconsistent determination that appellee could introduce evidence concerning employees from other departments as comparable employees to disprove pretext. While we express no opinion on the ultimate merit of these arguments, we believe the failure to afford appellant the opportunity to press these serious arguments at a hearing before the district court was inconsistent with substantial justice and, therefore, was not harmless error. See Fed.R.Civ.P. 61. For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings. . Section 2000e-5(f)(5) reads as follows: It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure. . General Order in Bankruptcy 47 tracks the language of Rule 53: “The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” . Appellant also asserts that even though she asked for oral argument in this case, she was not required to request a hearing because the rule mandates that the court hold a hearing. Appellant's argument is well taken. However, since appellant did request oral argument in this case, we need not decide whether she was required to request a Rule 53 hearing. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_usc1sect	723	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". WAGGAMAN v. GENERAL FINANCE CO. OF PHILADELPHIA, PA., Inc. WARFIELD v. SAME. Nos. 7423, 7424. Circuit Court of Appeals, Third Circuit. Nov. 27, 1940. F. E. Darkow and Samuel S. Herman, both of Philadelphia, Pa., for appellant. Francis L. Van Dusen, of Philadelphia, Pa., G. A. Chadwick, Jr., of Washington, D. C., and Joseph S. Clark, Jr., and Dechert, Smith & Clark, all of Philadelphia, Pa., for appellees. Before MARIS and JONES, ' Circuit Judges, and BARD, District Judge. JONES, Circuit Judge. The appellant was the defendant below in two actions at law brought by the respective plaintiffs for injuries suffered by them in the same circumstances through the alleged negligence of the defendant. The two cases were tried together to a jury which returned a verdict in favor of each of the plaintiffs. It is from the judgments entered by the trial court upon the verdicts that the defendant has appealed. Both appeals, which were argued together, raise the same questions and will be dealt with in this opinion. The principal questions presented are (1) whether there was sufficient evidence to justify the jury’s finding of a master and servant relationship between the appellant and the actual tort-feasor whereby the negligence of the latter may be legally imputed to the former and (2) whether the verdicts, or either of them, are excessive. There is a further question incidentally raised as to the trial court’s charge with respect to the damage to the plaintiff Warfield due to the loss of her automobile through the collision. The appellant is engaged in the automobile finance business in Philadelphia where it maintains its principal office and a place for the storage of automobiles which it repossesses when its debtors fail to meet their obligations timely. While the plaintiffs were driving in an automobile owned by one of them (Charlotte C. Warfield) near Havre de Grace, Maryland, an automobile which had been repossessed in Washington, D. C., in behalf of the appellant and was then being driven to the appellant’s place of storage in Philadelphia, collided with the Warfield automobile causing the injuries to the plaintiffs for which they brought suit. The negligence of the driver of the repossessed car, one Houston, as well as the plaintiffs’ freedom from contributory negligence, is conceded by the appellant and is therefore not involved here. On the question of liability, it is the appellant’s contention that Houston’s immediate employer (one McWilliams, of Washington, D. C., who traded under the name of Motor Finance Company) was an independent contractor in the matter of repossessing automobiles for the appellant and in having them driven to its storage in Philadelphia and that McWilliams’ negligence (i. e. Houston’s) cannot, as a matter of law, be imputed to the appellant. This question necessitates a review of the evidence respecting the relationship between the appellant and McWilliams and either or both of them and Houston. McWilliams, whose business consisted principally of making collections of outstanding delinquent accounts for automobile finance companies, engaged to collect accounts and make repossessions of automobiles for the appellant in and around Washington, D. C. Under the arrangement the appellant sent delinquent accounts to McWilliams who was either to try to effect collection or to repossess the automobiles, as the instructions in the particular case might be. The instructions, which were both oral and written, were uniformly followed by McWilliams. Other documentary evidence also indicates close control and direction by the appellant over McWilliams’ work. After repossessing an automobile, McWilliams would dispatch it by a driver to the appellant’s place of storage in Philadelphia. The route to be followed and who should drive the car was for McWilliams to decide. At times, what efforts at collection should be exerted before repossessing an automobile was left to McWilliams’ discretion and, at other times, when there seemed to be a reasonable prospect after a repossession that the delinquent purchaser might make good his default, McWilliams would not send the repossessed automobile to Philadelphia immediately but would store it in Washington temporarily. But, in any case, he reported daily to the appellant and, in general, acted under direct instructions from the appellant. To accredit McWilliams with evidence of his authority to act for the appellant in making collections and repossessions, the appellant authorized him to have cards printed which showed the name of the appellant company in the center, with McWilliams’ trade name (Motor Finance Company) “down in the corner” and McWilliams’ own name appearing under the latter. For his services to the appellant in repossessing automobiles and driving them to Philadelphia, McWilliams was paid a flat fee per car and expenses. Houston, whose work was limited exclusively to delivering repossessed cars to the appellant’s place of storage in Philadelphia, was paid a weekly wage by McWilliams. As the accident which inflicted the plaintiffs’ injuries occurred in Maryland, the law of that state, under well settled principles, determines the legal incidents of the case. Restatement of the Law, Conflict of Laws, §§ 378 and 379. But, no proof of the law of Maryland was introduced at trial in the District Court (E. D. Pa.). In further effectuation of the policy of federal jurisprudence enunciated in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, it would seem proper for a federal court to follow the rule of the State of the forum-on a question of conflict of laws. See Goodrich, Conflict of Laws (2d Ed.), § 12. Accordingly, we resort to the pertinent rule of Pennsylvania, the forum State of the trial court, for the ascertainment of the Maryland law. In Pennsylvania, it is well settled that, in the absence of evidence to the contrary, the common law of another common law state is presumed to be the same as the common law of Pennsylvania. General Motors Acceptance Corp. v. Foley, 311 Pa. 477, 166 A. 909; Cochran v. Shetler, 286 Pa. 226, 133 A. 232; Baxley v. Linah, 16 Pa. 241, 55 Am.Dec. 494; Restatement of the Law, Conflict of Laws, § 622. The appellant reserved its point of law as to its liability by requesting a directed verdict, Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which the trial judge refused, and assigns for error the trial court’s denial of its motions for judgments n. o. v. It is our duty to determine whether the action of the court below was proper and, if not, we may direct the entry of the appropriate judgment. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Baltimore & C. Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636. A verdict should not be allowed to stand if, after resolving all inferences from the evidence most strongly against the one complaining of the verdict, there appears to be no legal substance to support it. Gulf, M. & N. R. Co. v. Wells, 275 U.S. 455, 48 S.Ct. 151, 72 L.Ed. 370; Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. Under the doctrine of respondeat superior, a master is liable for the tortious conduct of his servant where the latter acts within the scope of his employment. Loper v. P.-G. Publishing Co., 312 Pa. 580, 169 A. 374; Restatement of the Law, Agency, § 219. A servant is one employed to render services for another who has control over the servant’s physical conduct in the performance of the services. McColligan v. Pennsylvania R. R. Co., 214 Pa. 229, 63 A. 792, 6 L.R.A.,N.S., 544, 112 Ani.St.Rep. 739; Cox v. Roehler, 316 Pa. 417, 175 A. 417, Citing Restatement of the Law, Agency, § 220. If the interest of the employer is only in the results and he does not control and has no right to control the means of accomplishing the results, the employee is held to be an independent contractor. Tyler v. MacFadden Newspaper Corp., 107 Pa.Super. 166, 163 A. 79, and cases there cited. The employer’s right to limited direction, in order to assure desired results, does not destroy his insulation from liability for the torts of his independent contractor employee. Smith v. Simmons, 103 Pa. 32, 49 Am.Rep. 113; Simonton v. Morton, 275 Pa. 562, 119 A. 732. In the instant case the appellant was, of course, interested in results, but there was evidence that it exercised control over the means of accomplishing those results to a degree beyond a mere measure of control to insure the ends desired. In that case, if the testimony as to the appellant’s control, which the plaintiffs adduced, is such that, in sound judicial discretion, a verdict in their favor could not be disturbed, refusal of a directed verdict for the defendant was proper. See Gulf, M. & N. R. Co. v. Wells, supra; Western & A. R. Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597. While there is no express agreement defining the relationship between McWilliams and the appellant, there is testimony which, if believed by the jury, was sufficient to support a finding that the appellant was a master in control of the manner and means of its servant’s (McWilliams’) pérformance of his duties to it. McWilliams not only had general instructions to deliver to the appellant’s place of storage in Philadelphia the cars which he repossessed for it, but in answer to the question “Did you receive any specific instructions as to each individual account?” McWilliams answered “yes, on each account.” McWilliams was not hostile to the appellant. In fact the probability is that if he had any bias it was in favor of the appellant. From his testimony it may reasonably be inferred that he acted according to the appellant’s instructions either because his arrangement with the appellant required him so to do or because he was specifically told what to do. Such is the manner in which McWilliams indicates his conception of his duties to the appellant. The impression of the parties as to the relationship existing between them is important in determining the element of control. See Restatement of the Law, Agency, § 220(2) (i), and comment i. It is also of some significance that McWilliams in carrying out his duties made daily telephone reports to the appellant. Such frequency in contact and reporting would fairly support an inference that the appellant controlled McWilliams in the means of effecting his work. At least, it may be said that it is not clear that a master and servant relationship did not exist between the appellant and McWilliams. The question was therefore properly one for the jury. See Restatement of the Law, Agency, § 220, comment b. On the record before us, it would be no less than a usurpation of the jury’s province for the court to say, as a matter of law, that a master and servant relationship did not exist between the appellant and McWilliams. Nor is the appellant’s responsibility any less because Houston, an employee of McWilliams, was the driver of the car. With McWilliams’ status as the servant of the appellant established, the latter’s liability attaches equally even though an employee of McWilliams was driving the automobile at the time of the accident. A servant may be empowered to hire another to assist him in the performance of his work and that other can vicariously affect the superior master. Restatement of the Law, Agency, § 81, comment b. It may be fairly said that the arrangement between the appellant and McWilliams for the delivery of repossessed cars contemplated McWilliams’ hiring drivers to deliver them. It was not intended that McWilliams should personally drive the repossessed cars to the appellant in Philadelphia. Indeed, it was not possible for him to make all of the deliveries, a fact known to the appellant. The record shows the delivery to Philadelphia of a large number of automobiles which McWilliams had repossessed for the appellant and it further shows that Houston’s job with McWilliams was exclusively to drive to Philadelphia the cars reclaimed for the appellant. McWilliams’ authority to hire another to assist him in performing his work for the appellant may be reasonably inferred from the evidence. That only McWilliams paid Houston is not determinative that Houston was not a co-servant for the appellant. Burns et al. v. Elliott-Lewis Electric Co., 118 Pa.Super. 243, 248, 179 A. 47. In White v. Consumers Finance Service, Inc., 339 Pa. 417, 15 A.2d 142, where the defendant’s employee asked a person to assist him in repossessing a car, the defendant knew nothing of the assistance and there was no evidence that assistance was required nor did the circumstances imply the employee’s authority to obtain assistance. Hence, liability was not visited upon the employer for the negligence of the unauthorized assistant of the employee. The facts in this case are to the contrary. The evidence is sufficient to support a finding of a master and servant relationship between the appellant and McWilliams and, by the same token, between the appellant and Houston. And, once the relationship is so found, the negligence of Houston or McWilliams becomes the negligence of the appellant. The question of the appellant’s negligence was, therefore, necessarily for the jury and refusal of directed verdicts for the defendant and likewise a denial of its motions for judgment n. o. v. was proper. This disposes of the appellant’s contentions with respect to the question of liability. The appellant’s complaint that the verdicts are excessive calls for little discussion. The proven extent and the present and prospective effect of the injuries suffered by the plaintiffs fully justified the jury’s awards. Where damages are unliquidated and the measure does not give a mathematically certain result, before a court may disturb a jury’s verdict on the ground of excessiveness, the verdict must in fact appear to be excessive. Powers v. Wilson, 2 Cir., 110 F.2d 960; United States Can Co. v. Ryan, 8 Cir., 39 F.2d 445, certiorari denied, 282 U.S. 842, 51 S.Ct. 23, 75 L.Ed. 748. This rule is peculiarly applicable in actions for personal injuries based upon tort. See generally 15 American Jurisprudence, §§ 204 — 366. We cannot say that either of the verdicts involved in these appeals was excessive. The trial court deemed the verdicts just and refused to interfere with them; and we find nothing in the record to warrant our holding that, in so doing, the court below was guilty of an abuse of discretion. The appellant further contends that the trial court erred in submitting to the jury as a permissible element of damage in the case of the plaintiff Warfield any loss suffered by her through injury to her automobile and clothing by reason of the collision. This contention the appellant bases upon the assertion that there was no evidence as to the extent of such loss. Following the charge of the court, the defendant took exception, inter alia, to the submission of the question of damage to the automobile on the ground that “the evidence was [not] sufficient on that [damage to automobile] to prove any loss to Mrs. Warfield”. This exception provoked a colloquy between the court and counsel for the defendant which was concluded by counsel’s stating “I merely take an exception to it. As Your Honor knows, I am not so much interested in the damage feature.” A little later, confirmatory of this want of concern as to the sufficiency of the evidence in support of various elements of minor damage, counsel for the defendant said: “ * * * After all, these things, as Your Honor knows, are not my phase of the case; it is the agency in which I am concerned, and I think the jury understands that.” No formal exception was even taken to the submission of the question of damage to the plaintiff’s clothing. Special findings as to the amount of any allowances to Mrs. Warfield for damage to her automobile and clothing were not requested and the jury was permitted to return a general verdict. To reverse, in such circumstances, for insufficiency of evidence of damage as to these relatively small items, would work hardship which the appellant is in no position to inflict. If an element of unproven minor damage possibly permeated the general verdict, the defendant was not without blame for the situation. The jury could have segregated the item which, later, could have been dealt with separately on the basis of the defendant’s exception. But the defendant chose not to exercise its right to request a special finding with respect to such damage and expressly disclaimed interest in the matter at the critical time. Moreover the defendant suffered no substantial harm. Even with damage to Mrs. Warfield’s automobile and clothing entirely disregarded, the jury’s verdict would still be no more than just compensation for her loss due to personal injuries. Nor is it likely that the verdict would be any less if the case were returned to the court below for a jury’s reascertainment of the damages to which alone any retrial would be properly restricted. In our opinion there is no meritorious basis for the appellant’s complaint. The judgments of the District Court are affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_r_state	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. Ardis O. SMART, Appellant, v. Robert A. HEINZE, Warden, Folsom Prison, Represa, California, Appellee. No. 19735. United States Court of Appeals Ninth Circuit. May 19, 1965. Rehearing Denied June 21,1965. Ardis Oliver Smart, in pro. per. Thomas C. Lynch, Atty. Gen., of Cal., Doris H. Maier, Asst. Atty. Gen., of Cal., Edsel W. Haws, Deputy Atty. Gen., of Cal., Sacramento, Cal., for appellee. Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges. HAMLIN, Circuit Judge. Appellant is a prisoner incarcerated in Folsom Prison. On July 20, 1964, appellant filed a complaint in the United States District Court for the Northern District of California, Northern Division, pursuant to the Civil Rights Act, 28 U.S.C. § 1343 and 42 U.S.C. § 1983, seeking damages and other equitable relief against the warden of Folsom Prison, appellee herein. In his complaint it is alleged that appellant prepared a petition for habeas corpus to be submitted to the United States District Court for the Northern District of California, Northern Division; that the resident notary public at the prison refused to notarize the petition upon the ground that it was not prepared on forms as required by Rule ND5 of the Rules of Practice of that court; that thereafter appellant attempted to mail the petition without notarization; and that the petition was not mailed, but was returned to him by prison officials on the ground that it did not comply with the requirements of Rule ND5 in that it was not prepared in the questionnaire form required by the Rule. At the time of filing of the complaint in the district court, appellant also moved for permission to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. On July 20, 1964, the District Court for the Northern District of California, Northern Division, entered its memorandum decision and order denying appellant’s motion to proceed with the action in for-ma pauperis. The court, by order dated July 29, 1964, denied appellant’s motion for a rehearing. This court on December 7, 1964, authorized appellant to prosecute this appeal in forma pauperis, and has jurisdiction to hear this appeal under 28 U.S.C. § 1291. To proceed in forma pauperis is a privilege not a rig0ht. Clough v. Hunter, 191 F.2d 516, (10th Cir. 1951). It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis. Tate v. People, et al., 187 F.2d 98 (9th Cir. 1951); Huffman v. Smith, 172 F.2d 129 (9th Cir., 1949); Meek v. City of Sacramento, 132 F.Supp. 546 (N.D.Cal.1955). The granting or refusing of permission to proceed in forma pauperis is a matter committed to the sound discretion of the district court. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963). The latitude of discretion accorded the ruling of the district court in such matters is especially broad in civil actions by prisoners against their wardens and other officials connected with the institution in which they are incarcerated. The substance of appellant’s complaint is that the warden of Folsom Prison will not permit application for writs of habeas corpus to be notarized or mailed unless they are completed on forms provided under Rule ND5 of the District Court for the Northern District of California. Rule ND5 was adopted by that court on April 20, 1964, and provides that petitions for a writ of habeas corpus by persons in state custody shall be on forms supplied by the court. This rule, as are all such local rules of the various district courts, was promulgated pursuant to 28 U.S.C. § 2071 and Rule 83 of the Federal Rules of Civil Procedure. The authority to promulgate a rule such as Rule ND5 and its validity is beyond dispute. The petition for a writ of habeas corpus which petitioner presented for notarization and mailing was not on the forms prescribed by the rules of the district court. Instead of using the forms therefor as provided by the rule, appellant filed a suit for damages against the warden. The court below, in its memorandum decision and order stated: “Rule ND5 was imposed by this Court, not the defendant, and the assailed conduct on the part of defendant was solely for the purposes of complying with and implementing this Court’s resolution. Accordingly, no valid claim has been stated against the defendant.” We agree. We see no impropriety in the action of the prison officials in this case in following the rules of the court. Appellant’s complaint was patently frivolous. We hold that the district court did not abuse its broad discretion in denying appellant’s motion to proceed in forma pawperis. Judgment affirmed. . Rule ND5 of the United States District Court for the Northern District of California, Northern Division. “1. Petitions for a writ of habeas corpus and motions filed in the Northern Division of this Court pursuant to 28 U.S.C. § 2255 (attacking a sentence imposed by this Court), by persons in custody, shall be typewritten (unless it is affirmatively made to appear that typing facilities are not available), signed and verified. Such petitions and motions shall be on forms supplied by the Court, copies of which are hereto appended. The instructions on said forms shall be strictly followed. “2. Petitions and motions shall be addressed to the Clerk of the U. S. District Court for the Northern District, Northern Division, 650"Capitol Avenue, Sacramento, California. Petitioners shall send to the Clerk an original and one copy of the completed petition or motion form. No petition or motion shall be addressed to an individual judge, petitions shall be directed to the Clerk of the Court for assignment pursuant to the rules of this Court, provided that motions under 28 U.S.C. § 2255 shall, if possible, be assigned to the sentencing judge.” . Weller v. Dickson, supra. See the concurring opinion by Duniway, Circuit Judge, therein, where it is stated— “ * * * [W] hen £he action is a civil suit by a state prisoner against his jailers, whether under the Civil Rights Act or not. the district court should have, and has, a broad discretion, and can deny leave to proceed in forma pauperis even though the complaint does state a claim for relief, if the court is of the opinion that the plaintiff’s chances of ultimate success are slight.” . Appellant has filed in this court a motion “to declare Rule ND5 unconstitutional and repugnant to Federal Court Rules,” which motion has been denied. Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_genapel2	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 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. Don Camby LOWTHER, PlaintiffAppellee, v. UNITED STATES of America et al., Defendants-Appellants. No. 72-1807. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 24, 1973. Decided June 20, 1973. James H. Harrod, Oklahoma, Okl., for plaintiff-appellee. O. B. Johnston III, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for defendants-appellants. Before PICKETT, HILL and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The government here appeals a judgment of the District Court for the Western District of Oklahoma in favor of plaintiff-appellee awarding him the sum of $892.50 representing the reasonable market value of certain weapons which the government had seized and forfeited. These consisted of two-9 mm German Lugers, a Winchester 30 caliber rifle, one-9 mm Luger-Drum Magazine and two boxes of miscellaneous rifle and sub-machine gun parts. The events leading up to the seizure are important to an understanding of the problem presented to this court. On March 8, 1970, officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service in the process of executing a search warrant seized the weapons in question from the residence of plaintiff-appellee. He was subsequently arrested and charged in a criminal case for possession of firearms contrary to 26 U.S.C. §§ 5861(d) and 5871. The seizure by the government was pursuant to 26 U.S.C. § 5872 as having been used illegally. On May 20, 1970, the plaintiff-appellee filed a petition to the Director of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service claiming the five items of property which had been seized and asking for remission or mitigation of forfeiture of the said items. On October 8, 1970, appellee was tried in the criminal case and was acquitted on all nine counts. Notwithstanding this, on January 29, 1971, notice was given that the application for remission or mitigation had been denied. On January 7, 1971, apparently without the knowledge of the appellee, the weapons and parts had been destroyed by Alcohol, Tobacco and Firearms Division agents. Subsequently, on February 23, 1971, plaintiff-appellee filed the present action in the United States District Court for the Western District of Oklahoma. This took the form of a request for review of the Director’s decision. However, at the trial it appeared that the five items had been destroyed and the trial court treated the case as an action for damages, disregarding the plaintiff’s prayer for return of the items. As noted, a money judgment was entered. The basis for the court’s decision was that plaintiff had been acquitted of illegal possession of firearms in a criminal prosecution and that this was in effect an adjudication of the legality of the property and the plaintiff’s right to possess the same. The court reasoned that since the plaintiff was entitled to the possession and was in lawful possession the seizure was necessarily invalid. A seizure to be valid must be pursued, according to the court, by showing that the possession of the items be contrary to Title 26 U.S.C., Chapter 53. Therefore, the court continued, the imposition of the forfeiture contrary to law constituted an unconstitutional deprivation of the plaintiff’s property. The government asserts that the trial court lacked jurisdiction to grant relief because first, the administrative ruling on the petition for remission or mitigation was final and conclusive and not reviewable either directly or indirectly; secondly, it is contended that a court hearing was available to the appellee only by posting a cost bond within the time requirement of 26 U.S.C. § 7325. Failure to post the bond resulted in a waiver. The question is then whether by applying for remission of the penalty pursuant to 26 U.S.C. § 7327 rather than filing a bond pursuant to 26 U.S.C. § 7325 gave rise to a consent or tacit approval of the action of the Secretary or' his delegate in denying the application. An important‘factor is that the property here is neither narcotics nor other contraband. On the contrary, it was determined by the trial court to have been innocently used and to have not been illegal per se. Furthermore, the appellee was adjudged by the jury in the criminal case to be not guilty. Thus, the government must justify a taking and forfeiture which was unrelated to any violation of the law and which concerned property which was validly in possession of the appellee. It boils down then to the government’s having destroyed appellee’s property without having any authority in law to do it. Consequently, the action of the Director of the Alcohol, Tobacco and Firearms Division constituted a disregard of the evidence and law in the case and was contrary to the due process clause of the Fifth Amendment. Prior to the decision of the Supreme Court in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), there was confusion as to the authority of officers of the government to seize and forfeit property. There were early cases which have held that such authority was absolute. Some of the older cases, on the other hand, held that an acquittal in a criminal case was a bar to the forfeiture and still other cases held that the criminal case and the forfeiture proceedings were interrelated and that the forfeiture could not be validly carried out unless there had been a conviction in the criminal case. Coin & Currency brought about some degree of order. It held first, that the forfeiture is criminal in character; secondly, it recognized the necessity for the owner of the property to have been using it in a criminal activity. It said that the forfeiture penalty is to be imposed only upon those who are significantly involved in a criminal enterprise. See 401 U.S. at 722, 91 S. Ct. 1041. It also questioned whether the forfeiture is an in rem proceeding since it is interrelated with the wrongdoing of the owner. Also, since Coin & Currency, doubts as to the unlimited discretion of the Secretary have been removed. He may not arbitrarily deny remission in disregard of the evidence and the law and at the same time escape judicial inquiry and scrutiny. As shown above, the Supreme Court has said that if the situation is sufficiently extreme, there will be court intervention. The form of court intervention is not defined, but this is not entirely new. Even the early cases such as Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), have said that acquittal in the criminal case allows the defendant to assert this judgment as a defense in forfeiture proceedings. This court has, in relatively recent times, recognized the vitality of Coffey. In the case of United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959), the defendant was prosecuted for the transportation of sugar intended for use in the unlawful manufacture of distilled spirits. The result of this was a verdict of not guilty. Notwithstanding the verdict, forfeiture proceedings were undertaken against the vehicle and the sugar. This court, applying the Coffey case, held that the acquittal in the criminal case barred forfeiture action. In the ease at bar the trial court did not specify a jurisdictional avenue. It simply ruled that the plaintiff was entitled to recover based on the taking of his property without due process of law. There is, however, a statutory remedy which is peculiarly adaptable to the present case and that is the Tucker Act which authorizes the district court to entertain an action against the United States founded upon the Constitution. We do not regard as significant the fact that the trial court did not cite the Tucker Act since it acted in accordance with it when it ruled that it had jurisdiction to remedy a taking of property contrary to the Fifth Amendment. While the Tucker Act would not be the appropriate remedy in every case, the peculiar facts here presented giving rise as they do to a palpable taking of property without due process of law render it peculiarly appropriate. In summary, then, we hold that the officers here acted contrary to law in seizing the property in question; that the Director acted contrary to law in disregarding the evidence and in acting without any tenable legal basis, since the property was innocent and was not being used illegally. Finally, we agree with the trial court that the appellee’s constitutional rights were violated; we hold that the taking without due process gave rise to a remedy under the Tucker Act. It follows that the judgment should be and the same is hereby affirmed. . The trial court’s conclusions are set forth as follows: The acquittal of the Plaintiff on criminal charges involving possession of firearms in violation of 26 U.S.C., §§ 5861(d), 5871, is in effect an adjudication of the legality of the property and the Plaintiff’s right to possess the same. The Plaintiff is the actual and rightful owner of the items of personal property set forth in his Petition for Remission or Mitigation of Forfeiture and has complied with all the laws, both state and federal, pertaining thereto. The Defendant’s contention that the property was rightfully forfeited according to the provisions and procedures prescribed in 26 U.S.C. § 7325, is in error since it is paramount to the invoking of that statute that the items of property involved be in violation of Chapter 53, Title 26, United States Code. This Court has determined that the items of personal property as described in the Plaintiff’s Petition for Remission or Mitigation of Forfeiture were not held in violation of law, and as such the Order of the Internal Revenue Service to have the property destroyed was in violation of the Constitution, the laws of the United States, and as such deprives the Plaintiff of his property without due process of law. The imposition of forfeiture on the Plaintiff is penal in nature and causes an unconstitutional deprivation of personal property without just compensation. Consequently, the Plaintiff is entitled to a judgment in his favor for the fair market value of the items of personal property as described in his Petition for Remission or Mitigation of Forfeiture that were seized and ordered destroyed by the Internal Revenue Service. . Early cases of this court, e. g. United States v. Kemp, 186 F.2d 808 (10th Cir. 1951), United States v. One 1941 Plymouth Tudor Sedan, 153 F.2d 19 (10th Cir. 1946), which state that the Secretary has uncontrollable discretion are wholly inconsistent with Coin & Currency. . Cf. Notes 3 A.L.R.2d 738; 27 A.L.R.2d 738. . The Court recognized the broad scope of the forfeiture proceedings, but that it is nevertheless subject to limitations of the Constitution. The Court stated: An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law .... 19 U.S.C. § 1618. Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the coiirts have intervened when the innocent petitioner’s protests have gone unheeded. When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise. 401 U.S. at 721-722, 91 S.Ct. at 1044 (emphasis added) ■ (citations & footnote omitted). . The opinion of Judge Breitenstein declared : On the ground that the acquittal in the criminal case barred recovery in this case, the trial court directed a verdict in favor of the defendant. We are unable to distinguish this case from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, wherein it was held that the acquittal of Coffey on various liquor tax charges barred forfeiture proceedings. iji SH # # Any departure from Coffey and its “uncritical language” must come from the Supreme Court. We are bound by the rule therein announced. 272 F.2d 70-4-705. . It provides that the district court has original jurisdiction, concurrent with the Court of Claims, of [a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of any executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort. 28 U.S.C. § 1346(a)(2). . This remedy has been applied to forfeiture proceedings by federal courts on previous occasions. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D. N.Y.1969). In JaeTcel the plaintiff’s vehicle was seized as a result of conduct of her daughter. Subsequently, it was sold and the proceeds were turned over to the bank to satisfy the mortgage. An action was brought by the plaintiff alleging that the forfeiture was void in that it deprived her of her property without due process of law. The United States District Court for the Southern District of New York (Judge Bonsai) held that the Tucker Act was a proper remedy. In United States v. One 1961 Red Chevrolet Impala Sedan, the Fifth Circuit rejected the government’s contention that the plaintiff had not followed the proper remedy and ruled that the owner of the property invalidly forfeited had a remedy under the Tucker Act. The court did not, however, give effect to the remedy, but due to the fact that the owner had sought to get relief under Rule 60(b) in the forfeiture proceedings, affirmed the action without prejudice to the owner to institute a new suit under the Tucker Act. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. McCLEARY v. HUDSPETH, Warden. No. 2386. Circuit Court of Appeals, Tenth Circuit. Dec. 24, 1941. C. W. Schwoerke, of Oklahoma City, Okl., for appellant. Homer Davis, Asst. U. S. Atty., of Topeka, Kan. (Summerfield S. Alexander, U. S. Atty., of Topeka, Kan., on the brief), for appellee. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. PHILLIPS, Circuit Judge. This is an appeal from a judgment denying a petition for a writ of habeas corpus. McCleary was charged by two indictments returned in the District Court of the United States for the Western District of Pennsylvania with violations of the postal laws. He entered pleas of guilty to the several counts thereof and was sentenced to a term of imprisonment of 25 years. After serving part of the sentences imposed, petitioner filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas alleging that he was denied the assistance of counsel for his defense in the criminal proceedings and that the sentences imposed were void. The court found that petitioner was denied assistance of counsel for his defense in the criminal proceedings, ordered him discharged from the custody of the warden of the penitentiary in which he was confined, and delivered to the United States Marshal for the Western District of Pennsylvania. A bench warrant was issued on the indictments and petitioner was taken into custody thereon and confined in the Erie and Allegheny County, Pennsylvania jails. On January 12, 1940, the judge of the Pennsylvania Federal Court appointed Lloyd W. Kennedy to act as counsel for petitioner on the trial of such indictments. The court later appointed A. M. Tua as additional counsel for petitioner. On February 21, 1940, the acting United States Attorney for the Western District of Pennsylvania filed a motion to vacate the pleas of guilty theretofore entered by the petitioner to the indictments. A rule was entered upon petitioner and his counsel to show cause why the pleas of guilty should not be declared void and vacated. On February 29, 1940, Kennedy and Tua, after a full hearing on the motion, agreed that such pleas should be vacated and an order was entered vacating the pleas and the judgments entered thereon. Petitioner did not agree to but objected to the order. On March 18, 1940, petitioner was arraigned a second time on the indictments and entered his plea of not guilty to each of the several counts thereof. On the same day, he was tried on the indictments, being represented at the trial by Kennedy. The jury returned verdicts of guilty. He was sentenced to a term of imprisonment of 25 years and was delivered into the custody of Hudspeth, warden, on March 27, 1940. Petitioner, in his application for the writ herein, set up the foregoing facts and further alleged that he was being subjected “to double punishment for one offense”; that he was being subjected to cruel and unusual punishment; that he was tried, convicted, and sentenced without due process of law; that he was tried on two indictments at one time before one jury; that a part of the record of the Pennsylvania Federal Court was changed or altered to secure his conviction ; that he was denied compulsory process to procure witnesses for his defense; that he was compelled to be a witness against himself; and that he was not permitted to consult with counsel at every stage of the proceedings. The warden filed an answer to the application in which he set up the facts above stated and denied the foregoing allegations of the application. A writ of habeas corpus ad testificandum was issued and petitioner was brought before the court and testified at the hearing. He was represented by C. D. Holman, an attorney of Leavenworth, Kansas. After a full hearing, the court found the facts hereinbefore recited; specifically found that petitioner was competently and capably represented by counsel appointed by the Pennsylvania Federal Court; that petitioner was afforded full opportunity to consult with such counsel; that he was not denied the assistance of counsel for his defense; that he was not denied the right to have witnesses subpoenaed in his behalf; that he did not request the court to subpoena any witness in his behalf at the expense of the government; that he was sane and rational at the time of the trial; and found the issues generally against petitioner. The findings of the trial court are fully supported by the evidence. Petitioner urges that by subjecting him to trial on the indictments, he was twice put in jeopardy for each of the offenses charged in the indictments, contrary to the provisions of the Fifth Amendment to the Constitution of the United States. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the court held that compliance with the provision of the Sixth Amendment guaranteeing the accused the right to have the assistance of counsel for his defense is an essential prerequisite to a Federal Court’s authority to deprive the accused of his life or liberty; and that where the accused neither has been accorded nor properly waived such right, and the court nevertheless proceeds to sentence the accused, the judgment is void and subject to collateral attack on habeas corpus. By the first proceeding in habeas corpus in the United States District Court for the District of Kansas, petitioner obtained a judgment declaring that the sentences imposed on the pleas of guilty were void because the court had proceeded without petitioner having been accorded the right to the assistance of counsel for his defense. The pleas of guilty having been entered at a time when petitioner had neither waived rtor been accorded his right to the assistance of counsel, the pleas of guilty and the judgments entered were invalid and were properly vacated by the Pennsylvania Federal Court. A proceeding, to constitute a proper basis for a claim of former jeopardy, must be valid. If the proceedings are lacking in any fundamental prerequisite which renders the judgment void, they will not constitute a proper basis for a claim of former jeopardy. Here, the proceedings, including the pleas of guilty, the judgments entered, and the sentences pronounced, lacked essential validity and it follows that they cannot constitute a proper basis for a claim of former jeopardy. Where a prisoner obtains his discharge on habeas corpus on the ground that the sentence under which he is being held is illegal, he is precluded on resentence on a prior valid conviction or upon due conviction from urging the objection of double jeopardy. The United States District Court for the District of Kansas had authority to direct the return of the petitioner to the Pennsylvania Federal Court for further proceedings on the indictments. The fixing of penalties for crimes is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual. Schultz v. Zerbst, 10 Cir., 73 F.2d 668, 670. Where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual. The other grounds for the writ set up in the application are foreclosed by the trial court’s findings. The judgment is affirmed. Hereinafter referred to as petitioner. Hereinafter referred to as the Pennsylvania Federal Court. State v. Heard, 49 La.Ann. 375, 21 So. 632; People v. Casey, 251 App.Div. 867, 297 N.Y.S. 13, 14; State v. Bartlett, 181 Iowa, 436, 164 N.W. 757, 758, L.R.A.1918A, 1179; People v. Cuatt, 70 Misc. 453, 126 N.Y.S. 1114, 1118; May v. State, 110 Ark. 432, 162 S.W. 43, 44; Commonwealth v. Roby, 12 Pick., Mass., 496, 501. Bryant v. United States, 8 Cir., 214 F. 51, 53; King v. United States, 69 App.D.C. 10, 98 F.2d 291, 294, 295; Murphy v. Massachusetts, 177 U.S. 155, 162, 20 S.Ct. 639, 44 L.Ed. 711; In the latter case, the court said: “The plea of former jeopardy or of former conviction cannot be maintained because of service of part of a sentence, reversed or vacated on the prisoner’s own application.” Biddle v. Thiele, 8 Cir., 11 F.2d 235, 237; Price v. Zerbst, D.C.Ga., 268 F. 72, 74, 75; Bryant v. United States, 8 Cir., 214 F. 51, 53; In re Medley, Petitioner, 134 U.S. 160, 174, 10 S.Ct. 384, 33 L.Ed. 835; In re Bonner, Petitioner, 151 U.S. 242, 259, 260, 14 S.Ct. 323, 38 L.Ed. 149. Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732, and cases there cited. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. 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. UNITED STATES of America, Plaintiff-Appellee, v. William Oliver JOHNSON, Defendant-Appellant. No. 16962. United States Court of Appeals Seventh Circuit. April 18, 1969. Jerry P. Belknap, Jon D. Noland, Indianapolis, Ind., for defendant-appellant; Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel. K. Edwin Applegate, U. S. Atty., Robert L. Baker, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. Defendant was indicted for storing and concealing a stolen 1965 Chrysler, knowing it to have been stolen, in violation of Section 2313 of the Criminal Code (18 U.S.C. § 2313). The jury returned a verdict of guilty, and defendant received a six-month sentence with 1% years of probation to follow. The appeal is from this conviction. According to the evidence, this automobile was stolen in Berkeley, California, in early November 1966. Ira Summers delivered the car to defendant in St. Louis. Summers testified that he asked defendant to give him $75 for the car and that defendant promised to pay that amount but never did so. Defendant drove the car from St. Louis to Indianapolis some time in November. He testified that he employed the car from his personal use, that it was stolen from him and later recovered. Although defendant intended to have the Chrysler repaired after its recovery, he first took the wheels off the car and placed it on blocks in January 1967 so that no one could take it out of his yard. Two Indianapolis police officers observed it there, arrested defendant and impounded the car. After his January 12, 1967, arrest, defendant was twice questioned by FBI agents at the Indianapolis Police Department. At each of these 50-minute interviews, defendant signed inconsistent written statements. He refused to execute a written statement during a third interview in April 1967, but orally furnished the same information as in his second signed statement. On each of these three occasions, he executed a standard waiver of rights form. Over defendant’s objections, his two written statements and the three executed waiver of rights forms were admitted in evidence, and FBI agent Stuart was permitted to testify as to defendant’s oral statements. As grounds for reversal, defendant asserts that the trial judge should have conducted a preliminary hearing out of the presence of the jury as to the voluntariness of these statements. Defendant also assails the interstate commerce instruction and claims that there was inconsistency in the instructions relating to perpetration of the overt acts. We agree that a new trial is required. Necessity for Preliminary Evidentiary Hearing on Voluntariness of Defendant’s Statements The principal error raised is the admission of the three statements made by defendant to FBI agents without a preliminary hearing and determination of voluntariness by the trial court, outside the presence of the jury. Although apparently not bringing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, to the trial court’s attention, defendant’s counsel did request such a preliminary hearing. The Government now concedes that the exculpatory statements introduced were subject to the same standards of voluntariness as confessions and that the failure to hold a hearing in order to make an initial determination of this question was erroneous and requires a remand. On the other hand, the Government opposes a new trial. Our conclusion is that a new trial is necessary. To relegate defendant in the present case to a hearing on the issue of voluntariness of statements admitted in his trial almost four years after the decision in Jackson v. Denno would in effect make the protections afforded by that decision optional with the trial judge in future cases. Moreover, where, as here, the voluntariness of the statements has been raised on direct appeal in federal post -Jackson cases in which the defendant did not voluntarily testify prior to the Government’s attempt to introduce the statements, the Supreme Court intended to require a new trial, for it stated “It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence” (378 U.S. at p. 395, 84 S.Ct. at p. 1791). Jackson was not given a new trial because he had been convicted in a state court prior to the Supreme Court’s new holding and was seeking collateral relief. Id. We cannot believe that the Supreme Court contemplated that defendants should continue to face the difficult choice of allowing such statements to go to the jury unchallenged or waiving the privilege not to testify in order to contest the voluntariness of the statements. Cf. United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968). Here the trial court’s refusal to conduct a preliminary evidentiary hearing and to make a preliminary finding of voluntariness compelled defendant to make this choice. Defendant is entitled to a new trial at which the district court must conduct a preliminary hearing outside the presence of the jury on the issue of voluntariness. Adequacy of Interstate Commerce Instruction In the interest of eliminating doubt as to the validity of the challenged instructions on retrial, we examine the asserted errors. The trial court sent all given instructions to the jury for consideration during its deliberations. The first instruction repeated the words of the indictment which claimed that the Chrysler “was moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time defendant stored it and concealed it “on or about January 11, 1967.” The ninth instruction quoted the pertinent part of Section 2313 of the Criminal Code proscribing the storage or concealment of a motor vehicle “moving as * * * interstate * * * commerce, knowing the same to have been stolen * * The final reference to interstate commerce in the court’s charge was contained in the tenth instruction, providing as follows: “In order to warrant the conviction of the defendant under the indictment in this case, the government must prove beyond reasonable doubt by the evidence: “1. That the vehicle described in the indictment was stolen; “2. That the said motor vehicle was moving as interstate commerce from Berkeley, California to Indianapolis, Indiana; “3. That the defendant stored and concealed the said motor vehicle in question; “4. That the defendant, when he stored and concealed the motor vehicle described in the indictment, if he stored and concealed it, knew that it was stolen property.” Defendant did not object to these instructions but successfully moved to amend the tenth one to read “stored and concealed” where, as proposed by the Government, it said “stored and received.” Defendant later tendered his own interstate commerce instruction providing : “You are instructed that unless you find that the defendant actually stored and concealed the motor vehicle described in the indictment while it was moving in interstate commerce, knowing it to be stolen, you must find the defendant not guilty.” This proposed instruction was denied because the district court concluded it was already covered. Defendant was not charged in the indictment with having stolen the Chrysler, nor with having transported it across state lines; the acts of concealing and storing the car in Indianapolis on or about January 11, 1967, are the gravamen of the crime charged. If the court had instructed the jurors that they could find the Chrysler was moving in interstate commerce from Berkeley, California, to St. Louis, Missouri, and no evidence had been adduced to show that the car was still in commerce on or about January 11 when defendant was discovered in possession of it in Indianapolis, defendant’s proposed instruction certainly would have been necessary. It has been held that where the defendant is not shown to have stolen the car or transported it, and there is no proof as to when or where the car entered the state, it is error to refuse an instruction that the Government had the burden of showing that the car was in interstate commerce at the time of the alleged acts of concealment. McAdams v. United States, 74 F.2d 37, 39 (8th Cir. 1934); Davidson v. United States, 61 F.2d 250, 255 (8th Cir. 1932); Wolf v. United States, 36 F.2d 450, 452 (7th Cir. 1929). However, the proof in the present case was ample to permit the jury to conclude that defendant himself transported the car from St. Louis to Indianapolis, knowing it to have been stolen. As the defendant rightly observes, the question whether a stolen car was a part of interstate commerce at the time of the alleged offense must be submitted to the jury. Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956). In our view, the first, ninth and tenth instructions taken together sufficiently advised the jury that it could not find defendant guilty if the car was not still “moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time of the storage and concealment in Indianapolis. Defendant urges that it was the theory of the defense that even if the ear was in commerce in November when defendant first brought it into Indianapolis, it had come to rest by reason of its intervening use and the alleged theft and recovery of the car during the period between November 1966 and January 11, 1967. But the fact that one who transports a stolen car in interstate commerce allows it to remain in the state or fails to exercise control over the car for a period of time does not mean that a jury is required to find that the car was no longer moving in interstate commerce. United States v. Meek, 388 F.2d 936, 938 (7th Cir. 1968). The jury’s guilty verdict found against the defendant on this issue, and he does not argue that its verdict was unsupported by the evidence. In the circumstances of this case, no prejudicial error occurred by reason of the court’s refusal to give the interstate commerce instruction tendered by the defendant. However, at the new trial, a single instruction to the effect that the jury must find the car to be moving in interstate commerce at the time of the acts of storage and concealment would eliminate any possibility of confusion. Alleged Inconsistency in Instructions 6 and 10 Instruction 10 charged that the Government must prove beyond a reasonable doubt that the defendant stored and concealed the Chrysler. Defendant concedes that this instruction “may have correctly charged the jury as to the law applicable to this case.” However, defendant contends that the following Instruction 6, “in the abstract * * * a correct statement of the law,” is inconsistent with Instruction 10: “Every person who wilfully participates in the commission of a crime may be found guilty of that offense. A defendant need not personally perpetrate' every act constituting the offense charged in order to be found guilty.” At the trial, defense counsel objected to Instruction 6 on the ground that it “would mislead the jury into thinking that the defendant need not be personally involved” and accordingly conflict with Instruction 10. Since Instruction 6 refers to wilful participation in the commission of the crime, it is not truly inconsistent with the statement in Instruction 10 that the Government must prove beyond a reasonable doubt “That the defendant stored and concealed the said motor vehicle in question.” Taken together, it iá obvious that the defendant could be found guilty if he participated in the storage and concealment even though he did not personally perpetrate every act of storage and concealment. This accords with Section 2 of the Criminal Code (18 U.S.C. § 2) relating to principals. The verdict was proper whether the jury found defendant guilty because he personally perpetrated the storage and concealment or because he wilfully participated in it. Therefore, there was no reversible error in giving Instructions 6 and 10. But on retrial it would be desirable to give the jury more guidance as to the criminal liability of an aider and abetter if the evidence should warrant any instruction on this issue. Jerry P. Belknap and Jon D. Noland of the Indianapolis bar were appointed to represent defendant here under the provisions of the Criminal Justice Act of 1964. They are to be complimented for the excellence of their services on this appeal. Reserved and remanded for a new trial. . Compare United States v. Feinberg, 383 F.2d 60, 70 (2d Cir. 1967), certiorari denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836. In that case the court noted in dictum that a remand might be all that is required in a post -Jackson case, but there Feinberg had independently-chosen to take the stand prior to the admission of his statement. . See also Smith v. Texas, 395 F.2d 958, 962-963 (5th Cir. 1968); Fisher v. United States, 382 F.2d 31, 34-35 (5th Cir. 1967); Trotter v. Stephens, 241 F.Supp. 33, 48-49 (E.D.Ark.1965). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_certreason	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. STEINER et al., doing business as CUMBERLAND BATTERY MANUFACTURING CO., v. MITCHELL, SECRETARY OF LABOR. No. 22. Argued November 16, 1955. Decided January 30, 1956. Cecil Sims argued the cause for petitioners. With him on the brief was Louis Leftwich, Jr. Bessie Margolin argued the cause for respondent. With her on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Stuart Rothman and Sylvia S. Ellison. Mr. Chief Justice Warren delivered the opinion of the Court. This case raises an issue of coverage under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947, with respect to work performed before or after the direct or productive labor for which the worker is primarily paid. The precise question is whether workers in a battery plant must be paid as a part of their “principal” activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are “preliminary” or “postliminary” within the meaning of the Portal-to-Portal Act and, therefore, not to be included in measuring the work time for which compensation is required under the Fair Labor Standards Act. The Secretary of Labor, contending that these activities are so covered, brought this action in the United States District Court for the Middle District of Tennessee to enjoin petitioners from violating the overtime and record-keeping requirements of Sections 7 and 11 (c) of the Fair Labor Standards Act of 1938, as amended, in the employment of production workers, and from violating Section 15 (a)(1) of the Act by making interstate shipments of the goods produced by such workers. The District Court gave judgment for the plaintiff, and the Court of Appeals for the Sixth Circuit affirmed. 215 F. 2d 171. Because of the importance of the interpretation of the portal-to-portal provisions in the administration of the Fair Labor Standards Act, and because of a conflict between the circuits on the subject, Mitchell v. King Packing Co., 216 F. 2d 618, we granted certiorari in both cases, 349 U. S. 914. There is no question of back pay involved here because the Court limited its judgment to prospective relief. Nor is the question of changing clothes and showering under normal conditions involved because the Government concedes that these activities ordinarily constitute “preliminary” or “postliminary” activities excluded from compensable work time as contemplated in the Act. It contends, however, that such activities in the circumstances of this case are an integral and indispensable part of the production of batteries, the “principal activity” in which these employees were engaged, and are, therefore, compensable under the relevant provisions of the Act. The petitioners own and operate a plant where they are engaged in manufacturing automotive-type wet storage batteries which they sell in interstate commerce. All of the production employees, such as those with whom we are here concerned, customarily work with or near the various chemicals used in the plant. These include lead metal, lead oxide, lead sulphate, lead peroxide, and sul-phuric acid. Some of these are in liquid form; some are in powder form, and some are solid. In the manufacturing process, some of the materials go through various changes and give off dangerous fumes. Some are spilled or dropped, and thus become a part of the dust in the air. In general, the chemicals permeate the entire plant and everything and everyone in it. Lead and its compounds are toxic to human beings. Regular exposure to atmosphere containing 1.5 milligrams or more of lead per 10 cubic meters is regarded by the medical profession as hazardous and involving the possibility of lead intoxication or lead poisoning. In battery plants, such as this one, it is “almost impossible,” it was testified, to keep lead concentration in the air “within absolutely safe limits,” and in petitioners’ plant “lead oxide was on the floor and in the air and on the plates which employees handled.” Abnormal concentrations of lead were discovered in the bodies of some of petitioners’ employees, and petitioners’ insurance doctor recommended that such employees be segregated from their customary duties. The primary ways in which lead poisoning is contracted are by inhalation and ingestion; i. e., by taking in particles through the nose or mouth, an open cut or sore, or any other body cavity. The risk is “very great” and even exists outside the plant because the lead dust and lead fumes which are prevalent in the plant attach themselves to the skin, clothing and hair of the employees. Even the families of battery workers may be placed in some danger if lead particles are brought home in the workers’ clothing or shoes. Sulphuric acid in the plant is also a hazard. It is irritating to the skin and can cause severe burns. When the acid contacts clothing, it causes disintegration or rapid deterioration. Moreover, the effects of sulphuric acid make the employee more susceptible than he would otherwise be to contamination by particles of lead and lead compounds. Petitioners, like other manufacturers, try to minimize these hazards by plant ventilation, but industrial and medical experts are in agreement that ventilation alone is not sufficient to avoid the dangers of lead poisoning. Safe operation also requires the removal of clothing and showering at. the end of the work period. This has become a recognized part of industrial hygiene programs in the industry, and the state law of Tennessee requires facilities for this purpose. Tenn. Code Ann. (Williams 1934), 1952 Supp., Section 5788.15. In addition, the Tennessee Workmen’s Compensation Act, Tenn. Code Ann. (Williams 1934), 1952 Supp., Sections 6851-6901, which'covers petitioners, makes lead poisoning a com-pensable occupational disease (Section 6852 (d)). In order to comply with this statute, petitioners carry insurance, under Section 6895, to protect against liability, and the insurance carrier would not accept the insurance risk if defendants refused to have showering and elothes-changing facilities for their employees. Accordingly, in order to make their plant as safe a place as is possible under the circumstances and thereby increase the efficiency of its operation, petitioners have equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, they furnish without charge old but clean work clothes which the employees wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid causes such rapid deterioration that the clothes sometimes last only a few days. Employees regularly change into work clothes before the beginning of the productive work period, and shower and change back at the end of that period. Petitioners issued no written instructions to employees on this subject, but the employees testified and the foreman declared in a signed statement that “In the afternoon the men are required by the company to take a bath because lead oxide might be absorbed into the blood stream. It protects the company and the employee both.” Petitioners do not record or pay for the time which their employees spend in these activities, which was found to amount to thirty minutes a day, ten minutes in the morning and twenty minutes in the afternoon, for each employee. They do not challenge the concurrent findings of the courts below that the clothes-changing and showering activities of the employees are indispensable to the performance of their productive work and integrally related thereto. They do contend that these activities fall without the concept of “principal activity” and that, being performed off the production line and before or after regular shift hours, they are beyond the protection of the Fair Labor Standards Act. The trial court held that these activities “are made necessary by the nature of the work performed”; that they fulfill “mutual obligations” between petitioners and their employees; that they “directly benefit” petitioners in the operation of their business, and that they “are so closely related to other duties performed by [petitioners’] employees as to be an integral part thereof and are, therefore, included among the principal activities of said employees.” It concluded that the time thereby consumed is not excluded from coverage by Section 4 of the Portal-to-Portal Act, but constitutes time worked within the meaning of the Fair Labor Standards Act. The Court of Appeals affirmed, likewise holding that the term “principal activity or activities” in Section 4 embraces all activities which are “an integral and indispensable part of the principal activities,” and that the activities in question fall within this category. With this conclusion, we agree. ,The Portal-to-Portal Act was designed primarily to meet an “existing emergency” resulting from claims which, if allowed in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, would have created “wholly unexpected liabilities, immense in amount and retroactive in operation.” This purpose was fulfilled by the enactment of Section 2. The trial court specifically limited the effect of this judgment to services rendered after the judgment becomes final. We are not, therefore, concerned with the provisions of Section 2, which is inapplicable to actions relating to activities of employees performed after May 14, 1947. The language of Section 4 is not free from ambiguity and the legislative history of the Portal-to-Portal Act becomes of importance. That Act originated in a House bill, which had no provision comparable to Section 4, but rather gave similar treatment to retroactive and prospective claims; i. e., excluding coverage except by contract or custom in the industry. H. R. Rep. No. 326, 80th Cong., 1st Sess. 12. The Conference Report stated that the language of Section 4 follows the Senate bill. S. Rep. No. 48, 80th Cong., 1st Sess. 48. In the Senate, the colloquy between several Senators and Senator Cooper, a sponsor of the bill and a member of the three-man subcommittee that held hearings for the Committee on the Judiciary which reported it, demonstrates that the Senate intended the activities of changing clothes and showering to be within the protection of the Act if they are an integral part of and are essential to the principal activities of the employees. There is some conflicting history in the House, but the Senate discussion is more clear cut and, because the Section originated in that body, is more persuasive. In 1949, Section 3 (o) was added to the Act. Both sides apparently take comfort from it, but the position of the Government is strengthened by it since its clear implication is that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement. The congressional understanding of the scope of Section 4 is further marked by the fact that the Congress also enacted Section 16 (c) at the same time, after hearing from the Administrator his outstanding interpretation of the coverage of certain preparatory activities closely related to the principal activity and indispensable to its performance. On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to .deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect. We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4 (a)(1). We find no difficulty in fitting the facts of this case to that conclusion because it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees. The judgment is Affirmed. APPENDIX TO OPINION OF THE COURT. Colloquy Between Senator Cooper and Other Senators. “Mr. COOPER. . . . Before the enactment of the Fair Labor Standards Act an employee might have worked upon a lathe under a contract, and his contract may have provided that his pay should commence at a scheduled hour, say at 7 o’clock when the lathe began to run, and he began to apply his energy to a casting or to a block upon the lathe. After the enactment of the Fair Labor Standards Act, by interpretations of the Wage and Hour Administrator, it was held that certain preparatory activities such as sharpening the tools, oiling the machinery, preparing his machinery for work, were so closely related to his productive activity that the employer must compensate the employee for it. We believe that in the use of the words ‘principal activity’ we have preserved to the employee the rights and the benefits and the privileges which have been given to him under the Fair Labor Standards Act, because it is our opinion that those activities which are so closely related and are an integral part of the principal activity, indispensable to its performance, must be included in the concept of principal activity. And to make our position clear we have given examples in the report. . . . “Mr. McGRATH. I think that at this point we might very definitely make contribution to the legislative history of what we are doing here. Am I correct in understanding the Senator to say that what the majority of the committee proposes is that any activity of a worker shall be considered a part of his principal activity if the doing of that act is indispensable to the performance of the rest of his day’s work? “Mr. COOPER. I can read the language used in the report, and I think that language should be used in this connection, because the words and phrases it employs were adopted by the committee. On page 48 of the report, in the definition of 'principal activity,’ we find these words: “ 'It will be observed that the particular time at which the employee commences his principal activity or activities and ceases his principal activity or activities marked the beginning and the end of his workday. The term “principal activity or activities” includes all activities which are an integral part thereof as illustrated by the following examples: “ T. In connection with the operation of a lathe an employee will frequently at the commencement of his workday oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term. “ ‘2. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.’ “We believe that our bill provides that the employee must receive compensation for such activities. “Mr. McGRATH. . . . Then we can clear that point up by reiterating that what the committee means is that any amount of time spent in the performance of the type of activity expressed in examples 1 and 2 is to be hereafter regarded as compensable time. “Mr. COOPER. I should certainly say so, as a part of the principal activity. “Mr. McGRATH. Th$re are innumerable instances of operations which have to be performed that are not covered in these two particular examples. I think of one at the moment. In certain of our chemical plants workers are required to put on special clothing and to take off their clothing at the end of the workday, and in some of the plants they are required to take shower baths before they leave. Does the Senator regard such activity as that as coming within the compensable workday? “Mr. COOPER. I am very happy that the Senator has asked the question, because I believe it gives the opportunity of drawing a fine distinction between the type of activity which we consider compensa-ble and the type which should not be compensable. In accordance with our intention as to the definition of ‘principal activity,’ if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to the specific work, it would not be considered a part of his principal activity, and it follows that such time would not be compensable.” 93 Cong. Rec. 2297-2298. “Mr. BARKLEY. . . . Suppose that a man is a machinist or a mechanic of some kind. He is required to go to work at 8 o’clock. Let us assume for a moment that he is not a member of an organization. He is required to enter upon the actual labor, which might be termed his principal employment, at 8 o’clock in the morning and to spend 8 hours at such principal employment. But let us suppose that his employer requires him to be on the grounds and within the shop at 7:30 in the morning in order that he may spend half an hour sharpening and preparing the tools with which he himself or his colleagues in the factory are to work. Can anybody say that under those circumstances the 40-hour workweek has been complied with, as intended by the Fair Labor Standards Act ? If he is required to do that every day, instead of working 8 hours a day he will be working 8% hours a day. If he works 6 days a week, instead of 40 hours a week, he will be working more than 50 hours, every moment of which he is under the control of his employer, working with tools which belong to his employer, and he must abide by his orders or run the risk of discharge from his employment. “Is that a part of his principal employment, or is that preliminary ; or, if he is required to do it after the close of the shop in the afternoon, is that a part of the ‘postliminary’ work for which there is to be no compensation unless there is a contract or unless it has been the practice and custom for the employer to pay for the extra work done at his command ? “Mr. COOPER. The distinguished Senator has perhaps not had the opportunity to read the report of the committee. Let me say that on page 48 of the report of the committee that exact situation, or one as nearly comparable to it as probably could be cited, is discussed. In the report it is clearly stated that under such circumstances it is the intention of the framers of the bill that such activities shall be compensable, as a part of the principal activity.” 93 Cong. Rec. 2350. The only exception was one injured employee who, because of the danger of infection to his wounded foot in a common shower, bathed at his home which is about five blocks from the plant. “Sec. 4. . . . “(a) Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act'— “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. “(b) Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 86, 29 U. S. C. § 254. § 1 (a), 61 Stat. 84, 29 U. S. C. § 251 (a). “Sec. 2. . . . “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Heaiey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act [May 14, 1947]), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “ (2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85, 29 U. S. C. § 252. See the colloquy quoted in an appendix to this opinion, post, p. 256. See Remarks of Representative Gwynne, 93 Cong. Rec. 4388-4389; Remarks of Representative Walter, id., at 4389; Remarks of Representative Michener, ibid. “Sec. 3 (o). Hours Worked. — In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 63 Stat. 911, 29 U. S. C. § 203 (o). “Sec. 16 (c). Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor, and any agreement entered into by the Administrator or the Secretary, in effect under the provisions of the Fair Labor Standards Act of 1938, as amended, on the effective date of this Act, shall remain in effect as an order, regulation, interpretation, or agreement of the Administrator or the Secretary, as the case may be, pursuant to this Act, except to the extent that any such order, regulation, interpretation, or agreement may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accordance with the provisions of this Act.” 63 Stat. 920. 29 CFR § 790.8. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_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. TWINBORO CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. No. 45. Circuit Court of Appeals, Second Circuit. May 7, 1945. George G. Tyler and Cravath, Swaine & 'Moore, all of New York City (Wm. Dwight Whitney, Roswell Magill, and William R. White, all of New York City, of counsel), for petitioner. Hilbert P. Zarky, of Washington, D. C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., for respondent. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This case presents only one point in addition to those which we discussed in Winter Realty & Construction Co. v. Commissioner of Internal Revenue, 2 Cir., 149 F.2d 567, handed down herewith. It is this : Whether an owner whose property has been condemned may buy “similar property” in anticipatory replacement of the award, pay for it out of his own funds, recoup himself later out of the award when he gets it, and treat any “gain” as exempt under § 112(f), 26 U.S.C.A. Int.Rev.Code, § 112(f). The taxpayer seeks to distinguish this situation from that which was before us in Bandes v. Commissioner, 2 Cir., 69 F.2d 812, because here the property condemned was a garage, and the “similar property” was also a “garage,” bought “in anticipatory replacement” of the first. In Washington Railway & Electric Co. v. Commissioner of Internal Revenue, 40 B.T.A. 1249, the Board of Tax Appeals, upon a review by the full Board, disagreed with our interpretation; but sought to distinguish the facts so as to sustain our decision. We may of course have been wrong and the Board right, but the attempted distinction is untenable. In Bandes v. Commissioner, supra, the taxpayers had bought one parcel of land on which they meant to put up an apartment; but before they could do so, it was condemned. They looked about for a substitute, and found two parcels on which they then proceeded to build apartments. The attempted distinction is apparently that, as they had not yet built the apartment when the first parcel was condemned, and, as they might change their minds, the new purchases could not have been made “in anticipatory • replacement” of the old. On what basis this can be supported we do not understand; but, be that as it may, we had not the slightest intention of depending upon anything of the sort; we assumed that the two parcels were bought “in anticipatory replacement” of the first, and to rest our decision upon our understanding that that would not serve. We adhere to that interpretation, though, as before, we reserve decision in case an owner borrows money to pay for “similar property,” and later uses the award to pay the debt. Possibly that may be an instance where the award is “expended in the acquisition of other property similar * * * to the property so converted.” That was not this case, for here the taxpayer bought and paid for the property out of its own funds. It is quite true that the doctrine will at times put an owner in the trying dilemma of choosing between allowing his business to be stopped, and being obliged to pay a large tax upon a “gain” “realized” against his will. There will be no method by which he can procure any substitute property in season to supply his needs, and yet to avail himself of the privilege which would concededly be his if he were not pressed to act at once. It can therefore be plausibly argued that the situation is a casus omissus; and if we felt sure enough that that were true, we might not stick at its defective expression. But we are not sure whether Congress really meant to provide the full measure of relief which a complete fulfillment of its apparent purpose demanded. The law has now been on the books since 1921, and the regulations, at least since 1934 (Article 112(f)-l, Regulations 86), have provided that “the taxpayer must trace the proceeds of the award into the payments for the property so purchased,” although the proceeds need not be “earmarked” — whatever that may mean. After every allowance which can properly be made for failure to cover obviously overlooked occasions, we remain in too much doubt to force the language so far from its literal meaning. Moreover, it should not be forgotten that we are dealing with an exemption. Order affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_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 "executive/administrative". Your task is to determine which specific state government agency best describes this litigant. Leon I. TAISACAN, Plaintiff-Appellant, v. Carlos S. CAMACHO, in his official capacity as Governor of the Commonwealth of the Northern Mariana Islands, Defendant-Appellee. No. 80-4495. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 10, 1981. Decided Oct. 30, 1981. Randall T. Fennell, Ching, Rosenzweig & Boertzel, Saipan, CM, for plaintiff-appellant. Peter Van Name Esser, Asst. Atty. Gen., Mariana Island, CM, for defendant-appellee. Before ADAMS, GOODWIN and FARRIS, Circuit Judges. Honorable Arlin M. Adams, United States Court of Appeals for the Third Circuit, sitting by designation. ADAMS, Circuit Judge. Leon Taisacan, a resident of the Island of Rota, sought a declaratory judgment that two vetoes by Carlos S. Camacho, Governor of the Northern Mariana Islands, were illegal. The district court, addressing the merits of the claim, granted summary judgment in favor of the Governor. Taisacan filed a timely appeal. Rota is one of the three main islands comprising the Commonwealth of Northern Mariana Islands [CNMI]. See generally Sablan v. Santos, 634 F.2d 1153 (9th Cir. 1980); Ralpho v. Bell, 569 F.2d 607 (D.C.Cir.1977); and Willens & Siemer, The Constitution of the Northern Mariana Islands: Constitutional Principles and Innovation in a Pacific Setting, 65 Geo.L.J. 1373, 1381-87 (1977), for an overview of the history of the Northern Mariana Islands. In 1976, Congress enacted Public Law 94-241, the “Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America.” 48 U.S.C. § 1681 (1976) (app. at 1409). Among other things, the Covenant pledged $4,000,000 a year for 7 years to the CNMI for capital improvements. Of this sum, $500,000 was reserved for. Rota. See Covenant § 702 [found appended to 48 U.S.C. § 1681]. In 1980, the CNMI legislature passed a budget that included $1,545,000 for capital improvements for Rota. See CNMI House Bill 2-88, Title II § 7, item B. The Governor vetoed that item in the budget. He listed four reasons — the first three essentially said that the $1,545,000 appropriation was excessive and inequitable; the last reason was that large sums of money should not be invested in Rota while the people of that island were actively considering withdrawing from the CNMI. Thereafter, the legislature passed Senate Local Bill 2-1 which appropriated $790,000 for Rota. The Governor vetoed this bill because “appropriation bills may be introduced only in the House of Representatives . . . [and] this is a Senate local bill.” After the second veto, Taisacan filed the present complaint, claiming that the vetoes violate the capital improvement appropriations in the Covenant and that the CNMI Constitution does not provide the Governor with veto power over a local bill. A. The District Court for the District of Northern Mariana Islands has both federal and local jurisdiction. See Covenant §§ 402(a) and (b), as appended to 48 U.S.C. § 1681. Sablan v. Santos, 634 F.2d 1153 (9th Cir. 1980), held that appeals from district court decisions involving local law matters must be taken to a three-judge panel of the district court. The Ninth Circuit has jurisdiction over the complaint because the issue set forth in it is one “arising under the Constitution, treaties or laws of the United States.” See Covenant § 402(a) (48 U.S.C. § 1681). Taisacan alleges a violation of § 702(b) of the Covenant. An alleged violation of the Covenant is a question arising under federal law because the Covenant was approved by Congress on March 24, 1976 as Public Law 94-241 (90 Stat. 263). Moreover, § 903 of the Covenant specifically provides that: Nothing herein shall prevent the presentation of cases or controversies arising under this Covenant to courts established by the Constitution or laws of the United States. It is intended that any such cases or controversies will be justiciable in such courts and that the undertakings by the Government of the United States and by the Government of the Northern Mariana Islands provided for in this Covenant will be enforceable in such courts. Therefore, because this case is not one involving local law, we have jurisdiction to hear the appeal. B. Governor Camacho argues that these appeals must be dismissed because Taisacan lacks standing. He maintains that Taisacan did not establish a sufficient “nexus” between himself and the vetoed legislation to justify standing. The Governor asserts that the injury in question must be characterized as a “public wrong” and that Taisacan’s injury does not differ from that of the public generally. The elements comprising the concept of standing are premised on Article Ill’s “case or controversy” requirement and on prudential concerns. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The Supreme Court has summarized the standing requirement as follows: . . . standing to sue may not be predicated upon an interest . . . which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 220-21, 94 S.Ct. 2925, 2931-32, 41 L.Ed.2d 706 (1974). Taisacan brought this action as a citizen of Rota who claimed to be, along with all other citizens, a beneficiary of certain commitments in the Covenant to Establish the Commonwealth of the Northern Mariana Islands. His complaint asserts that the Governor’s veto deprived citizens of Rota of the benefit of capital improvement funds. Significantly, Taisacan’s pleading does not allege that he will suffer any particular individual injury distinct from that of the citizenry at large. It has been a consistent theme of the Supreme Court’s standing jurisprudence that citizens who simply assert a general interest in the operations of government do not enjoy a sufficiently concrete personal stake in the outcome to have standing to sue. As the Court declared over forty years ago in Ex Parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937), “It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” The Court specifically reaffirmed the vitality of Levitt in Schlesinger, supra. Denying standing to a group that sought to vindicate society’s interest in an independent Congress by challenging the Army Reservist status of several members of Congress, the Supreme Court disclosed that “standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Id. at 220, 94 S.Ct. at 2931. The need to demonstrate particular individual injury is often an insurmountable hurdle for plaintiffs who wish to challenge an executive veto. In one such case, especially apposite here, Saffioti v. Wilson, 392 F.Supp. 1335 (S.D.N.Y.1975), the court noted that the principle of Schlesinger would preclude most attacks upon the executive’s exercise of the veto power. The court concluded that Saffioti’s ease presented a rare instance where the plaintiff had been able to demonstrate a nexus between the negated legislation and his individual interests, because the vetoed item was a private bill granting Saffioti the right to press a time-barred claim against the state. Id. at 1343, n. 10. In the present case, Taisacan has alleged no such unique harm from the failure of the capital improvements appropriation to become law. He does not even contend, for example, that he had a contract to build one of the halted capital projects, or that his children would attend one of the planned schools, or that he lived in the service area for a proposed hospital. Although Taisacan conclusorily asserts that he has suffered concrete harm as a result of the veto, he points to no specific examples. An examination of the complaint reveals that Taisacan merely asserts that all citizens of Rota will be denied the benefit of improved services. This sort of generalized injury to the quality of life presents the type of abstract harm that typifies many citizen complaints against governmental action. But the Supreme Court has emphatically closed the federal courthouse door to those who wish to air their generalized grievances in a judicial forum. A personal stake in the outcome is an essential dimension of the Article III “case or controversy” requirement. See Schlesinger, supra; United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). These Supreme Court precedents compel the conclusion that Taisacan lacks standing, solely in his capacity as a citizen of Rota, to assail the impact of the gubernatorial veto on the Island’s residents. Accordingly, we dismiss the appeal and remand the matter to the district court with directions to dismiss the lawsuit for lack of standing. . The Covenant stated that the capital improvements appropriation should be adjusted each fiscal year in light of the Department of Commerce’s composite price index. See § 704(c). The parties agree that the $500,000 guaranteed by § 702(b) is now $790,000. . Thus, the Senate appropriated the amount reserved for Rota. See n.l, supra. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "executive/administrative". Which specific state government agency best describes this litigant? A. Governor B. Attorney General C. Secretary of State D. Other Administrative Officer NOT detailed below E. 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. TYSON v. SWENSON. No. 6456. United States Court of Appeals Fourth Circuit. Argued July 3, 1952. Decided July 18, 1952. John Y. Jordan, Jr., Asheville, N. C., for appellant. Ambrose T. Hartman, Sp. Asst. Atty. Gen. of Maryland (Hall Hammond, Atty. Gen. of Maryland, on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. This is an appeal from an order dismissing after hearing a petition for a writ of habeas corpus filed by a person imprisoned by a Maryland state court as punishment for the crime of murder. It appears that appellant was duly convicted of murder by a jury in a trial had in the Maryland court where he was properly represented by competent counsel appointed by the court. His complaint is that evidence of a witness tending to establish an alibi in his behalf was not introduced on the trial. There is nothing to indicate, however, that the trial was not properly conducted, that appellant was not adequately represented by counsel or that any ground exists which would justify a federal court in treating the trial as a nullity and ordering the discharge of the prisoner. It is too well settled to justify discussion that habeas corpus in a federal court may not be used to retry issues properly heard and disposed of in a state court trial. The petition for habeas corpus and the appeal from the order of discharge are, therefore, entirely lacking in merit. The judge below properly declined for this reason to grant the appellant the certificate of probable cause required by 28 U.S.C.A. § 2253 as prerequisite to the right of appeal; and without such certificate we are without jurisdiction to entertain the appeal, which will accordingly be dismissed. Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717; Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881. Appeal dismissed. 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:
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. UNIVERSAL C. I. T. CREDIT CORPORATION et al. No. 47. Argued November 18-19, 1952. Decided December 22, 1952. John F. Davis argued the cause for the United States. With,him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg, J. F. Bishop, William S. Tyson and Bessie Margolin. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction. Melbourne Bergerman argued the cause for appellees. With him on the brief were Aaron Lewittes, Seymour Kleinman and James P. Aylward. Mr. Justice Frankfurter delivered the opinion of the Court. This case arises on an information under §§15 and 16 (a) of the Fair Labor Standards Act, 52 Stat. 1060, 1068-1069, as amended, 63 Stat. 910, 919, 29 U. S. C. §§ 215, 216 (a), charging the defendant corporation, its division operations manager and two successive branch managers with violations of the minimum wage, overtime, and record-keeping provisions of the Act. Thirty-two counts were laid: six for failure under § 6 of the Act to pay minimum wages, twenty for violation of the overtime provisions of § 7, and six for failure to comply with the requirements for record-keeping under § 11. Counts 1-6 charge minimum wage violations in six separate weeks, one per week, but only as to one employee in any one week and only as to three employees in all. Counts 7-26 charge overtime violations in twenty separate weeks, one per week. A total of eleven employees are involved, two violations having been charged as to each of nine employees. Counts 27-32 charge record-keeping violations as to four employees, two violations as to each of two employees being charged. Section 16 of the Act subjects an employer, offending for the first time, to a maximum fine of $10,000 for violation of any provision of § 15, and would, the District Court assumed, authorize a fine of $320,000 upon conviction under this information. Rejecting a reading of § 15 whereby the prosecutor could treat as a separate offense each breach of the statutory duty owed to a single employee during any single workweek, the District Court granted defendant’s motion to dismiss all but three counts of the information. The court held that it is a course of conduct rather than the separate items in such course that constitutes the punishable offense and ordered consolidation of the separate acts set forth in the information into three counts, charging one violation each of §§ 6, 7 and ll. To review this decision, the Government brought the case here under the Criminal Appeals Act, 34 Stat. 1246, 18 U. S. C. § 3731. The problem of construction of the criminal provisions of the Fair Labor Standards Act is not easy of solution. What Congress has made the allowable unit of prosecution — the only issue before us — cannot be answered merely by a literal reading of the penalizing sections. Generalities about statutory construction help us little. They are not rules of law but merely axioms of experience. Boston Sand Co. v. United States, 278 U. S. 41, 48. They do not solve the special difficulties in construing a particular statute. The variables render every problem of statutory construction unique. See United States v. Jin Fuey Moy, 241 U. S. 394, 402. For that reason we may utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. Very early Mr. Chief Justice Marshall told us, “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived . . . .” United States v. Fisher, 2 Cranch 358, 386. Particularly is this so when we construe statutes defining conduct which entail stigma and penalties and prison. Not that penal statutes are not subject to the basic consideration that legislation like all other writings should be given, insofar as the language permits, a commonsensical meaning. But when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication. The penal provision of the Fair Labor Standards Act is only part of a scheme available to the Government and to the employee for enforcing the Act. The preventive remedy of an injunction and individual or class actions for restitution and damages in § 16 (b) are not only also available. They are the remedies more frequently invoked and more effective in achieving the purposes of the Act. Of course the various remedies must be read in relation to each other. But we are asked here in addition to infer that an employer’s failure to perform his obligations as to each employee creates a separate criminal offense because the provisions for civil liability in § 16 (b) expressly recognize a right in the individual employee to maintain a separate action against his employer for restitution and damages. The argument cuts both ways. If Congress had wanted to attach criminal consequences to each separate civil liability it could easily have said so, just as it had no difficulty in stating explicitly that the unit for civil liability was what was owing to each employee. Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning. When originally introduced in Congress, the bill out of which the Fair Labor Standards Act evolved had two separate penalty provisions, one for underpayments in violation of § 6 or § 7 and one for failure to comply with the record-keeping provisions of § 11. Each provision set the maximum fine at $500 and explicitly defined what constituted a separate offense. As to §§ 6 and 7 the employee was the unit of criminal offense and as to § 11 each week of violation was a separate offense. After the measure wound its way through a long legislative process there resulted consolidation of the two penalty provisions, elimination of the separate offense clauses, and substitution of $10,000 for $500 as the maximum fine. These rather striking changes would in themselves afford justifiable ground for giving the less harsh and therefore more reasonable construction to the offense-creating portions of the legislation. In addition, we have illuminating statements in both houses concerning the separation of offenses. Although the separate offense clause for record-keeping violations was deleted early in the legislative process, the other separate offense clause was attacked in debate precisely because it would authorize the sort of multiplication of offenses by the number of employees that the information before us represents. Indeed, multiplication in this information goes beyond what even the original bills would have authorized. Underpayments of the same employees are split into separate counts of the information, and record-keeping violations during the same week are split to serve as the basis of separate counts. It would be self-deceptive to claim that only one answer is possible to our problem. But the history of this legislation and the inexplicitness of its language weigh against the Government’s construction of a statute that cannot be said to be decisively clear on its face one way or the other. Because of the history and language of this legislation, the case is not attracted by the respective authority of two cases pressed upon us. In re Snow, 120 U. S. 274, and Blockburger v. United States, 284 U. S. 299. The district judge was therefore correct in rejecting the Government’s construction of the statute. The offense made punishable under the Fair Labor Standards Act is a course of conduct. Such a reading of the statute compendiously treats as one offense all violations that arise from that singleness of thought, purpose or action, which may be deemed a single “impulse,” a conception recognized by this Court in the Blockburger case, supra, at 302, quoting Wharton’s Criminal Law (11th ed.) § 34. Merely to illustrate, without attempting to rule on specific situations: a wholly unjustifiable managerial decision that a certain activity was not work and therefore did not require compensation under F. L. S. A. standards cannot be turned into a multiplicity of offenses by considering each underpayment in a single week or to a single employee as a separate offense. However, a wholly distinct managerial decision that piece workers should be paid less than the statutory requirement in terms of hourly rates, see United States v. Bosenwasser, 323 U. S. 360, involves a different course of conduct, and so would constitute a different offense. Thus, underpayments based on violations of the statute as to these piece workers could not be compounded into a single offense with unrelated underpayments which resulted from the decision that a certain activity was not work, merely because the two kinds of underpayments occurred in the same workweek or involved the same employee. Whether an aggregate of acts constitute a single course of conduct and therefore a single offense, or more than one, may not be capable of ascertainment merely from the bare allegations of an information and may have to await the trial on the facts. This information is based on what we find to be an improper theory. But a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence. He may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one. To be sure, the defendant may call upon the prosecutor to elect or, by asking for a bill of particulars, to render the various counts more specific. In any event, by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government’s case the defendant may insist that all the counts are merely variants of a single offense. By affirming this order without prejudice to amendment of the information, we do not mean to suggest that amendment to increase the number of offenses may be made after trial has begun. But the Government is not precluded from now amending the information either to meet the exigencies of the evidence or to charge as separate offenses separate courses of conduct as to each substantive provision. All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act. Without prejudice to amendment of the information before trial if the evidence to be offered warrants it, the order below is Affirmed. The criminal enforcement provisions of the Fair Labor Standards Act are §§ 15 and 16. Section 16 provides a maximum fine of $10,000 for “[a]ny person who willfully violates any of the provisions of section 15 . . . .” Section 15 makes it “unlawful for any person ... (2) to violate any of the provisions of section 6 or section 7 ... (5) to violate any of the provisions of section 11 (c) . . . .” Section 6 provides, “Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce . . . not less than 75 cents an hour; . . . .” Section 7 provides “. . .no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” Section 11 (c) requires the employer to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order . . . .” 102 F. Supp. 179, 186, modified by Order dated March 10, 1952, R. 20. The Government urges that the Act be construed “to punish each failure to comply with each duty imposed by the Act as to each employee in each workweek and as to each record required to be kept.” Brief for United States, p. 10. However, in none of the first 26 counts, charging minimum wage or overtime underpayments, were similar violations charged as to two employees in the same week, so that it would be sufficient in this case to urge that the violations may be split according to the workweek, rather than also according to the employee. As to the last six counts, charging record-keeping violations, it might have been possible for the Government to urge less than that each record required to be kept is a separate offense. With one minor exception, violations were alleged as to at least two employees in every workweek for which record-keeping violations were charged. The workweek was not the unit of prosecution, since the periods of time in these six counts range from about seven weeks to over six months. But the employee was also not the unit, since although violations as to each employee were made into separate charges, two employees are the subject of two charges apiece. Whatever differences exist between the minimum necessary to sustain this particular information and the claim made by the Government are immaterial, in view of our disposition of the case. Appellee does not urge in this case that § 15 prescribes only-one offense even if there are three kinds of violations. Such an argument seems to have been made and was rejected, as to distinct requirements under two different sections of the act there involved, in Blockburger v. United States, 284 U. S. 299, 305, where the penal provision applied to “any person who violates or fails to comply with any of the requirements of this act.” See §§ 27 (a) and 27 (b) in S. 2475 and H. R. 7200, 75th Cong., 1st Sess. In §27 (a), the clause read: “Where the employment of an employee in violation of any provision of this Act or of a labor-standard order is unlawful, each employee so employed in violation of such provision shall constitute a separate offense.” In §27 (b), the clause was: “. . .' and each week of such failure to keep the records required under this Act or to furnish same to the Board or any authorized representative of the Board shall constitute a separate offense.” See 81 Cong. Rec. 7792; 81 Cong. Rec. 9507; 82 Cong. Rec. 1828. Force is added to these statements by the fact that one was made by a member of the House who proposed the amendment which was adopted, by vote on division, specifically to delete the separate offense clause of §27 (a) (then §22 (a)). 82 Cong. Rec. 1828-1839. The bill thus came to the Conference from the House with both separate offense clauses deleted, but from the Senate with only the clause of § 27 (b) deleted. Both versions still provided a maximum fine of $500. The Conference accepted the House version, with neither separate offense clause, but raised the maximum fine to $10,000. See S. 2475, 75th Cong., 1st Sess., §§ 23 (a), 23 (b), as reported from Committee, July 8, 1937; 81 Cong. Rec. 7957; H. R. Rep. No. 2182, 75th Cong., 3d Sess. 5; 83 Cong. Rec. 7450; Conference Report, § 16 (a), 83 Cong. Rec. 9249. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellant, v. Cesare ROSSI, also known as Ricardo Luis Rossi, Appellee. No. 16754. United States Court of Appeals Ninth Circuit. Feb. 15, 1962. Laurence E. Dayton, U. S. Atty., Robert N. Ensign, Asst. U. S. Atty., San Francisco, Cal., for appellant. Joseph L. Alioto, Walter F. Calcagno, San Francisco, Cal., for appellee. Before CHAMBERS, MERRILL and KOELSCH, Circuit Judges. KOELSCH, Circuit Judge. This is an appeal by the government from an adverse judgment in a proceeding initiated in the District Court as authorized by Section 340(a) of the Immigration and Naturalization Act of 1952 [66 Stat. 260, 8 U.S.C.A. § 1451(a)] to revoke the order admitting Cesare Rossi, under the name of Ricardo Luis Rossi, to citizenship and to cancel his certificate of naturalization on the ground that the order and certificate were procured “by concealment of a material fact or by willful misrepresentation.” The opinion of the District Court is reported in 171 F.Supp. 451. The evidence is without conflict and consists of Rossi’s pre-trial deposition taken by the government, his admission of facts in response to written request made upon him by the government and his testimony at the trial. It thus appears that Rossi, a native of Italy, entered the United States illegally in 1926 or 1927 but after a year or two voluntarily departed, going first to Tacna, a town on the border between Chile and Peru, where he visited relatives. During his stay there, those two countries submitted the question of sovereignty over that region to a vote of the local citizens and Rossi was importuned, apparently by his relatives, to assume the identity of his deceased brother, Ricardo Luis Rossi, who had been born in Tacna, and participated in the plebescite. He then returned to Italy on a Chilean passport and afterwards in 1929 applied for permission to enter the United States for permanent residence. Knowing that the immigration laws of the United States imposed an annual quota on Italian nationals but placed no such limitation upon the immigration of natives of South American countries, and in order to avoid the Italian quota restriction, Rossi again used the name and nationality of his brother when applying for a visa. He was issued a non-quota visa by the United States consular officer and thus gained entry into this country. Thereafter he continued to personate his brother and in 1935, after the usual proceedings, was admitted to citizenship by the United States District Court. The District Court took the view that denaturalization was warranted only if the facts misrepresented by Rossi were essential to the validity of his entry into this country and if he intended them to deceive the Immigration officials; the court concluded that the government had failed to prove both issues and dismissed the action. In the District Court, the essence of the government’s argument was that Rossi’s intentional misrepresentation and suppression of the truth in the course of the proceedings for naturalization prevented a proper investigation of his eligibility for citizenship and demonstrated a lack of good moral character, thus constituting an act of fraud justifying revocation of citizenship without regard to-the effect true answers would have had on his application. This reasoning accords with the rationale expressed in Del Guercio v. Pupka, 160 F.2d 799 (9th Cir., 1947) and Chaunt v. United States, 270 F.2d 179 (9th Cir., 1959). In the latter case it was held that the deliberate concealment by the immigrant of an arrest for “general breach of the peace” was alone sufficient to warrant his denaturalization, “for it is not the number of arrests, nor the character of the offenses, which is the important factor. It is the concealment of any material fact sought to be inquired into, including any arrest, which is the fraudulent act and which justifies not only the finding of fraud, but also the finding * * that the defendant had not been of good moral character for a period of five years immediately preceding his application and thus did not meet the statutory prerequisite to citizenship.” We further stated that the test of materiality was “not whether naturalization would have been refused if defendant had revealed the truth, but whether, by his false answers, the government was denied the opportunity of investigating the facts relating to his eligibility.” (270 F.2d at page 183) Other circuits had expressed the same opinion. Landon v. Clarke, 239 F.2d 631 (1st Cir., 1956); United States ex rel. Jankowski v. Shaughnessy, 186 F.2d 580 (2d Cir., 1950); Corrado v. United States, 227 F.2d 780 (6th Cir., 1955) cert. den. 351 U.S. 925, 76 S.Ct. 781, 100 L.Ed. 1455; United States v. Accardo, 208 F.2d 632 (3d Cir., 1953) cert. den. 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098. However, the Supreme Court reversed Chaunt [364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960)]. The Court roundly condemned any “temporizing with the truth” by an immigrant but did not regard such a retreat from rectitude as sufficient in itself to strip him of citizenship once granted. It stated that in addition the government must establish by “ ‘clear, unequivocal and convincing’ evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship.” (364 U.S. 350, 355, 81 S.Ct. 147, 150) Under Chaunt, proof of Rossi’s intentional misrepresentation was not alone enough to divest him of citizenship. On appeal, the government further argues that the facts misrepresented were material to lawful entry and that Rossi was guilty of fraudulently misrepresenting them. We have no doubt that Rossi initially personated his brother for reasons other than to gain citizenship; but he candidly conceded at this proceeding that afterwards he used his brother’s identity to deceive the American consul and gain a visa. Manifestly, his intention was fraudulent. This brings us to the question of the effect of Rossi’s assumption of his brother’s identity on the order granting him citizenship; naturalization is the final step in the process which begins with entry, and thus what is material in completing the process depends on what was material in initiating it. Rossi’s misrepresentation, of course, dated back to the time of his application for a visa. The materiality of his misrepresentation may be determined by the bearing it had upon his right to enter this country; if permission rested upon the truth of the fact represented and he could not have secured a visa as Cesare Rossi, a native of Italy, then the fact was material — otherwise it was irrelevant. Stated another way, “a fact suppressed or misstated is not material to an alien’s entry, unless it is one which, if known, would have justified a refusal to issue the visa.” United States ex rel. Fink v. Reimer, 96 F.2d 217 (2d Cir., 1938). The distinction is well illustrated by comparing the facts in the Fink case with those revealed in United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (7th Cir., 1938). In both cases the principal issue was whether the visa was fraudulently procured, making it a nullity and the immigrant’s entry unlawful. In Leibowitz the immigrant had employed his brother’s name when applying for a visa, while in Fink the immigrant (Fink) had personated one Apfelroth. In Leibowitz the court held the misrepresentation immaterial and the entry lawful because the immigrant was eligible for entry and could have secured a visa in his own name as readily as he did in the guise of his brother; but in Fink the court reached an opposite conclusion because “In any case the fraud [t]here was essential to success; Apfelroth could get a preference visa, Fink could not; * * There is no suggestion in this record that Rossi was ineligible for a quota visa, nor did the government attempt to prove Rossi was an undesirable alien subject to exclusion; but the government urges that the entire quota for Italian nationals was oversubscribed so that, but for the misrepresentation, Rossi could not have secured permission to enter. The government’s evidentiary burden in denaturalization is a heavy one. In Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), where the issue was whether the citizen had illegally secured his certificate of naturalization, the court stated that citizenship “once conferred should not be taken away without the clearest sort of justification and proof. So, whatever may be the rule in a naturalization proceeding (see United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct. 328, 329, 72 L.Ed. 654), in an action instituted under § 15 for the purpose of depriving one of the precious right of citizenship previously conferred, we believe that the facts and the law should be construed as far as is reasonably possible in favor of the citizen. * * * For reasons presently to be stated, this burden must be met with evidence of a clear and convincing character * And in Chaunt v. United States, 864 U.S. 350, 81 S.Ct. 147 (1960), a denaturalization proceeding predicated upon the immigrant’s alleged fraud, it was held that the same test must be applied to evidence relating to the issue of materiality. The District Court in the instant case held “[t]hat the Petitioner [the government] has failed to establish by the quality of proof necessary in a proceeding of this kind that the Respondent was guilty of any fraud or illegality which caused or contributed to the granting of his certificate of citizenship.” The entire evidence' touching on the condition of the Italian quota consists of a brief passage appearing in Rossi’s pretrial deposition. While being questioned about other matters, Rossi, as an aside, volunteered that he thought the quota was closed in 1929 when he secured his visa. No inquiry on that subject was made of him, nor was other proof adduced. Rossi’s observation, considered in context, suggests more that he was rendering an opinion rather than stating a fact; but even as a statement of fact it is so qualified as to be of little probative value. We cannot say that this lone statement on this vital issue meets the evidentiary test required by Chaunt. The judgment is affirmed. . Tacna became part of Chile as a result of the plebescite. . The pertinent allegation in the government’s amended petition is a charge that “3. Said order admitting respondent to citizenship and said certificate of naturalization were procured by concealment of material facts and by willful misrepresentations in that Cesare Rossi deliberately and intentionally made false statements in the proceedings leading to his naturalization, the purpose and effect of which false statements were to prevent the making of a full and proper investigation of his qualifications for citizenship', to conceal his unlawful and fraudulent entry into the United States, to conceal his lack of good moral character and lack of attachment to the principles of the Constitution, to induce the Immigration and Naturalization Service to make an unconditional recommendation to the court that his petition be granted, to preclude inquiry by the court concerning the qualifications for citizenship, and to procure naturalization in violation of law.” . This reversal, which figuratively “cut the ground” from under the government’s position, post dated the trial in the District Court and, indeed, the filing of the briefs in this court. . “Q. Mr. Rossi, isn’t it a fact that you ■ used the name Ricardo also on your application for a visa to get into the United States? “A. Sure. “Q. Because you knew that you had a much better chance of getting your visa and getting into the United States if you used the name Ricardo? “A. Certainly. “Q. Isn’t that true? “A. That is true, sure. “Q. And that was true because Ricardo had been born in Peru? “A. In Peru. “Q. And you were born in Italy? “A. And I born in Genoa, yes, Italy. ' “Q. And you knew that if you applied for your visa under the name of Cesare which was your own true, original name, and told, them that you were a native-born citizen of Italy, you would have much more difficulty in getting your visa? “A. [By Rossi] That’s right; that’s right, sure, that’s right. “Q. Because you knew there was a quota? “A. There was a quota. I think at that time the quota was closed, too, if I remember well. “Q. You would have had to await your turn to get into this quota for people from Italy to be admitted into the United States; isn’t that true? “A. Sure. “Q. And isn’t it also true that somebody told you back in Peru that your chance of getting admitted into the United States would be much better if you adopted the name Ricardo than if you continued to use your true name of Cesare ? “A. I had that suggestion made, yes, on account of having already used that name Ricardo, and the suggestion was that if I take that name, I would have more chance to get into the United States that way and I had a suggestion and I took that suggestion and I came through with that name.” . Section 15 of the Immigration Act then in force is the counterpart of 8 U.S. C.A. § 1451(a) here involved. . See Footnote 4 supra. . After the District Court had rendered its memorandum opinion the government, apparently under the authority of Rule 59 F.R.Civ.P., 28 U.S.C.A., filed a “Motion for Reconsideration” and for judgment. This motion might be construed, in part, as one for a new trial for newly discovered evidence relating to the Italian quota in 1929. However, the government having failed to specify as error the denial of this motion, the question whether the trial court should have entertained this evidence is not before us. We do note, however, that the motion contains nothing to excuse the government’s failure to tender the proposed proof during the trial. 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_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. UNITED STATES v. BERNSTEIN. (Circuit Court of Appeals, Eighth Circuit. November 22, 1926.) No. 292, Orig. 1. Bankruptcy <§=314(6) — 'Taxes are not “debts” in the ordinary sense, within Bankruptcy Act (Comp. St. § 9585 et seq.). Taxes are not debts in the ordinary sense,' but, being quasi contractual in their nature, are provable as such under the provisions of the Bankruptcy Act (Comp. St. § 9585 et seq.). [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Debt.] 2. Bankruptcy <§=3I4(6), 400(4) — United States held to have right to pi ove tax claim, and as creditor to object to trustee’s determination of bankrupt’s claim of exemption (Bankruptcy Act, §§ I, 17, 63a, 64 [Comp. St. §§ 9585, 9601, 9647, 9648]; General Order No. 17). Under Bankruptcy Act, §§ 1, 17, 63a, 64 (Comp. St. §§ 9585, 9601, 9647, 9648), and General Order No. 17, the United States, having claim against bankrupt for income taxes, though not compelled to do so, held to have the right to prove its debt, and as a creditor to object to trustee’s determination of bankrupt’s claim of exemption. 3. Bankruptcy <§=400(4) — Government, proving tax claim as creditor, must take exception to trustee’s determination ef bankrupt’s claim of exemption within time allowed by general order (Bankruptcy Act, §§ 63a, 64 [Comp. St. §§ 9647, 9648]; General Order No. 17). Under Bankruptcy Act, §§ 63a, 64 (Comp. St. §§ 9647, 9648), where the United States proved its claim for taxes as a debt, it was required, as any other creditor, to object to trustee’s determination of bankrupt’s claim of exemption within time allowed by General Order No. 17. 4. Bankruptcy <§=400(4) — United States held not entitled to object to exemption allowed bankrupt on ground that state taxes were not paid (Comp. St. Neb. 1922, §§ 9035, 9038). United States held not entitled to object, under Cbmp. St. Neb. 1922, §§ 9035, 9038, to exemption allowed bankrupt, on ground that state taxes were unpaid. Petition to Revise Order of the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge. In the matter of the bankruptcy of Harry Bernstein. On petition of the United States to revise an order of the District Court, overruling an order of the referee, and ratifying and approving homestead exemption allowed by trustee. Order sustained, and petition dismissed. Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., Andrew C. Scott, Asst. U. S. Atty., and George A. Keyser, Asst. U. S. Atty., all of Omaha, Neb., on the brief), for the United States. Herman Aye, of Omaha, Neb. (J. D. Cranny, of Omaha, Neb., on the brief), for respondent. Before KENYON and VAN VALKENBURGH, Circuit Judges, and CANT, District Judge. VAN VALKENBURGH, Circuit Judge. The respondent was adjudged a bankrupt in the District Court for the District of Nebraska, October 28, 1924, and the matter was duly referred to the referee in bankruptcy at Omaha. January 10,1925, the collector of internal revenue for the district of Nebraska filed the claim of the United States against said bankrupt for income taxes in the sum of $4,605.36. February 26th the duly appointed trustee reported to the referee that he had set off $500 in lieu of homestead as exempt to the bankrupt. June 22, 1925, the United States filed exceptions to this report of the trustee. Thereafter, upon hearing, the referee in bankruptcy entered an order disapproving said allowance and refusing to set the same aside as exempt. On review in the District Court the order of the referee was overruled, and the report of the trustee ratified and approved. It is to revise this action of the court that this proceeding is instituted. The contention of the government is that under the bankruptcy law federal taxes must be paid before exemptions are set aside to the bankrupt, and, in this connection, that under the laws of Nebraska there are no exemptions from taxes, state or national. It is conceded that section 9035 of the Compiled Statutes of Nebraska 1922 provides that all heads of families who have neither lands, town lots, nor houses subject to exemptions as a homestead under the laws of that state, shall have exempt from forced sale on execution the sum of $500 in personal property, except wages; but it is urged that said section 9035 must be read in connection with section 9038, which provides that “nothing in this article shall be considered as exempting any real or personal property from levy and sale for taxes.” Respondent relies upon section 6a of the Bankruptcy Act (Comp. St. § 9590), which reads: “This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the1 time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition” — and contends that the proviso of section 9038 of the Nebraska Statutes which provides that property set aside under section 9035 shall not be exempt from levy and sale for taxes, applies only to state and local taxes, and not to those due the United States. It is further urged by counsel for respondent that, when the United States filed its claim for taxes, whether required to do so or not, it laid aside its sovereign character, became a party to the proceeding, and is bound by the'rules applicable thereto; that under General Order XVII the referee had neither power nor jurisdiction to review the action and report of the trustee setting apart the exemption of $500, unless and until exceptions to the determination of the trustee were filed within 20 days after the filing of the report. Section 9038 of the Statutes of Nebraska fias received no interpretation at the hands of the Supreme Court of that state to which our attention has been called, and, for reasons hereinafter stated, we find it unnecessary to anticipate construction by that court. In our judgment, the conceded priority of the claim of the United States for taxes due, in absence of valid exemption under state law, is not decisive of this controversy. By section 1 of the Bankruptcy Act (Comp. St. §• 9585) the term “creditor” shall “include any one who owns a demand or claim provable in bankruptcy.” The term “debt” shall “include any debt, demand, or claim provable in bankruptcy.” Collier on Bankruptcy, vol. 1, pp. 1, 2. Section '63a of the Act (Comp. St. § 9647), under the heading “Debts Which May Be Proved,” includes: “(1) A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not. * * ” (4) Claims “founded upon an open account or upon a contract express or implied1. • « Section 64 (Comp. St. § 9648) under the heading “Debts Which Have Priority,” provides : “The court shall order the trustee to pay all taxes legally due and owing by the bankrupt .to the United States, state, county, district, -or municipality in advance of the payment of dividends to creditors, * * and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court.” Commenting upon this section Mr. Collier says: “In the ease of income taxes, it seems that notice to the taxing power is necessary, or at least a proper condition precedent to any action by the trustee, and that after the government has received notice it must file a claim for taxes if it desires to share in the estate; • that it cannot stand by, after it has been granted permission to file its claim and expect to subsequently collect the tax from the bankrupt or his trustee” — citing Matter of Anderson (C. C. A. 2).279 P. 525. Collier on Bankruptcy, vol. 2, pp. 1447,1448. General Order No. XVII of the Supreme Court provides that the trustee shall make report to the court of his action setting aside exemptions to the bankrupt, and that any creditor may take exceptions to the determination of the trustee within 20 days after the filing of the report. It is undoubtedly held that taxes are not debts in the ordinary sense. New Jersey v. Anderson, 203 U. S. 483-492, 27 S. Ct. 137, 51 L. Ed. 284; Lane County v. Oregon, 7 Wall. 71, 19 L. Ed. 101; Meriwether v. Garrett, 102 U. S. 472-513, 26 L. Ed. 197; Hecox v. Teller County (C. C. A. 2) 198 F. 634, 117 C. C. A. 338. Whether they are such under the Bankruptcy Act for some purposes and to the extent of constituting a demand or claim" provable in bankruptcy is another question. The District Court for the District of Delaware (In re United Button Co., 140 F. 495, 502, 503) considers this phase of the matter. It says: “A tax is not strictly a debt. It lacks the nature of a debt in that, though for a sum certain, it is not founded upon any agreement or assent of the person or persons against whom it is assessed, but is a burden for public purposes imposed in invitum.' As an obligation or duty created by statute to pay money, however, it is quasi contractual. * * * Keener, in his work on Quasi Contracts, p. 16, states that ‘a statutory obligation which does not rest upon the consent of the parties, is clearly quasi contractual in its nature.’ * * * Thus the taxes enumerated in section 17 [Comp. St. § 9601], ‘legally due and owing by the bankrupt,’ by section 64 are directed to be paid out of the estate, by section 17 are recognized as ‘provable debts,’ and are demands of a quasi contractual nature. While strict or technical ‘proof’ of them is not required, although often presented, there can be no doubt that they are to be treated as provable debts or demands embraced in the class ‘founded upon an open account, or upon a contract express or implied.’ ” This case was affirmed by the Circuit Court of Appeals for the Third Circuit. 149 F. 48, 79 C. C. A. 70, 8 L. R. A. (N. S.) 961, 9 Ann. Cas. 445. Speaking of section 63 the court said: “The first of the two paragraphs into which it is divided is given up to an enumeration of the debts which are entitled to be proved against the estate, among which is to be f ound everything in the way of a fixed obligation, or which, as being of a commercial character, a bankrupt could expect to be relieved from.” In re William F. Fisher (D. C.) 148 F. 907-912, Judge Lanning declares that “of course a tax is provable in bankruptcy.” And this is the holding of the Circuit Court of Appeals for the Second Circuit. In re Sherwoods, 210 F. 754, 127 C. C. A. 304, Ann. Cas. 1916A, 940. This court, in Kaw Boiler Works v. Schull et al., 230 F. 587, 144 C. C. A. 641, L. R. A. 1916E, 628, has held that taxes are provable debts within the meaning of the Bankruptcy Act, and cites Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147, to the effect that section 63a, defining provable debts, must be read in connection with section 17 (Comp. St. § 9601), limiting the operation of discharge, and that it could not have been the intention of Congress to extend the operation of a discharge under section 17 to debts that were not provable under section 63a. That part of section 17 to which reference is made provides: “a. A discharge in bankruptcy shall release a bankrup’t from all of his provable debts, except such as (1) are due as a tax levied by the United States, the state, county, district, or municipality in which he resides.” This section would seem, in accordance with the ordinary meaning of language, to include taxes within the category of provable debts, and this would be decisive, unless deemed to be limited by section 63a, by which provable debts are expressly defined. The two sections are not necessarily inconsistent, if it be recognized that taxes are quasi contractual in their nature, and therefore fall under the head of contracts express or implied, and thus are provable claims as defined in section 63a. This conception seems more consistent with the definitions contained in section 1 of the Bankruptcy Act, which makes the term “debt” include, not only debts strictly so called, but any demand or claim provable in bankruptcy, and defines a creditor as one who owns such a demand or claim. Section 64, indirectly, at least, recognizes a tax claim as provable, because it provides that “in ease any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court.” In this view, the various sections of the act, to which reference has been made, are rendered consistent and effective throughout. Furthermore, this court (In re Minot Auto Co., 298 F. 853) has held that the United States is bound by the Bankruptcy Act, and that, when it enters one of its courts as a litigant, it lays aside its power, and to the same extent as other litigants must conform to court rules. The same view prevails in the Second Circuit. In re Anderson, 279 F. 525. That court holds that the United States is bound by the terms of the Bankruptcy Act, and upon notice served ori the collector for the district the provisions of law “require the United States to file its claim within a time fixed, or otherwise be barred to the end that settlement of the estate may not be unreasonably delayed,” and this although it is held that “the Bankruptcy Act does not contemplate that taxes should be proved like an ordinary debt.” The same consideration is the underlying reason for the provision in Order No. XVII that a creditor is limited to 20 days after the filing of the report of the trustee within which to take exception to his determination in the matter of exemption. In our judgment, therefore, within the purview of the Bankruptcy Act, the United States stood in the position of a creditor with a provable claim. The fact that it was not compelled to prove its claim, as in the ease of an ordinary debt, does not alter this status. It had a right to prove its debt, and, as a creditor, to object to the determination of the trustee. Incidentally it may be observed that no question as to the integrity of its claim is here presented. The matter under consideration is the allowance of exemption. The petitioner did file its claim for allowance in the sum of $4,605.36. That it may not have been compelled to do so is immaterial. Some months later, when its exceptions were heard by the referee, its claim had not been allowed, although income taxes due in the sum of approximately $2,400 were conceded. The matter was, of course, for the determination of the court under the provisions of section 64 of the act. In its exceptions filed to the report of the trustee the United States is described as a creditor of the bankrupt and prays “that the hearing may be had upon such exceptions and that the same may be argued as provided in General Order No. XVII.” It thus appears, that, whatever its obligation in law may have been, the petitioner submitted itself to the jurisdiction of tfie bankruptcy court as a litigant under the provisions of General Order No. XVII, and subject to the procedure therein prescribed. Its application came too late under the express provisions' of the very general order to which it appealed. We may not depart from the procedure laid down by the Supreme Court of which petitioner has sought voluntarily to avail itself. The conclusion is irresistible that the report of the referee on this matter of exemption was no longer open to attack. It is further insisted by petitioner that, in case the court holds adversely to the government on the other grounds urged, “yet this bankrupt is not entitled to this exemption because there are state taxes still unpaid.” The answer to this is that the state filed no exception to the report of the referee, and is not here complaining of the action of the District Court in setting off the property to the bankrupt. It follows, from what has been said, that the order below must be sustained, and the petition to revise dismissed. It is so ordered. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees. No. 17623. United States Court of Appeals Fifth Circuit. Sept. 25, 1959. Edward J. Dees, Dallas, Tex., for appellants. Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees. Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges. CAMERON, Circuit Judge. Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee’s premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen’s Compensation, receipt of medical expenses and other compensation' thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action. We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record. Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system. After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on' Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building. Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist. Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled “Notice of Injury and Claim for Compensation, Texas Workmen’s Compensation,” in which she gave notice of her injury, filed a claim for compensation due under the Workmen’s Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter. This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries. Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen’s Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen’s Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer. Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers’ Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262. Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers. Workmen’s Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen’s Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939,102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon’s Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment, there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred. In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises during her lunch period was entitled to compensation notwithstanding the fact that the injury occurred outside of her normal hours of service and that she was not discharging any specific duties connected with her employment at the time of the accident. In Federal Surety Co. v. Ragle, supra, the employee was injured while attempting to crank an automobile in which he was to ride home after work. The Texas Commission of Appeals, in affirming the action of the Court of Civil Appeals in granting compensation, said: “Since it was not required * * * that Ragle should spend the nights or time not at work at the well * * * it was necessary * * * that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.” And later, in the same opinion: “It is also equally well established that all dangers and perils incident to the usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and ‘arising out of employment,’ as provided for under article 8309 R.S. 1925.” In Ragle, the Commission dealt at length with Texas cases on the subject of whether injuries sustained going to and from work were compensable and leaned heavily upon the Supreme Court case of Cudahy Packing Co. of Nebraska v. Par-ramore, 1923, 263 U.S. 418, 426, 44 S.Ct. 153, 155, 68 L.Ed. 366. That case, in the words of the Commission, “involved the construction of a similar statute enacted by the state of Utah.” There, the customary method of ingress and egress to the Cudahy Packing Plant was down a road and across some railroad tracks. Parramore, an employee of Cudahy was killed at this crossing on his way to work one morning. The Supreme Court, in holding that the accident resulting in the death of Parramore arose out of the course of his employment, made the following observation: “Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so and this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer. “We attach no importance to the fact that the accident happened a few minutes before the time Parra-more was to begin work, and was therefore, to that extent, outside the specific hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” [263 U.S. 426, 44 S.Ct. 155.] In the case before us, the hazards of the snow and ice were perils confronting the public in general. Persons utilizing the streets and sidewalks in the ordinary course of their day’s activities were free, as was Mrs. Heacker most of the distance between the hotel and the Southwestern Building, to choose the routes they would take, avoiding those areas which in their judgment appeared to be impassable. In her deposition, Mrs. Heacker stated that on several occasions between the hotel and the exchange, it was necessary to walk in the street to avoid particularly dangerous areas. It appears from her deposition that this power of selection terminated upon her arrival in front of appellee’s premises. In order to reach the premises where her employment required her to be, she was required to negotiate the icy sidewalk in front of the Southwestern Building. It was a hazard or peril incident to her employment on the day of the accident. In Texas Employers Insurance Association v. Cobb, 1938, 118 S.W.2d 375, the Texas Court of Civil Appeals declared that where an employee, whose duties required that he travel from place to place collecting accounts, was asphyxiated in a motel on a Sunday night, the accident causing his death was within the coverage envisioned by the Texas Workmen’s Compensation Statute. The court, in that case, concluded that the duty imposed upon him by the character of his employment to go from place to place at the instance of his employer formed a causal connection between the accident and the employment. The responsibilities and duties imposed upon Marie Heacker by virtue of her employment required that she travel from Dennison, Texas to Greenville, to ñnd lodging in the latter city and to pass back and forth between her chosen place of lodging and the telephone exchange building. On the day of the accident, the weather was cold and the sidewalks covered with snow and ice, but the responsibilities of Marie Heacker remained the same. It is not necessary for us to decide whether an injury resulting from an accident occurring a block or more away could be said to have arisen from her employment. The place of accident was, for all practical purposes, a part of the premises of the appellee. Marie Heacker had no alternative but to attempt to- cross the hazardous sidewalk fronting these premises. Her employment contemplated her doing just that before the hour on which her duties would commence. In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute. Under Article 8306, § 3, Vernon’s Texas Civil Statutes, employees injured within the scope of their employment and their representatives have no right of action against their employer, and their sole remedy is under the Workmen’s Compensation Statute of Texas. It is, therefore, clear that the court below did not err in granting the motion of the company for a summary judgment. The judgment is, therefore, Affirmed. . Cf. Republic Underwriters v. Terrell, Tex.Civ.App.1939, 126 S.W.2d 752. . Federal Surety Co. v. Ragle, Tex.Com. App.1931, 40 S.W.24 63, 64; and Federal Surety Co. v. Ragle, Tex.Civ.App.1930, 25 S.W.2d 898. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_circuit	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. VAL-LAND FARMS, INC., a Wisconsin corporation, Plaintiff-Appellant (89-5929), Cross-Appellee, Adrian Gerszewski Potato Company, a North Dakota corporation, on its own behalf and as assignee of the rights, claims, and interests of Maxine’s Potato Service, Inc., a Minnesota corporation, Intervening Plaintiff-Appellant (89-5929), Cross-Appellee, Keith D. Parr, Esq.; John O. Threadgill, Esq.; Michael A. Nolan, Esq., Attorneys-Appellants (89-6140), Cross-Appellees, v. THIRD NATIONAL BANK IN KNOXVILLE, a national banking association, Defendant-Appellee, Cross-Appellant (89-6142). Nos. 89-5929, 89-6140 and 89-6142. United States Court of Appeals, Sixth Circuit. Argued Nov. 14, 1990. Decided July 2, 1991. John 0. Threadgill, Butler, Vines, Babb & Threadgill, Knoxville, Tenn., Keith D. Parr (argued), Lord, Bissell & Brook, Chicago, Ill., for plaintiff-appellant and intervening plaintiff-appellant. Gregory G. Little (argued), John A. Lucas, Hunton & William, Knoxville, Tenn., for defendant-appellee. John 0. Threadgill, Butler, Vines, Babb & Threadgill, Knoxville, Tenn., Keith D. Parr, Lord, Bissell & Brook, Chicago, Ill., Michael A. Nolan, Knoxville, Tenn., for attorneys-appellants cross-appellees. Before KEITH and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge. BOGGS, Circuit Judge. The plaintiffs in this case are potato growers who sold potatoes to Compton Produce (a third party, not directly involved in this litigation) who went bankrupt. The plaintiffs sued Compton Produce and won a judgment. Alas, Compton Produce had no money. In discovery in that case, however, the plaintiffs found documents suggesting to them that they might have a cause of action against Compton Produce’s banker, Third National. Consequently, the plaintiffs filed a two-count complaint against Third National. One count was a claim under the Perishable Agricultural Commodities Act (“PACA”), and the other was a state common law claim. Neither count made it to trial; the court granted a motion to dismiss on the PACA count and granted summary judgment on the state common law count. The plaintiffs appeal these rulings. After judgment had been entered, the court entertained a motion by Third National for Rule 11 sanctions. The court granted the motion as to the PACA claim but not as to the common law claims. The plaintiffs and their attorneys appeal, arguing that Rule 11 sanctions should not have been imposed at all, and the defendant has cross-appealed, arguing that sanctions should have been granted as to all counts and, in any event, that the amount of sanctions was too low. We affirm the decision of the court below on all issues. I Val-Land Farms, Maxine’s Potato Service, Inc., and Adrian Gerszewski Potato Co., Inc. are all potato farmers. Each agreed to sell its 1984 crop to Compton Produce. Compton Produce was a potato broker and was a corporation wholly owned by an individual named Minyard Compton. Compton Produce purchased potatoes from farmers, in advance, and then sold the potatoes to companies that processed the potatoes into potato chips. Compton Produce functioned, in other words, as a middleman. Starting in July 1984, the plaintiffs began digging potatoes and shipping them to Compton Produce. Unfortunately, Compton Produce suffered from financial difficulties that ultimately led to bankruptcy. The plaintiffs did receive some payments for the potatoes, but Compton Produce was, because of its financial difficulties, ultimately unable to pay for all of the potatoes it received from the plaintiffs. Although the plaintiffs managed to get a judgment against Compton Produce in a separate action, that judgment is valueless to the plaintiffs and other similarly situated potato growers. The defendant in this case, Third National, provided banking services to Compton Produce. In 1982, Compton Produce borrowed $800,000 from Third National. By 1985, Compton Produce still owed over $700,000 to Third National. At the same time, Compton Produce also had two checking accounts at Third National, a “general checking account” and a “chip and seed account.” Compton Produce wrote checks from the chip and seed account in order to pay for potatoes. Minyard Compton, the sole owner of Compton Produce, and his wife, Imogene Compton, were customers of Third National as well. The Comptons personally owed Third National about $400,000 on a variety of loans, the largest of which was the mortgage on their house. During the course of 1984, Compton Produce’s financial woes grew more acute. More and more frequently, Compton Produce wrote checks without having enough money in its accounts to cover the checks. At first, Third National had a very lenient attitude toward these problems. Third National covered the checks almost as a matter of course, and it did not charge interest or NSF charges on the checks. Though there are some factual disputes regarding the full extent of Compton Produce’s problems, all agree that, by January 1985, the chip and seed account was almost constantly overdrawn. In January 1985, Third National assigned Robert Wrather to the Compton Produce accounts. Wrather quickly concluded that the Compton Produce account was in trouble and he took immediate steps to correct the problem. Third National began returning checks and charging NSF charges in January. In exchange for a loan to cover what it already owed the bank, Compton Produce signed a security agreement in a number of items, including Compton’s produce inventory and accounts receivable. The agreement cross-collateral-ized all of the loans from Third National to Compton Produce and to Minyard and Imogene Compton, including the mortgage of the Comptons’ home. At the time of this agreement, Compton Produce already owed about a million dollars to produce growers throughout the country in addition to what it owed to Third National. When Compton Produce did go out of business, Third National used its security interest to seize all of the covered assets, including the house owned by Minyard and Imogene Compton personally. It then liquidated these assets and applied the proceeds against Compton Produce’s outstanding unpaid debt. This suit was initially filed against Third National by Val-Land Farms. Subsequently, with the consent of Third National, Gerszewski entered the fray, both on its own behalf and as the successor in interest to Maxine’s. The complaint filed by the intervening parties is, for all intents and purposes, identical to the complaint filed by Val-Land Farms. The plaintiffs’ complaint contains two counts. Count One is a cryptic hodgepodge of claims and allegations that reads, at least at first glance, like a claim for common law fraud. In the second count, the plaintiffs claimed that, by loaning money to Compton Produce, the bank had been somehow transmogrified into a potato dealer. This, according to the plaintiffs, brought the bank within the ambit of the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. § 499a et seq. The case was originally assigned to Judge James Jarvis. Judge Jarvis granted a Rule 12(b) motion to dismiss on the PACA claim, but denied the motion to dismiss on Count I. The parties then agreed to have the case decided by a magistrate. Consequently, Magistrate Robert P. Murrian took over the case. After the completion of discovery, Magistrate Murrian granted summary judgment for Third National on the remaining claim. After judgment had been entered and the plaintiffs had already filed a notice of appeal, Third National moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The magistrate determined that he did have jurisdiction to entertain the motion and he granted the motion as to the PACA claim but denied it as to the common law claim set forth in Count I, however that claim might be characterized. II In support of its “common law” claim, the plaintiffs now maintain that Third National created an “illusion of solvency” by honoring checks despite the fact that Compton Produce was not solvent. This allegedly resulted in subsequent sales to Compton Produce resulting from the fact that the plaintiffs were unaware of Compton Produce’s financial condition. The magistrate granted summary judgment on this count. The plaintiffs seem somewhat unclear on the concept of summary judgment. They seem to believe that the court can only look at the bare allegations of the complaint. They are also under the impression that, because it denied the defendant’s motion to dismiss, the complaint was judged, once and for all, to be “legally sufficient.” Thus, the plaintiffs seem to believe that the district court was bound to accept any legal arguments that the plaintiffs might present, however fanciful those arguments might be. The plaintiffs could not be more wrong. The Supreme Court has made it clear that bare allegations set forth in a complaint are not enough. Rule 56(e) of the Federal Rules of Civil Procedure states clearly that “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading....” Moreover, under Rule 56(c), the court must determine whether “the moving party is entitled to judgment as a matter of law.” The Supreme Court has explained that summary judgment is appropriate where a party cannot “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In order to make this determination, the trial judge must make purely legal judgments that go to the nature and sufficiency of the complaint as well as the evidence put forward to support it. Inevitably, the court must determine what the elements of the case are before it makes a decision about whether there are material disputes on each element. In so doing, the court will inevitably address issues that might also be addressed in the context of a motion to dismiss on the pleadings. In any event, we are free to affirm summary judgment because the complaint is legally insufficient. Our task in determining if there are facts creating a triable issue is hindered by the plaintiffs’ refusal to specify the nature of their claim. When filed, the complaint only indicated that Count I was a “common law” claim. In ruling on the motion to dismiss, Judge Jarvis acted on the assumption that the plaintiffs had presented a common law fraud claim. In defending against the motion for summary judgment, however, the plaintiffs claimed that they were, and always had been, asserting a claim for equitable estoppel or for the imposition of a constructive trust. On appeal, the plaintiffs maintain that the “label” of the theory upon which they seek to recover is irrelevant. Following their view that the “label” attached to a theory of recovery is irrelevant, the plaintiffs try to pursue all of their theories. Just for good measure, in their reply brief, the plaintiffs state that their claims “could also be interpreted to include a claim of fraudulent conveyance.” The plaintiffs are, of course, free to pursue whatever colorable theories of recovery support their ease. But they are not free to present a moving target, thereby making the courts (both us and the district court) as well as their opponent guess at the nature of the claim presented to the court. Despite its valiant efforts, Third National has been unable to pin the plaintiffs down on what theory or theories support recovery under these facts. This court will consider, in this appeal, whether the plaintiffs have come forward with enough evidence to present material issues on any of the three theories of recovery arguably raised below. We do not consider the fraudulent conveyance claim, as that claim was presented for the first time in a reply brief on appeal. This court does not consider contentions not properly raised below. Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987). A. Fraud In Tennessee, fraud requires the intentional or (in commercial situations) negligent misrepresentation of a material fact. See Holt v. American Progressive Life Insurance Co., 731 S.W.2d 923, 927 (Tenn.App.1987). Obviously, there must be representation of some sort before there can be a misrepresentation. Third National denies that it made any representations at all to the plaintiffs, and we must agree. It is undisputed that nobody from Third National called any of the plaintiffs on the telephone and said that Compton Produce was solvent. Nor did the bank prepare a credit report that was somehow made available to the plaintiffs. Cf. Central States Stamping v. Terminal Equipment Co., 727 F.2d 1405 (6th Cir.1984). The plaintiffs point to one act — honoring checks — and maintain that this act constituted a representation regarding Compton Produce’s financial status. Although behavior sometimes communicates a message, see, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989) (flag burning constitutes “speech” protected by the first amendment), we are unconvinced by the plaintiffs’ repeated and vigorous claims that honoring a check is such a message. The theory behind the plaintiffs’ position that honoring a check constitutes a message is elusive. At times, the plaintiffs seem to maintain that when a bank honors a check it sends a message that the account holder has enough money in the account to pay the check. Alternatively, they argue that honoring an overdraft check sends a message that the bank believes that the drawer is worthy of credit. The plaintiffs strongly emphasize the fact that Third National did not charge NSF charges or interest to Compton Produce when honoring the overdrawn checks, but where this fits in is not clear. They also assert that honoring a check is a “representation of solvency,” but whether this representation arises out of the representation that the account holder has enough money in the account or that the account holder is worthy of an unsecured loan or constitutes still a third category of representation is not clear. Third National maintains that honoring a check does not, as a matter of law, constitute a representation of any type. We believe that Third National’s position is correct. The plaintiffs fail to distinguish between conduct that is intended to be expressive (as in flag burning) and conduct that might conceivably lead random third parties to make inferences of some sort. The plaintiffs seem to believe that because some observer might make certain inferences from observing the bank’s conduct, that conduct must constitute a representation. Although we are aware of no authority directly addressing this issue, we see no reason, either logical or legal, to adopt the plaintiffs’ position. First, it is well settled that writing a check does not constitute a representation. Williams v. United States, 458 U.S. 279, 285, 102 S.Ct. 3088, 3092, 73 L.Ed.2d 767 (1982). If writing a check isn’t a representation, then we are at a loss to see how honoring one would be one either. At first glance, writing a check would appear to communicate more of a message more than honoring one would. After all, the writer of a check fills out a dollar amount, indicates the name of the person to whom the check is addressed (or if it is being made out to bearer) and affixes his or her name to the check. A bank, by contrast, just sends money. But the plaintiffs argue that sending money “sends a message” — either that the account has enough money in it or that the account holder is worthy of an unsecured loan. It is certainly true that a bank’s action “sends a message” in some sense of the term. Yet, unlike the flag burning at issue in Johnson, we know of no case from any jurisdiction in which a party has been held liable for a misrepresentation — regardless of the legal theory employed— when that party failed to engage in any conduct intended as a communicative act. Nor have the plaintiffs directed our attention to any such cases. It seems clear that the purpose of the bank’s act was not to communicate a message to the plaintiffs. Furthermore, if we were to adopt the plaintiffs’ suggested rule, future creditors could hold Visa liable every time someone who held its credit card failed to pay his or her debts. The principle that a bank sends an open-ended message to the world about credit-worthiness whenever it pays a check despite insufficient funds in the account (an act clearly allowed by the U.C.C., by the way) or grants credit would have quite pernicious effects. Those most likely to need a break from their banks — the poor, struggling entrepreneurs, businesses undergoing cash-flow problems — would be less likely to get it because banks would fear the potentially unlimited liability that might arise should they cover a check or make a loan to a party in financial distress and thereby make a “representation of solvency” to an undefined class of third parties. None of the cases cited by the plaintiffs leads us to the conclusion that, if given the chance, Tennessee would adopt such an apocalyptic result. The plaintiffs rely heavily on Payne Brothers v. Burnett, 269 S.W. 27 (Tenn.1925). Despite some superficial resemblances to our case, the Payne Bros, case is readily distinguishable. The plaintiffs read Payne Bros, to stand for the proposition that whenever a bank covers overdrafts it has an obligation to do so ad infinitum. Their reading of this case is far too broad. In Payne Bros., the Payne Brothers sued T.C. Burnett, a produce dealer, and his bank, the Mossy Creek Bank, a banking institution located in Jefferson City Tennessee. In that case, Burnett, who would be analogous to Compton Produce, had an account that was almost constantly overdrawn. The court held the Mossy Creek Bank liable to Payne Bros, for some poultry purchased with two checks written on the account. What distinguishes that case from our case, however, is the fact that an agent of the bank specifically told Burnett that the bank would “take care of” the checks. Id. at 29. Such an express undertaking is conspicuously absent from our case. In order to bolster their position, the plaintiffs rely heavily on the fact that the bank was paying overdrafts without charging interest or NSF charges. While interesting, this fact is quite irrelevant to the issue of whether the bank made a representation to the plaintiffs. In fact, the plaintiffs only became aware of the financial arrangements well after the events had already taken place. Accordingly the fact that the plaintiffs were kept in the dark, a fact that they emphasize at every opportunity, undermines rather than supports their position. In any event, even if the plaintiffs had known that credit was being advanced by the bank, it would only tell them that the bank had decided to extend credit. It would not tell the plaintiffs anything about whether additional credit was warranted. Accordingly, the plaintiffs have not come forward with sufficient evidence to create a triable issue on the fraud count. B. Equitable Estoppel The plaintiffs also argue that the bank is equitably estopped from denying the validity of the claim. Unfortunately for the plaintiffs, however, equitable estoppel does not create a cause of action under Tennessee law. See Franklin v. St. Paul Fire and Marine Insurance Co., 534 S.W.2d 661, 666 (Tenn.App.1976). C. Constructive Trust The plaintiffs also maintain that the bank held the money in the “chip and seed account” in trust. This trust resulted, according to the plaintiffs, from the fact that the bank knew that the funds in the chip and seed account were intended for the benefit of the plaintiffs. Tennessee law recognizes both resulting and constructive trusts. Resulting trusts arise out of the presumed intent of the parties, while constructive trusts are constructed by a court of equity to satisfy the demands of justice. See Browder v. Hite, 602 S.W.2d 489, 492 (Tenn.App.1980). The plaintiffs have utterly failed to demonstrate that either a resulting or constructive trust existed in this case on these facts. Moreover, even if the bank held the account in trust for the plaintiffs it would not help the plaintiffs. The undisputed evidence clearly indicates that the value of the Compton Produce accounts was, at the time the accounts were closed, negative. There was simply nothing for the bank to hold in trust. There is no evidence that the bank set off or appropriated any of the funds from the account. Third National secured some loans and collected on the security interest. But the money received by Third National was never a part of the account. The plaintiffs also claim that Third National acted wrongly by waiting until Compton Produce received a particular payment before closing out the account. So what if it did? By accepting the money for payment into the account, Third National increased the value of that account. We fail to see how a trustee violates any obligation by accepting a payment into the fund held in trust. Ill The plaintiffs also maintain that the defendant Third National Bank violated provisions of the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. § 499a et seq. The district court dismissed this claim on the pleadings. Thus, we take all of the facts in the complaint as true for purposes of review. The threshold question for review is whether the Third National Bank was a potato dealer under PACA. We hold that it was not, and affirm the district court’s decision. The only action taken by Third National was loaning Compton Produce money and funding overdrafts without charging NSF charges or interest, a practice that essentially amounts to giving Compton Produce an interest-free loan. The plaintiffs maintain that this somehow makes the bank a potato dealer. They argue that, as Compton Produce had no money, the bank was really the purchaser of the potatoes. Thus, according to the plaintiffs, “economic reality” transforms the bank into a potato dealer. PACA defines a dealer as “any person engaged in the business of buying or selling in wholesale or jobbing quantities, as defined by the Secretary, any perishable agricultural commodity in interstate or foreign commerce....” There is, in this case, no evidence that the defendant Third National bank ever purchased a single potato, much less purchased potatoes in wholesale or jobbing quantities. The only argument that the plaintiffs make is their “economic reality” argument. The plaintiffs cite In re G & L Packing Company, 41 B.R. 903 (N.D.N.Y.1984) in support of their position. This case is wholly inapposite. In G & L Packing, the court held that two companies — Orange Meat Packing Co., Inc. and G & L Packing Co., Inc. — constituted a single integrated entity for purposes of the Packers and Stockyards Act. Id. at 905. The evidence in that case demonstrated that Orange constituted an “undercapitalized instrumentality” of G & L. Id. at 913. The court found that Orange had been formed for the sole purpose of supplying beef carcasses to G & L at terms favorable to G & L. Ibid. The parties never intended for Orange to be a profitable enterprise, so the terms of the exchanges were skewed in favor of G & L. The plaintiffs argue that this case is analogous, with Third National playing the role of G & L and Compton Produce the role of Orange. There is a slight superficial resemblance to G & L Packing, at least inasmuch as Third National supplied much of the capital for Compton Produce. But the differences are more important. Even given the most liberal reading, however, the plaintiffs’ complaint would not give rise to a PACA action, even if we were to adopt the reasoning of G & L Packing. The plaintiffs do not allege that Third National was the invisible hand behind Compton Produce, or that it was formed only for the benefit of Third National. Indeed, if Compton Produce had become more profitable than was necessary to repay the loans, Compton Produce, not Third National, would have kept the profits. Moreover, Third National wanted a thriving customer, not a bankrupt husk. Nor do the plaintiffs allege any common ownership or management that might give rise to the inference that the discrete incorporation was pretex-tual. Cf. id. at 914. It is certainly true that Third National wanted Compton Produce to repay its loans, with interest. There is nothing sinister about that fact, though. Loaning money to persons or entities covered by various regulatory schemes does not automatically subject a bank to all of the various requirements of those schemes, including registration with the pertinent regulatory agency. IV After the defendant prevailed on both counts, it asked the magistrate to award Rule 11 sanctions on both counts. The magistrate awarded sanctions on the PACA count, but he declined to do so on the second “common law” count. The plaintiffs appeal the award of sanctions itself and the defendant appeals, arguing that the magistrate should have awarded sanctions on both counts. The plaintiffs’ first argument is jurisdictional. They claim that the magistrate lacked jurisdiction, as they had already filed a notice of appeal. Our circuit has held that a district court retains jurisdiction to entertain a motion for Rule 11 sanctions even after the filing of a notice of appeal. Regional Refuse Systems v. Inland Reclamation Company, 842 F.2d 150, 156 (6th Cir.1988). We review a decision to grant Rule 11 sanctions to determine if the district court abused its discretion in deciding whether to award sanctions (or not award them). Cooter & Gell v. Hartmarx Corp., — U.S. -, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990). The court did not err in finding that the plaintiffs’ PACA claim was frivolous. That claim was a loser from the start, and the plaintiffs’ attorneys should have known it. Their contention that the bank was a potato dealer was (and is) ludicrous. Rule 11 is a salutary mechanism for giving lawyers the incentive to make an objective determination about the validity of their claim. The question of whether the court erred in not awarding sanctions to Third National on the “common law” claim is much closer. Though it is a very, close issue, we must conclude that the court did not abuse its discretion in choosing not to award sanctions on this issue. The plaintiffs’ factual investigation was adequate, and their legal conclusion that those facts might give rise to a cause of action, while ultimately unsuccessful, was colorable. The magistrate awarded fees against Keith D. Parr, of the’ law firm of Lord, Bissell & Brook, a law firm located in Chicago, and against both Michael Nolan and John O. Threadgill, both of whom operated out of Tennessee and who apparently acted as local counsel. The attorneys contend that the district court erred in failing to hold a hearing to determine the degree of involvement that local counsel had in writing the pleading, motion, or paper found to violate the rule. They imply that, if local counsel relied on material submitted by the outside counsel who was actually litigating the case, local counsel should not be held liable for Rule 11 sanctions. This contention is not consistent either with the language of Rule 11 or applicable Supreme Court precedent. Rule 11 provides that “[ejvery pleading, motion, and other paper of a party ... shall be signed by at least one attorney of record in the attorney’s individual name_” The signature of the attorney “constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper, that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted in existing law or a good faith argument for the extension, modification, or reversal of existing law_” Fed.R.Civ.P. 11. The text of the rule does not provide a safe harbor for lawyers who rely on the representations of outside counsel. The opposite holding would not be consistent with the Supreme Court’s decision in Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989). There, the Supreme Court held that Rule 11 sanctions are assessed against the attorney who signs a paper in violation of the rule, not against the attorney’s law firm. As the Court explained, “the purpose of Rule 11 as a whole is to bring home to the individual signer his personal non-delegable responsibility.” Id. 110 S.Ct. at 460 (emphasis added). The lawyers who sign materials submitted to federal courts have the responsibility to determine that those materials comply with Rule 11. If Nolan and Threadgill, acting as local counsel, signed Val-Land Farms’s complaint relying entirely on the representations of Mr. Parr, so much the worse for them. V The plaintiffs in this case lost out by shipping potatoes to a potato dealer. They could have insisted on getting a certified check or a cashier’s check or a letter of credit from .Compton Produce, but they chose not to do so. The plaintiffs are sympathetic figures, but we see no legal support for their claim that responsibility should be shifted to a bank that just happened to be handy. The judgment in favor of the defendants and the decision concerning Rule 11 sanctions is AFFIRMED. . The plaintiffs subject Robert Wrather to repeated ad hominem attacks because of his involvement in another proceeding in which his actions had been questioned by the FDIC. The plaintiffs never explain the relevance of his legal problems. . The plaintiffs have not attempted to set the transaction aside as a voidable preference under the bankruptcy code, either in this proceeding or in any other related proceeding, at least so far as we can tell from the record before us. The reason for this omission is not apparent. . A Shepard’s search reveals that no reported Tennessee cases have cited Payne Bros., a fact that undermines our confidence that Payne Bros, reflects the current state of the law in Tennessee. We express no view on this issue since, even if Payne Bros, were good law, it would not help the plaintiffs. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_issue_1	08	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. MAYBERRY v. PENNSYLVANIA No. 121. Argued December 17, 1970 Decided January 20, 1971 Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, Marshall, and Blackmun, ■ JJ., joined. Burger, C. J., post, p. 466, and HarlaN, J., post, p. 469, filed concurring opinions. Black,' J., filed a separate statement, post, p. 466. Curtis R. Reitz, by appointment of the Court, 398 U. S. 902, argued the cause and filed a brief for petitioner. Carol Mary Los argued the cause for respondent, pro hac vice. With her on the brief was Robert W. Duggan. Mr. Justice Douglas delivered the opinion of the Court. Petitioner and two codefendants were tried in a state court for prison breach and holding hostages in a penal institution. While they had appointed' counsel as advisers, they represented themselves. The trial ended with a jury verdict of guilty of both charges on the 21st day, which was a Friday. The defendants were brought in for sentencing on the following Monday. Before imposing sentence on the verdicts the judge pronounced them guilty of criminal contempt. He found that petitioner had committed one or more contempts on 11 of the 21 days of trial and sentenced him to not less than one nor more than two years for each of the II contempts ór a total of 11 to 22 years. The Supreme Court of Pennsylvania affirmed by a divided vote. 434 Pa. 478, 255 A. 2d 131. The case is here on a petition for writ of certiorari. 397 U. S. 1020. Petitioner’s, conduct at the trial comes as a shock to those raised in the Western tradition that considers a courtroom a hallowed place of quiet dignity as far removed as possible from the emotions of the street. (1) On the first day of the trial petitioner came to the side bar to make suggestions and obtain rulings on trial procedures. Petitioner said: “It seems like the court has the'intentions of railroading us” and moved to disqualify the judge. The motion was denied. Petitioner’s other motions, including his request that the deputy sheriffs in the courtroom be dressed as civilians, were also denied. Then came the' following colloquy: “Mr. Mayberry: I would like to have a fair trial of this case and like to be granted a fair trial under the Sixth Amendment. “The Court: You will get a fair trial. “Mr. Mayberry: It doesn’t appear that I am going to get one the way you are overruling, all our motions and that, and being like a hatchet man for the State. “The Court: This side bar is over. “Mr. Mayberry: Wait a minute, Your Honor. “The Court: It is over. “Mr. Mayberry: You dirty sonofabitch.” (2) The second episode took place on the eighth day of the trial. A codefendant was cross-examining a prison guard and the court sustained objections to certain questions: “Mr. Codispoti: Are you trying to protect the prison authorities, Your Honor? Is that your reason? “The Court: You are out of order, Mr. Codispoti. I don’t want any outbursts like that again. This is á court of justice. You don’t know how to ask questions. “Mr. Mayberry: Possibly Your. Honor doesn’t know how to rule on them.. “The Court: You keep quiet. “Mr, Mayberry: You ought to be Gilbert and Sullivan the way you sustain the district attorney every time he objects to the questions. “The Court: Are you through? When your time comes you can ask questions and not make speeches.” (3) The next charge stemmed from the examination of an inmate about a riot in prison in which petitioner apparently was implicated. There were many questions asked and many objections sustained. At one point the following outburst occurred: “Mr. Mayberry rTSTow, I’m going to produce my defense in this case and not be railroaded into any life sentence by any dirty, tyrannical old dog like yourself. “The Court: You may proceed with your questioning, Mr. Mayberry.” (4) The fourth charge grew out of an examination of another defense witness: “By Mr. Mayberry: “Q. I ask you, Mr. Nardi, is that area, the hand-, ball court, is it open to any prisoner who wants to play handball, who cares to go to that area to play • handball?' “A. Yes.. “Q. Did you understand the prior question when I asked you if it was freely open and accessible area? “The Court: He answered your qúestion. Let’s go on. “Mr. Mayberry: I am asking Jiim now if he understands- “The Court: He answered it. Now, let’s go on. “Mr. Mayberry: I ask Your Honor to keep your mouth shut while I’m questioning my own witness. Will you do that for me? “The Court: I wish you would do the same. Proceed with your questioning.” (5) The fifth charge relates to a protest which the defendants made^that at the end of each trial day they were denied access to their legal documents — a condition which the trial judge shortly remedied. The following ensued: “Mr. Mayberry: You’re a judge first. What are you working for? The prison authorities, you bum? “Mr. Livingston: I have a motion pending before Your Honor. “The Court: I would suggest- “Mr. Mayberry: Go to hell. I don’t give a good God damn what you suggest, you stumbling dog.’-’ Meanwhile one. defendant told the judge if he did not get access to his papers at night he’d “blow • your' head off.” Another defendant said he would not sit still and be “kowtowed and be railroaded into a life imprisonment.” Then the following transpired: “Mr. Mayberry: You started all this bullshit in the beginning. “The Court: You keep quiet. “Mr. Mayberry: Wait a minute. “The Court: You keep quiet. “Mr. Mayberry: I am my own counsel. “The Court: You keep quiet. “Mr. Mayberry. Are you going to gag me? “The Court: Take these prisoners out of here. We will take a ten minute recess, members of the jury.” (6) The sixth episode happened when two of the defendants wanted to have some time to-talk to a witness whom they had called. The two of them had had a heated exchange with the judge when the following happened: “Mr. Mayberry: Just one moment, Your Honor. “The Court: This is not your witness, Mr. May-berry. Keep quiet. “Mr. Mayberry: Oh, yes, he is my witness, too. He is my witness, also. Now, we are at the penitentiary and in seclusion. We can’t talk to any of our witnesses prior to putting them on the stand like the District Attorney obviously has the opportunity, and as he obviously made use of the opportunity to talk to his witnesses. Now- “The Court: Now, I have ruled, Mr. Mayberry. “Mr. Mayberry: I don’t care what you ruled. That is unimportant. The fact is- “The Court: You will remain quiet, sir, and finish the examination of this witness.' “Mr. Mayberry: No, I won’t be quiet while you try .to deny me the right to a fair trial. The only way I will be quiet is if you have me gagged. Now, if you want to do that, that is up to you; but in the meantime I am going to say what I have to say. Now, we have the right to speak to our witnesses prior to putting them on the stand. This is an accepted fact of law. It is nothing new or unusual. Now, you are going to try to force us to have our witness testify to facts that he has only a hazy recollection of that happened back in 1965. Now, I believe we have the right to confer with our witness prior to putting him on the stand. “The Court: Are you finished? “Mr. Mayberry: I am finished. “The Court: Proceed with your examination.” (7) The seventh charge grew out of an examination of a codefendant by petitioner. The following outburst took place: “By Mr. Mayberry: “Q. No. Don’t state a conclusion because Gilbert is going to object and Sullivan will sustain. Give me facts. What leads you to say that?” Later petitioner said: “Mr. Mayberry: My witness isn’t being in' an inquisition, you know. This isn’t the Spanish Inquisition.” Following other exchanges with the court, petitioner said: “Mr. Mayberry: Now, just what' do you calí proper? I have asked questions, numerous questions and everyone you said is improper. Í have asked questions that my adviser has given me, and I have repeated these questions verbatim as they came out of my adviser’s mouth, and you said they are improper. Now just what do you consider proper? “The Court: I am not here to educate you, Mr. Mayberry. “Mr. Mayberry: No. I know you are not. But you’re not here to railroad me into no life bit, either. “Mr. CodispOti: To protect the record- “The Court: Do you have any other questions to ask this witness? “Mr. Mayberry: You need to have some kind of psychiatric treatment, I think. You’re some kind of a nut. I know you’re trying to do a good job for that Warden Maroney back there, but let’s keep it looking decent anyway, you know. Don’t make it so obvious, Your Honor.” ' (8) A codefendant was removed from the courtroom and when he returned petitioner asked for a severance. “Mr. Mayberry: I have to ask for a severance. “The Court: I have heard that before. It is denied again. Let’s go on.” (Exception noted.) “Mr. Mayberry: This is the craziest trial I have ever seen. “The Court: You may call your next witness, Mr. Mayberry.” Petitioner wanted to call witnesses-from the penitentiary whose' names had not been' submitted earlier and for whom no subpoenas were issued. The court restricted the witnesses to the list of those subpoenaed: “Mr. Mayberry: Before I get to that I wish to have a ruling, and I don’t care if it is contempt or whatever you want to call it, but I want a ruling for the record that I am being denied these witnesses ’ that I asked for months before this trial ever began.” (9) The ninth charge arose out of a ruling by the court on a question concerning the availability of tools to prisoners in their cells. “The Court: I have ruled on that, Mr. Mayberry. Now proceed with your questioning, and don’t argue. “Mr. Mayberry: You’re arguing. I’m not arguing, not arguing with fools.” (10) The court near the end of the trial had petitioner ejected from the courtroom several times. The contempt charge was phrased as follows by the court: “On December 7, 1966, you have created a despicable scene in refusing to continue calling your witnesses and in creating such consternation and uproar as to cause a termination of theArial.” (1.1) As the court prepared to charge the jury, petitioner said: “Before Your Honor begins the charge to the jury defendant Mayberry wishes to place his objection on the record to the charge and to the whole proceedings from now on, and he wishes to make it known to the Court now that he has no intention of remaining silent while the Court charges the jury, and that he is going to continually object to the charge of the Court to the jury throughout the entire charge, and he is not going to remain silent. He is going to disrupt the proceedings verbally throughout the entire charge of the Court, and also he is going to be objecting to being forced to terminate his defense before he was finished.” The court thereupon had petitioner removed from the courtroom and later returned gagged. But petitioner caused such a commotion under gag that the court had him removed to an adjacent room where a loudspeaker system made the courtroom proceedings audible. The court phrased this contempt charge as follows: “On December 9, 1966, you have constantly, boisterously, and insolently interrupted the Court during its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos.” These brazen efforts to denounce, insult, and slander the court and to paralyze the trial are at war with the concept of justice under law. Laymen, foolishly trying to defend themselves, may understandably create awkward and embarrassing scenes. Yet that is not the character of the record revealed here. We have here downright insults of a trial judge, and tactics taken from street brawls and transported to the courtroom. This is conduct not “befitting an American courtroom,” as we said in Illinois v. Allen, 397 U. S. 337, 346; and criminal contempt is one appropriate remedy. Id., at 344-345. As these separate acts or outbursts took place, the • arsenal of authority described in Allen was available to the trial judge to keep order in the courtroom. He could, with propriety, have instantly acted, holding petitioner in contempt, or excluding him from the courtroom, or otherwise insulating his vulgarity from the courtroom. . The Court noted in Sacher v. United States, 343 U. S. 1, 10, that, while instant action may be taken against a lawyer who is guilty of contempt, to. pronounce him guilty of contempt is “not unlikely to prejudice his client.” Those considerations are not pertinent here where petitioner undertook to represent himself. In Sacher. the "trial judge waited until the end of the trial to impose.punishment for contempt, the Court saying: “If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should bé a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.” Id., at 11. Generalizations are difficult. Instant treatment of contempt where lawyers are involved may greatly prejudice their clients but it may be the only wise course where others are involved. .Moreover, we do not say that the more vicious the attack on the judge the less qualified he is to act. A judge cannot be driven out of a- case. Where, however, he does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place. What Chief Justice-Taft said in Cooke v. United States, 267 U. S. 517, 539, is relevant here: “The power of contémpt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole-matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.” We conclude that that course should have been followed here, as marked personal feelings were present on both sides. Whether the trial be federal or state, the concern of due process is with the fair administration of justice. At times a judge has not been the image of “the impersonal authority of law” (Offutt v. United States, 348 U. S. 11, 17) but has become so “personally embroiled” with a lawyer in the trial as to make the judge unfit to sit in judgment on the contempt charge. “The vital point is that in sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance. These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice.” Id.,, at 14. Offutt does not fit this case, for the state judge in the instant controversy was not an activist seeking combat. Rather, he was the target of petitioner’s insolence. Yet a judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. Ño one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication. In re Murchison, 349 U. S. 133, was a case where a judge acted under state law as a one-man grand jury and later tried witnesses for contempt who refused, to. answer questions propounded by the “judge-grand jury.” We held that since the judge who sat as a one-man grand jury was part of the accusatory process he “cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those. accused.” Id., at 137. “Fair trials are too important a part of our free society to, let prosecuting judges be trial judges of the charges they prefer.” Ibid. It is, of course, not every attack on a judge that disqualifies him from sitting. In Ungar v. Sarafite, 376 U. S. 575, we ruled that a lawyer’s challenge, though “disruptive, recalcitrant and disagreeable commentary,’’ was still not “an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.” Id., at 584. Many of the words leveled at the judge in the instant case were highly personal aspersions, even “fighting words” — “dirty sonofabitch,” “dirty tyrannical old dog,” “stumbling dog,” and “fool.” He was charged with running a Spanish Inquisition and told to “Go to hell” and “Keep your mouth shut.” Insults of that kind are apt to strike “at the most vulnerable and human qualities of a judge’s temperament.” Bloom v. Illinois, 391 U. S. 194, 202. Our conclusion is that by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor. See In re Oliver, 333 U. S. 257. In the present case that requirement can be satisfied only if the judgment of contempt is vacated so that on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, sits in judgment on the conduct of petitioner as shown by the record. Vacated and remanded. Me. Justice Black concurs in the judgment and with all the opinion except that part which indicates that the judge without a jury could have convicted Mayberry of contempt instantaneously with the outburst. Petitioner was sentenced for contempt December 12, 1966. The Pennsylvania Supreme Court affirmed on April 23, 1969. Wé decided Illinois v. Allen on March 31, 1970. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:
songer_numresp	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. SOUTHERN INDIANA BROADCASTING, LTD., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Posey County Broadcasting Corporation, Intervenor. No. 90-1492. United States Court of Appeals, District of Columbia Circuit. Argued May 16, 1991. Decided June 21, 1991. James A. Kline, IV, with whom Donald J. Evans, Washington, D.C., was on the brief for appellant. Roberta L. Cook, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, and Donald M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief for appellee. Harry C. Martin and Troy F. Tanner, Washington, D.C., entered appearances for intervenor. Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges. Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: Southern Indiana Broadcasting seeks review of a Federal Communications Commission order granting Posey County Broadcasting Company authority to construct a new FM broadcast station. Southern challenges the AU’s refusal to admit certain deposition testimony and the Commission’s decision that if the AU erred in this respect, the error was harmless. Southern also objects to the AU’s refusal to consider whether Posey violated Commission rules prohibiting ex parte communications with decision-making staff. When more than one person seeks a construction permit for a new FM station, the Commission chooses among the applicants in light of its goals of providing “the best practicable service to the public” and maximizing “diffusion of control of the media of mass communications.” See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965). The Commission considers it important if an applicant will participate actively in the daily management of the proposed radio station. The Commission will enhance the credit given for such integration of ownership with management if the applicant possesses certain other characteristics, such as broadcast experience, civic participation or minority status. Policy Statement, 1 F.C. C.2d at 396. The Commission also may enhance the credit if the applicant is the licensee of a “daytime-only AM station,” WBEN, Inc. v. United States, 396 F.2d 601, 605-06 (2d Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968), provided the applicant has spent more than 20 hours each week for the past three years participating in the daily management of the AM station and satisfies four other criteria not relevant here. See National Black Media Coalition v. FCC, 822 F.2d 277, 279-80 (2d Cir.1987). Much of the dispute in this case centers on the AU’s exclusion of evidence relating to whether Posey should receive enhanced credit for owning and managing AM station WPCO in Mount Vernon. Ann M. Nussel, who owns Posey with her husband, testified during the comparative hearing that she had participated in the day-to-day management of WPCO. To impeach this testimony, Southern sought to introduce into evidence the deposition of Richard Grogg, station manager at WPCO. The ALJ sustained Posey’s hearsay objection to the deposition on the ground that Grogg was not going to testify and therefore would not be available for cross-examination by Posey. Southern argues that the Grogg deposition was admissible under 47 C.F.R. § 1.321(d)(2). That subsection, when read in conjunction with 47 C.F.R. § 1.321(b), generally tracks the language of Rule 32(a)(2), Fed.R.Civ.P. Rule 32(a)(2) states that at trial, a deposition “so far as admissible under the rules of evidence applied as though the witness were then present and testifying,” may be used against a party if that party was present at the taking of the deposition or had reasonable notice of it. The quoted language represents an exception to the hearsay rule; it means that a party cannot properly object to admission of a deposition on the ground that the deponent is absent and that his out-of-court statement is being introduced. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2143, at 453 (1970). Southern may be correct that section 1.321(d)(2) has the same meaning as Rule 32(a)(2), but the Commission did not resolve that issue. It assumed that section 1.321(d)(2) would have rendered Grogg’s deposition admissible and that Southern had properly relied on this ground although it did not mention the section to the AU (cf. United States v. Peak, 856 F.2d 825, 832-33 (7th Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988)). We shall make the same assumptions, which brings us to Southern’s argument against the Commission’s determination that the error, if there was one, was harmless. On this score Southern makes the rather feeble claim that the deposition was not formally part of the record for decision, that it did not anticipate the Commission’s looking at the deposition (which was part of the official correspondence file), and that the Commission should not have done so. Southern does not say how the Commission could have decided whether the deposition’s exclusion affected the outcome without reviewing the deposition itself. Aside from that, the Commission never passed on the argument Southern makes in this court. Southern could have, but did not, raise the argument in a petition for reconsideration. Yet when a party seeking judicial review “relies on questions of fact or law upon which the Commission ... has been afforded no opportunity to pass, that party must file a petition for reconsideration as “a condition precedent to judicial review.” 47 U.S.C. § 405(a). Although we have treated this as an “exhaustion” requirement, rather than a jurisdictional prerequisite, and have allowed exceptions, Action for Children’s Television v. FCC, 564 F.2d 458, 469 (D.C.Cir.1977), there is no reason to do so here. Had Southern raised its objection on reconsideration, the Commission could have held that the deposition was part of the record since it was in the official correspondence file (47 C.F.R. § 3.318(f)). Cf. National Ass’n for Better Broadcasting v. FCC, 830 F.2d 270, 274 (D.C.Cir.1987). Or it could have responded to Southern’s argument by supplementing the formal record with the deposition, as Southern had asked the AU to do. See 47 C.F.R. § 1.203. In either event, on a petition for reconsideration the Commission might have satisfied Southern’s problem; at the least, the Commission would have had an opportúnity to respond. 830 F.2d at 274 & n. 30. Southern’s failure to comply with 47 U.S.C. § 405(a) therefore forecloses judicial review of this question of law. Southern’s remaining claim is that the AU should have determined whether Po-sey improperly initiated ex parte communications with the Commission, or solicited and encouraged others to do so on its behalf (see 47 C.F.R. §§ 1.1202, 1.1208 & 1.1210). Southern did not assert this claim before the Commission and it is therefore not properly before us for review. Rogers Radio Communications Services v. FCC, 751 F.2d 408, 413 n. 14 (D.C.Cir.1985). The petition for review therefore is denied. Question: What is the total number of respondents in the case? 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. LAFLIN v. COMMISSIONER OF INTERNAL REVENUE (three cases). Nos. 4950-4952. Circuit Court of Appeals, Seventh Circuit. March 15, 1934. William B. Hale and Calvin F. Selfridge, both of Chicago, Ill, for petitioner. Pat Malloy, Asst. Atty. Gen., and Sewall Key and John MaeC. Hudson, Sp. Assts. to Atty. Gen. (E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., and-R. N. McMillan, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., of counsel), for respondent. Before ALSCHULER, EYAUS, and FITZHENRY, Circuit Judges. “In trust to hold, manage, administer and control the trust estate until the termination of all the trusts hereby created and in so doing my said Trustee shall have full power and authority to do all and the same acts and to exercise all and the same discretion-and to execute and deliver all and the same instruments which she might do, exercise and execute if she were the actual beneficial owner of the property held by her at any time in trust under the provisions of this my Will; and in trust to collect all the income, rents and profits of the trust estate and out of the same to pay all taxes and special assessments and all water rates and all other public charges of every kind and description whatsoever on all of the property belonging to the trust estate, and also all cost of insurance and all necessary and proper costs, charges and expenses of any and every kind and description whatsoever connected with or growing out of the management of the trust estate or the exercise of any of the powers conferred by this my Will on my said Trustee.” “My said wife shall be entitled to receive and retain as her own absolute property all the net income of the trust estate as long as she shall live.” ALSCHULER, Circuit Judge. These appeals present the single question: Whether petitioner, out of the income to her as beneficiary under a trust created by the will of her deceased husband, was entitled to withhold from taxation an amount which she, as the trustee, annually set apart as a depreciation reserve upon a valuable commercial building in Chicago which belonged to the trust estate. The will named petitioner as trustee upon trusts of which the parts here material appear in the margin. The amounts so set apart as depreciation were invested and held by the trustee as a part of the capital assets of the trust estate. Respondent amended petitioner’s returns by including as taxable income the amounts she annually set apart for depreciation and obsolescence, which action on appeal by petitioner the B. T. A. sustained. 36 B. T. A. 136. It is a rule of general application that the beneficiary of a trust entitled thereunder to receive the income from such property may not be required to suffer a deduction from such income for the ereation of a sinking fund to provide for depreciation and obsolescence, unless, indeed, the trust instrument or the law of the state makes provision therefor. We find nothing in the trust instrument itself which would authorize the life tenant to set up such a reserve. There is the general authority to pay “all taxes and special assessments and all water rates and all other public charges of every kind and description whatsoever on all of the property belonging to the trust estate, and also all cost of insurance and all necessary and proper costs, charges and expenses of any and every kind and description whatsoever connected with or growing out of the management of the trust estate or the exercise of any of the powers conferred by this my Will on my said Trastee.” But in our judgment this does not even suggest any duty or right to set apart a sinking fund to provide for depreciation. We do not find that the law of Illinois authorizes or requires the setting up of such a reserve as between the life tenant and the remainderman. Generally speaking, depreciation and obsolescence of sncli property must be borne by the latter. Hubbell v. Burnet, 46 F.(2d) 446 (C. C. A. 8); United States v. Bostwick, 94 U. S. 53, 66, 24 L. Ed. 65; Rendahl v. Hall, 160 Minn. 502, 200 N. W. 744, 940 and cases there cited; Thompson on Real Property, § 761; 21 C. J. 951, § 90. We refer with approval to' the opinion of the B. T. A., which in our judgment correctly disposes of the matter. Since publication of the Board’s opinion, the Supreme Court has decided the eases of Freuler v. Helvering, Com’r, 54 S. Ct. 308, 78 L. Ed. -, and Whitcomb v. Helvering (Jan. 8, 1934) 54 S. Ct. 315, 78 L. Ed. ——, which support this conclusion. In Commissioner v. Freuler, 63 F.(2d) 733 (C. C. A. 8), the court, considering a similar question, held that where there is no provision in the trust instrument or the federal or state statutes allowing deduction from income on account of depreciation the deduction cannot be made. The Court of Appeals of the District of Columbia, in passing on the same question arising in the same trust, held likewise. Those two eases were taken by the Supreme Court, where, in the first of them, an opinion was filed reversing the decision of the Court of Appeals. Freuler, Adm’r of Whitcomb, v. Helvering, Com’r (Jan. 8, 1934), 54 S. Ct. 308, 78 L. Ed.-. The entire Supremo Court assumed the rule to bo as stated, a minority favoring affirmance of the Court of Appeals. But the majority excepted the ease’from the general rule upon the ground that too Superior Court in California, in an action arising to,ere in the same trust, hail passed upon the question of the duty of the trustee to set up a reserve for depreciation of such depreciable trust property as is here involved, holding it to be the duty of the trustee to set up1 such a fund out of the income. The Supreme Court held that, notwithstanding there was no such requirement in the trust instrument or in toe California statutes, nevertheless toe decision of toe California court had established toe law of that state to be that a fund for depreciation of such trust property should be set up out of income, and that this holding, as applied to a California trust, was binding upon the federal courts. The Whitcomb case was likewise disposed of upon the opinion in the Freuler case. Whitcomb v. Helvering, Com’r (Jan. 8, 1934) 54 S. Ct. 315, 78 L. Ed. -. The order under review is affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_3_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 "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant. UNITED STATES of America, Appellee, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant. No. 71-2036. United States Court of Appeals, Fourth Circuit. Argued March 7, 1972. Decided June 7, 1972. Daniel Lee Brawley, Wilmington, N. C. (Lonnie B. Williams and Marshall, Williams, Gorham & Brawley, Wilmington, N. C., on brief), for appellant. Samuel Huntington, Atty., Dept, of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander, Atty., Dept, of Justice, and Warren H. Collidge, U. S. Atty., on brief), for appellee. Before WINTER, CRAVEN and RUSSELL, Circuit Judges. DONALD RUSSELL, Circuit Judge: The only issue involved in this case is the right of the United States to recover under the “Expenses for Medical Services” provisions of a Family Automobile Policy issued to one Elmer Riley Strickland, a retired member of the United States Army, for medical services rendered insured under obligation imposed upon the United States by Section 1074 (b), 10 U.S.C. There is no dispute that the insured sustained injuries in an accident and was entitled under the policy in question to recover all medical and hospital expenses he himself incurred, within certain monetary limits not relevant to this action. Since he was a retired member of the Army, he was, however, provided medical and hospital services at a Government institution and at Government expense. There is no controversy over the value of the services rendered. The United States sued to recover the value of such services, to the extent of the coverage, from the insurer. The District Court allowed recovery, 330 F.Supp. 1097. We affirm. The insurer argues at the outset that the United States was without a right to recover herein under the Medical Care Recovery Act. To this extent the United States agrees with the appellant insurer. It asserts that its right of recovery does not rest on the Medical Care Recovery Act but is based upon the insurance contract issued to Strickland by the insurer and it sues as a third-party beneficiary, entitled as such to recover under the “Expenses for Medical Services” provision of that contract. The policy obligates the insurer to pay, within certain limits not pertinent to this case, “all expenses incurred by or on behalf of” (italics added) the insured in connection with an accident. It specifically provides in the “Conditions” provision of the policy, that the insurer “may pay the injured person or any person or organization rendering the services * * * ”. (Italics added.) These provisions were construed in United States v. United Services Automobile Association (5th Cir., 1970) 431 F.2d 735, cert. denied 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440, reh. den. 401 U.S. 984, 91 S.Ct. 1188, 28 L.Ed.2d 338, to authorize the United States to recover as a third-party beneficiary for medical services rendered by the United States to an insured’s dependent pursuant to Section 1076, 10 U.S.C. This result appears sound and accords with what must have been the intent and understanding of the parties. It must be assumed that the insurer knew that its insured in this case was entitled to obtain medical services at the expense of the United States, as provided under Section 1074(b), 10 U.S.C. It had included as a separate part of its contract of insurance, for which it unquestionably charged a portion of its premium, this provision obligating itself to pay the medical expenses incurred as a result of an accident on behalf of the insured. To allow it to eliminate from its obligation, under this provision, any expenses incurred by the United States under the latter’s statutory obligation to the insured would mean that the insurer actually would have been incurring no liability, or at least a most limited one, under this part of its policy, for which it had charged a portion of its premium. Certainly, the insurer had not intended — it undoubtedly had not adjusted its premium to take into account — any such “windfall” as would result in its favor by limiting its obligation under the “Expenses for Medical Services” portion of its policy as it now asks of the Court. It would be unconscionable so to limit it. See Government Employees Insurance Company v. United States (10th Cir. 1965) 349 F.2d 83, 85-86, cert. den. 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539, reh. den. 385 U.S. 939, 86 S.Ct. 1064, 15 L.Ed.2d 857. The insurer, however, asserts that the insurance policy is a North Carolina contract, to be construed in accordance with the laws of that State, and that Lenoir Memorial Hospital, Inc. v. Stancil (1965) 263 N.C. 630, 139 S.E.2d 901, is conclusive that the United States may not recover as a third-party beneficiary thereunder. Lenoir Memorial is an unusual case. A draft for the hospital expenses of the insured was issued jointly to the insured and the hospital where he had been treated. The insured indorsed it, and, without securing the indorsement of his co-payee or making payment of his hospital bill, cashed it. The insurer paid the check, without apparently noting that the hospital had not joined in the indorsement. Unable to collect from the insured, the hospital sued on the policy to recover, as a third-party beneficiary, of the insurer. Had the hospital prevailed, the insurer would have been subjected to a double recovery. Double recovery was properly denied under these circumstances. The Court proceeded, however, to add that recovery by the hospital as a third-party beneficiary was not authorized under the policy and this language is cited by the appellant as supporting its contention that, under North Carolina law, the United States may not recover herein. We do not so construe Lenoir. In that case, the hospital was a pure volunteer; it owed no statutory obligation to furnish the insured medical or hospital services. Here, on the other hand, the United States was not a volunteer; it, in rendering the service, was discharging a statutory obligation, little different from the common-law obligation of a parent to a minor child, and like the parent, it is entitled to recover for its expenses incurred by reason of its statutory obligation to the insured. The judgment of the district court is affirmed. Affirmed. . 42 U.S.C. §§ 2651-2653 : “2651. Recovery by United States— conditions; exceptions; persons liable; amount of recovery ; subrogation ; assignment (a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from said third party the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right to be subrogated to any right or claim that the injured or diseased person, his guardian, jjersonal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished. The head of the department- or agency of the United States furnishing such care or treatment may also require the injured or diseased j)erson, his guardian, personal representative, estate, dependents, or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim. * * * * * (b) * * * (c) * * * § 2652 * * * “§ 2653. Limitation or repeal of other provisions for recovery of hospital and medical care costs This chapter does not limit or repeal any other provision of law providing for recovery by the United States of the cost of care and treatment described in section 2651 of this title. Pub.L. 87-693, § 3, Sept. 25,1962, 76 Stat. 594.” . See, also United States of America v. State Farm Mutual Automobile Insurance Company (10th Cir. 1972) 455 F.2d 789. . In response to the claim that the insured incurs no expenses when supplied military medical care one writer argues that the serviceman’s right to free medical care is part of his pay, that his medical expenses are in effect prepaid, and that he thus personally incurs an expense within the meaning of the medical payment rider. See Gotting, Recovery of Medical Expenses and the Medical Care Recovery Act, 20 JAG J 75, 77 (December, 1965-January, 1966). . See generally, Long, Government Recovery Beyond the Federal Medical Recovery Act, 14 South Dakota L.Rev. 20, 34-37 (Winter, 1969). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant? A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases B. United States - in corporate capacity - civil cases C. special wartime agency D. Other unlisted federal agency (includes the President of the US) E. Unclear or nature not ascertainable Answer:
songer_usc1sect	6321	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 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". CITY OF NEW YORK and the Industrial Commissioner of the State of New York, Appellants, v. UNITED STATES of America, Appellee. No. 29, Docket 26098. United States Court of Appeals Second Circuit. Argued Sept. 27,1960. Decided Oct. 31,1960. Cornelius F. Roche, New York City (Charles H. Tenney, Corporation Counsel, New York City, Stanley Buchsbaum, Brooklyn, N. Y., of counsel, on the brief), for appellant City of New York. Samuel Stern, New York City (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Paxton Blair, Sol. Gen., Albany, and Leonard H. Rossen, Junior Atty., New York City, on the brief), for appellant Industrial Commissioner of State of New York. Douglas A. Kahn, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Department of Justice, Washington, D. C., on the brief), for appellee. Before LUMBARD, Chief Judge, and TUTTLE and FRIENDLY, Circuit Judges. Sitting by designation. LUMBARD, Chief Judge. This case is before us on appeal from an order entered by the District Court for the Eastern District of New York, confirming the order of a referee in bankruptcy granting lien status under § 67, sub. b of the Bankruptcy Act, 11 U.S. C.A. § 107, sub. b to certain claims of the United States for tax deficiencies. An involuntary petition in bankruptcy had been filed against the Moderneer Footwear Co. on February 26, 1958, by creditors claiming for unpaid wages and severance pay, and the company was sub■sequently declared a bankrupt and a trustee appointed. Within four months prior to the filing of the petition, a general assignment for the benefit of creditors made by the bankrupt fourteen days earlier was perfected by filing the assignment with the New York Supreme Court of Kings County, under New York Debtor and Creditor Law, McKinney’s Consol.Laws, c. 12, § 3. Subsequent to such assignment, on November 22, 1957, the United States assessed tax deficiencies against the company in the amount of $4,826.64, for Federal Insurance Contributions Act, 26 U.S.C.A. § 3101 et seq. and withholding taxes due for the third quarter of 1957. This claim was in addition to an earlier assessment by the United States made on October 8, 1957, for $2,067.53 plus interest, due for FICA and withholding taxes for the second quarter of 1957. On the very date on which the bankruptcy petition was filed, the federal government made a third assessment in the amount of $277.39 for Federal Unemployment Tax Act, 26 U.S.C.A. §§ 3301-3308 obligations, and finally, on December 19,1958, it assessed an additional $834.21 as a further tax deficiency. The United States now seeks to have all but the last of these claims granted lien status under § 67, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. b, which upholds the validity of “statutory liens for taxes and debts owing to the United States * * * created or recognized by the laws of the United States or of any state * * * even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition initiating a proceeding under this title by or against him.” The United States’ claim is opposed by the New York State Industrial Commissioner and the City of New York, each of which have filed tax claims in the bankruptcy proceedings. The United States’ contention that a lien had been perfected prior to the bankruptcy proceedings is based on § 6321 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6321, the relevant portion of which reads as follows: “§ 6321. Lien for Taxes. “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” Under § 6322, 26 U.S.C.A. § 6322, the lien arises at the time the assessment is made. As of that moment, therefore, if there exist property or rights to property “belonging” to the debtor, the lien will attach. In determining the nature and extent of the debt- or’s ownership, however, we are remitted to state law since § 6321 “creates no property rights but merely attaches consequences, federally defined, to rights created under state law.” United States v. Bess, 1958, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 12 L.Ed.2d 1135; see Aquilino v. United States, 1960, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365; United States v. Durham Lumber Co., 1960, 363 U.S. 522, 80 S.Ct. 1282, 4 L.Ed.2d 1371; Fidelity & Deposit Co. of Maryland v. New York City Housing Authority, 2 Cir., 1957, 241 F.2d 142. Under long-standing New York decisional law, an assignee for the benefit of creditors takes title to the debtor’s estate and holds as trustee for all the creditors. Brown v. Guthrie, 1888, 110 N.Y. 435, 18 N.E. 254; Brennan v. Willson, 1877, 71 N.Y. 502. The court supervises the trustee and orders distribution of the settled estate to the creditors,.N.Y. Debtor and Creditor Law, §§ 8, 15, 20, so that the estate is said to be in custodia legis. In Matter of John C. Creveling & Son Corp., 259 App.Div. 351, 353, 19 N. Y.S.2d 378, affirmed, 1940, 283 N.Y. 760, 28 N.E.2d 975; Florence Trading Corp. v. Rosenberg, 2 Cir., 1942, 128 F.2d 557. All that the assignor owns after his assignment is completed is the right to have refunded to him whatever remains after the creditors have been satisfied. Mills v. Husson, 1893, 140 N.Y. 99, 35 N. E. 422. The § 6321 lien attaches only to the extent of the taxpayer’s property interest, United States v. Burgo, 3 Cir., 1949, 175 F.2d 196, and is not a proper basis for a levy on contingent rights before they come into being. United States v. Long Island Drug Co., 2 Cir., 1940, 115 F.2d 983. Thus, the property, after it had been assigned by the taxpayer, could not be subjected to the government’s lien. Nor is the fact that some New York decisions have upheld the validity of a mechanic’s lien filed after a general assignment any support for the proposition that the federal government’s lien is valid on the facts before us. A case such as John P. Kane Co. v. Kinney, 1903, 174 N.Y. 69, 66 N.E. 619, indicates merely that the New York courts have recognized a “preferential statutory right, in the nature of an unperfected equitable lien, in favor of the laborer, mechanic, materialman, or subcontractor.” Id., 174 N.Y. at page 73, 66 N.E. at page 619. Whatever policy reasons impel the New York courts to impress such a security interest on the debtor’s estate even before the creditor satisfies the statutory prerequisites are not binding on this court or apposite when it is not a laborer but the federal government which is pressing its claim. In none of the mechanics’ lien cases do the New York courts base their decision upholding the lien on an assertion that the assignor retained property rights after his general assignment had been perfected. Since it is only if such rights still belong to him that § 6321 impresses a lien on the taxpayer’s realty or personalty, the general assignment barred a subsequent tax lien. The United States, however, contends that § 70, sub. a(8) of the Bankruptcy Act governs, despite local property law, once a petition in bankruptcy is filed. That subsection, now 11 U.S.C.A. § 110, sub. a(8), reads, in relevant portion, as follows: “The trustee of the estate of a bankrupt * * * upon his * * * appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title * * * to all of the following kinds of property wherever located * * * (8) property held by an assignee for the benefit of creditors appointed under an assignment which constituted an act of bankruptcy, which property shall, for the purposes of this title, be deemed to be held by the assignee as the agent of the bankrupt and shall be subject to the summary jurisdiction of the court.” The United States maintains that since the present assignment was made within four months of bankruptcy it constituted an act of bankruptcy within § 3, sub. a(4) and § 3, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 21, subs. a(4), b, so that upon filing of the petition the title residing in the assignee by virtue of the states’ debtor-and-creditor law was extinguished by the federal bankruptcy statute, and he held the property as a “naked bailee” for the bankrupt. Therefore, the federal government continues, the lien attached when the deficiency was assessed against the corporate taxpayer since the property then “belonged” to the corporation and was held in the custody of its agent. If we could find a legitimate bankruptcy policy that is furthered by such a construction of § 70, sub. a(8), it might not be enough to say merely that the language of the statute gives no retroactive effect to this incursion on local property law; it directs that the property shall “be deemed to be held by the assignee as the agent of the bankrupt,” not that it should “be deemed to have been held by the assignee” as an agent. However, there is no reason to suppose that Congress intended retroactively to alter the situs of title to property generally assigned for creditors. The legislative history of the present § 70, sub. a(8) indicates that it was meant to be declaratory of existing law and merely to facilitate the summary jurisdiction of the bankruptcy court under § 2, sub. a(21), 11 U.S.C.A. § 11, sub. a (21) to require assignees to deliver property in their possession to the trustees in bankruptcy. See H.R.Rep. No. 1409, 75th Cong., 1st Sess. 34 (1937) ; Shor v. McGregor, 5 Cir., 1939, 108 F.2d 421; 1 Collier, Bankruptcy para. 2.78; 4 id. para. 70.38. Thus, it makes good sense to have title to the assigned estate revert to the bankrupt at the time when the petition in bankruptcy is filed, though not before, in order to prevent the assignee from maintaining that he is an adverse claimant and thus entitled to plenary proceedings. May v. Henderson, 1925, 268 U.S. 111, 115, 45 S.Ct. 456, 69 L.Ed. 870. Indeed, a contrary rule would throw into confusion the usual procedures whereby a state protects creditors once a general assignment has been made. Since § 67, sub. c(2) of the Bankruptcy Act requires that statutory liens be pos-sessory in order to be valid under § 67, sub. b, the very purpose of a general assignment — that of preserving the debtors’ assets and shielding them from levy by the more diligent creditors, see Matter of S. Feldman & Co., 1933, 237 App.Div. 720, 262 N.Y.S. 681 — would be undermined were we to accept the United States’ contention. If the assignee holds retroactively as a mere agent, it would well behoove a private creditor with a statutory lien to levy upon the estate so assigned and then file a petition in bankruptcy. Under the rule the federal government would have us adopt, § 70, sub. a(8) would uphold a lien accompanied by such a levy if bankruptcy proceedings are begun within four months of the assignment. Thus, the creditor who is dissatisfied with the state’s insolvency procedure would not merely get the federal forum to which he is entitled by reason of the Bankruptcy Act, but would also be given, to the extent of his levy, a priority which he is not allowed under state law. Curiously enough, therefore, § 67, sub. b of the Bankruptcy Act, which was intended to preserve only those rights recognized under state law, would, in concert with the proposed construction of § 70, sub. a(8) and § 67, sub. c(2), grant more liberal priorities in the federal courts than would the state under its insolvency proceedings. The government’s further contention that § 3466 of the Revised Statutes, 31 U.S.C.A. § 191, gives the United States’ tax claim a priority would be persuasive had the bankruptcy petition not been filed. However, the Bankruptcy Act did not incorporate the priority provisions of § 3466 and they do not apply in bankruptcy. Davis v. Pringle, 1925, 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974. Reversed with instructions to treat $5,104.03 of the claim of the United States entered on April 10, 1958, plus all claims filed thereafter, as ordinary tax claims under § 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4). . The state claims $910.12 for unemployment insurance contributions and $25 for a corporate franchise tax. The city’s claim is for sales and business taxes in the amount of $747.82. . This policy, apparently founded on a desire to ensure that formalities would not defeat the rights of laborers and materialmen, whose claims sound in unjust enrichment, extends even to bankruptcy and validates a mechanic’s lien filed after a bankruptcy petition. Gates & Co. v. John F. Stevens Construction Co., 1917, 220 N.Y. 38, 115 N.E. 22. Since a tax assessment which postdates bankruptcy would not give rise to a statutory lien under the Internal Revenue Code, the federal claim is obviously distinguishable from the laborer’s. . E.g., Post & McCord v. City of New York, 1914, 86 Misc. 300, 148 N.Y.S. 568, affirmed 1915, 166 App.Div. 919, 152 N.Y. S. 1138; Matter of Marstan Plumbing Co., 1941, 176 Misc. 956, 28 N.Y.S.2d 190. . Statutes authorizing general assignments for the benefit of creditors have been approved by the Supreme Court as consistent with the policy of the Bankruptcy Act. “[Qluite in harmony with the purposes of the federal act * * * [statutes] that are regulatory of such voluntary assignments serve to protect creditors against each other, and go to assure equality of distribution * * Pobreslo v. Joseph M. Boyd Co., 1933, 287 U.S. 518, 526, 53 S.Ct. 262, 264, 77 L.Ed. 469. 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 26? Answer with a number. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". IOWA STATE UNIVERSITY RESEARCH FOUNDATION, INC., Intervenor-Appellant, v. HONEYWELL, INC., Plaintiff-Appellee, v. SPERRY RAND CORPORATION et al., Defendants-Appellees. No. 71-1531. United States Court of Appeals, Eighth Circuit. Submitted April 11,1972. Decided May 3, 1972. Jerome F. Fallon, Timothy L. Tilton, Dawson, Tilton, Fallon & Lungmus, Chicago, Ill., for intervenor-appellant. Frank Claybourne, Doherty, Rumble & Butler, St. Paul, Minn., H. Francis DeLone, Harvey Bartle, III, Dechert, Price & Rhoads, Philadelphia, Pa., Thomas M. Ferrill, Jr., Blue Bell, Pa., for appellees, Sperry Rand Corp. and Ill. Scientific Developments, Inc. Before VAN OOSTERHOUT, ME-HAFFY and STEPHENSON, Circuit Judges. PER CURIAM. This is a timely appeal by Iowa State University Research Foundation, Inc. (ISURF) from an order, 54 F.R.D. 594, denying it a right to intervene in litigation pending between Honeywell, Inc., and Sperry Rand Corporation, et ah, relating to the validity and infringement of Patent No. 3,120,606 issued to Eckert and Mauehly, inventors, and assigned to Illinois Scientific Developments, Inc., a wholly owned subsidiary of Sperry Rand. The patent, issued February 4, 1964, involves a high speed, large scale digital computer known as the ENIAC computer. The Honeywell suit was commenced on May 26, 1967. Extensive discovery proceedings were engaged in during the next three and one-half years. Many depositions were taken; over 30,000 exhibits were identified. Honeywell’s brief, setting forth its factual and legal claims, contains 1,167 pages. Trial commenced on June 1, 1971. ISURF on July 21, 1971, a month and one-half after the commencement of the trial on the merits, filed a motion for leave to intervene under Rule 24(a), Fed.R.Civ.P., tendering a petition raising the issue that John V. Atanasoff was a joint inventor of Patent No. 3,120,606 (along with Eckert and Mauehly) and seeking an order to correct the patent record under 35 U.S.C.A. § 256 to show Atanasoff to be a joint inventor. ISURF is assignee of Atana-soff’s rights in the patent. ISURF and its assignor have been aware of this litigation since shortly after the inception of this action in 1967. Sperry Rand vigorously opposed the intervention, asserting that the intervention raises an entirely new issue, to wit, that Atanasoff was a co-inventor and that to fairly investigate and present evidence on this issue will acquire investigation, discovery and a considerable amount of time and will disrupt the complex and lengthy trial in progress and cause indeterminable delay. Honeywell employed Atanasoff to assist it in a defense that the patent was derived from Atanasoff. Honeywell made no contention that the patent was a joint one of Atanasoff, Eckert and Mauehly. Honeywell took a neutral position on the intervention. Judge Larson, after affording the parties a full hearing on the motion for leave to intervene, on August 4, 1971, entered an order denying leave to intervene. The unreported memorandum opinion properly sets out the applicable law and the findings upon which the denial is based. Included in such opinion is the following: “In the instant case intervenor knew about the lawsuit long before it made any effort to intervene. Intervention has been requested after all discovery is complete and, indeed, after Mr. Atanasoff has testified. It seems unwise to this Court in a case of this magnitude to permit at such a late date the intrusion of additional issues. It would be difficult, if not impossible, for counsel to modify the conduct of the trial to encompass the additional issues. Any efforts to conduct additional discovery and to recall witnesses would result in substantial delay and might very well interfere with the orderly presentation of evidence in the present parties’ primary cases. Under such circumstances it is the opinion of this Court that the motion by Iowa State University Research Foundation to intervene in this matter must be denied.” The opening clause of Rule 24(a) dealing with intervention of right reads “Upon timely application. . ” An application for intervention whether asserted as a matter of right or judicial discretion must be timely. Lumbermens Mutual Cas. Co. v. Rhodes, 10 Cir., 403 F.2d 2, 5; Janousek v. Wells, 8 Cir., 303 F.2d 118, 122; Kap-lan v. Guardian Life Ins. Co. of America, W.D.Mo., 231 F.Supp. 874, 876-877. As stated in Kozak v. Wells, 8 Cir., 278 F.2d 104, 109, “Timeliness is to be determined from all the circumstances shown.” The application for leave to intervene was filed more than four years after the commencement of the action and after extensive discovery had been completed, and after the trial on the merits had proceeded for one and one-half months. The reason asserted by ISURF for its belated effort to intervene is that its right to relief is based on the decision of the Fourth Circuit in Iowa State University Research Foundation, Inc., v. Sperry Rand Corp., 444 F.2d 406, decided June 22, 1971. That case involves a separate and distinct patent from the one here involved, but presents a claim for the same basic relief here sought by the intervenor. No issue of timeliness of the intervention is raised in the Fourth Circuit case. The reported opinion reflects that ISURF raised by intervention in the trial court the same basic issue it raises in its proposed intervention here. It is apparent from the Fourth Circuit case that ISURF knew of its potential rights here asserted long before the present trial on the merits commenced. No valid reason appears why ISURF could not have asserted its right to intervene at a much earlier time. We are abundantly satisfied that the trial court did not abuse its discretion in denying ISURF’s untimely application for leave to intervene. The judgment is affirmed upon the basis stated by Judge Larson in his well-considered memorandum opinion, 54 F.R.D. 593. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. David RHODES, Appellant, v. UNITED STATES of America, Appellee. No. 14407. United States Court of Appeals Fifth Circuit. July 10, 1953. Rehearing Denied Aug. 6, 1953. Writ of Certiorari Denied Nov. 30, 1953. See 74 S.Ct. 233. M. B. Grace, Birmingham, Ala., for appellant. Russell Chapin, Atty., Department of Justice, Washington, D. C., John D. Hill, U. S. Atty., William L. Hogue, Asst. U. S. Atty., Birmingham, Ala., Joseph D. Guilfoyle, Acting Asst. Atty. Gen., D. Vance Swann, Atty., Department of Justice, Washington, D. C., for appellee. Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges. PER CURIAM. The same questions here involved were determined in the companion case of Horton v. United States, 5 Cir., 207 F. 2d 91, this day decided upon the authority of which the judgment appealed from is Affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_const1	106	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Tom PAPACHRISTOU, d/b/a Mid-South Aviation, Appellant, v. TURBINES INC., Appellee. No. 88-2694-EA. United States Court of Appeals, Eighth Circuit. Dec. 7, 1989. The panel opinion filed and the judgment entered on September 12, 1989, are vacated and appellant’s suggestion for rehearing en banc is granted. The case is set for oral argument before the court en banc on Friday, January 19, 1990, in the U.S. Court and Custom House in St. Louis, Missouri. Argument will be limited to fifteen (15) minutes per side. Counsel may simultaneously file, within thirty (30) days of the date of this order, supplemental briefs which are not duplica-tive of the briefs originally filed. The supplemental briefs shall not exceed fifteen (15) pages in length. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_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. Nancy L. JOZEFOWICZ, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. No. 85-1879. United States Court of Appeals, Tenth Circuit. Feb. 13, 1987. R. Eric Solem of Pikes Peak Legal Services, Colorado Springs, Colo., for plaintiff-appellant. James R. Cage, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on the brief), Denver, Colo., for defendant-appellee. Before HOLLOWAY, Chief Judge, and SEYMOUR and ANDERSON, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. On March 21, 1983, plaintiff Nancy L. Jozefowicz filed an application with the Department of Health and Human Services (“HHS”) for Supplementary Security Income (“SSI”) disability benefits, alleging a chronic disability that precluded her ability to perform substantial gainful activity. Her application was denied at all levels of the administrative review process of the Secretary of HHS, including an Administrative Law Judge (“AU”) decision dated March 27, 1984 and an Appeals Council decision dated June 19, 1984. The U.S. District Court for Colorado affirmed the decision of the Secretary, and claimant appealed. We reverse. BACKGROUND Ms. Jozefowicz is a forty-five year old woman with a high school education and limited work experience. She has worked on and off as a cocktail waitress and also worked briefly providing daycare to an elderly woman. In addition, from October, 1981 until May, 1982 she worked in her own home as a telephone verifier, verifying addresses and newspaper subscriptions. According to the record, the claimant worked seven hours a day, five days a week and received twenty-five cents for each “order.” She estimated that she averaged $50.00 per week in earnings, which computes to approximately $10.00 per day or $1.43 an hour for a seven-hour day. The telephone job ended when the employer left town. During the period from September, 1981 to March, 1982, which overlapped the time in which she was working as a telephone verifier, the claimant made a number of outpatient visits to Dr. David A. Thomas complaining of pain and swelling in her right leg. She had been taking a blood-thinning medication since 1979 for chronic phlebitis and had a history of leg problems that included varicose veins and a vein stripping operation in 1972. In April of 1982 she was hospitalized briefly for superficial thrombophlebitis (vein inflammation with the presence of a blood clot). Eleven months later, in March of 1983, she was again hospitalized, this time for right-sided weakness, diagnosed as the residual effect of a mild stroke. During that same month she filed for disability benefits. On May 5, 1983, the Social Security Administration (“SSA”) denied the claimant’s initial application for SSI benefits. The medical reports of the treating physician, Dr. David Thomas, and the SSA consulting physician, Dr. John Lanning, did not confirm a severe medical impairment meeting or equalling those listed in the Social Security regulations. Although the claimant was experiencing considerable discomfort from her post-phlebitic syndrome and was restricted in her upright activity, her condition was judged not to significantly interfere with her ability to work. She requested a reconsideration of her denial. A medical report dated June 27, 1983 from a second treating physician, Dr. Peter Giacobbe, was submitted indicating that the claimant had chronic venous insufficiency, past history of pulmonary thrombosis, and mild weakness of her right side. Dr. Giacobbe noted that his patient was doing well and was as stable as could be expected. Consideration of claimant’s re-application along with the new medical information also resulted in a denial of benefits. The claimant requested a hearing before an AU and submitted an updated medical report by Dr. Thomas, dated July 27, 1983. The report indicated that the claimant’s work ability had been “severely hampered. If the patient sits or stands for any length of time, she develops pain, swelling, and erythema [abnormally reddened skin] in the lower extremities, simulating a deep venous thrombosis---- [T]he patient should not attempt to obtain employment for approximately 12 to 18 months until this condition improves markedly. At that time the patient should be reevaluated____” R. Vol. II at 267-68. Thereafter, from October of 1983 until January of 1984 the claimant tried to resume work as a cocktail waitress two evenings a week, against the advice of both Dr. Thomas and Dr. Giacobbe. She reported that she encountered considerable pain and discomfort from standing on her feet for more than an hour or so, but that she worked anyway because she needed the money. For six days in November she was hospitalized for internal bleeding, and at that time a venogram was performed that indicated a deep vein thrombosis affecting the circulation of both legs. The claimant reported that she was thinking of quitting the job when she was laid off in January of 1984, shortly before her appeal was heard by the AU. What we have then is a physical condition that deteriorated over the period of time in which the claimant was seeking review of the initial denial of her benefits and which may have been aggravated by her continuing attempt to work. By the time of her hearing before the AU, she had a medical diagnosis of deep vein thrombosis, confirmed by objective evidence from the venograms. I. Title Sixteen of the Social Security Act was enacted to provide supplementary security income to persons whose work records are insufficient to provide insurance coverage under the Act but whose disabilities, blindness, or advancing age prevent further substantial gainful activity on their part. Disability, for purposes of the Social Security Act, is defined as follows: (A) An individual shall be considered to be disabled for purposes of this sub-chapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months____ (B) For the purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For the purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. (C) For the purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical laboratory diagnostic techniques. 42 U.S.C. § 1382c(a)(3)(A), (B), (C) (1982). To evaluate a claimant’s condition to determine whether a SSI disability exists, a series of questions are asked in turn. See 20 C.F.R. § 416.920 (1986). The wrong answer to any prior question may preclude the necessity of answering any of the later questions. The order is as follows: (1) Is the claimant presently pursuing work that constitutes substantial gainful activity? If so, he or she is not disabled, even if medically impaired. (2) If the claimant is not presently doing substantial gainful activity, then does the claimant have a severe impairment —i.e., one that significantly limits one’s physical or mental ability to do basic work activities? If not, there is no disability. If the claimant has a severe impairment, does the impairment meet or equal a listed impairment in 20 C.F.R. § 404, Sub-part P, Appendix 1 (1986)? If so, and if it has lasted or can be expected to last for at least twelve months, it constitutes a disability, and there is no need to proceed with further evaluation. (4) If the severe impairment does not meet or equal a listed impairment, does it, when considered along with claimant’s residual functional capacity and the physical and mental demands of the job, prevent the claimant from doing past relevant work? If not, there is no disability, and the evaluation process stops. (5) If the claimant cannot return to past relevant work because of a severe impairment, the final question is whether the claimant’s residual functional capacity, age, education, and work experience allow the performance of other work? If not, there is a disability. Two challenges to the AU’s determination under step four of the evaluation process are raised on appeal, a favorable ruling on either of which would be dispositive. Since each raises a separate, substantive issue and since we find that the ruling below was defective on both grounds, we take each argument up in turn. II. The first issue raised on appeal is whether there is substantial evidence to support the finding that the claimant’s work in her home was past relevant work, and especially whether it was substantial gainful employment. Past relevant work is defined as work that (1) occurred within the past fifteen years (the so-called recency requirement), (2) was of sufficient duration to enable the worker to learn to do the job (the so-called duration requirement), and (3) was substantial gainful employment. 20 C.F.R. § 416.965(a) (1986). The first question we address is whether there was substantial evidence in the record to establish that the claimant’s telephone verification work met the recency and duration requirements. There is no question that the claimant’s telephone verification work was performed within the last fifteen years and therefore met the recency requirement. However, claimant appears to suggest that her eight months of work was brief and sporadic and therefore did not meet the duration requirement. As stated in Social Security Ruling (“SSR”) 82-62, which clarifies the procedures for determining past relevant work, “[a]n individual who has worked only sporadically or for brief periods of time during the 15-year period, may be considered to have no relevant work experience.” Although it may appear that this comment tends to support the claimant’s argument, a better interpretation of the comment, in the context of this case, is that it relates to the subsequent explanation in the rule of the “duration” requirement. According to the rule, “[djuration refers to the length of time during which the person gained job experience. It should have been sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work.” SSR 82-62. Here, eight months of work was long enough to meet the above requirements and therefore does not qualify as brief or sporadic activity. The argument that the claimant’s former job is no longer available to her is irrelevant, so long as the claimant can still do the type of job she did in the past. Tillery v. Schweiker, 713 F.2d 601 (10th Cir.1983) (a claimant’s past work is the “type” of work previously performed). See also 20 C.F.R. § 416.920(e) (1986) (“If you can still do this kind of work, we will find that you are not disabled.”) (emphasis added). The claimant’s primary argument that her telephone verification work was not substantial gainful employment is the most telling and is not so easily dismissed. Under the SSI regulations, substantial gainful activity is “work that (a) [ijnvolves doing significant and productive physical or mental duties; and (b) [i]s done ... for pay or profit.” 20 C.F.R. § 416.910 (1986). Earnings guidelines in the regulations suggest that income below $190.00 a month is to be considered insubstantial and income above $300.00 a month generally is to be considered substantial. 20 C.F.R. § 416.-974(b)(2), (3) (1986). For persons such as the claimant whose average earnings fall between these two figures, other information is generally considered in determining substantial gainful activity, such as (1) whether the work is “comparable to that of unimpaired people in the same community who are performing the same or similar occupations as their means of livelihood,” or (2) whether the work, even if significantly less than that done by unimpaired persons, is worth at least $300.00 per month. 20 C.F.R. § 416.974(b)(6) (1986). We have previously elaborated on the meaning of substantial gainful activity. Markham v. Califano, 601 F.2d 533 (10th Cir.1979). Markham stated that substantial gainful activity was the performance of substantial services with reasonable regularity, either in competitive or self employment____ Ability to ... do some work on an intermittent basis does not necessarily establish that a person is able to engage in a ‘substantial gainful activity,’ but such activities may be considered by the Secretary, along with medical testimony, in determining the right of a claimant to disability payments under the Act. Id. at 534 (citations omitted). There is no explicit finding by the AU that the claimant’s work as a telephone verifier was substantial gainful activity. However, it is implicit in his finding that no substantial gainful activity occurred after May, 1982 and in the findings that claimant had “the residual functional capacity to perform work-related activities except for work involving prolonged walking and/or standing” and that “[her] impairments do not prevent the claimant from performing her past relevant work as a phone verifier.” R. Vol. II at 14. In his review of the AU decision, the trial court judge determined that there was substantial evidence in the record to allow a finding that the claimant’s telephone verification work was substantial gainful activity. The only articulated reasons for his ruling were the claimant’s statement in the record that she had worked full time for over eight months and the fact that she “never asserted that her disability caused her to earn less than she otherwise would have earned.” R. Vol. I at 70. On the other hand, her earnings were barely above the amount below which they would not have been found gainful, the work was unsupervised work in her home, and it allowed far more variability in terms of effort than a salaried job. The standard of review of administrative decisions by the Secretary is that the “findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g) (1982). The meaning of “substantial evidence” has been explained by the Supreme Court in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). As this court has observed, we neither weigh the evidence nor substitute our discretion for that of the agency. Cagle v. Califano, 638 F.2d 219 (10th Cir.1981). Nonetheless, the evidence must have some substance to it. In reviewing the silence of the AU on the subject of substantial gainful employment and the evidence cited by the district judge, we conclude that substantial evidence is lacking to support a finding of substantial gainful employment. If, as the claimant states, she worked seven hours a day, five days a week, earning $50.00 per week at twenty-five cents an order, it necessarily means that she was able to complete only about 200 orders per week or less than six orders per hour, i.e., an average of one order every ten minutes. It seems obvious that an order would not take ten minutes to complete and, therefore, either a number of unsuccessful calls were made for each successful order, or else the claimant was only working on and off during those seven hours. If the latter is the case, then her work can hardly be called substantial service on a regular basis and would fail to meet the statutory and judicial requirements for substantial gainful employment. See Markham, 601 F.2d 533; 20 C.F.R. § 416.972 (1986). If the former were the case, and she did work for a full seven hours a day for $50.00 per week ($1.43 an hour), the earnings level is so meagre for the amount of time and energy expended as to call into serious question any finding that the employment is substantially gainful. Our conclusion that the claimant’s telephone work did not constitute substantial gainful employment holds even if the earnings were comparable to that of unimpaired persons in the same or similar occupations in the community. In other words, it is possible that unimpaired persons can be nongainfully employed also, and their nongainful employment should not be able to become the basis for a determination that a similarly employed impaired person is gainfully employed. While comparability of work efforts and activity is a legitimate factor in the determination of whether someone’s work is substantial and gainful, mere comparability alone need not dictate the outcome. See 20 C.F.R. § 416.-974(b)(6)(i) (1986). Furthermore, given the large number of trips she made to the doctor during her eight months of telephone verification work and the credible and accepted testimony of the pain and swelling she suffered during that time, it is hard to see how anyone could conclude that the claimant’s work efforts could have been comparable to those of unimpaired persons working in the same occupation in her community. Finally, the fact that an impaired claimant attempts to work at what could be construed as substantial gainful employment does not demonstrate that a claimant successfully does so and is not disabled. Actually, the AU so noted in determining initially that the claimant’s part-time work as a cocktail waitress in the fall of 1983 was not substantial gainful employment and therefore not relevant work to which she could return. This was so even though the earning level itself ($42.00 per week plus tips) was approximately as high as claimant’s telephone verification work and even though her impairment had not forced her to quit the work by the time she was laid off. Similarly, the claimant’s attempts to improve her financial condition by telephone verification work in her home should nót be used as evidence of ability to engage in substantial gainful employment, where the earnings were so marginal, the employment conditions so specialized, and her performance impaired by her pain and swelling. All of this is not to say that others could not be substantially gainfully employed in their homes doing telephone work. However, under the circumstances described, we hold that substantial evidence is lacking to support the Secretary’s determination that the claimant’s telephone verification work was substantially gainful and met the criteria for past relevant work. III. The remaining argument asserted on appeal is that, even if substantial evidence supported the AU’s determination that the claimant’s telephone work constituted past relevant work, the SSA gave insufficient credence to the reports of the claimant’s treating physicians in determining that the claimant had the residual functional capacity to return to that work. As a preliminary matter, we note that although the treating physicians and the SSA consulting physician disagreed about the extent of the claimant’s physical limitations and her residual functional capacity, there is no challenge to the AU’s conclusion that the claimant failed to qualify as severely medically impaired under step 3 of the evaluation process. In other words, the claimant is not contesting the conclusion that her chronic venous insufficiency, right-sided weakness, and past history of pulmonary thrombosis, even when combined, did not meet or equal an impairment listed in Appendix 1. The claimant does argue, however, that her treating physicians’ views that she was disabled and unable to return to work were given insufficient weight and that the opinion of Dr. Lanning, the SSA consulting physician, was given unwarranted weight in the AU’s decision that the claimant could return to past relevant work. After examining the record and the ALJ decision, we agree. The ALJ, in determining that the claimant retained the residual functional capacity for sedentary work, apparently accepted the judgments of the treating physicians that the claimant could not do work that involved prolonged walking or standing, while simultaneously rejecting their judgments that she also could not do work that involved prolonged sitting. No reason was given for accepting part of their findings and rejecting the other part. And although the ALJ used the views of the treating physicians in deciding that the claimant’s impairment was of such severity to preclude her return to past relevant work as a cocktail waitress, he rejected their views that the claimant’s impairment precluded her from any employment. This court requires that good cause be given for rejecting the treating physicians’ views, and “[i]f the opinion of the claimant’s physician is to be disregarded, specific, legitimate reasons for this action must be set forth.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984); Turner v. Heckler, 754 F.2d 326 (10th Cir.1985). See also Murray v. Heckler, 722 F.2d 499 (9th Cir.1983). Here, however, no explanation at all was given. The ALJ simply stated that “the medical evidence of record does support a finding that claimant would be capable of performing sedentary work.” R. Vol. II at 13. Nor is there any explanation of what that specific medical evidence is, and the ALJ’s prior recitation of various medical findings does not remedy this defect. Arguably, the report of the consulting physician forms a basis for such a decision, but the argument is a weak one. Admittedly, Dr. Lanning concluded that the claimant’s right-sided weakness was mild and did not preclude her ability to perform moderate physical activity, including full ambulation. However, if this statement is read as assuming that other impairments also did not preclude such levels of effort, it directly contradicts the conclusions of the treating physicians. The treating physicians, while also determining that their patient’s right-sided weakness was mild and should improve, nonetheless concluded that their patient was disabled and was precluded from working. Furthermore, since Dr. Lanning’s report was based on a mere physical examination of the claimant without additional medical studies or the benefit of her medical history, R. Vol. II at 261-62, it lacks credibility when compared to that of her treating physicians. Finally, the AU seemingly rejected Dr. Lanning’s findings in determining that the claimant was sufficiently impaired so that she could not return to her work as a cocktail waitress. Notwithstanding the treating physicians’ reports, including the report of her deep venous thrombosis, and crediting the claimant’s testimony as to her pain and swelling, the AU determined that the claimant had the residual functional capacity to perform sedentary work in her home despite her limitations. He noted that sedentary work was defined as the ability to lift up to ten pounds and to perform work that involved mostly sitting and that required only occasional walking or standing. 20 C.F.R. § 416.967 (1986). Not only is the medical evidence an insubstantial basis for a conclusion that the claimant can do sedentary work in her home, but the AU draws no explicit inferences and gives no specific, legitimate reasons to support his conclusion. Absent substantial evidence in the record, we cannot sustain the AU’s finding. IV. Overturning the AU’s decision that the claimant had the residual functional capacity for past relevant work raises the question of whether the claimant’s residual functional capacity enabled her to do other sedentary work that existed in the national economy. Although the AU’s decision precluded his need to reach step 5 of the evaluation process, it is clear from the record that the claimant did not retain the ability to perform a full or wide range of sedentary activity. Therefore, it would serve no useful purpose to remand the case to the Secretary for evidence as to the claimant’s vocational options. The claimant is hereby found to have a disability as defined by the SSI regulations and is entitled to benefits as of July 27, 1983 — the date of her medical report from Dr. Thomas establishing that her impairment required a twelve to eighteen month convalescent period. Reversed. . We have recently held in Hansen v. Heckler, 783 F.2d 170 (10th Cir.1986), that the step two regulations are invalid and that a medical finding of less than a severe impairment cannot alone produce a finding of no disability. This holding in no way affects our decision here, which is based on an analysis of the district court’s findings at step four. 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:
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. McKinney v. MISSOURI-KANSAS-TEXAS RAILROAD CO. et al. No. 93. Argued January 27, 1958. Decided June 23, 1958. John G. Laughlin, Jr. argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Samuel D. Slade. M. E. Clinton argued the cause and filed a brief for the Missouri-Kansas-Texas Railroad Co., respondent. Carroll J. Donohue argued the cause for the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, respondent. With him on the brief was Sam Elson. Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman filed a brief for the Railway Employes’ Department, AFL-CIO, as amicus curiae. Mr. Justice Frankfurter delivered the opinion of the Court. This case arises out of proceedings to enforce the claim of a veteran to re-employment rights under § 9 of the Universal Military Training and Service Act. 62 Stat. 604, 614-618, as amended, 50 U. S. C. App. § 459, as amended, 50 U. S. C. App. (Supp. V) § 459. More specifically, petitioner claims that he has been deprived of seniority rights to which he is entitled under the statute and the collective bargaining agreement in force between his employer, respondent railroad, and the union representing its employees. Made part of the complaint filed in the District Court are provisions of the collective bargaining agreement regulating the relations between respondent and its employees, especially provisions relating to seniority and promotions. Employees are divided into three groups according to the functions they perform, with seniority defined within each group. Rule 10 provides that when new positions are available or vacancies occur in existing positions, such positions will be “bulletined” by the employer and employees may bid therefor. Rule 1 (3) (A) provides that, “Promotion will be confined to the group . . . with the exception that employes on positions enumerated in group two (2) will be given preference over nonemployes in the assignment to positions in group one (1), based upon fitness and ability . . . Rule 15 states that, “An employe returning after leave of absence may return to former position or may, upon return . . . exercise seniority rights to any position bulletined during such absence.” The complaint alleges that petitioner was employed by respondent as a relief clerk-chief caller, a position classified • under the collective bargaining agreement in group 2. On September 26,1950, he left his employment for induction into the Armed Forces of the United States. Petitioner was still in the Armed Forces when respondent, pursuant to the procedure set forth in Rule 10 of the collective bargaining agreement, bulletined two group 1 positions to be filled. On September 8, 1952, the group 1 position of bill clerk was bulletined and a nonemployee assigned to it on September 15. On September 10, 1952, the group 1 position of assistant cashier was bulletined and a nonemployee assigned to it on September 22. Petitioner was separated from the military service on September 25, 1952, and on October 1 applied for re-employment with respondent. He was placed in the group 1 position of assistant cashier with a group 1 seniority date of October 7, 1952. Subsequently this position was abolished and petitioner reduced to a group 2 position. Respondent refused to allow petitioner to exercise claimed seniority rights to place himself in the group 1 position of bill clerk in place of the nonemployee who had been assigned to that position on September 15, 1952. In the District Court petitioner contended that the group 1 seniority date assigned him on re-employment, October 7, 1952, was erroneous, and that under § 9 of the Universal Military Training and Service Act, supra, he was entitled to a seniority date of September 8 or September 10, 1952, the dates on which, if he had then been employed by respondent, he could have applied for the bulletined group 1 positions. Such a seniority date, according to petitioner, would have entitled him to replace the nonemployee as bill clerk when the position of assistant cashier was abolished, and thus avoided reduction to group 2. Petitioner prayed the District Court to order respondent to assign him the requested earlier seniority date and to permit him to place himself in the position of bill clerk, and in addition he sought compensation for wages lost as a result of being deprived of the group 1 position. The District Court dismissed the complaint for failure to state a cause of action under the Universal Military Training and Service Act, and the Court of Appeals for the Tenth Circuit affirmed. 240 F. 2d 8. Because of the importance of the question presented in the administration of the statute and the protection of veterans’ rights thereunder, we granted certiorari. 353 U. S. 948. The Court of Appeals correctly held that petitioner was not obliged, before bringing suit in the District Court under § 9 (d) of the Act, 62 Stat. 616, as amended, 50 U. S. C. App. (Supp. V) § 459 (d), to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement or before the National Railroad Adjustment Board. See 48 Stat. 1189-1193, 45 U. S. C. § 153. The rights petitioner asserts are rights created by federal statute even though their determination may necessarily involve interpretation of a collective bargaining agreement. Although the statute does not itself create a seniority system, but accepts that set forth in the collective bargaining agreement, it requires the application of the principles of that system in a manner that will not deprive the veteran of the benefits, in terms of restoration to position and advancement in status, for which Congress has provided. Petitioner sues not simply as an employee under a collective bargaining agreement, but as a veteran asserting special rights bestowed upon him in furtherance of a federal policy to protect those who have served in the Armed Forces. For the effective protection of these distinctively federal rights, Congress provided in § 9 (d) of the Act that if any employer fails to comply with the provisions of the statute, the District Court, upon the filing of a petition by a person entitled to the benefits of the Act, has jurisdiction to compel compliance and to compensate for loss of wages. The court is enjoined to order speedy hearing in any such case and to advance it on the calendar, and the United States Attorney must appear and act for the veteran in the prosecution of his claim if reasonably satisfied that he is entitled to the benefits of the Act. Nowhere is it suggested that before a veteran can obtain the benefit of this expeditious procedure and the remedies available to him in the District Court he must exhaust other avenues of relief possibly open under a collective bargaining agreement or before a tribunal such as the National Railway Adjustment Board. On the contrary, the statutory scheme contemplates the speedy vindication of the veteran’s rights by a suit brought immediately in the District Court, advanced on the calendar before other litigation, and prosecuted with the assistance of the United States Attorney. Only thus, it evidently was thought, would adequate protection be assured the veteran, since delay in the vindication of re-employment rights might often result in hardship to the veteran and the defeat, for all practical purposes, of the rights Congress sought to give him. To insist that the veteran first exhaust other possibly lengthy and doubtful procedures on the ground that his claim is not different from any other employee grievance or claim under a collective bargaining agreement would ignore the actual character of the rights asserted and defeat the liberal procedural policy clearly manifested in the statute for the vindication of those rights. Section 9 of the Universal Military Training and Service Act, on which petitioner relies, requires that a returning veteran who has been separated from the service under the conditions set forth in the statute be restored by his employer to his former position or to a position of like seniority, status, and pay. He is not to be disadvantaged by serving his country. Section 9(c)(1) states that he shall be restored “without loss of seniority.” In Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 284-285, and Oakley v. Louisville & N. R. Co., 338 U. S. 278, 283, the same provision in an earlier Act was interpreted to mean that a returning veteran does not step back at the exact point he left his employment, but rather is entitled to “a position which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment.” 338 U. S., at 283. This interpretation is now embodied in § 9 (c) (2) of the present Act. However, § 9 (c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his if he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9 (c) does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service. The statute manifests no purpose to give to the veteran a status that he could not have attained as of right, within the system of his employment, even if he had not been inducted into the Armed Forces but continued in his civilian employment. Thus, on application for 're-employment a veteran is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer. On his return from service, petitioner in the present case could not have demanded under the statute that respondent place him in any group 1 position. Promotion to a group 1 position from group 2, in which petitioner had formerly been employed, is not dependent simply on seniority. Under Rule 1 (3) (A) of the collective bargaining agreement it is dependent on fitness and ability and the exercise of a discriminating managerial choice. Collective bargaining agreements that include such familiar provisions are presupposed by the statute, and it is in their context that it must be placed. See Aeronautical Lodge v. Campbell, 337 U. S. 521, 527. Petitioner was not entitled to a group 1 position simply because in his absence it had been bulletined, and if he had then been employed he might have applied for it, and respondent might have found that he possessed the requisite fitness and ability. The statute does not envisage overriding an employer’s discretionary choice by any such mandatory promotion. Nor does it sanction interfering with and disrupting the usual, carefully adjusted relations among the employees themselves regarding opportunities for advancement. The precise question in the present case is not essentially different. Petitioner was not, by virtue of the fact that the group 1 position of assistant cashier had been bulletined in his absence, entitled to that position on re-employment. Rule 15 of the collective bargaining agreement states that an employee who returns from leave of absence may “exercise seniority rights to any position bulletined during such absence.” But seniority alone does not, under Rule 1 (3) (A), entitle an employee to move from group 2 to group 1; fitness and ability are also relevant. Respondent asserts that petitioner was in fact assigned to the group 1 position of assistant cashier through a mistake of law. Whatever the reason, the fact of employment in the higher position did not enlarge petitioner’s rights under either the collective bargaining agreement or the statute. Since respondent was not obligated to give petitioner the higher position at all, when it did so it was not bound to give him a seniority date earlier than that to which any employee similarly promoted would have been entitled. In this case that was the date on which petitioner’s pay in the group 1 position commenced, and not a month earlier when the position had first been bulletined. Petitioner argues that because the complaint was summarily dismissed on motion he did not have the opportunity to prove that by custom and practice under the collective bargaining agreement he would necessarily have been assigned to the group 1 position of bill clerk or assistant cashier had he remained continuously in respondent’s employ. He states that interpretation and practice by the parties to an agreement are frequently the most reliable bases for determining rights claimed to arise under it. Accordingly, we affirm the judgment, but with leave to petitioner to amend his complaint to allege, if such be the fact, that in actual practice under the collective bargaining agreement advancement from group 2 to group 1 is automatic. The judgment is Afirmei. Mr. Justice Black and Mr. Justice Douglas dissent on the merits. “In case any private employer fails or refuses to comply with the provisions of subsection (b), (c)(1) or subsection (g) of this section, the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, specifically to require such employer to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action: Provided, That any such compensation shall be in addition to and shall not be deemed to diminish any of the benefits of such provisions. The court shall order speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States attorney or comparable official for the district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof specifically to require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against any person who may apply for such benefits: Provided further, That only the employer shall be deemed a necessary party respondent to any such action.” 62 Stat. 616, as amended, 50 U. S. C. App. (Supp. V) § 459 (d). “Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.” 62 Stat. 604, 615, as amended, 50 U. S. C. App. § 459 (c) (1). “It is hereby declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.” 62 Stat. 604, 615-616, as amended, 50 U. S. C. App. §459 (e) (2). 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_r_subst	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. STATE OF TEXAS v. HARRIS COUNTY HOUSTON SHIP CHANNEL NAV. DIST. No. 11497. Circuit Court of Appeals, Fifth Circuit. Dec. 17, 1946. Grover Sellers, Atty. Gen., of Texas, and Wm. J. Fanning and W. T. Curry, Assts. to Atty. Gen., of Texas, for appellant. D. A. Simmons, Murray G. Smyth, and Fred Much, all of Houston, Tex., for ap-pellee. Before HUTCHESON, HOLMES, and McCORD, Circuit Judges. HUTCHESON, Circuit Judge. In a condemnation proceeding brought by the United States to take in fee simple absolute the title to 29.446 acres “the old bed of Buffalo Bayou,” a controversy and dispute arose between tbe defendants, Harris County Houston Ship Channel Navigation District, hereafter called “the District,” Houston Deep0 Water Land Company, and the State of Texas over the title to it. A hearing date was set for the settlement of the controversy by adjudicating the title to the land, and the matter came on to be heard on a stipulation as to the facts, supplemented by the testimony of one witness. The district judge, of the opinion that the Houston Deep Water Land Company owned no interest in the land in controversy, and that the Special Act of the Tex-as Legislature, Chapt. 292, Acts 40th Legislature of Texas, Regular Session, 1927, page 437, had granted to and vested in the District “an interest therein which entitled it to all the compensation due for the taking of the fee simple title” thereof, “save and except the interests expressly reserved to the State of Texas by Sections 5, 6 and 7 of the Act,” gave judgment accordingly. From the judgment that the Land Company had no title to it and that the District was entitled to receive all compensation awarded for the taking, except such as was awarded for the interest reserved to the State in Sections 5, 6 and 7, the State alone has appealed. Assigning two errors, the State of Texas is here insisting that the court (1) in not awarding it all the compensation, and (2), in the alternative, in not adjudging that the State of Texas was owner of the fee and entitled to all the compensation due for its taking, and the District, as owner of “the use of the property for the purpose of navigation and commerce,” was entitled to the amount due for the taking of that use. Since, as the opinion of the trial court and the briefs of both appellant and appellee make plain, the construction and effect to be given to the Act of 1927 is the determining point in the case, it is appropriate to set out in a note the portions of that act which are controlling here. The district judge thought, and in an unpublished opinion, said, that, subject only to the limitations of Sections S, 6 and 7, the Act had granted to the District the full absolute title to the property, and it was, therefore, entitled to the whole of the sums awarded for the taking, except the amount awarded for the taking of those reserved rights. He rejected the State’s review that the limitation in the grant of the uses to be made of the land by the District had the effect, as contended by the State, of causing a reverter to the State when the property was condemned and appropriated to uses other than those for which the grant was made, and that the whole award for the taking would, therefore, belong to the State. He also rejected its view that the limitations imposed upon the District’s use of, and the prohibition against its selling, the granted property converted what would otherwise have been a grant of a fee simple title into the grant of an easement of use, leaving the fee simple title in the State. Preliminary to joining issue on the merits, the District filed a motion to dismiss the appeal on the ground that the order was unappealable because not final. This court has recently in State of Texas v. Chuoke, 154 F.2d 1, decided otherwise. The motion to dismiss is denied. On the merits, the State, citing many cases, insists that though the act does declare that “all right, title and interest of the State of Texas is hereby granted,” it qualifies this sweeping language with words of limitation so restricting the grant that it cannot be said to be a grant of a fee simple title but must be construed as a grant of an easement of user. The appellee, on its part, defending the trial court’s judgment, insists that no reasonable conclusion can be drawn from a reading of the whole act than the one the court drew. “It does,” says appellee, “indeed contain safeguards against the District’s making uses of the land contrary to the purposes for which the title was granted, and does prohibit its sale. But the purposes for which the title was granted are wide and comprehensive. The power of the District in respect to the uses of the property is very great, and, subject only to the prohibition against selling it and the limitations imposed in Section 5, 6 and 7, the District owns the land in full and complete title and not merely an easement over it.” “In short,” says appellee, “whatever technical name may be accorded to the interests granted to it by the State, the District’s ownership included and embraced all the rights in the property which had any substantial value, and in determining that the District was the owner of all the rights which gave substantial value to the ownership of the property, and should be compensated for their taking, the district judge was right.” We reject outright the first contention of the State that the condemnation of the land worked an abandonment of the grant to the District and caused a reverter to the State with the result that the State became entitled to receive the compensation awarded for the whole bundle of rights inhering in the ownership of the land and taken in the condemnation. The district did nothing to abandon or forfeit its rights in the property. They continued to be owned by it until they were taken from it in the condemnation proceedings. In the course of those proceedings, there was no interim in time, no interval of space in which the reverter the State envisioned could take place. There is more of metaphysics than of sound common sense in the State’s position, that because the taking by the Government was inconsistent with the purposes for which the grant was made to the District, the taking from the District of the rights the State had freely granted to it did not have the effects ordinarily attending a condemnation (1) of taking from the owner the continued enjoyment of the rights taken, and (2) of obligating the taker to pay the owner their value. To hold, as the State contends, that the taking did not have the normal effect of a condemnation, of acquiring from the District the rights the State had granted it but the abnormal one of extinguishing the District’s rights to" restore them to the State, and then take from the State the whole bundle of legal rights thus reunited in it, is to split legal hairs with a vengeance. Upon the State’s second point, we agree with the district judge that it is not necessary to name or define the particular kind of title which passed by the Act to the District, that is whether the District had a qualified fee restricted by the reservations contained in the Act, or the State had the fee and the District had a servitude or easement of user. We cannot, however, agree with him that the interest owned by the District “entitled it to all the compensation due for the taking of the fee simple title thereto, save and except the interests expressly reserved to the State of Texas by Sections 5, 6 and 7 of the Act.” We think that in so determining, the district judge overlooked a most important reservation from the grant to the District, the very significant limitation on the District’s title that “it shall not at any time grant, convey, give or alien said lands or any part thereof to any individual, firm or corporation for any purpose whatever.” In the condemnation in question here, the Government is not content with taking the rights granted to the District to use the land for the purposes named in the grant by letting it out on a very long term lease or itself using it. It has sought to take, and has taken, from the State and District together the whole of the fee simple title to the land. One of the most important and distinctive elements of title to land is the right to sell and convey it. This right the State reserved out of the grant to the District and retained in itself. It is self-evident that the United States could not by condemnation take from the District an element of title which the District did not have. It is equally self-evident that the State, from which it took the right to sell and convey the land, and not the District, is entitled in the condemnation proceedings to receive the compensation awarded for the taking of this right. In apportioning between the District and the State, however, the compensation awarded in this case, it must be remembered that while, as between the condemner and the condemnee, the property is valued as a whole, as between the owners, the distributive portion of the whole value is to be determined in the light of their respective situations as to each other actually obtaining when the taking occurs. Therefore, in apportioning to the District the value due for the bundle of granted rights, the fact that they are enjoyed subject to the reservations in favor of the State must be given its proper weight. In the same way, in valuing the State’s bundle of reserved rights, the fact that they may not be enjoyed in a manner inconsistent with the grant as a whole must also be accorded due weight. Except in denying the State compensation for the value of the right to sell, alien and convey the land, the judgment was right. It is reformed to accord the State the value of that right, and, as reformed, it is Affirmed. “1. The Court erred in not allowing and awarding the State of Texas all compensation due for the taking of the ‘old bed of Buffalo Bayou.’ ” “2. In the alternative, and if the appellant, the State of Texas, is mistaken in its first Point to be relied upon, the Court erred in not allowing the State of Texas all compensation due for the taking of the ‘fee simple’ title to the ‘old bed of Buffalo Bayou,’ except such compensation, if any, as may be due for the taking of the right of the Harris County Houston Ship Channel Navigation District to use the same for the purposes of navigation and commerce only.” Section 1 of the Act provides: “That all right, title and interest of the State of Texas, to all lands hereinafter in this section described, to wit * * * and all the submerged lands lying and being situated under the waters of Buffalo Bayou * * * ¡g hereby granted to the Harris County Houston Ship Channel Navigation District, or its successors, for public purposes and for the development of commerce only, in accordance with the following provisions and stipulations herein contained; * * *. “Sec. 2. The navigation district, or its successors, is hereby granted the right, power and authority to authorize, establish, construct, purchase, own, maintain, equip, regulate, operate and lease wharves, piers, docks, dry docks, marine ways and all other structures and appliances for facilitating or accommodating commerce or navigation, and to dredge out channels, slips and turning basins, and to fill in space between the main land and islands and to fill areas for wharves, piers, docks, dry docks, marine ways and for all other structures and appliances for facilitating and accommodating commerce and navigation, having first secured a permit from the Government of the United States of America therefor, and to construct, or cause or authorize to be constructed on said wharves, piers, docks, dry docks, marine ways and other structures and appliances for facilitating and accommodating commerce and navigation, or on lands so filled in, any and all elevators, warehouses, bunkers, railway terminals and sidetracks, or any other facilities or aids whatsoever to navigation or commerce. Said lands shall be used by the navigation district, or its successors, solely for the establishment, improvement and conduct of an harbor and for the construction, maintenance and operation thereon of any facilities or aids whatsoever •to the same, and said navigation district, or its successors, shall not at any time, grant, convey, give or alien said lands or any part thereof, to any individual, firm or corporation for any purpose whatsoever; provided, that said navigation district, or its successors, may grant franchises thereon for limited periods of time for wharves, and other public uses and purposes, and may lease said lands or any part thereof for limited periods for purposes consistent with this Act. but no wharves, piers or structures of any hind shall be constructed on said lands by anyone save the navigation district, except under a franchise granted by said navigation district and in a manner first prescribed by and approved of by said navigation district or its successors.” “Sec. 5. The State of Texas, may at any time, place the operation of said facilities under the supervision of the Railroad Commission of Texas, to insure reasonable wharfage and storage charges. “Sec. 6. The right is hereby expressly reserved by the State of Texas to erect on the lands herein conveyed such wharves, piers and buildings for State purposes as may hereafter be authorized by law. “Sec. 7. All mines and mineral rights, including oil and gas in and under said lands, together with the right to enter thereon for the purpose of development, and the granting of permits to excavate sand, shell or marl and to collect the tax on same, are hereby expressly reserved to the State of Texas; provided necessary or proper access to the lands hereby ceded, together with all improvements heretofore made, or to he made, under any mineral leases issued by the State in connection with mineral rights herein reserved are made a condition of this grant, and are covenants running with the ceded lands; provided further, that leases hereafter made by the State, or operations thereunder in connection with reserved mineral rights shall not interfere with the improvements made, or to be made in the development of the ship channel by the said navigation district, or franchise holders thereunder. “See. 8. Nothing in this Act shall prohibit the Navigation District or its successors from granting to the United States of America such rights-of-way or easements as may ho required by it for the construction of channels, basins, dumping grounds, or other allied purposes in connection with any work voluntarily undertaken by the Federal Government, or at the request of the navigation district or its successors.” “The Navigation District is a political subdivision or arm of the State, created by Act of the Texas Legislature at the First Called Session of 1927, effective June 6, 1927 (Chapter 97, pages 256 to 259, H.B. 131), covering an area substantially the same as that covered by Harris County, with powers as set forth in such Act and given it by the General Laws of Texas with respect to Navigation Districts, etc. The District’s rights to and interest in Parcel No. 1 at the time it was taken by the Government stems from an Act of the regular session of the 1927 Legislature of Texas (Chapter 292, page 437, S.B. 222) which Act (particularly Sections 1 to 7 thereof) it is necessary to construe.” “The Supreme Court of Texas in construing such Act in Barbour v. McCallum (118 Tex. 391, 15 S.W.2d 1032), did not find it necessary to name or define the particular kind of title which passed by the Act from the State of Texas to her political subdivision, the Navigation District, i.e., whether a qualified fee, charged' with the uses set forth in the grant, with certain reservations, or whether, as the State contends here, only a dedication or use. Neither do I find it necessary to-define the title or right passed. It is sufficient here to say that there has been no abandonment of Parcel No. 1 by the Navigation District, that the State has done nothing to cause title thereto to revert to her, and that neither the leasing of Parcel Post No. 1 by the Navigation District, the filling in of the bed of the Bayou thereof as stated, nor the taking of same by the Government for public use has affected the title, whatever it may be called, which the Navigation District took under such Act. It follows that the State is entitled to have herein only compensation for the interest reserved by her in Sections 5, 6 and 7 of the Act, the balance to go to the Navigation District. State of Texas v. Travis County, 85 Tex. 435, 443, 21 S.W. 1029, Griffith v. Allison, 128 Tex. 86, 96 S.W.2d 74, 75, and United States v. Certain Parcels of Land, D.C., 51 F.Supp. 811, upon which the State stands, are clearly distinguishable from the case we have here.” Suffolk County v. Edwards, et al., 86 Misc. 283, 148 N.Y.S. 305; Parish of Jefferson v. Texas Co., et al., 192 La. 934, 189 So. 580, certiorari denied, 308 U.S. 601, 60 S.Ct. 138, 84 L.Ed. 503; United States v. State of Michigan, 190 U.S. 379, 23 S.Ct. 742, 47 L.Ed. 1103: Barbour v. McCallum, 118 Tex. 391, 15 S.W.2d 1032; West Texas Utilities Co. v. Lee, Tex.Civ.App., 26 S.W.2d 457; Dolan v. Walker, 121 Tex. 361, 49 S.W.2d 695; Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265. Barbour v. McCallum, 118 Tex. 391, 15 S.W.2d 1032. “The deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking,” United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 359, 89 L.Ed. 311, 156 A.L.R. 390; 11,000 Acres of Land v. United States, 5 Cir., 152 F.2d 566. 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:
sc_respondent	105	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. RENEGOTIATION BOARD v. GRUMMAN AIRCRAFT ENGINEERING CORP. No. 73-1316. Argued January 14, 1975 Decided April 28, 1975 White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, Blackmun, and Rehnquist, JJ., joined. Douglas, J., dissented. Powell, J., took no part in the consideration or decision of the case. Allan Abbot Tuttle argued the cause for petitioner. With him on the brief were Solicitor General Bork, Assistant Attorney General Hills, Leonard Schaitman, and David M. Cohen. Tom M. Schaumberg argued the cause for respondent. With him on the brief was Frederick B. Abramson Melvin L. Wulf, Carol A. Cowgill, and Marvin M. Karpatkin filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. Mr. Justice White delivered the opinion of the Court. The issue in this case is whether certain documents— documents generated by the Renegotiation Board (Board) and by its Regional Boards in performing their task of deciding whether certain Government contractors have earned, and must refund, “excessive profits” on their Government contracts — are “final opinions” explaining the reasons for agency decisions already made, and thus expressly subject to disclosure pursuant to the Freedom of Information Act (Act), 5 U. S. C. § 552 (a)(2)(A), or are instead predecisional consultative memoranda exempted from disclosure by § 552 (b)(5). See NLRB v. Sears, Roebuck & Co., ante, p. 132. I Essential to the consideration of whether the documents at issue in this case must be disclosed pursuant to the relevant provisions of the Act is an understanding of the renegotiation process, a process that itself serves to define the documents in issue and hereinafter described. Under the Renegotiation Act of 1951, 65 Stat. 7, as amended, 50 U. S. C. App. § 1211 et seq., the Government is entitled to recoup from those who hold contracts or subcontracts with certain departments of the Government any “excessive profits” received by such persons on such contracts. The amount of the profits which will be considered “excessive” in connection with a particular contract depends upon the statutory factors which are set forth in the margin. As the Board’s name suggests, it endeavors to, and in fact does, conclude the vast majority of its cases by agreement. 50 U. S. C. App. § 1215 (a) (1970 ed., Supp. I). Absent an agreement, however, the Board must decide either to issue a “clearance,” i. e., a unilateral determination that the contractor realized no excessive profits during the year in issue, or to issue a unilateral order fixing excessive profits at a specified amount and directing the contractor to refund them. The unilateral order is final unless a de novo determination regarding excessive profits is sought within 90 days before the Court of Claims. It is in those cases not terminated by agreement that the documents at issue in this case were generated. With this in mind, we turn to the details of the renegotiation process as it existed during the period relevant to the decision in this case. Persons holding contracts or subcontracts with certain departments of the Government were required to file financial statements as prescribed by the Board, 50 U. S. C. App. § 1215 (e)(1) (1964 ed.); 32 CFR Part 1470, if their receipts from those contracts met the requisite jurisdictional amount, 50 U. S. C. App. § 1215 (f). These statements were reviewed by the staff of the Board, and, if that initial review indicated the possibility that the contractor realized “excessive” profits, the “case” was referred to one of two Regional Boards for further action. At the time of this assignment, each case was designated as a Class A case or a Class B case: the former if the contractor had reported profits of more than $800,000 on the relevant contracts covered in his financial statement, and the latter in all other cases. The principal difference between Class A cases and Class B cases was that the Regional Boards had some final decisional authority in the latter and none in the former. 32 CFR §§ 1471.2 (b), 1473.2 (a), 1474.3 (a), and 1475.3 (a). Since the documents sought by respondent in this case were all generated in Class A cases, only the procedure applicable to those cases will be discussed. After reference to a Regional Board, a case was usually assigned to a staff team consisting of an accountant and a renegotiator. This team, after determining what further information from the contractor was required, secured such information and received any submissions the contractor might have wanted to make with regard to his case, including his position concerning the statutory factors that largely determined whether he had received “excessive profits,” 50 U. S. C. App. § 1213 (e). A document entitled “Report of Renegotiation” was then prepared by the team. Part IA of that report, the accountant’s section, contained pertinent financial and accounting data and was furnished to the contractor upon request. Part II of the Report of Renegotiation, prepared by the renegotiator, and not furnished to the contractor, generally contained “an analysis and evaluation of the case; and a recommendation with respect to the amount, if any, of excessive profits for the fiscal year under review.” 32 CPR § 1472.3 (d). According to testimony given in this case, a Part II in outline form would be as follows: “A. Sources of Information “B. Application of Statutory Factors: “1. Character of Business “2. Capital Employed “3. Extent of Risk Assumed “4. Contribution to the Defense Effort “5. Efficiency “6. Reasonableness of Costs and Profiits “(a) Costs “(b) Pricing “(c) Profits “C. Special Matters “D. Conclusion and Recommendation.” After a Report of Renegotiation was prepared, but prior to its submission to the Regional Board, the team assigned to the case endeavored to meet with the contractor to resolve “any issues or disputed matters of fact, law or accounting.” 32 CFR § 1472.3 (b). The report was then submitted to the Regional Board. After reviewing the Report of Renegotiation and the case file, the Regional Board would make a “tentative recommendation with respect to the amount of excessive profits realized in the fiscal year under review.” 32 CFR § 1472.3 (e). This “tentative recommendation” could “be in an amount greater than, equal to, or less than the amount recommended in the Report of Renegotiation.” Ibid. After a “tentative recommendation” was made, the contractor, unless he declined, attended a meeting with the renegotiation team at which he was informed of the tentative recommendation of the Regional Board, as well as the Regional Board’s reasons therefor, and was afforded the opportunity to respond. The Regional Board would then enter a “final recommendation” either that a clearance be issued or that excessive profits be found in an amount greater than, equal to, or less than the. tentative recommendation reached previously. If this final recommendation of the Regional Board corresponded to that of the staff team or panel, the report would be signed by the chairman of the Regional Board, signifying the approval of the staff or panel recommendation; if the Regional Board’s final recommendation differed from the prior recommendation, an addendum would be attached to the report. The Report of Renegotiation with addenda, if any, will hereafter be referred to for convenience as the Regional Board Report. (i) Assuming the Regional Board did not recommend a clearance, it notified the contractor of its final recommendation in an effort to obtain an agreement. Toward this end, the contractor, upon request, would be furnished a “summary of the facts and reasons” (Summary) upon which the recommendation was based. 32 CFR § 1472.3 (i). If a contractor did not request such a document, there is no indication that one was ever prepared in his case. If the contractor declined to enter into an agreement, the case was then reassigned to the Board, to which the case file including the Regional Board Report was transmitted. The case was then assigned to a “division” of the Board, usually consisting of three of its five members, which would undertake a study of the case. Staff personnel would go over both Part IA and Part II of the Regional Board Report and indicate, in memoranda, their agreement or disagreement with the recommendation made by the Regional Board. At an appropriate juncture, the contractor would be afforded an opportunity to meet with the division members to discuss his case and submit additional relevant material. The division, in due course, would reach its own decision as to what recommendation should be made to the Board, “not... bound or limited in any manner by any evaluation, recommendation or determination of the Regional Board.” 32 CFR § 1472.4 (b). The division would then submit to the full Board a report of the case, prepared by one of the members (Division Report), and including a recommendation for final disposition along with additional or contrary views, if any, of the other division members. The Division Report is one of the categories of documents sought by respondent under the Act. The Board would then meet, each member having had the opportunity to study the case file and the report submitted on behalf of the division, discuss the case, and vote on a final disposition. Neither the Board nor any of its members were bound by any prior recommendations. The Board was free, after discussion, to reject the proposed conclusion reached in the Division Report, or to accept it for reasons other than those set forth in the report. 32 CFR § 1472.4 (d). Assuming the Board did not decide that a clearance should issue, the contractor was then notified of the Board’s conclusion and would be given, at his request, a Summary to enable him to decide whether to enter into an agreement with the Board. If an agreement was not reached, the Board would then enter a unilateral order within a specified time, 32 CFR Part 1475, and would issue, pursuant to statute, at the request of the contractor, a “statement of such determination, of the facts used as a basis therefor, and of its reasons for such determination.” 50 U. S. C. App. § 1215 (a) (Statement). Absent a contractor’s request for a Statement, there is no indication that one was ever prepared in his case. For this type of case, the renegotiation process thus came to an end. (Ü) If the Regional Board concluded that no excessive profits had been realized by a particular contractor and that a clearance should therefore issue — or if the contractor agreed with the Regional Board as to an amount of excessive profits before the case was reassigned to the Board — then a Division Report was never created in that case. Instead, a “final recommendation” that a clearance be issued or that the agreement be consummated was sent to the Board, and the Board considered the case on the basis of the Regional Board Report, together with comments made by the Board’s accounting and review divisions. After meeting and discussing the case on the basis of these documents, the Board decided whether to approve the Regional Board’s conclusion. If it did, appropriate closing documents were prepared by the Regional Board. No explanation of the Board’s reasons for agreeing with the Regional Board’s recommendation was prepared or sent to the contractor; and it is not possible to know whether the Board agreed with the reasoning of the Regional Board Report or just its conclusion. If the conclusion of the Regional Board was not approved, the case was either returned to the Regional Board for further factfinding, or assigned to a division of the Board as though no recommendation agreeable to the contractor had ever been made. The Regional Board Reports in the category of cases in which clearances were recommended and approved by the Board — and therefore in which no Division Report was created — is the other type of document in issue in this case. II Against the foregoing backdrop, respondent filed a complaint, pursuant to the Act, in the District Court on June 27, 1968, seeking disclosure of “certain final opinions, orders and identifiable records” related to or issued during renegotiation proceedings involving 14 other companies during the period 1962-1965. Respondent additionally sought certain documents related to its then-pending renegotiation proceedings before the Board for 1965, but later agreed that it was not seeking access to “ [i]ntraagency memoranda and communications consisting of ad- visory opinions, conclusions, recommendations, and analyses prepared by personnel and members of the Board” in its own case. 138 U. S. App. D. C. 147, 150, 425 F. 2d 578, 581 (1970). The District Court denied relief. On appeal, the Court of Appeals appears to have assumed that the “opinions” sought by respondent were limited to Statements and Summaries as defined in 32 CFR § 1480.8. 138 U. S. App. D. C., at 148, and n. 2, 425 F. 2d, at 579, and n. 2. On this basis, the Court of Appeals reversed, rejecting the claim of the Renegotiation Board that the documents sought were “completely immune” from disclosure under 5 U. S. C. § 552 (b)(4), the provision of the Act exempting certain privileged or confidential information submitted to the Government by any person. The court, stating that the Board was required to make available “ 'final opinions, including concurring and dissenting opinions,’” remanded the case to the District Court for further proceedings in which the requested documents were to be made available after “suitable deletions.” 138 U. S. App. D. C., at 150, 425 F. 2d, at 581. Subsequent to the remand of the case by the Court of Appeals, the Board turned over to respondent certain documents, including Statements and Summaries, in attempted compliance with the mandate of that court. Respondent, not satisfied with the documents so disclosed, moved in the District Court for the disclosure, inter alia, of (1) Division Reports in all cases in which neither “Statements” nor “Summaries” were created; (2) Regional Board Reports resulting in a clearance; and (3) any document concurring in or dissenting from (1) and (2) above. On the question whether these documents were “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases,” 5 U. S. C. § 552 (a)(2)(A), the District Court permitted respondent to take the deposition of the then Chairman of the Board. That deposition of the Chairman constitutes almost the only evidence of record in this case bearing on this question other than the pertinent statutes and regulations. Although conceding, as it had to on the basis of the Chairman's deposition, that only the Board had final decisional authority, and that it studies and considers, but does not adopt Regional Board or Division Reports, the District Court held that these reports were “final opinions” for purposes of the Act and rejected the Board’s contention that the documents were specifically exempted from disclosure under subsection (b) (5) of the Act, 5 U. S. C. §552 (b)(5) (Exemption 5), which encompasses: “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” As to the Regional Board Reports in clearance cases, the court characterized the clearance as the “decision” of the Regional Board “unless the Board is not in accord”; and held that “[i]n order for the public to be fully informed, the reasons behind the clearance... must be made available and in this type of case such... reasons are found in the Regional Board’s report.” As to the Division Reports, the court said that, although the Board may disagree with the reasoning of the report, “[i]t is in fact the last document which explains reasons for the Board’s decision,” it should “at the very least... reflect the analysis of one member,” and thus it must be disclosed at least as a “concurring [or] dissenting opinion.” 5 U. S. C. § 552 (a)(2)(A). On appeal, the Court of Appeals affirmed the “findings of fact” and “conclusions” reached by the District Court and found two additional grounds supportive of the lower court’s judgment as to the Regional Board Reports. The court held that, even if the Regional Board Reports recommending a clearance subsequently approved by the Board were not “final opinions” of the Board, they were disclosable as final opinions of the Regional Board: the Regional Board itself was to be considered an “agency” for purposes of the Act, and the reports were certainly its “final opinions” and, as such, they were disclosable under the express provisions of 5 U. S. C. § 552 (a) (2) (A) and therefore outside the scope of Exemption 5. In concluding that the Regional Boards are agencies, the court relied in part on the power of the Regional Boards finally to dispose of certain Class B eases. In concluding that its decisions were “final,” notwithstanding inevitable Board review, it analogized the power of the Regional Board in Class A cases to the power of a United States district court: the former’s decisions being reviewable by the Board and the latter’s by a United States court of appeals. The fact that the Regional Board’s decisions were subject to review did not obviate the fact, any more than it does in the case of a United States district court, that its decisions are “final,” 157 U. S. App. D. C. 121, 128, 482 F. 2d 710, 717 (1973), and that its report leading to a clearance was perforce a “final opinion” of an “agency” subject to disclosure under the Act. The Court of Appeals additionally held that the Regional Board Reports were, in any event, “identifiable records,” 5 U. S. C. § 552 (a)(3), which are disclosable, unless exempt, and that these reports were not within the purview of Exemption 5 of the Act, because they “are not solely part of the consultative and deliberative process, but rather reflect actual decisions communicated outside the agency.” 157 U. S. App. D. C., at 129, 482 F. 2d, at 718. See NLRB v. Sears, Roebuck & Co., ante, p. 132. The Board brought the case to this Court and we granted certiorari, 417 U. S. 907 (1974), setting the case for argument with NLRB v. Sears, Roebuck & Co., ante, p. 132, in order to resolve the important questions presented particularly with respect to the proper construction and interpretation of Exemption 5 of the Act. For reasons set forth hereafter, we reverse the judgment of the Court of Appeals. Ill Strictly speaking, the issue in this case is whether the Division Reports and the Regional Board Reports fall within Exemption 5, pertaining to “inter-agency or intraagency memorandums... which would not be available by law to a party other than an agency in litigation with the agency.” 5 U. S. C. § 552 (b)(5). As we hold today in the companion case of NLRB v. Sears, Roebuck & Co., ante, at 149, Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context; and both Exemption 5 and the case law which it incorporates distinguish between predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an agency decision already made, which are not. Because only the full Board has the power by law to make the decision whether excessive profits exist; because both types of reports involved in this case are prepared prior to that decision and are used by the Board in its deliberations; and because the evidence utterly fails to support the conclusion that the reasoning in the reports is adopted by the Board as its reasoning, even when it agrees with the conclusion of a report, we con-elude that the reports are not final opinions and do fall within Exemption 5. A. Regional Board Reports It is undisputed that the Regional Boards had no legal authority to decide whether a contractor had received “excessive profits” in Class A cases. In such cases, the Regional Boards could investigate and recommend, but only the Board could decide. 32 CFR §§ 1472.3-1472.4. The reports were prepared long before the Board reached its decision. The Board used the Regional Board Report as a basis for discussion and, even when it agreed with the Regional Board’s conclusion, it often did so as a result of an analysis of. "the flexible statutory factors completely different from that contained in the Regional Board Report. Chairman Hartwig testified: “[W]hen the recommendation clearance of the Regional Board comes up on the Board agenda, the Board simply approves or disapproves the clearance. It does not adopt any of the memoranda that are before it. It does not ratify or adopt any of these staff memoranda. It simply, in the exercise of its judgment, says it is a clearance or it isn’t a clearance. And there is no Board-adopted document which you could call an opinion.” App. 79. The Regional Board Reports are thus precisely the kind of predecisional deliberative advice and recommendations contemplated by Exemption 5 which must remain uninhibited and thus undisclosed, in order to supply maximum assistance to the Board in reaching its decision. Moreover, absent indication that its reasoning has been adopted, there is little public interest in disclosure of a report. “The public is only marginally concerned with reasons supporting a [decision] which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a [decision] which was actually adopted on a different ground.” NLRB v. Sears, Roebuck & Co., ante, at 152. Indeed, release of the Regional Board’s reports on the theory that they express the reasons for the Board’s decision would, in those cases in which the Board had other reasons for its decision, be affirmatively misleading. Sterling Drug, Inc. v. FTC, 146 U. S. App. D. C. 237, 246-247, 450 F. 2d 698, 707-708 (1971); International Paper Co. v. FPC, 438 F. 2d 1349, 1358 (CA2), cert. denied, 404 U. S. 827 (1971). Accordingly, these reports are not “final opinions,” they do fall within the protection of Exemption 5, and they are not subject to compulsory disclosure pursuant to the Act. The Court of Appeals’ attempt to im 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_counsel	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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". SACO-LOWELL SHOPS, a Division of Maremont Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12201. United States Court of Appeals Fourth Circuit. Argued Oct. 28, 1968. Decided Nov. 14, 1968. J. Frank Ogletree, Jr., Greenville, S. C. (Thompson, Ogletree & Haynsworth, Greenville, S. C., on brief) for petitioner. John D. Burgoyne, Atty., N. L. R. B., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, on brief) for respondent. Before BRYAN, WINTER and CRAVEN, Circuit Judges. PER CURIAM: The National Labor Relations Board found that Saco-Lowell Shops, a division of Maremont Corporation, had violated § 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), by the distribution of a handbook at its plant in Easley, South Carolina, containing a too rigid restriction upon the solicitation of employees to sign union authorization or membership cards, and had there also violated § 8(a) (3) of the Act, 29 U.S.C. § 158(a) (3), in discharging an employee because of his activities on behalf of the union. 169 N.L.R.B. No. 151 (February 28, 1968). We are asked by the Board to enforce its remedial order; Saco-Lowell requests it be vacated. Our province is limited to the ascertainment of the substantiality of the evidence underlying the Board’s action. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). As we cannot say that the proof did not meet the requisite standard, we will enforce the decision of the Board. Order enforced. Question: Did the court rule that the defendant had inadequate counsel? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Margaret E. HARRIS, Appellant, v. Donald S. BOREHAM. Margaret E. HARRIS, Appellant, v. UNITED STATES of America. Nos. 11710, 11711. United States Court of Appeals Third Circuit. Argued Jan. 31, 1956. Decided April 30, 1956. George H. T. Dudley, Charlotte .Amalie, V. I., for plaintiff. ■ Croxton Williams, Charlotte Amalie, V. I., for Boreham. Leon P. Miller, U. S. Atty., Charlotte Amalie, V. I., for the United States. Before MARIS, MAGRUDER and WOODBURY, Circuit Judges. MARIS, Circuit Judge. The plaintiff in these cases alleged that while walking along Trumpeter Gade in the town of Charlotte Amalie, on the island of St. Thomas, on the evening of September 19, 1952, she was injured as a result of tripping over a loose steel plate designed to cover a street opening surrounding the access pipe to a salt water main pipeline. To recover damages for the injuries thus occasioned she brought suit in the District Court of the Virgin Islands against the Municipality of St. Thomas and St. John, Donald S. Boreham, who was the Superintendent of Public Works of the municipality, Ella Blanche Barbel, who was the owner of adjacent property, and John Doe, an unknown property owner alleged also to be liable. The municipality thereupon moved to dismiss the complaint as to it on the ground that it was immune from suit on a tort claim without its consent, which motion was granted by the district court. Harris v. Municipality of St. Thomas and St. John, 111 F.Supp. 63. Upon appeal the order of the district court dismissing the complaint as against the municipality was affirmed by this court. Harris v. Municipality of St. Thomas & St. John, 3 Cir., 1954, 212 F.2d 323. Following dismissal of her complaint as against the municipality, the plaintiff brought suit against the United States under the Federal Tort Claims Act for damages for her injuries. A motion by the United States to dismiss this suit for want of jurisdiction was denied by the district court. 125 F.Supp. 536. The plaintiff’s suit against the United States and her prior suit against Boreham, Barbel and John Doe were then consolidated for trial and were tried in the district court. During the course of the trial the suit was dismissed as to Barbel on the plaintiff’s motion and it was not pressed as to John Doe, who was not further identified. At the close of the plaintiff’s case the United States again moved for dismissal for want of jurisdiction but the district court adhered to its previous ruling on this question. The trial resulted in the dismissal on the merits of the complaints against both the United States and Boreham, D.C., 130 F.Supp. 533. The appeals by the plaintiff which are now before us followed. We will consider first the case against the United States. The plaintiff’s claim is predicated upon the theory that the public streets of the town of Charlotte Amalie, in the Municipality of St. Thomas and St. John, are the property of the United States, that the plaintiff was making legitimate use of those streets as a member of the public at the time of her injury, that Boreham was an employee of the United States engaged in the business of the United States in maintaining those streets and as such was guilty of negligence imputable to the United States in failing to maintain Trumpeter Gade in a safe condition for the use of pedestrians. The Federal Tort Claims Act imposes liability upon the United States only for those injuries which are “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” This means that for the United States to be liable the federal employee must at the time of his negligent or wrongful act or omission be acting in the line of his federal duties. We accordingly must decide whether the streets of Charlotte Amalie are property of the United States and whether Boreham was an employee of the Government of the United States acting with respect to those streets within the scope of his office or employment as such. Only if those questions are decided in the affirmative need we consider in the case against the United States whether Boreham was guilty of a negligent or wrongful act or omission in carrying out his duties with respect to those streets. It is settled that Congress has sovereignty over the territories of the United States and accordingly has power to legislate for a territory with respect to all subjects upon which the legislature of a state might legislate within the state. Simms v. Simms, 1899, 175 U.S. 162, 168, 20 S.Ct. 58, 44 L.Ed. 115. It is also settled that Congress may delegate to a territory such of these powers as it sees fit. Binns v. United States, 1904, 194 U.S. 486, 491-492, 24 S.Ct. 816, 48 L.Ed. 1087; Christianson v. King County, 1915, 239 U.S. 356, 364-366, 36 S.Ct. 114, 60 L.Ed. 327. And the right of Congress to revise, alter and revoke these delegated powers does not diminish the powers while they reside in the territory. Hornbuckle v. Toombs, 1873, 18 Wall. 648, 85 U.S. 648, 655-656, 21 L. Ed. 966; District of Columbia v. John B. Thompson Co., 1953, 346 U.S. 100, 106, 73 S.Ct. 1007, 97 L.Ed. 1480. The aim of Congress is to give the territory full power of local self-determination. The local laws enacted under the legislative power granted by Congress are accordingly territorial laws, not laws of the United States. People of Puerto Rico v. Shell Co., 1937, 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235; People of Puerto Rico v. Rubert Hermanos, Inc., 1940, 309 U.S. 543, 60 S.Ct. 699, 84 L.Ed. 916; Arroyo v. Puerto Rico Transp. Authority, 1 Cir., 1947, 164 F.2d 748. These principles apply to the unincorporated territories, such as the Virgin Islands. For it has been held that Congress may créate a territorial government for an unincorporated territory and may confer upon it an autonomy similar to that of the states. Gromer v. Standard Dredging Co., 1912, 224 U. S. 362, 370, 32 S.Ct. 499, 56 L.Ed. 801; People of Puerto Rico v. Shell Co., 1937, 302 U.S. 253, 260-262, 58 S.Ct. 167, 82 L.Ed. 235. And the territorial body politic thus created may be endowed with attributes of sovereignty, such as nonliability to suit without its consent. People of Porto Rico v. Rosaly Y. Castillo, 1913, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507. In the Rosaly case the Supreme Court held that Congress by the Foraker Act of 1900, had conferred such sovereignty upon what was then the unincorporated territory of Puerto Rico. We think it clear that by the Organic Act of June 22, 1936, Congress did- the same with respect to the two municipalities which then constituted the Virgin Islands. That Act constituted each municipality into a body politic and juridic with perpetual succession and with power to acquire property, to possess, administer, and govern such property and to alienate or encumber it. It provided for a municipal council in each municipality with local legislative powers, a Legislative Assembly with legislative powers for the Virgin Islands as a whole, a Governor to act as chief executive of the Virgin Islands as a whole and of each of the two municipalities, and a district court to exercise the judicial power of the Islands. As the Supreme Court said with respect to the Organic Act of Puerto Rico, “the pur pose of Congress -. * * * was to follow the plan applied from the beginning to the organized territories by creating a government conforming to the American system with defined and divided powers,—legislative, executive and judicial * * People of Porto Rico v. Rosaly y Castillo, 1913, 227 U,S. 270, 276-277, 33 S.Ct. 352, 354. Moreover by section 4(a) of the Organic Act of 1936 all the property which was acquired by the United States from Denmark under the treaty of cession and which was not reserved by the United States for public purposes within one year after the passage of the Act, was placed under the control of the Government of the Virgin Islands which by definition included the two municipalities. The property thus acquired undoubtedly included the streets in the town of Charlotte Amalie and, since they were not reserved by the United States, they thus became the property of the Municipality of St. Thomas and St. John. It is thus clear that the Municipality of St. Thomas and St. John in the unincorporated territory of the Virgin Islands was a body politic quite distinct from the Government of the United States and that it had attributes of sovereignty which had been delegated to it by the Government of the United States but which were distinct from the powers of that government. It is equally clear that the municipality was endowed by Congress with the sovereign power to acquire, administer, govern and alienate property and that such property must be regarded as belonging to the municipality rather than the United States. That Congress had this distinction in mind is indicated not only by the Organic Act itself but by later enactments. Thus, by the Act of December 20, 1944, which authorized public works projects to assist in the internal development of the Virgin Islands, the Federal Public Works Administrator (afterwards the Secretary of the Interior) was authorized to acquire land for such projects and upon the completion of projects on land acquired under that authorization, the Secretary of the Interior was directed to “transfer all rights and title of the United States therein to the government of the Virgin Islands or the municipality of Saint Thomas and Saint John, or the municipality of Saint Croix, except those projects constructed for Federal agencies.” We conclude that the streets in the town of Charlotte Amalie were on September 19, 1952 the property of the Municipality of St. Thomas and St. John rather than the property of the United States. In constituting the government for the unincorporated territory of the Virgin Islands and its municipalities Congress in the Organic Act of 1936 followed the traditional pattern of providing for the appointment of the principal executive officers of the territorial government by the federal executive. Thus the President was authorized to appoint the Governor and the Government Secretary, and the Secretary of the Interior was authorized to appoint the other executive and administrative officers, such as the Superintendent of Public Works, whose salaries were to be paid from federal funds appropriated for the government of the Virgin Islands. The Organic Act provided that the executive power of the Virgin Islands and of the municipalities thereof should be vested in the Governor, that he should have general supervision and control of all executive and administrative departments, bureaus and offices of the Government of the Virgin Islands and should appoint, with the advice and consent of the municipal council concerned, all salaried officers and employees of the municipal governments whose salaries were provided for in the budgets of the municipal governments. The Act provided that the Government Secretary should act as Governor in the absence of that official, should have custody of the seal of the Virgin Islands, should promulgate all proclamations and orders of the Governor and all laws enacted by the insular legislative authorities and should have such executive powers and duties as might be prescribed by law or assigned to him by the Governor. It is only necessary thus to recount the powers and duties of the Governor and Government Secretary to see that these officials were intended by Congress to be the principal executive officers of the territorial and municipal governments which it had set up in the Virgin Islands. The fact that their salaries were paid from federal funds merely indicates that Congress was willing to this extent to subsidize the local government. By the same token the heads of the executive departments, who functioned under the Governor and carried out his directions in the administration of the territorial and municipal governments, in the absence of a contrary intent by Congress must be regarded as officers of those governments. Boreham, the Superintendent of Public Works of the Municipality of St. Thomas and St. John, was in charge of a department of the government of that municipality under the general supervision and control of the Governor. It is true he had been appointed to that office in 1935 by the Secretary of the Interior upon the recommendation of the Governor of the Virgin Islands, and had continued in office after the passage of the Organic Act of 1936. It is also true that his salary was paid from federal funds appropriated by Congress for the Government of the Virgin Islands and the municipalities. It is upon these facts that the plaintiff bases her contention that Boreham must be regarded as having been, at the time here involved, an employee of the Government of the United States within the meaning of the Federal Tort Claims Act. We do not think that this conclusion follows. Aside from the letter appointing him to the position, the record does not disclose any order or directive issued by the Secretary of the Interior or any other department or agency of the United States in respect to Boreham’s duties as Superintendent of Public Works of the Municipality of St. Thomas and St. John. On the contrary it appears that his duties were being performed under the supervision and control of the chief executive of the municipality, the Governor. Although it is said that Bore-ham also had supervisory duties in respect to federal buildings and federal projects, we are not here concerned with those duties, nor need we pass on their effect upon his employment status while engaged in performing them. We consider only the question whether, when acting within the scope of his duties as Superintendent of Public Works of the Municipality of St. Thomas and St. John, Boreham was an employee off the Government of the United States. As used in the Federal Tort Claims Act that phrase is defined as follows: “ ‘Employee of the government* includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, with or without compensation.” We are satisfied that Boreham does not come within this definition for he was not an officer or employee of a federal agency nor was he, in supervising the maintenance of the streets of Charlotte Amalie, acting on behalf of such an agency. On the contrary it is clear that he was an official of the Government of the Municipality of St. Thomas and St. John which, as we have pointed out, was a body politic quite distinct from the Government of the United States and was, therefore, not a “federal agency” within the meaning of the Act. It necessarily follows from what has been said that in performing his functions as Superintendent of Public Works with respect to the streets of the town of Charlotte Amalie, Boreham was acting as an officer of the Government of the Municipality of St. Thomas and St. John in administering the property of that municipality and not as an officer of the Government of the United States administering its property. We conclude, for the reasons stated, that the district court did not err in dismissing the plaintiff’s complaint against the United States. This brings us to plaintiff’s second case, her complaint against Bore-ham personally. This is based upon the proposition that a public officer is personally liable for personal injuries resulting from his negligence in performing his ministerial duties as such an officer. The validity of the proposition maybe conceded but we think it has no application to this case. For the district court found from the evidence that while Boreham was charged with the duty of supervising the work of the Public Works Department of the municipality and of his subordinates in that department it was not his duty to go out and make inspections of street openings and the condition of their covers. That, he found, was the duty of the project supervisor of the department. There was no evidence that the project supervisor had reported the defective condition of the street opening cover to Boreham or that Boreham had any notice of its condition. If the condition had existed for such a length of time that the project supervisor should have known of it and should have reported it to Boreham for correction, that fact, while perhaps establishing the negligence of the project supervisor, would not stamp Boreham as negligent. For while the project supervisor’s negligence, if it existed, might have been imputable under the doctrine of respondeat superior to the municipality which employed him, it would not be imputable under that doctrine to his superior officer who was in this respect merely an intermediate officer and not himself guilty of a negligent act or omission of a duty. Since the evidence amply supports the findings of the district court in this regard its conclusion that Boreham was free from negligence imputable to him personally was right. The judgments of the district court in each case will be affirmed. . The Municipality of St. Thomas and St. John ceased to exist on January 10, 1955, pursuant to section 10 of the Revised Organic Act of the Virgin Islands, and its property was by that Act transferred to the government of the unincorporated territory of the Virgin Islands. 48 U.S. C.A. § 1576. In this opinion we refer to the municipality rather than to the territory, since the former was in existence at the time of the plaintiff’s injury. . 28 U.S.O. § 1346(b). . Fries v. United States, 6 Cir., 1948, 170 F.2d 726, certiorari denied 336 U.S. 954, 69 S.Ct. 876, 93 L.Ed. 1109; United States v. Holly, 10 Cir., 1951, 192 F.2d 221; Elmo v. United States, 5 Cir., 1952, 197 F.2d 230; O’Toole v. United States, 3 Cir., 1953, 206 F.2d 912; Cobb v. United States, D.C.W.D.La.1948, 81 F. Supp. 9. See annotation 1 A.L.R.2d 222. . In tbe light of these controlling authorities we cannot subscribe to the statement of Chief Judge Denman in Mafnas v. Government of Guam, 9 Cir., 1955, 228 F.2d 283, that local laws continued in force in a territory by virtue of a provision of its organic act are laws of the United States. Such a view denies the existence of an independent, though delegated, sovereignty in the territory and treats its legislature as a mere federal agency. Compare the dichotomy in the following language which appears in both section 18 of the Organic Act of the Virgin Islands and section 8(e) of the Revised Organic Act: “The laws of the United States applicable to the Virgin Islands * * * and all local laws and ordinances in force on such date in the Virgin Islands * * * shall * * * continue in force and effect.” 48 U.S. C.A. §§ 1405(1, 1574(c). . 48 U.S.C.A. § 1405 et seq. . Harris v. Municipality of St. Thomas & St. John, 3 Cir., 1954, 212 F.2d 323. In the opinion in that case the history of the two municipalities is traced and their sovereign immunity from suit upheld. . 48 U.S.C.A. § 1405c(a). . 48 U.S.C.A. § 1409b. . See Pomeroy, The Territories and the United States, 1947, pp. 3-5. . Por many years Congress in addition tQ paying the salaries of executive and legislative officers, made direct appropriations by way of subsidy to meet the annual deficits of the municipal governments. See e. g., Act of July 9, 1952, 66 Stat. 445, 457. . The plaintiff relies on a document entitled “Description of Work (Assistant Commissioner of Public Works)” which was prepared by Boreham in 1932 at the request of the Department of the Interi- or enumerating the duties of his former position of Assistant Commissioner of Public Works. This, of course, was not an order or directive from any department of the United States. . 28 U.S.C. § 2671. . The Federal Tort Claims Act defines federal agency as follows: “ ‘Federal agency’ includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contractor with the United States.” 28 U.S.C. §2671. . This is, of course, a different: question from whether the municipality could be sued for such negligence. . Fidelity & Casualty Co. of New York v. Brightman, 8 Cir., 1931, 53 F.2d 161, 166; Rich v. Warren, 6 Cir., 1941, 123 F.2d 198. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_district	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". PRUDENTIAL INS. CO. OF AMERICA v. STRICKLAND. No. 11245. United States Court of Appeals Sixth Circuit. March 2, 1951. Hamilton E. Little, Memphis, Tenn., John R. Gilliland, Memphis, Tenn., on the brief, William H. Jobes, Newark, N. J., Canale, Glankler, Little, Boone & Loch, Memphis, Tenn., of counsel, for appellant. Sam P. Walker, Memphis, Tenn., Waring, Walker, Cox & Lewis, Memphis, Tenn., of counsel, for appellee.' Before HICKS, Chief Judge, and SIMONS and MILLER, Circuit Judges. MILLER, Circuit Judge. The appellant, Prudential Insurance Company of America, appeals from a judgment against it in the amount of $7,500 with interest, under an insurance contract executed by it covering the life of the husband of the appellee. Appellant’s chief complaint is that the District Judge failed to consider its plea for reformation of the contract. The insured, Garner P. Strickland, Jr., was a reserve aviation officer in the United States Navy on active duty near Sunflower, Kansas, when the application for insurance was made through appellant’s soliciting agent. Part 1 of the application and an Aviation Questionnaire were signed March 14, 1946, and Part 2 of the application was completed on March 20, 1946. By it the insured applied for a policy of $7,500 at an ordinary annual premium of $133.50 payable annually, and further requested pilot or aviation coverage at an extra premium cost of 90 cents per month per $1,000 of insurance, or an extra premium of $6.75 per month on the policy for $7,500. At the time of making the application, the insured made an advance premium payment of $147.00, which consisted of the ordinary annual premium of $133.50 and two months extra premiums, totalling $13.50 for pilot or aviation coverage. The completed application was forwarded to the home office of the appellant where it was approved except in the following particular. The requested pilot or aviation coverage was approved at an annual extra premium of $75.00 instead of on the basis of a monthly extra premium of $6.75. The policy so issued was returned to the soliciting agent in Kansas who' undertook to deliver it to the insured'. The insured refused to accept it and the policy was returned to the home office where it was received on May 8, 1946 accompanied by an inter-office communication requesting that the policy be rewritten taking out the aviation coverage. The extra risk clause, providing for pilot or aviation coverage, attached to the policy as originally issued, was cancelled and in its place a limited liability “Aviation Clause” was substituted and attached to the reissued policy. The aviation clause limited liability to a small amount specified therein if the insured died as a result of flight in any kind of aircraft “If the insured is a pilot, officer or member of the crew of such aircraft, or is giving or receiving any kind of training or instruction, or has any duties whatsoever aboard such aircraft while in flight.” The reissued policy was mailed to the soliciting agent in Kansas who delivered it to the insured. There was also delivered or mailed to the insured at approximately the same time the appellant’s check for $13.50, being the difference between $147.00 tendered by appellant with his application and the annual premium of $133.50 for the ordinary risk without pilot or aviation coverage. The insured received the policy in its reissued form and subsequently endorsed and cashed the check for $13.50. Thereafter, and until his death, the annual premium paid by him was $133.50. On June 13, 1949, the insured was killed while engaged in a flight aboard a United States Naval aircraft while performing duties aboard such aircraft as a pilot, officer or member of the crew thereof. If the “Aviation Clause” contained in the reissued policy was valid, appellant’s liability was limited to $611.81, which amount it offered to pay. However, the appellee, who was the widow of the insured and the named beneficiary in the policy, after giving notice to the appellant of her husband’s death, made application under the terms of the policy for payment of its face amount. Appellant denied liability and this action followed, jurisdiction being claimed through diversity of citizenship. The application for insurance provided in Part 1, Item 23, which was headed “Special Requests,” that the Insurance Company “issue policy with pilot coverage at an extra premium of 90 cents per month per $1,000.” It also contained a space for “Changes, corrections and notations, for home office use only.” This space was left blank when the policy was issued. Part 11(3) of the application read as follows: “My acceptance or that of any other applicant, if any, of any policy issued on this application shall constitute an approval of the provisions contained in such policy and a ratification of any changes, corrections, or notations indicated by the company in the space entitled ‘Changes, corrections, and notations’ in Part One, except that any change as to amount, classification, plan of insurance, or benefits shall be made only with my written consent or that of any other applicant, if any; * * The complaint alleges that the insured applied for and received a life insurance policy from the appellant which provided that the Insurance Company would pay the face of the policy to the named beneficiary on the death of the insured; sets out the portions of the application hereinabove referred to; alleges that the application and the policy constituted the entire contract between the parties; that the Insurance Company was attempting to change the plan of insurance or benefits, as applied for in the application, without the written consent of the insured; and that the rider attached to- the policy which contained the aviation clause limiting liability was void. Reliance is placed upon the provision of the application that any change in the plan of insurance or benefits could be made only with the written consent of the insured; that no such changes were noted on the application in the space provided therefor; and that no written consent was ever obtained from the insured authorizing a change in the application. The appellant, in its answer, states the facts leading to the issuance, rejection,' and cancellation of the original policy; that the existing policy was reissued without pilot coverage as requested by the insured; that the extra premium required for pilot coverage was refunded to the insured and in succeeding years was not paid by the insured; that the insured thoroughly understood that pilot coverage was not included; and kept the policy and paid the premiums with that understanding. It also pleaded that although the insured and the representatives of the appellant understood and agreed that a revised policy without pilot coverage would be issued after the insured refused to accept the original policy, by oversight and through mutual mistake the insured and the appellant’s representatives failed to revise the original application so as to expressly conform to the revised policy delivered to and accepted by the insured; and that if there was any ambiguity in the policy as a whole, by reason of the initial request in the application for the issuance of pilot coverage, the entire contract between the parties be reformed so as to properly express the true and actual agreement between them. At a pre-trial conference the District Judge ruled that parol evidence was not admissible to show any agreement between the insured and the Insurance Company contrary to the written application signed by the insured and attached to the policy; and that the issue for determination was, whether, subsequent to the issuance and delivery of the policy sued on, the insured ratified the inclusion in the policy of the limited liability provisions contained in the “Aviation Clause.” These rulings were carried over into the trial. A jury was impaneled and notwithstanding appellant’s plea for reformation, the District Judge refused to permit -appellant’s soliciting agent to tell the jury about his. conversation with the insured with reference to the insured’s reason for refusing to accept the policy originally issued, or with respect to the insured agreeing to-accept the policy if the pilot or aviation coverage and extra premium therefor were removed. At the request of appellant’s attorney, and after having the jury retire from the courtroom, he permitted the appellant to have the witness state into the record the conversation which he had with the insured when the insured refused to accept delivery of the original policy. The witness stated for the record that the insured objected to the policy because the Insurance Company refused to issue it as asked for, that it was agreed between them that the aviation protection was to be removed from the policy and the policy reissued without aviation protection; that when he delivered the reissued policy to the insured he expressly called the insured’s attention to the fact that the policy, which was being delivered to him, did not contain the so-called aviation clause; that he and the insured discussed the fact that the policy did not carry aviation protection; and that the insured stated to him that he did not want to pay the extra premium for this protection, and that if anything should happen to him it would happen on the ground, and definitely not by air travel. In his charge to the jury, the District Judge, after reviewing the facts, stated —'“This brings us to the determinative factual issues of the case which you are to decide. That is whether or not the insured ratified the policy in its unauthorized form.” He then instructed the jury that this was a question of fact for the jury, that if it found there was a ratification of -an unauthorized change in the policy the recovery by the plaintiff would be in the limited amount of $611.81, but, if, on the other hand, it found that there was no ratification it should return a verdict for the plaintiff in the full face amount of the policy. The issue of reformation was not discussed. The jury found for the plaintiff for the full face amount of the policy. The judgment thereafter entered read in part as follows: “The Court being advised of the finding of the jury, and after considering the evidence, does hereby find that the defendant is not entitled to reform the application of the policy as prayed for in the defendant’s answer. It is therefore ordered and decreed that the application or prayer bv the defendant for reformation of the original application and policy be and the same is hereby denied, and the answer of the defendant seeking a reformation of the application and policy be and the same is hereby dismissed, * * It then adjudged that the appellee recover from the Insurance Company the sum of $7,500 with interest from June 13, 1949. At the start of the trial, the appellant objected to impaneling a jury on the ground that it was an equitable case. This motion was overruled. The motion was renewed at the conclusion of appellee’s proof and at the conclusion of all the evidence. The appellant also moved for a directed verdict at the conclusion of appel-lee’s proof and at the conclusion of all the proof. All of these motions were overruled. It is settled law that courts of equity have the power, and it is their duty, to reform written instruments so as to correctly reflect the true agreement of the parties, where, through mutual mistake, or mistake upon the part of one and inequitable conduct upon the part of the other, the agreement actually entered into does not express the real contract between them. Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 435, 12 S.Ct. 239, 35 L.Ed. 1063; Kansas City Life Ins. Co. v. Cox, 6 Cir., 104 F.2d 321, 324; Johnson v. Johnson, 67 Tenn. 261, 8 Baxt. 261; Restatement of the Law, Contracts, Sec. 504. It is equally well settled that parol evidence is admissible in trying the issue of reformation. Otherwise, the remedy of reformation would be valueless. Walden v. Skinner, 101 U.S. 577, 583, 25 L.Ed. 963; Barnes v. Gregory, 38 Tenn. 230, 1 Head 230, 236; Goldberg v. Cities Service Oil Co., 275 Mich. 199, 266 N.W. 321. In the present case, the appellant’s claim to reformation was asserted as a defense to the action at law. If the plea of reformation was sustained by the evi■dence, the action at law necessarily failed. The appellant was entitled to have his plea of reformation heard and decided by the court sitting as a court of equity. Rule 8(e) (2), Rules of Civil Procedure, 28 U.S.C.A. If the plea of reformation had not been injected into the case, the issue of ratification of an unauthorized change in the policy from that specified by the application was properly heard .by and submitted to the jury. Probably the equitable issue of reformation could have been heard by the Court at the same time, with appropriate collateral proceedings outside the presence of the jury. But, obviously, that issue was not tried, even though the judgment attempts to adjudicate it. The pretrial ruling limited the issue to a question of ratification, and applied the parol evidence rule. Appellant objected on several occasions to a trial by jury of an equitable cause, but at no time was advised that the trial judge was also functioning as a court of equity for the purpose of ruling on the equitable plea. The appellant was not permitted to develop the issue of reformation. The Court’s ruling clearly indicated that that issue was not being tried. Some parol evidence which was permitted to> go into the record was offered and accepted solely in the nature of an avowal. Other parol evidence, consisting of a statement in 1949 by the insured to the witness Walton Cros-ley, that he did not have aviation coverage, was admitted in evidence but restricted solely to the issue of ratification. We have no way of knowing what additional testimony, documentary or through other witnesses, might have been offered if it had been understood that the District Judge was also sitting as a court of equity on the issue of reformation. The trial judge made no findings of fact and conclusions of law as required by Rule 52(a) of the Rules of Civil Procedure in trials without a jury. Appellee’s contention that the case was tried both as a suit at law and as a suit in equity is not sustained by the record. In entering the judgment below, appellant was not afforded the hearing to which it was entitled on the equitable defense of reformation set up by its answer. The incontestable clause, as provided by the statute and the policy, does not apply to the equitable remedy of reformation. Columbian National Life Ins. Co. v. Black, 10 Cir., 35 F.2d 571, 577, 71 A.L.R. 128; Equitable Life Assurance Society v. First National Bank, 5 Cir., 113 F.2d 272, 275, 135 A.L.R. 439; Buck v. Equitable Assurance Society, 96 Wash. 683, 165 P. 878; Equitable Life Assurance Society v. Rothstein, 122 N.J.Eq. 606, 195 A. 723, affirmed 123 N.J.Eq. 591, 199 A. 43; Mates v. Penn. Mutual Life Ins. Co., 316 Mass. 303, 55 N.E.2d 770; Ginsberg v. Union Central Life Ins. Co., 240 Ala. 299, 198 So. 855. The judgment is reversed and the action remanded to the District Court for proceedings consistent with the views expressed herein. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_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. ESTATE OF William Wikoff SMITH, Deceased, George J. Hauptfuhrer, Jr., Administrator Pro Tem., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Appeal of Mary L. SMITH. No. 80-1582. United States Court of Appeals, Third Circuit. Argued Oct. 15, 1980. Decided Jan. 20, 1981. Irving R. Segal (argued), George H. Nofer, Bruce A. Rosenfield, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant. P. J. DiQuinzio (argued), Barbara W. Freedman, Dechert, Price & Rhoads, Philadelphia, Pa., for petitioner-appellee. Gayle P. Miller (argued), Ann B. Durney, Michael L. Paup, M. Carr Ferguson, Asst. Atty. Gen., Tax Division, Dept, of Justice, Washington, D. C., for respondent-appellee. Before HUNTER and WEIS, Circuit Judges, and FISHER, District Judge. Honorable Clarkson S. Fisher, Chief Judge, United States District Court for the District of New Jersey, sitting by designation. OPINION OF THE COURT WEIS, Circuit Judge. This appeal is from an order denying intervention in a Tax Court suit contesting an estate tax deficiency. The appellant had sought intervention to challenge the valuation of stock in her deceased husband’s estate. A low valuation would have a substantial adverse impact upon the appellant, but at the same time a favorable effect on the beneficiaries of a residuary trust. In challenging the Commissioner’s assessment, the administrator of the estate advocated a valuation lower than appellant desired. Appellant’s petition to intervene in order to protect her interests was denied by a “special trial judge” of the Tax Court. We conclude that we lack jurisdiction to consider the appeal because authority had not been given the special trial judge to issue a decision of the Tax Court. Appellant is the widow of William Wikoff Smith, who died testate in January 1976. She was appointed executrix under the will, which provides a marital trust for her and a residuary trust for the decedent’s children. Mrs. Smith elected to take against the will and, under Pennsylvania law, became entitled to receive one-third the estate’s net assets. Under the terms of the will, the residuary trust is liable for all death taxes. At the time of his death, Mr. Smith had substantial stock holdings in Kewanee Industries, Inc. In October 1976, Mrs. Smith, in her capacity as executrix, filed a federal estate tax return reporting a date of death value of approximately $13.00 per share. On August 8, 1977, some twenty months after her husband’s death, these shares were sold at a price of $47.50 per share. On April 14, 1978, the executrix filed a federal income tax return on behalf of the estate, asserting that the $13.00 per share valuation was erroneous and that since the correct value should have been $47.50 per share, no gain had been realized on the sale. The beneficiaries of the residuary trust then petitioned the Common Pleas Court of Montgomery County, where the estate was being administered, to remove Mrs. Smith as executrix because of a conflict of interest. The court found that Mrs. Smith had a “deep and personal financial interest in seeing that a high valuation be settled on this stock.” If the value placed on the stock were low, a substantial capital gains tax would be paid by the estate, thereby reducing the estate’s net assets and, consequently, her share. On the other hand, if the value as of the date of death were high, the resulting increased estate tax would be paid solely by the residuary trust. The Common Pleas Court accordingly relieved Mrs. Smith, as executrix, of her responsibility for determining the estate’s taxes for the year 1977. For that limited purpose, George J. Hauptfuhrer, Jr. was appointed administrator pro tern. Hauptfuhrer promptly wrote to counsel for Mrs. Smith and the residuary beneficiaries and requested information about the value of the stock. At his request, Kidder, Peabody & Company, Inc. appraised the stock and concluded that the date of death value was between $26.00 and $29.00 per share. Hauptfuhrer also arranged to have counsel for all parties join him in a conference before the Internal Revenue Service Appeals Officer. In September 1979, the Commissioner of Internal Revenue issued a notice of estate tax deficiency of $27,360,399.40 based upon a valuation of the Kewanee stock at $44.10 per share. The administrator filed a petition in the Tax Court seeking a redetermination of the deficiency. Six weeks later Mrs. Smith moved to intervene, arguing that every dollar of difference in valuation would affect her to the extent of $500,000.00. The difference between the Kidder appraisal of $29.00 and her figure of $47.50 would therefore mean a loss of over $9,000,000.00. She alleged inadequate representation in the Tax Court because neither the administrator pro tem nor the Commissioner had any substantial interest in advocating her cause. With respect to the Commissioner’s position, she argued that what was not paid in estate tax would be exacted as income tax, and that the government would receive the same amount in either case. Mrs. Smith also asserted that the administrator had taken the position that the stock was worth $26.00 to $29.00 per share and had all but agreed to a settlement at an undisclosed figure when the petition to intervene was filed. Furthermore, she contended that the administrator could not urge her position without sacrificing the interest of the beneficiaries of the residuary trust. The administrator and the Commissioner both opposed the intervention. In a bench opinion, a special trial judge denied intervention, finding that neither party’s interest was adverse to Mrs. Smith’s and that she was adequately represented. In support of this conclusion, he stated that the Commissioner would seek a high valuation in order to maximize estate tax liability, and in that way promote Mrs. Smith’s interest. He added that the administrator was an independent party, interested only in performing his duty of fairly evaluating the stock. Moreover, the special trial judge felt that allowing intervention would circumvent the state court’s order that the administrator fairly represent the interests of all beneficiaries. Mrs. Smith appeals. The Commissioner and administrator contend that the order below is not a “decision” of the Tax Court under 26 U.S.C. § 7482(a) (1976). The jurisdictional issue has two facets. As originally briefed and argued, the Commissioner and administrator challenged the order as being interlocutory and not a decision within the meaning of § 7482(a) because it did not dismiss the proceeding or determine the existence or absence of a deficiency. During oral argument, we raised a second issue bearing on the powers of a special trial judge and the jurisdictional effect to be given his order. At our request, the parties later submitted comments on the question. Under 26 U.S.C. § 7482(a), a court of appeals has “exclusive jurisdiction to review the decisions of the Tax Court ... in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” Just what constitutes a “decision” for jurisdictional purposes is not defined by that section. However, in 26 U.S.C. § 7459(c) (1976), which addresses the “date of decision,” there are references to certain orders of the Tax Court. In Commissioner v. S. Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955), we said a reading of § 7482(a) and § 7459(c) together led to the conclusion that, “normally at least,” the word “decision” refers to two kinds of judicial actions by the Tax Court— one, dismissing the petition before it or, two, formally determining the existence or absence of a deficiency. We found appealable in Frieder a Tax Court order declining jurisdiction over an asserted deficiency in the Commissioner’s answer to a petition for redetermination of excess profits tax liability. This interpretation of the statute differed from the very restrictive approach of the Court of Appeals for the First Circuit in Commissioner v. Smith Paper, Inc., 222 F.2d 126 (1st Cir. 1955). As Judge Hastie put it, the order “had great substantive effect, limiting the proceedings to the extent of denying its essential nature. Such action merits characterization as a ‘decision’ for purposes of our appellate jurisdiction.” 228 F.2d at 482; accord, Commissioner v. Seminole Manufacturing Co., 233 F.2d 395 (5th Cir. 1956). The Commissioner maintains that Frieder is consistent with the rule he advocates, that § 7459(c) gives content to § 7482(a) and, absent an independent statutory grant of authority, appellate jurisdiction is limited to determinations of deficiencies and dismissals for lack of jurisdiction. A similar argument was presented in Louisville Builders Supply Co. v. Commissioner, 294 F.2d 333 (6th Cir. 1961), and rejected. In that case the court heard an appeal from a Tax Court order permitting the Commissioner to depose a witness. No petition for redetermination of tax or notice of tax deficiency had been filed. Finding that it had jurisdiction, the court of appeals noted that the order was not interlocutory and that a contrary ruling would result in the Tax Court having made a final, nonreviewable decision, a power not expressly granted by Congress. Louisville Builders cited United States v. California Eastern Line, Inc., 348 U.S. 351, 75 S.Ct. 419, 99 L.Ed. 383 (1955), where the Supreme Court concluded that a court of appeals had jurisdiction to review Tax Court renegotiation orders. In discussing the statutory antecedent of § 7482(a), Justice Black wrote, “The language of [that section] is broad enough to justify review .... And we cannot say that because the section was originally passed primarily to authorize review of decisions on revenue matters it should be held inapplicable to decisions on other justiciable matters entrusted to the Tax Court by Congress.” 384 U.S. at 353-54, 75 S.Ct. at 420-421. Louisville Builders relied on this more generous interpretation of appellate jurisdiction in its rejection of the position urged by the Commissioner. Two years after it decided Louisville Builders, the Sixth Circuit explained that case as holding that “some orders of the Tax Court made under certain unusual circumstances, are reviewable . . . even though they do not fall within the provisions of Section 7459(c).” Licavoli v. Commissioner, 318 F.2d 281, 282 (6th Cir. 1963). But in order to be reviewable, the order must not be an interlocutory one. The court emphasized the importance of the fact in Louisville Builders that “[i]f not reviewable when made, [the order] could never be reviewed.” Id. Accordingly, it had the finality required to be reviewable. Although Commissioner v. Smith Paper, Inc., supra, still retains some viability, see, e. g., W. W. Windle Co. v. Commissioner, 550 F.2d 43 (1st Cir.), cert. denied, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977), many of the cases which cite it, in reality, address interlocutory and not final orders. E. g., Licavoli v. Commissioner, supra. No satisfactory reasoning has emerged in the Smith line of cases to explain why its restrictive approach to appealability is required by statute or by policy. The Smith philosophy runs counter to the general rule favoring reviewability of final agency action, see 5 U.S.C. § 702 (1976), and the Supreme Court’s expansive attitude in deciding in favor of reviewability of the Tax Court’s decision in United States v. California Eastern Line, Inc., supra. For sound reasons a similar posture should be employed here. Unquestionably an order of the Tax Court denying intervention to Mrs. Smith would be final. Nothing further would remain to be done on her petition and recourse, if any, would be through appeal. In a district court proceeding a similar matter would be ripe for appellate review, as a final order, McClune v. Shamah, 593 F.2d 482 (3d Cir. 1979), and we conclude that a Tax Court order denying intervention is a “decision” for the purposes of appellate jurisdiction. We must next consider whether the order of the special trial judge is an order of the Tax Court. Under 26 U.S.C. § 7456(c) (Supp. II 1978), the Chief Judge of the Tax Court may appoint commissioners (later denominated special trial judges) who proceed under rules and regulations of the court. The statute specifically authorizes the assignment of declaratory judgment proceedings arising under §§ 7428 (tax exempt status of certain entities), 7476 (qualification of retirement plans), 7477 (transfer of property from the United States), and 7478 (status of certain governmental obligations) to commissioners. Further, “the court may authorize a commissioner to make the decision of the court with respect to such proceedings, subject to such condition and review as the court may by rule provide.” 26 U.S.C. § 7456(c) (Supp. II 1978). Another section enables the Chief Judge to delegate the responsibility for rendering the decision of the court in disputes involving $5,000.00 or less to a special trial judge. 26 U.S.C. § 7463(g) (Supp. II 1978). By rule the Tax Court has chosen, however, to limit these delegations by requiring that before the decision of the special trial judge is filed, it must be submitted to and approved by the Chief Judge or another judge of the court. Tax Court Rules 183, 218, 230. The Tax Court has also provided by rule that the Chief Judge may designate a special trial judge “to deal with any matter pending before the Court in accordance with these Rules and such directions as may be prescribed by the Chief Judge.” Tax Court Rule 180. The powers and duties of a special trial judge are more fully described in Rule 181, authorizing him to regulate all proceedings before him including “hearings on motions,” and “do[ing] all acts and tak[ing] all measures necessary or proper for the efficient performance of his duties.” He is empowered to issue subpoenas, place witnesses under oath and examine them, and rule upon admissibility of evidence. He is given incidental authority for the conduct of trial or other proceedings. In cases tried before a special trial judge, Rule 182 states that, unless otherwise provided, he shall file a report which includes findings of fact and an opinion. The parties may file exceptions with the court and request oral argument. The division of the Tax Court to which the case is assigned may then adopt, modify, or reject the report. The rules make no formal provision for appeals from a special trial judge to the division or to a judge of the Tax Court in the event of a ruling which is final, but occurs before the ultimate disposition of the case. The appellant has advised us, however, that the clerk of the Tax Court as a matter of practice accepts petitions for this purpose. Thus, although not specifically provided by the rules, review by the Tax Court of a ruling by a special trial judge denying intervention is, in practice, available through petition. In an order dated December 19, 1979, the Chief Judge of the Tax Court assigned a special trial judge, Francis J. Cantrel, to certain cases “for the purpose of conducting the hearing and ruling on the interlocutory matters with respect to each said case.” Nothing in the designation purports to make an order of the special trial judge that of the Tax Court, nor is there any direction for review of his orders by a judge or division of the court. The limited scope of the order assigning cases to special trial judge Cantrel contrasts with the designations in other situations. In assigning cases that Congress has said may finally be decided by special trial judges, the extent of the special trial judge’s power has been explicitly defined. For example, in assigning cases with $5,000.00 or less in controversy, pursuant to 26 U.S.C. § 7463(g), the Chief Judge has clearly conferred authority on the special trial judge “to make the decision of this Court.” General Order No. 7, Nov. 9, 1978, 71 T.C. at IV; cf. General Order No. 6, March 8, 1978, 69 T.C. at XV-XVI (unreviewed opinion of special trial judge does not constitute opinion of Tax Court). Even if the Chief Judge had purported to extend such authority in the case at hand, it is questionable whether he could have done so within the power granted by the statute. The Tax Court itself is purely a creature of statute and has only the power given to it by Congress. Burns, Stix Friedman & Co. v. Commissioner, 57 T.C. 392, 396 (1971). The designation of the special trial judge to hear matters in the case at hand was not within the statute’s provisions authorizing the Chief Judge to delegate responsibility to the special trial judge “to make the decision of the court”— §§ 7428, 7463, 7476, 7477, and 7478. Although special trial judges were obviously intended to assist the Tax Court in the disposition of its work, we find no indication that Congress intended to give the Chief Judge carte blanche to designate persons and confer on them all the authority given by the statute to duly appointed Tax Court judges. As we see it, the special trial judge acts in a capacity not dissimilar to that of a magistrate in district court. In statutorily limiting the magistrate’s authority, Congress has explicitly set forth the conditions under which a magistrate’s order may be directly appealed to a court of appeals. 28 U.S.C. § 636(c)(3) (Supp. Ill 1979). In all other circumstances the magistrate’s work is first reviewed by a district judge. 18 U.S.C. § 3402 (1976); 28 U.S.C. § 636(b)(1), (c)(4) (1976 & Supp. Ill 1979). In the absence of authorization from Congress, we must assume that a similar procedure was intended for the Tax Court. The appellant urges us to decide the appeal on the merits so that the controversy may be concluded expeditiously. We understand and are sympathetic to her concerns, but we are not free either to avoid the statutory limitation on our jurisdiction or to ignore the institutional requirement of exhaustion of remedies below. The judges of the Tax Court should be given the first opportunity to correct alleged errors of the special trial judge, and thus alleviate our already overburdened docket. We conclude that in the circumstances here the special trial judge was not authorized to issue an order that would constitute a “decision” of the Tax Court. Accordingly, the appeal will be dismissed without prejudice to appellant’s right to resort to this court after her contentions have been reviewed by the Tax Court. . Int.Rev.Code of 1939, ch. 5, § 1141(a), 53 Stat. 164. . Tax Court Rule 3(d) provides: “The term Special Trial Judge . . . refers to a Commissioner of the Court appointed pursuant to Section 7456(c) of the Code.” 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_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of TWENTY-ONE RETIRED EMPLOYEES, Appellants in No. 73-1081. Appeal of David C. BEVAN, Appellant in No. 73-1098. Appeal of Alfred E. PERLMAN, Appellant in No. 73-1204. Appeal of Stuart T. SAUNDERS, Appellant in No. 73-1205. Appeal of Arthur E. BAYLIS et al., Appellants in No. 73-1206. Appeal of Allen J. GREENOUGH, Appellant in Nos. 73-1207 and 73-1208. Nos. 73-1081, 73-1098, and 73-1204 to 73-1208. United States Court of Appeals, Third Circuit. Argued May 14, 1973. Decided Aug. 21, 1973. Theodore R. Mann, Barry E. Ungar, Mann & Ungar, Philadelphia, Pa., for appellants, Twenty-one Retired Employees. Joseph W. Swain, Jr., Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellant, James M. Symes. James M. Marsh, LaBrum & Doak, Philadelphia, Pa., for appellant, David C. Bevan. Thomas B. Rutter, Philadelphia, Pa., for appellant, Alfred E. Perlman. Bennett G. Picker, Steven R. Waxman, Bolger & Picker, Philadelphia, Pa., for appellant, Stuart T. Saunders. George M. Kevlin, Henry M. Irwin, Kevlin & Irwin, Philadelphia, Pa., for appellants, Arthur E. Baylis, and others. Jacob I. Goodstein, Goodstein, Zamore, Mehlman & Krones, New York City, for appellant, Arthur J. Greenough. Robert W. Blanchette, Marvin Comis-ky, Goncer M. Krestal, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., for appellees, Trustees of Property of Penn Central Transportation Co., Debtor. Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. We here consider consolidated appeals from two orders, Nos. 1087 and 1088 of the Penn Central reorganization court, which deal with the continuation of payments to former Penn Central executives pursuant to several retirement programs. The district court’s opinion on these orders is reported. In the Matter of Penn Central Transportation Company, Debtor, 354 F.Supp. 408 (E.D. Pa.1973). Twenty-eight retired Penn Central employees have appealed. The appeals present as issues: (1) common to all appellants, the propriety of the district court’s conclusion that assets held in Penn Central’s Contingent Compensation Plan (CCP) became, on the filing of the petition for reorganization, property of the trustees in reorganization, leaving appellants as creditors holding unsecured claims for deferred compensation ; (2) common to six appellants, the propriety of the district court’s ruling that the reorganization court would continue payments under the Contingent Compensation Plan as expenses of operation of the reorganization, but with a limitation that total pension payments from the Penn Central Plan for Supplemental Pensions and Penn Central unfunded retirement programs, including the Contingent Compensation Plan, would not exceed $50,000 a year to any former employee; and (3) in the case of Symes, the application of the $50,000-a-year limitation not only to his claim under the Contingent Compensation Plan, but also to his claim under a $10,000-a-year special pension awarded to him by the Penn Central Board of Directors on October 23, 1968. Mr. Symes’ case will be dealt with separately hereinafter. The Contingent Compensation Plan was established by the Board of Directors of the former Pennsylvania Railroad in 1952, was continued after the 1968 merger with New York Central, and was amended, unilaterally, by the Board of Directors from time to time thereafter. When cash salary increases were granted to union employees or to non-union employees not included in the CCP, the qualifying participants were awarded comparable adjustments in compensation, but not in cash. Qualifying participants included employees earning $30,000 or more a year. In its preamble the CCP contains this general description: “As more fully described below, the Board of Directors, from time to time, may allot to any employe an amount representing contingent compensation subject to the terms and conditions set forth herein. At the discretion of the Board an amount equivalent to such allotment, or any part thereof, may be transferred to a reserve fund and invested; and to the extent of such transfer, the payments to a participant shall be measured by the value of the reserve fund. However, the assets held in the reserve fund will at all times be available for any corporate purpose. After retirement the compensation contingently allotted to a qualifying employe will be paid to him in installments, subject to certain conditions. In the event of death, before or after retirement, payments will be made to the employe’s beneficiary.” During the life of the CCP 164 employees were designated by a committee of the Board of Directors as qualifying participants. From 1952, when it was adopted, until June 21, 1970, when by Board action it was terminated, salary increases to the qualifying participants were made in the form of allotments to the CCP. The plan provided for periodic transfer of the allotments to a reserve fund for investment. The extent of such transfer payments to a participant would be measured by the value of the reserve fund. The participant’s allotment units would be paid out after his retirement in annual installments, the amount of an installment being determined by reference to the value of his allotment units on the valuation date preceding the date of payment. The CCP contained forfeiture provisions applicable both before and after retirement. With respect to the reserve fund the CCP provided in relevant parts: “Section 401. The Board may authorize the establishment at any time of a Contingent Compensation Reserve Fund, hereinafter called the Fund. The Fund shall not be a trust' fund and the assets therein shall be available at all times for any corporate purpose of the Company. A participant shall have no right in or to any funds or property which may be held in the Fund. - * -X- * * Section 1201. No participant nor any other person shall have any interest in any fund or in any specific asset or assets of the Company by reason of amounts contingently allotted to him, nor any right to receive any distribution under the Plan except as and to the extent expressly provided in the Plan .... Section 1401. . . . No consent of any participant shall be required, however, in connection with any amendment, suspension or termination of the Contingent Compensation Reserve Fund, which shall remain subject at all times to the unrestricted control of the Company.” From time to time Penn Central distributed to qualifying employees descriptive summaries of the CCP. Typical of the relevant language of such summaries is the description from the one dated October 1, 1969: “Either the contingent allotments or the Fund may be discontinued at any time at the discretion of the Board, however, in either instance employes’ rights remain whole for the period prior to such termination date. * * * * -x- # The assets of the Contingent Compensation Reserve Fund remain assets of the Penn Central Transportation Company and subject to the rights of all creditors of the Company. No participant has any right to receive payments at any other times or in any other amounts than as provided by the Plan.” When, shortly before the filing of the petition for reorganization, the Penn Central directors terminated the CCP, the Contingent Compensation Reserve Fund contained in excess of $8.6 million. Of this sum, a substantial amount represented appreciation in the fund investments over the initial allotments made on account of the participants’ services. Further appreciation took place after the filing of the petition for reorganization, so that when the district court made the rulings appealed from the Fund was valued at over $10 million. Originally the trustees petitioned the reorganization court for authorization to disaffirm all obligations' under the CCP and to expend the entire Contingent Compensation Reserve Fund for general railroad purposes. Thereafter, recognizing that such a result could adversely affect the morale of those qualifying participants who were still employed by the railroad, the trustees filed a revised petition seeking approval of a proposed settlement with the CCP claimants. Under this proposed settlement, $2.6 million of the Fund balance would be placed in a reserve fund managed by an independent financial advisor and would be distributed to the participants in proportion to their allotment units, but with the value fixed at the amounts actually allotted but not yet received, or at the value of the pro rata shares of the Fund as of December 31, 1970, whichever was less, and all subject to a $50,000 limitation per person per year. The proposed settlement had other features which need not be alluded to because for a number of reasons the offer was withdrawn, and the matter proceeded to hearing on a revised trustees’ proposal. That proposal was to liquidate the entire Fund, to use the entire Fund for operating expenses, but to pay the participants, as an administration expense, as cash permitted, the amounts proposed in the earlier settlement proposal. The trustees contemplated that such an undertaking by them would be conditioned upon the relinquishment by the participants of any rights to receive payments beyond their actual allotments (or their share in the Fund valued as of December 31,1970, if that was lower). The district court did not go so far as the trustees proposed. The court’s conclusions here challenged were: “3. Participants in the Contingent Compensation Plan have no legal or equitable interest in or claim to the assets in the Contingent Compensation Reserve Fund. Each participant in the Contingent Compensation Plan has a valid claim for the full amount to which he is entitled under the terms of the Plan, but the Trustees should be authorized and directed to recognize such claims during reorganization only to the extent represented by the formula proposed by the Trustees in settlement (i. e., reimbursement of accrued allotments, or pro rata share of the Fund as of December 31, 1970, whichever was less); and such claims should be paid during reorganization only as cash permits. Unless and until otherwise ordered by this Court, the Trustees should set aside and reserve the sum of $2.6 million in order to meet these payments. 4. During reorganization, the Trustees should make no payments from the estate of the Debtor (whether by reason of unfunded retirement programs, or the Contingent Compensation Plan) where the effect of such payment would be that the aggregate amount received by a retired employee from all sources related to the Debtor (i. e., the Plan for Supplemental Pensions, unfunded retirement programs, and the Contingent Compensation Plan) would exceed $50,000 per an-num.” 354 F.Supp. at 419. This disposition of the Fund was implemented by Order No. 1088, and a stay was denied both by the district court and by this court. All but $2.6 million has now been expended for general railroad purposes. While Order No. 1088 provides that this sum be invested as a reserve to meet the payments to participants contemplated by the decision, it also provides: “Said reserve shall remain the property of the Trustees; establishment and maintenance of said reserve shall not give rise to any legal or equitable interest or claim therein on behalf of any participant.” Summarizing, then, the orders appealed from (1) relegated qualifying participants in the CCP to the status of unsecured creditors, to be dealt with in the plan of reorganization in some as yet undetermined manner, (2) authorized the trustees to treat the participants’ claims as in the nature of unfunded pension liabilities and to pay these, in reduced amounts, as current operating expenses, and (3) set aside from the $10 million Contingent Compensation Reserve Fund $2.6 million as a reserve from which to meet those operating expenses. The reserve was recognized to be a matter of grace, however, and subject to reconsideration by the reorganization court. It is common ground between the appellants and the trustee-appellees that in a railroad reorganization, some payment on account of unfunded pension liabilities by the trustees are properly treated as necessary and usual operating expenses and as a cost of doing business. In Tate v. New York, New Haven & Hartford R. R., 332 F.2d 449 (2d Cir. 1964), the Second Circuit justified such payments as necessary to preserve the morale of present and future employees. In Bowen v. Hockley, 71 F.2d 781, 785-786 (4th Cir. 1934), the practice was justified on the ground that the pensioners’ past services helped to create and preserve the estate being administered. Apparently payment of unfunded pension liabilities during a railroad reorganization is a recognized tradition in the industry. See Myers, Financial Impact of Pension Costs on the Railroad Industry, 7 Lab.L.J. 265, 266 (1956). Compare In re Compania De Los Ferrocarriles De Puerto Rico, 76 F.Supp. 521 (D.P.R.1948); cf. Alpert v. New York, New Haven & Hartford R. R., 348 F.2d 304 (2d Cir. 1965) (distinguishing deferred compensation contracts from pensions). This court has not explicitly ruled on the practice. Since no party to this appeal challenges it, we accept it, for present purposes, as a governing rule. Nor do we reach in this case any issue as to the ultimate priority, if any, to which the CCP claimants may be entitled in a reorganization plan. This appeal deals only with the district court’s rejection of appellants’ contentions as to their present rights in the Contingent Compensation Reserve Fund. These contentions are: (1) that the CCP should be regarded as a funded rather than as an unfunded pension plan, (or as the trustees prefer, deferred compensation plan) and that the trustees have no interest in the Fund; (2) that at least as to those participants who retired prior to termination of the CCP, their claims should be treated as vested and secured; (3) that the reduction in benefits resulting from the refusal of the court to give effect to appreciation in the Fund beyond the original allotments is inconsistent with the practice, referred to above, of recognizing pension liabilities during a railroad reorganization ; and (4) that the $50,000 per annum ceiling on pension payments during reorganization is discriminatory and improper. In support of their contention that the CCP should be regarded as a funded rather than an unfunded pension plan, appellants argue that the Contingent Compensation Reserve Fund was a trust, express, constructive, or resulting. The Plan provisions quoted above, the Plan as a whole, and all the documents in the record referring to it negate any intention on the part of the Pennsylvania or Penn Central Directors to create an express trust. See Restatement (Second) of Trusts § 2 (1959). Since there was neither an express trust which failed nor a transfer of property paid for by another, there could be no resulting trust. Restatement (Second) of Trusts, chapter 12 (1959). Had the Fund, while held by Penn Central, been held in a trust capacity, there would be room for argument that the reorganization trustees became constructive trustees. Restatement óf Restitution § 160 (1937). But where, as here, the Plan made clear that the Fund was held as a part of the company’s general assets, subject at all times to its use and disposition, and subject to the claims of its creditors, there is no basis from which a constructive trust could be implied. The CCP was, as the district court found, nothing more than an executory contract calling for compensation after retirement. Nor can any distinction be made between those participants retired prior to termination of the CCP and those still employed thereafter. The Plan itself makes no such distinction. Even the amount to be paid remains uncertain until the valuation date immediately prior to . the payment. Moreover, the benefits remain forfeitable even after retirement if the retiree does not refrain from activities adversely affecting the company’s best interests. Compare the Plan with Retirement Board v. McGovern, 316 Pa. 161, 174 A. 400 (1934). But in any event, appellants’ argument that their rights “vested” upon retirement is entirely beside the point. Their rights may well be “vested”; they are nevertheless unsecured. The issue remains: how should “vested” ex-ecutory contract pension rights be treated during a railroad reorganization. Accepting, as have the parties, the general principle that some payments of unfunded pension liabilities are a practical necessity if a railroad is to be successfully operated in reorganization, it does not follow that in applying the principle the reorganization court must enforce each executory pension contract exactly in accordance with its terms. We are dealing with the powers of a court of equity to deal practically with the ongoing problems of employee morale, retention and recruitment. Even looked upon as an equitable recognition of the contributions made to the creation and preservation of the estate, the practice does not necessitate confining the court to the straight jacket of the underlying contract. Indeed, one can envisage a situation where recognizing the exact terms of an unfunded pension contract might both have an adverse effect upon morale of present and future employees and be inconsistent with any contribution made to the debt- or’s estate. Accepting the principle of some payment of unfunded pension liabilities, no more is required than a responsible exercise of equitable discretion. We find no abuse of discretion in Order No. 1087. What we have said about the court’s equitable discretion with respect to the treatment of payments based upon appreciation in the Contingent Compensation Reserve Fund applies as well to the $50,000-a-year limit. The district court found as a fact that this level of pension would afford each of the participants a decent living standard. We will not second guess his well-considered judgment that no more was appropriate during the pendency of the reorganization. Finally, there is the separate contention of appellant Symes that the court erred in refusing to continue payment, during reorganization, of a special pension of $10,000 a year voted by the Board of Directors on October 23, 1968. Order No. 1087 makes no final disposition of Mr. Symes’ claim on this special arrangement, but it is subject to the overall limitation of $50,000 a year, and Mr. Symes’ pensions from other Penn Central sources exceed this amount. For purposes of payment during reorganization, nothing distinguishes the October 23, 1968 unfunded pension contract from the other unfunded pension contracts dealt with in Order No. 1087. We emphasize that because the parties agree that some payments on unfunded pension liabilities during a railroad reorganization are at least proper, this opinion has not dealt definitively with questions of the extent of or the limitations upon the reorganization court’s power in this respect. We also emphasize that the orders appealed from do not determine how the appellants’ claims should be dealt with in a plan of reorganization or a liquidation. Orders No. 1087 and 1088 will be affirmed. . Symes, Greenough, Bevan, Saunders, Smueker and Perlman. . The Plan for Supplemental Pensions is a funded retirement plan. Order No. .278 held that the trustees had no interest in the fund. Order No. 1087 authorizes the trustees to continue the Plan in existence, making the necessary employer contributions. There is no appeal from this feature of Order No. 1087. . These include two supplementary benefit arrangements of the New York Central, and the New I-Iaven pension plan which Penn Central assumed in the 1968 merger, an Interim or Early Retirement Plan designed to encourage attrition of the labor force, and additional pension benefits for prior service at other railroads. Order No. 1087 authorizes the trustees to continue these plans in effect and to make all payments necessary to implement them. There is no appeal from this feature of Order No. 1087. 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_r_stid	14	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant-Appellee. No. 84-2405. United States Court of Appeals, Seventh Circuit. Argued Sept. 6, 1984. Decided Sept. 26, 1984. Rehearing Denied Nov. 30,1984. William B. Reynolds, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., for plaintiff-appellant. Robert C. Howard, Hartunian, Futterman & Howard, Chtd., Chicago, 111., for defendant-appellee. Before CUMMINGS, Chief Judge, and WOOD and FLAUM, Circuit Judges. FLAUM, Circuit Judge. This case comes before us for the second time on appeal from an order of the district court interpreting and enforcing a consent decree that was executed by the United States and the Board of Education of Chicago (“Board”). For the reasons set forth below, we vacate the order and remand this case for an evidentiary hearing. I. FACTS A. Events Prior to the First Appeal As we explained in our first opinion, see United States v. Board of Education of Chicago, 717 F.2d 378 (7th Cir.1983), this case arises from a complaint that the United States filed against the Board on September 24, 1980, charging that Chicago’s public school system was racially segregated in violation of the fourteenth amendment and titles IV and VI of the Civil Rights Act of 1964. On the same day, the parties filed a previously-negotiated consent decree (“Decree”) in which they agreed that the Board would develop and implement a system-wide plan to remedy the effects of past segregation on black and Hispanic students in Chicago schools. Beginning in 1981, the Board developed and implemented a desegregation plan, which was later approved by the district court. See United States v. Board of Education of Chicago, 554 F.Supp. 912 (N.D.Ill.1983). On May 31, 1983, the Board petitioned for an order directing the United States to comply with ¶ 15.1 of the Decree, which provides that [e]ach party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan. After five days of hearings, the district court entered an order on June 30, 1983 (“1983 Order”), finding that the United States had violated H 15.1 by failing to provide adequate desegregation funding, by taking no affirmative steps to find and provide such funding, and by taking affirmative steps to minimize and eliminate available sources of funding. See United States v. Board of Education of Chicago, 567 F.Supp. 272, 286-87 (N.D.Ill.1983). The court held that under the plain meaning of ¶ 15.1, and also because the government actively worked to make funds unavailable, the United States was “obligated to take every affirmative step within its legal authority to find and provide adequate financing for the plan.” Id. at 283 (Conclusion of Law No. 7). According to the district court, this obligation required the United States to provide presently available funds, to find every available source of funds, to support specific legislative initiatives to meet the obligations of the Board, and “not [to] fail[] to seek appropriations that could be used for desegregation assistance to the Board.” Id. (Conclusion of Law No. 9). The court decided that, at a minimum, the United States was to provide the portion of funding adequate for full implementation of the desegregation plan that the Board could not provide, to the extent such funding was available to or could be made available by the United States. Id. at 287-88. For the 1983-84 school year, the district court found that this obligation was not less than $14.6 million, and the court enjoined the United States from spending or obligating certain funds in several of the Department of Education’s monetary accounts so as to insure that these funds would remain available pending the final resolution of the case. B. The First Appeal The United States appealed the' 1983 Order, arguing that ¶ 15.1 merely required it to make a good faith effort to assist the Board in locating and applying for funds that had been earmarked by Congress for school districts undergoing desegregation. In an opinion issued on September 9, 1983, this court rejected the government’s argument; we interpreted ¶ 15.1 as requiring the United States to do more than assist the Board in locating and applying for federal funds and as imposing “a substantial obligation on the government to provide available funds to the Board.” United States v. Board of Education of Chicago, 717 F.2d at 383. After considering the findings and conclusions of the district court, we refused to decide whether the United States violated ¶ 15.1 of the Decree by taking such policy-oriented steps as requesting Congress to reduce or rescind appropriations for certain programs, supporting legislation that replaced direct grant programs with federal block grants, and supporting the dismantling of the Department of Education. Instead, we held that the United States violated ¶ 15.1 by failing to provide available funds to the Board, and we specifically referred to funds from the Department of Education’s Title IY account and Discretionary Fund. Id. & n. 8. With regard to the issue of remedies, this court found that “the district court acted with excessive dispatch in delineating specific remedies immediately after finding a violation of ¶ 15.1.” Id. at 384. We held that “the district court should provide the Department [of Education] an opportunity to fashion its proposed remedy for past noncompliance, as well as a chance to show that it intends to comply in the future, before structuring detailed remedial action that may still be necessary.” Id. at 385. Accordingly, we vacated all remedies, affirmed the temporary injunction against government use of certain funds so as to preserve the status quo, and remanded the case to the district court. C. Events Subsequent to the First Appeal 1. Congressional Activities On September 21, 1983, United States Representative Sydney Yates proposed the following legislation: There is hereby appropriated $20,000,000 to be derived by transfer from funds available for obligation in fiscal year 1983 in the appropriation for “Guaranteed Student Loans,” to remain available for obligation until September 30, 1984, to enable the Secretary of Education to comply with the Consent Decree entered in United States District Court in the case of the United States of America against the Board of Education for the City of Chicago (80 C 5124) on September 24, 1980. This provision (“the Yates Bill”) was incorporated by Congress into H.J. Res. 368, a continuing resolution to provide temporary funding for several federal departments in fiscal year 1984. The President signed H.J. Res. 368 into law on October 1, 1983. Three days later, on October 4, United States Senator Lowell Weicker proposed an amendment to the Yates Bill (“the Weicker Amendment”), which was adopted by Congress on October 31, 1983, in the following form: No funds appropriated in any act to the Department of Education for fiscal years 1983 and 1984 shall be withheld from distribution to grantees because of the provision of the order entered by U.S. District Court for Northern District of Illinois on June 30, 1983: Provided, that the Court’s decree entered on September 24, 1980 shall remain in full force and effect. In response to a motion that the Board submitted after the enactment of the Yates Bill, the district court ruled, on October 5, that as soon as the Secretary of Education obligated to the Board the $20 million allocated by the Yates Bill, the government would be permitted to use $15.66 million in the Department of Education accounts that remained temporarily frozen. On the same day, the United States moved the district court to vacate its 1983 Order and to declare that the $20 million allocated to the Board under the Yates Bill brought the United States into compliance with the Decree. The government renewed this motion on November 10, arguing that in light of the Yates Bill and the Weicker Amendment, no funds beyond the appropriated $20 million were available to the Board for fiscal years 1983 and 1984. The district court denied the government’s motion on November 21, 1983. 2. Activities on Remand At a status hearing on October 5, 1983, the district court decided that an evidentiary hearing, which originally had been scheduled for August 10, 1983, was still needed to determine the level of funding that the Board required in order to implement its desegregation plan. See Transcript of October 5, 1983, at 13-14. The government contended that the hearing exceeded our remand instructions to the extent that the hearing was to establish the Board’s needs and the government’s obligations beyond the $20 million allocated by the Yates Bill. See id. at 23; United States’ Pre-Trial Brief on Remand Proceeding, dated March 13, 1984. From October 1983 to March 1984, the parties submitted numerous filings in preparation for the hearing, which began on March 23, 1984, and continued for nine days. Witnesses for the Board testified about the programs that the Board had developed under its desegregation plan, the costs of these programs, and the sources of program funding. In addition, the Board presented evidence of lobbying activity undertaken by the Executive Branch with regard to the Yates Bill and the Weicker Amendment. The United States called only one witness, who discussed the use of federal Title I funds for desegregation expenses. On June 8, 1984, the district court issued an extensive opinion (“1984 Opinion”) in which it reviewed the evidence presented during the hearing. 588 F.Supp. 132. The court found from this evidence that most of the programs under the Board’s desegregation plan materially aid the successful implementation of the plan and that the costs of these programs are reasonable under the circumstances. See 1984 Findings of Fact Nos. 210-59. Furthermore, the court found that the level of funding adequate for full implementation of the desegregation plan in the 1984-85 school year is approximately $171,631 million. 1984 Finding of Fact No. 265. Of this amount, the court determined that the Board will not be able to fund $103,858 million, despite the Board’s best efforts to do so. Incorporating its 1983 ruling that ¶ 15.1 requires the United States to provide the portion of funding adequate for full implementation of the desegregation plan that the Board cannot provide, see 1984 Conclusions of Law Nos. 6-8, the district court decided that the “share ... the United States is obligated to make every good faith effort to find and provide pursuant to [¶] 15.1 is $103,858 million.” 1984 Conclusion of Law No. 38. Addressing the actions of the United States since the issuance of the 1983 Order, the district court found that the government acted in bad faith by failing to provide funds to the Board,^by failing to request congressional appropriations for the Board, by deciding not to reprogram available funds for use by the Board, by deciding not to provide direct grants to local educational agencies for purposes of desegregation, by attempting to make funds unavailable through congressional lobbying efforts during passage of the Yates Bill and the Weicker Amendment, by redrafting administrative regulations regarding the Secretary of Education’s Discretionary Fund, and by submitting a plan for supporting the Board’s desegregation efforts which, according to the court, “contained no adequate suggestions ... for providing further funding.” See 1984 Conclusions of Law Nos. 120-21, 123-26. The court ruled that, viewed either alone or in the circumstances of the government’s bad faith, “[¶] 15.1 (as a matter of construction) requires the Executive Branch promptly to undertake some combination of ... lobbying activities to the extent necessary to assure financing adequate for implementation of the [desegregation] [p]lan.” 1984 Conclusion of Law No. 142. Such activities include requesting appropriations from Congress and opposing contrary legislative initiatives. After allowing the United States time to respond to its opinion, the district court issued an order on August 13, 1984 (“1984 Remedial Order”), declaring that, “in light of the [ ] present circumstances, the United States has an unconditional obligation to provide Board with $103.858 million for implementation of the [desegregation] [p]lan in school year 1984-85.” 1984 Remedial Order at 9. The court further ordered that, in the event the United States failed to provide the funds by August 22, 1984, the United States was permanently enjoined to take all necessary steps to obligate for the use of the Board $17 million in the 1984 Discretionary Fund and $11.775 million in the 1984 Title IV account. Id. at 11-12. Furthermore, the court declared that the United States must formulate an affirmative program each year to assure that up to $103.858 million is placed in an escrow account. Such a program would consist of the identification of available funds, recommendations to Congress, and lobbying activities. Id. at 12-15. The government now appeals the district court’s 1984 Opinion and 1984 Remedial Order, and it advances two arguments. First, the United States contends that the district court erred in interpreting ¶ 15.1 as requiring the Executive Branch to engage in legislative activity, to make up the difference between the funds necessary for implementing the desegregation plan and the funds that the Board has budgeted for this purpose, and to award Title IV funds and Discretionary Funds to the Board without regard to other grantees. Second, the government maintains that if the district court’s interpretation of ¶ 15.1 is correct, the Decree is unenforceable because it violates the constitutional doctrine of separation of powers. According to the government, the Executive Branch does not have the authority to bargain away its discretion with respect to its legislative activities or to commit unlimited financial assistance to only one grantee, in contravention of the legislative purpose of the desegregation funding statutes. II. ANALYSIS As both parties and the district court have acknowledged, ¶ 15.1 is a unique funding provision in a consent decree that constitutes an unprecedented settlement of a school desegregation claim by the United States. Mindful of the novelty of the agreement, we carefully crafted our prior opinion so as to permit the maximum amount of flexibility and cooperation among the participants in the Decree as they labored toward a workable resolution of the dispute regarding funds for Chicago school desegregation. Our review of the events that transpired on remand convinces us that the process of dispute resolution has failed remarkably in this case. A. Interpretation of ¶ 15.1 As we recounted above, our prior opinion interpreted ¶ 15.1 as “imposing] a substantial obligation on the government to provide available funds to the Board.” United States v. Board of Education of Chicago, 717 F.2d at 383. Since the United States had misinterpreted ¶ 15.1 as merely requiring that the government assist the Board in filing applications for federal aid, and since it had failed to provide available funds to the Board, we remanded the case to the district court to give the government an opportunity to show that it intended to comply with ¶ 15.1 in the future. On November 10, 1983, the government submitted the “Plan of the United States for Supporting the Desegregation Plan of the Board of Education of the City of Chicago” (“November 10 Plan”), in which it outlined its position, later rejected by the district court, that the Weicker Amendment had rendered unavailable to the Board any 1984 funds beyond the $20 million allocated by the Yates Bill. However, in the November 10 Plan, the government also stated for the first time that it was prepared to give the Board priority in the distribution of desegregation funds under existing federal programs. The district court gave little weight to the November 10 Plan. In its 1984 Opinion, the court stated that the plan “contained no adequate suggestions at all for remedying the United States’ past Consent Decree violations or for providing further funding for the [desegregation] [p]lan.” 1984 Conclusion of Law No. 123. During the most recent oral arguments before this court, counsel for the government answered questions regarding the government’s system of “priority” and explained that, under this system, the Department of Education will put the Board “at the top of the list” for any program grants that can be applied to desegregation assistance and for which the Board is eligible. According to the government's counsel, “top of the list priority” for Title IV funds not only is a guarantee that the Board will receive its “equitable fair share” of funding under Title IV criteria, but also requires that this funding be earmarked for Chicago and be set apart from the usual block grant funding that is allocated to the regional desegregation centers serving the Midwest. Furthermore, the government’s counsel explained that, with regard to the Discretionary Fund, “top of the list” priority means that if the Board were to submit a research or development project that would aid its desegregation efforts, the Board would have priority “to get what the project called for.” After considering the government’s oral explanation of this priority system, especially the government counsel’s assurance that this priority is not available to any other school district in the country, we conclude that by guaranteeing that the Board will be funded on a priority basis under existing school desegregation programs, the amount of which funding is determined by program criteria and is subject to the review of the district court, the government would comply with our interpretation of ¶ 15.1 and would fulfill its “substantial obligation to provide available funds.” By so ruling, we reject the district court’s conclusion that ¶ 15.1 mandates that the government attempt to make funds available through legislative activity so as to provide the portion of necessary funding that the Board cannot supply. The district court had reached this conclusion in its 1983 Order and had relied upon it in conducting the March 1984 hearings, which established the level of funding needed to implement the Board’s desegregation plan. In its 1984 Opinion, the district court noted that since we had not rejected its 1983 conclusion regarding the government’s obligation, that conclusion became the law of the case. 1984 Conclusions of Law Nos. 6-8. However, the district court also observed that it was not barred from reconsidering its 1983 conclusions, and it explained that the refusal to reconsider previously decided principles on remand is “a self-imposed (hence non-binding) prudential limitation.” 1984 Conclusion of Law No. 1(a). In light of the strong indication in our prior opinion that a government's attempts to remedy its noncompliance with a consent decree are to be preferred over judicially-imposed remedies, the district court would have acted with optimal prudence if it had not inferred that our silence regarding its 1983 conclusions indicated validation, see 1984 Conclusion of Law No. 6, and if it had freshly reassessed, prior to the submission of the November 10 Plan, its interpretation that ¶ 15.1 requires the government to engage in legislative activities to make available the necessary desegregation funding that the Board cannot supply. Such a reassessment was appropriate despite the exhaustive work already undertaken by the district court and the understandable frustration that attended the judicial monitoring of the Decree. After closely examining the extrinsic evidence surrounding the adoption of ¶ 15.1 into the Decree, we must conclude that there is inadequate support for the district court’s interpretation. In the parties’ stipulation regarding the negotiations leading to the adoption of ¶ 15.1, we find no indication that the parties had any federal funding sources in mind other than programs that could be used, consistent with the intent of Congress, to fund school desegregation efforts. To the extent that the district court reads the June 19, 1980, letter from Assistant Attorney General Drew Days to the Board as indicating that the parties contemplated legislative initiatives on the part of the Executive Branch to make funds available, see 1984 Conclusion of Law No. 139, we find this reading to be clearly erroneous. The applicable wording in this letter tracks the language in ¶ 15.1 and does not amplify or further explain the parties’ intent. We thus remand this case for a determination of whether the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed. In the likely event that the Board has financial needs that are still unmet, we note that the government has admitted that it has a “duty to search among funds that Congress had indeed made ... available.” Transcript of April 5, 1984, at 1416. The best proof that the government is fulfilling this duty would be the assignment of personnel to the task of periodically reviewing federal funding programs, in the Department of Education and in other federal agencies, for unencumbered funds that may be used to advance the Board’s desegregation plan. B. Bad Faith The district court relied on its finding of governmental bad faith, in addition to its interpretation of ¶ 15.1, as support for its 1984 remedial ruling that the United States had an unconditional obligation to provide $103,858 million to the Board for the 1984-85 school year. In light of our holding that ¶ 15.1 does not require the government to engage in legislative activities in order to make desegregation funds available, we find that the district court erred in concluding that the government acted in bad faith by failing to request congressional appropriations for the Board, and by deciding not to reprogram funds for use by the Board. Furthermore, we find erroneous the district court’s determination of bad faith in the government’s decision not to provide direct grants for school desegregation. This policy decision applies to all school districts and does not indicate intent on the part of the United States specifically to avoid its obligation under ¶ 15.1. In its most significant finding of bad faith, the district court described lobbying activities of the Executive Branch during the passage of the Yates Bill and the Weicker Amendment. According to the findings of the district court, see 1984 Findings of Fact Nos. 504-17, the Executive Branch supported a proposed addition to the Yates Bill that specifically would have made unavailable to the Board the funds that had been restrained by the district court. Although this proposed provision was not adopted by the House of Representatives, the Executive Branch continued to lobby for specific language in the Yates Bill to make the restrained funds unavailable to the Board. Even after the Yates Bill was signed into law without the desired language, the Executive Branch worked toward the inclusion of such language in the Weicker Amendment. On October 5, 1983, prior to the passage of the Weicker Amendment, the United States appeared before the district court and argued that very recent legislative history surrounding the yet-unenacted Weicker Amendment indicated that no funds other than the $20 million allocated by the Yates Bill were available to the Board and that, as a result, the court’s 1983 Order should be dismissed. See Transcript of October 5, 1983, at 31-33. Although the Executive Branch continued to lobby for language in the Weicker Amendment to make funds unavailable to the Board, the amendment ultimately was enacted without this language. The United States consistently has maintained that its legislative activities are unreviewable by the judiciary, thus prompting the Board to complain that the government’s Yates-Weicker lobbying efforts were designed to force a constitutional issue upon the courts. Transcript of March 20, 1984, at 36-37. We need not reach any conclusion regarding the Yates-Weicker legislative activities, for we find that, even if these activities constituted bad faith violations of the Decree, the district court abused its discretion by ordering a $103,858 million monetary remedy against the government. Given the clear factual and procedural background of this case, it should have been apparent to the district court that if the government were compelled to pay this judgment for its bad faith, no federal desegregation money would have been available (or would have been made available) to other school districts. Such a result would have been unreasonable. The proper remedy for any bad faith violations of the Decree in connection with the Yates-Weicker activities would have been a civil contempt citation under which the district court could have ordered the government either to refrain from specific efforts to make desegregation funds unavailable to the Board or to inform Congress about the funding obligations of the government under the Decree. Cf. Nelson v. Steiner, 279 F.2d 944, 948 (7th Cir.1960) (district court did not abuse discretion in holding state official in civil contempt, since “[t]he executive branch of government has no right to treat with impunity the valid orders of the judicial branch”). Since the time for such a remedial measure has passed, wé do not decide whether the Executive Branch’s YatesWeicker legislative activities constituted bad faith violations of the Decree. In the circumstances of this case, we deem it important to note that the actions of the Executive Branch described above and reflected in the hearings below could be interpreted to contravene the spirit of the Decree. Such actions, while perhaps within constitutional limits, cannot enhance the respect to which this Decree is entitled and do not befit a signatory of the stature of the United States Department of Justice. The Executive Branch initiated this critical litigation and bears a continuing shared and special responsibility for its eventual outcome, regardless of changes in personnel and ideology that will inevitably accompany the passage of time. III. CONCLUSION Accordingly, we vacate the district court’s 1984 Opinion and 1984 Remedial Order, and we remand this case for proceedings consistent with part 11(A) of this decision. Circuit Rule 18 shall apply on remand. . In reaching this interpretation, we specifically upheld both Conclusion of Law No. 8 of the 1983 Order ("the United States' promise [under U 15.1] entails a serious and substantial obligation”) and the district court's finding, expressed during the June 1983 hearings, that ¶ 15.1 embraces the grant of funds, not just technical assistance in applying for funds (Transcript of June 8, 1983, at 23). See United States v. Board of Education of Chicago, 717 F.2d at 381-83. . Since we noted a discrepancy in the district court’s 1983 Order as to whether funds in the Title IV account and in the Discretionary Fund were available for use by the Board, we directed the district court on remand to verify the availability of these funds. United States v. Board of Education of Chicago, 717 F.2d at 383 n. 8. In another footnote, we instructed the district court to make known its findings of fact regarding the $14.6 million that it had determined was " 'the amount of additional incremental expenditures required by Board to achieve the necessary threshold level of funding for Educational Components in predominately minority schools.’" Id. at 380 n. 2. Both of these district court tasks were necessary for clarification of the record and were to be carried out within the context of our carefully expressed instruction that the district court afford the government an opportunity to propose the means by which it would attempt to comply with ¶ 15.1. . The government has wisely abandoned this position in its argument to this court. . Prior to its submission of the November 10 Plan, the United States had insisted that ¶ 15.1 did not entitle the Board to any priority consideration in the Department of Education's allocation of desegregation funds. See Memorandum in Support of the United States’ Motion For a Stay Pending Appeal, filed July 19, 1983, at 29. . Indeed, the district court concluded that by submitting the November 10 Plan, the government "willfully and in bad faith” violated the district court’s October 28 order directing the United States to draft a plan for its compliance with ¶ 15.1. . We understand, from this explanation, that "top of the list priority” would preclude the situation that occurred in 1983, where the Board was denied Discretionary Funds because its two proposed projects were ranked thirteenth and twenty-eighth, and only the top ten projects received funding. See United States’ Answers and Objections to Chicago Board of Education's Second and Third Set of Interrogatories, at 8-9 (filed with Board's Motion to Compel dated November 17, 1983). . Counsel for the government acknowledged at oral argument that ¶ 15.1 binds the Secretary of Education’s discretion with respect to the funds that may be used for school desegregation pursuant to congressional appropriation, and he conceded that a district court may review the Secretary's exercise of discretion in distributing those funds to the Board. . Given the narrow holding in our prior opinion that the government violated ¶ 15.1 by failing to provide available funds, we had no need to decide whether ¶ 15.1 obligated the government to engage in activities to make funds available in order to provide the amount needed to implement the plan. . As described by the district court, it is the Secretary of Education’s policy to seek the approval of congressional leaders before effecting any reprograming of funds. 1984 Finding of Fact No. 427. Since this policy applies to all reprograming of funds, we cannot view it as an attempt to evade the government’s obligations under the Decree. . Similarly, we must overrule the district court’s finding that the government’s redrafting of administrative regulations limiting grants of Discretionary Funds constitutes bad faith. These regulations embody general policy decisions applicable to all grantees, and we thus cannot conclude that they were drafted specifically to avoid the government’s obligations under ¶ 15.1. . If the district court had entered such a contempt order and the government then persisted in its efforts to make funds unavailable, criminal contempt charges might have been appropriate. See United States v. Joyce, 498 F.2d 592, 596 (7th Cir.1974) (willful and contumacious resistance to a court order is necessary to support a criminal contempt charge). . As an additional ground for its finding of bad faith, the district court cited the government’s submission to Congress of § 309 of the President's proposed budget of the Department of Education (Board Exhibit No. 57): No funds appropriated in any Act to the Department of Education for fiscal years 1984 and 1985 other than those appropriated by section 111 of Public Law 98-107 shall be available to fund the consent decree between the United States and the Board of Education of the City of Chicago: Provided, That the court’s decree entered on September 24, 1980, shall remain in full force and effect and nothing in this provision shall be construed to preclude the Board of Education of the City of Chicago from receiving Department of Education funds for which it is eligible under applicable program statutes and regulations or from using such funds, as appropriate, to support activities under its desegregation plan. (Public Law 98-139. Department of Education Appropriation Act, 1984.) 1984 Conclusion of Law No. 125(h). At the hearing concluded on March 28, 1984, counsel for the Board asked the director of the Department of Education’s budget service whether § 309 constituted "negative earmarking.” Transcript of March 28, 1984, at 1078. In reply, the director stated that § 309 does not preclude the Board from applying for funds under existing federal programs. Id. The transcript does not make clear, however, whether § 309 would specifically prevent Congress from making any funds available for the Board’s desegregation plan, other than the funds granted by the Yates Bill and the funds available under existing programs. On remand, the district court may take further evidence to determine whether § 309 would have such an effect and thus would constitute a possible bad faith violation of ¶ 15.1 of the Decree. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_typeiss	E	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. Joe Vernon SEARS, an individual, in person, and for all other persons similarly situated, Plaintiff-Appellee, Albert L. Bennett, C.J. Skelton, Archie N. Jones, Forest D. Tollett, John W. Landrum, Lawson C. Spencer, Thomas H. White, Earlie Nash, Aubrey A. Robinson, Edward Rawlins, John W. Cole, Charles Majors, Jr., Jesse J. Smith, Paul H. Stewart, Jimmy E. Brown, Carl E. Chester, Ray E. Landrum, Raymond Wiley, Eglieelgie Crow and Ellis Johnson, Criscel Kemp, A.M. Bennett, A.L. Woolfolk, T.C. Luckey and W.W. Seymour, the Brotherhood of Sleeping Car Porters, Intervenors-Plaintiffs-Appellees, Mildred Collins, Executrix of the Estate of James Collins, Jr., Deceased, Plaintiff, Terry G. Paup, individually and on his own behalf, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendants-Appellees, United Transportation Union, successor to Brotherhood of Railway Trainmen, a labor organization, Defendant. No. 85-1982. United States Court of Appeals, Tenth Circuit. Dec. 18, 1985. Donald W. Bostwick of Adams, Jones, Robinson and Malone, Wichita, Kan., for appellant. Harold V. Matney, Kansas City, Kan., and Lee H. Woodard of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., and Willis L. Toney and Sammie Edwards, Kansas City, Mo., for intervenors-plaintiffs-appellees. Before BARRETT and LOGAN, Circuit Judges, and BALDOCK, District Judge. The Honorable Bobby R. Baldock, United States District Judge for the District of New Mexico, sitting by designation. BARRETT, Circuit Judge. The sole issue presented by this appeal is whether the district court erred, based on the facts in this record, in applying the en banc opinion of this court in Cooper v. Singer, 719 F.2d 1496 (10th Cir.1983) retrospectively so as to abrogate contractual fee agreements entered into between appellant Terry G. Paup, the attorney (hereinafter referred to as Paup) and twenty-two (22) clients in 1972 prior to initiation of litigation which ultimately resulted in a class action recovery by some 73 class members. A recitation of the factual and litigative background should place the issue presented in focus. Background Paup entered into individual written attorney/client fee agreements with twenty-two (22) members of the later certified class. The agreements provided that Paup’s contingent fee would be one-third (33V3%) of all monetary recovery inclusive of back pay and attorney fee awards if the case should be resolved without appeal and forty percent (40%) of the total recovery obtained if appeal should be taken and the clients prevail. Paup filed the initial suits in 1972 on behalf of Sears and Collins. These cases were consolidated and the district court certified them as a class action in August of 1975. Paup was lead counsel for the class. In 1982, following two appeals to this court and two denials of writs of cer-tiorari to the United States Supreme Court, a judgment in favor of the plaintiff class of some $8.2 million became final. Of this sum, about $4.1 million was awarded to the 22 clients with whom Paup had contingent fee agreements. During the pendency of the second appeal in this case, this court handed down our en banc opinion in Cooper v. Singer, supra. In order to clarify the fee entitlement, Paup filed a motion on February 4, 1985, thereafter supplemented, requesting that the district court direct payment of the judgment in accord with the 22 contingent fee contracts and that Cooper v. Singer, supra, be ruled not to apply retrospectively. Following a hearing, the district court filed its Memorandum and Order on March 12, 1985, denying Paup’s motion and in pertinent part stated: The amount of the fee awarded to Paup in 1982 [class action award] was less than the amount [by some $1.1 million] Paup would have received ... pursuant to the terms of his attorney/client fee agreement_ [T]here is a disagreement [between the parties] as to whether the rules announced in Cooper should be applied to this case. Simply stated, the Court in Cooper held “that if the ... fee award, calculated as set forth in Hensley v. Eckerhart [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], supra, and Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) (on fee award) is less than the amount owed to the attorney under the contingent fee agreement, then the lawyer will be expected to reduce his fee to the amount awarded by the courts.... On the other hand, if the fee award is greater than the amount owed to the attorney under the contingent fee agreement, then the attorney shall be entitled to the full amount of the fee award.” Cooper, supra, at 1506-07. Paup contends that the Cooper rule should only be applied prospectively, citing Chevron Oil Company v. Huson, 404 U.S. 97 [92 S.Ct. 349, 30 L.Ed.2d 296] (1971), for the proposition of “nonretro-active application of judicial decisions.” Plaintiffs refute this contention by arguing that Cooper should be applied in a retroactive manner because Paup has failed to demonstrate] the facts of this case fall into the three-part test established in Chevron Oil. On this basis, the plaintiffs argue that the “Cooper rule would require Paup to accept the Court’s earlier award of attorneys fees in full satisfaction of all fees owed to him” and thus would abrogate the “fee contracts that he has with numerous class members.” In addition the 22 plaintiffs contend that Cooper is not a new policy but merely clarifies an existing policy of denying windfalls to attorneys who represent successful Civil Rights claimants. We have studied the briefs of the parties and find and determine: 1. That Cooper is not a statement of new law. It is a reassertion of the rule that where the law permits the assessment of fees against a party in a case, that a) the Court may determine the amount of the reasonableness of the fee to be allowed; b) that unless such sum allowed is inadequate or unreasonable the parties are bound by such ruling; and c) that by seeking such a reasonable fee allowance the parties have waived any claim for the allowance of fees other than the amount as determined by the Court to be reasonable. The Court finds and determines that the above rule complies with the intent and spirit of the Civil Rights enforced in this action. The Court further finds that the fees allowed in this case are fair and reasonable and are in full satisfaction of all fees which have been claimed for representation of the class in this action. The Paup motion to direct payment of the additional fees in accordance with the attorney/client fee contracts is Denied. (R., Vol. I, pp. 268-72.) On February 25, 1985, prior to the district court’s Memorandum and Order, supra, the court conducted a hearing on Paup’s motion. Although the contingent fee clients of Paup did resist the payment of fees in excess of those awarded by the court for class representation, all parties at the February 25th hearing stipulated-agreed that Paup’s contingent fee contracts were reasonable both at the time they were entered into and at the time of the hearing measured by fees then charged by those engaged in the practice of law in Kansas and, further, that Paup’s clients entered into the contracts freely, willingly and knowingly. (R., Vol. Ill, pp. 14-16.) The sole basis of the contingent fee clients’ objection was that the contingent fee award was in excess of the court’s class action award. {Id., pp. 16-19.) Opinion There is no evidence in the record before us that the contingent fee contracts at issue were entered into other than by arms length, honest dealings. The contracts were, as represented to the trial court, entered into freely and knowingly; furthermore, the parties agreed that the contingent fees were reasonable under the prevailing rates of charges by those engaged in the practice of law in Kansas. Accordingly, we shall not, on appeal, consider for the first time contentions challenging the reasonableness of the contingent fees set forth in the contracts. Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977). Thus, the issue for our resolution is one of law. In Cooper v. Singer, supra, we recognized, inter-alia, that: “The legislative history does not discuss the impact of an attorney-client fee arrangement on a section 1988 fee award,” id. at 1498; “Johnson [Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974)] thus suggests that the essential inquiry in setting fee awards is reasonableness, regardless of any attorney-client fee arrangements.” Id. at 1499. “Taken together, Johnson and the three cases applying the Johnson factors provide useful but limited guidance on the relationship of a contingent fee award to a section 1988 attorney’s fee award,” and “[t]hus, the Senate Report’s allusion to these cases does not give us a clear indication of congressional intent,” and “we are not surprised that the circuit courts have failed to obtain uniform results in determining the effect of a contingent fee agreement on an attorney’s fee award,” but “we believe that the Supreme Court’s decision in Hensley v. Eckerhart, [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], has substantially clarified the issue. In Hensley ... the Supreme Court held that a prevailing party’s section 1988 fee award must be calculated in relation to the degree of success obtained_ Reasonableness provides the benchmark [focusing on the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation] for calculating the award.” Id. at 1500. “We are inclined to believe that Congress expected section 1988 fee awards to fulfill the client’s fee obligation to his attorney. The legislative history on this issue is sparse; nevertheless, it seems to imply that the fee award should fully define the attorney’s right to compensation.” Id. at 1504. “The issue then is not whether we can restrict a client’s fee obligation in light of the apparent congressional intent of section 1988; rather, the issue is whether we should.” Id. at 1505. Based upon the above quotations from our Cooper en banc decision, we must respectfully disagree with the district court’s finding that Cooper is not a statement of new law. The en banc opinion consistently pointed to the lack of specific, articulate Congressional guidance in the realm of legislative history, the conflicts between the circuits, and an acknowledgment that this court “should” resolve the issue whether a client’s fee obligation should be restricted to less than that reflected by the contingent fee agreement. Cooper v. Singer was a statement of new law in this circuit. It announced a rule of first impression which was not foreseeable. Assuming that Cooper v. Singer would require the reduction of the award to Paup from the agreed-to contingent fee percentages contained in the 22 contracts with his clients to the fees determined to be reasonable and allowable in the class action as found by the district court, it can only be so if held to apply retrospectively, as determined by the district court. Applying the guidelines of Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), we hold that Cooper v. Singer does not apply retrospectively. Chevron employed a three-prong analysis in the determination whether a judicial decision should be applied retrospectively or prospectively. The Court said: In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed [citation omitted]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Citation omitted.] Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ [Citation omitted.] 404 U.S. at pp. 106-07, 92 S.Ct. at 355. In relation to the first prong, that Cooper v. Singer did indeed announce a new rule of law deciding an issue of first impression which was not clearly foreshadowed. We are not persuaded by the argument that because the courts have always had the power to supervise contingent fee agreements and to determine their reasonableness under the canons of ethics, Cooper v. Singer does not establish a new rule of law. Our research discloses that Cooper v. Singer seems to be the only opinion holding that a fee shifting award entered by the district court under 42 U.S.C. § 2000e-5(k) constitutes the only “reasonable” fee allowable to an attorney who has contracted with his client under a contingent fee agreement. In Dunn v. H.K. Porter, 602 F.2d 1105 (3rd Cir.1979), the court, while recognizing that when a contingent fee contract is to be satisfied from a settlement fund approved by the trial court pursuant to Rule 23(a), Fed.R.Civ.P., held that there is a compelling necessity to review the reasonableness of fee arrangements by examination of factors beyond the four corners of the contract in order to protect the interests of class members. Where, however, the contingent fee contract is found to meet the “reasonableness” test and was entered into between the attorney and his client (later a class action plaintiff) prior to the litigation, the court opined: [T]he considerations stressed above argue in favor of deference to the parties’ contractual arrangement. The strong judicial reluctance to enforce the terms of a judicially fashioned bargain upon the parties now presses in favor of honoring the express terms of the fee agreement. The equities are also altered. If the client has entered the contract freely and advisedly, his claim of unfairness is reduced in force. The risk of unfairness to the attorney, in contrast, is sharply increased. For it cannot be said that the attorney is receiving more than he bargained for at the outset of litigation.... We therefore believe that the courts should be loathe to intrude into a contractual relationship between an attorney and client, and that a comparison between the contractual fee and the Lindy (class action) fee, whose method of calculation is designed to meet very different needs, is an inappropriate ground for invalidation of a contingent fee arrangement. Indeed, to allow such a comparison to be the sole basis for voiding an otherwise legitimate contract would require invalidating contingent fee contracts as per se unreasonable whenever damage awards reach large amounts. This, we believe, would be inconsistent with the Canons of Ethics and relevant case law. 602 F.2d at pp. 1111-12. Other circuit court opinions have held contra to Cooper. Thus, it cannot be said other than that Cooper announced a new rule of law deciding an issue of first impression. In Hamner v. Rios, 769 F.2d 1404 (9th Cir.1985), the court rejected our Cooper rule which limited a § 1988 award to the statutory fee, relying on Pharr v. Housing Authority, 704 F.2d 1216 (11th Cir.1983) which held that when a prevailing party and his attorney have fairly contracted to reach a contingent fee, the agreement should be enforced if reasonable. The Hamner court observed, inter-alia: “Contingent fee agreements enable plaintiffs with meritorious claims but limited finances to obtain counsel, and they are set to account for the risk of nonrecovery. If attorneys begin to view statutory fees in civil rights cases as inadequate, use of the statutory award as a ceiling on fees could lead to a reluctance to represent civil rights plaintiffs, thus frustrating the intent of Congress.” Hamner, 769 F.2d at 1409. In Sullivan v. Crown Paper Bd. Co., Inc., 719 F.2d 667 (3rd Cir.1983) the court held that a contingent fee agreement should be enforced even if greater than the § 1988 statutory fee, and plaintiff would be directed to pay counsel the difference between the statutory award and the contingent fee. Hamner and Sullivan specifically rejected our Cooper rule. We agree with Paup’s argument that our Cooper opinion represents “a statement of future operating procedure within this circuit [rather] than an ‘across-the-board’ decision intended to bar the enforcement of contingent fee agreements entered into over thirteen years ago.... [T]he opinion ... anticipated what might happen on remand and set down guidelines to be applied in order to avoid what the court believed to be a possible problem if the attorneys in that case [Cooper ] were to receive both the statutory fee award and the percentage of the award provided by their contract. This is a far cry from the result in this case if this Court refuses to apply Chevron and abrogates a contingent fee contract which applies to both the client’s statutory fee award and the back pay award equally.” (Brief of Appellant, pp. 18, 19.) Next, we consider the second prong of Chevron, i.e., weighing the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. In Cooper, we recognized that impact of the rule announced would require careful attention by lawyers in the future: We believe that by careful adherence to the professional codes and strict attention to congressional intent, lawyers can draft fee agreements that will eliminate the conflicts between section 1988 fee awards and client fee obligations. In light of our statements, we expect that lawyers practicing before the district courts of our circuit will do so and thereby avoid the need for courts to step in and rectify conflicts on an individual basis. 719 F.2d at 1506. Furthermore, we recognized that judges “[a]re not capable of prognosticating with certainty the actual impact of a fee award ceiling,” id. at 1503 (footnote omitted) on civil rights litigation. Uncertainty of impact weighs heavily against retrospective application of the new rule announced in Cooper. Finally, we consider the third prong of Chevron, i.e., whether the retroactive application of the Cooper rule will impose injustice or hardship which should be avoided. Based on the record before us, we conclude that to apply the Cooper rule retroactively would work a substantial injustice on Paup. We repeat that the contingent fee contracts were freely, willingly and knowingly entered into prior to the litigation; further, that the parties agreed that the contingent fees set forth in the contracts were fair and reasonable when entered into and currently based upon fee rates of those members of the legal profession practicing in the State of Kansas. Thus, the contingent fee percentages involved in the Paup contracts with the 22 client class members do not result in a “windfall” for Paup as cautioned in Cooper. 719 F.2d at 1499. This is so because the fee arrangement contracts provide that any statutory award of attorney’s fee will be added to any other monetary award and the specified contingent fee percentages will apply to the total amount awarded. Thus, there is no “windfall.” Further, in terms of reliance, there can be no doubt that contingent fee contracts such as those involved here were commonly entered into and relied upon by attorneys and their clients. Therefore, the three-prong analysis of Chevron Oil Company v. Huson leads us to hold that Cooper v. Singer should be applied prospectively. In summary, the undisputed facts are that: the contingent fee contracts were freely and knowingly entered into between Paup and the 22 clients prior to initiation of the litigation in 1972; Paup performed excellently as lead counsel in this extremely prolonged, complex litigation; the contingent fee awards were stipulated between all parties to be reasonable both at the date of the contracts and at the date of the hearings before the district court; and the degree of success, in terms of results achieved on behalf of the plaintiffs, was overwhelming. Considering these facts, our research reveals other decisions which support our analysis in this case. In Sargeant v. Sharp, 579 F.2d 645 (1st Cir.1978), the court held that the existence of a contingent fee arrangement was not, in itself, a special circumstance rendering an award of attorney fees unjust, and unless the court finds such circumstances, it may not deny such fees. In Farmington Dowell Products Co. v. Forster Mfg. Co., 436 F.2d 699 (1st Cir.1970), the court held that the fact that a treble damage antitrust plaintiff freely acquiesced in a fee agreement was relevant, but not absolutely controlling, in determining whether the agreed upon attorney fee was permissible under the Code of Professional Responsibility. The court pointed out that factors to be considered were the complexity of problems, quality of work, the difficulties encountered, the length of the litigation, and the results obtained in determining, under the Code, “[w]hat amount it is ethical to receive, not at what share it is ethical to agree upon.” 436 F.2d at 701. And in Palmer v. Shultz, 594 F.Supp. 433 (D.D.C.1984), the court, citing to Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ruled that in making an award of attorney fees in civil rights litigation, the focus is upon the complexity of the litigation, the skill, experience and reputation of the attorney, and the prevailing community rate for the type of work done in arriving at the “market value” which the court referred to as “the touchstone of the fee inquiry.” Id. at 437. Hensley v. Eckerhart, supra, emphasized that a § 1988 fee award should be particularly calculated upon the degree of success obtained and that excellent results warrant a full compensatory fee. See also, Vinyard v. King, 728 F.2d 428 (10th Cir.1984); Miller v. City of Mission, Kansas, 705 F.2d 368 (10th Cir.1983). When the district court entered its attorneys’ fee award on December 1, 1982, neither the court nor counsel had the benefit and guidance of Hensley, supra, or Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983). Mr. Paup pursued this complex, difficult litigation as lead counsel over a period of some thirteen years. He performed diligently and skillfully. He represented clients with limited finances. He assumed the risk of nonrecovery in prolonged, combative litigation. Under all of the circumstances, the contingent fee contracts were reasonable. The results achieved by Mr. Paup on behalf of his fee arrangement clients (and on behalf of the entire class) were overwhelmingly successful, resisted by competent counsel. We REVERSE and REMAND with instruction that Paup be awarded attorney fees in accordance with his attorney-client contingent fee contracts. 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_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. FRIENDS OF THE PAYETTE, and Idaho Rivers United, Inc., Plaintiffs-Appellants, v. HORSESHOE BEND HYDROELECTRIC CO.; United States Army Corps of Engineers; Robert Volz, District Engineer of United States Army Corps of Engineers, Defendants-Appellees. No. 92-36611. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 5, 1993. Decided March 19, 1993. Jim Jones, Boise, ID, for plaintiffs-appellants. D. Marc Haws, Asst. U.S. Atty., Boise, ID, David P. Hirschi, Salt Lake City, UT, for defendants-appellees. Before: WRIGHT, Senior Circuit Judge, and FARRIS and KLEINFELD, Circuit Judges. EUGENE A. WRIGHT, Senior Circuit Judge: Two environmental groups allege that the Army Corps of Engineers violated the National Environmental Policy Act by issuing a dredge-and-fill permit for a hydroelectric project without preparing an environmental impact statement. Because we conclude that the Corps’ action was not arbitrary and capricious, we affirm the district court’s dismissal of the action. I On March 10, 1992, the Horseshoe Bend Hydroelectric Company began construction of a 9.5-megawatt hydroelectric generating facility on the Payette River near Horseshoe Bend, Idaho. When completed, the facility will work as follows: An inflatable bladder diversion dam will divert up to 3,500 cubic feet of water per second from a four-and-a-half-mile stretch of the river, routing the water down a diversion canal to a power house. The water will then pass over the powerhouse turbines before returning to the river. A minimum flow of 400 cfs will remain in the river channel, also known as the bypass stretch. The facility is being built at the site of a decommissioned run-of-the-river hydroelectric project, which operated from 1902 to 1954. The new project will expand and use the old project’s diversion canal, which had contained valuable wetlands. Project construction has almost completely destroyed those wetlands. Before starting construction, HBHC and its predecessor in interest, the Boise Cascade Corporation, had to obtain the approval of several state and federal agencies. In July 1986, the Federal Energy Regulatory Commission issued a license for the project to Boise Cascade. Before doing so, FERC prepared an environmental assessment in August 1984 and a supplemental EA in April 1986. Both concluded that the project would not significantly affect the environment. In April 1987, FERC approved Boise Cascade’s transfer of its license to HBHC. HBHC then obtained the necessary state permits allowing it to appropriate water from the river, gain construction access to state-owned lands and build the dam. Lastly, HBHC needed to secure a dredge- and-fill permit from the Army Corps of Engineers. The permit, required by section 404 of the Clean Water Act, would allow HBHC to place dredged or fill material in the river. See 33 U.S.C. § 1344 (1988). HBHC applied for the permit on December 9, 1991. The Corps issued it on March 30, 1992. Although interested parties requested a public hearing, the Corps did not hold one. Like FERC, the Corps found that the project would not significantly impact the environment within the meaning of the National Environmental Policy Act. Therefore, the agency did not prepare an EIS, but issued instead an EA and a finding of no significant impact. The § 404 permit has 17 conditions designed to mitigate environmental harm. Friends of the Payette and Idaho Rivers United, Inc., two environmental organizations, filed suit, claiming that the Corps’ actions violated NEPA and the Clean Water Act. They sought a declaration that the Corps had not complied with NEPA and the CWA and an injunction halting the project pending preparation of an EIS. The district court set the case for trial. Because it found that admission of almost all extra-record evidence was unwarranted, however, the court disallowed the testimony of 13 of Payette’s 14 proposed witnesses. It reviewed the Corps’ actions based solely on the administrative record and the testimony of William McDonald, the Corps employee who prepared the EA. The court dismissed the suit, holding that the Corps’ decision was reasonable. Payette raises four issues on appeal: (1) whether the Corps’ failure to prepare an EIS was reasonable, (2) whether the court erred in holding that the agency’s jurisdiction over wetlands in the diversion canal was moot, (3) whether the Corps’ permit-granting procedure was flawed for failure to allow adequate public comment and (4) whether the court erred by refusing to allow extra-record evidence. Payette also asks for attorneys fees. II A. Decision Not to Prepare EIS NEPA requires federal agencies to prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (1988). The Corps concedes that the project constitutes a major Federal action. The issue is whether the Corps properly determined that the project will not significantly affect the environment. After the district court's June 1992 order dismissing the action, we adopted a new standard for reviewing an agency's decision not to prepare an EIS. We no longer employ a "reasonableness" standard. In Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992), we held that "when a litigant challenges an agency determination on grounds that, in essence, allege that the agency's `expert review ... was incomplete, inconclusive, or inaccurate,' ... the arbitrary and capricious standard is appropriate." (quoting Marsh v. Oregon Natural Resources Council, 490 U.s. 360, 376-77, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989)). We still must ensure that an agency has taken a "hard look" at the environmental consequences of its action and that its decision is "founded on a reasoned evaluation `of the relevant factors.'" Id. at 1350 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. at 1861). If we are convinced that its discretion is truly informed, however, we must defer to that discretion. Id. Fayette cites ten bases for its contention that the Corps' decision not to prepare an EIS was erroneous. We reject the contention, but will discuss each basis in turn. 1. Wetlands Fayette contends that the Corps erroneously determined that wetlands will not be affected significantly. The Corps concluded that the mitigation measures required by the permit compensated for any adverse impacts. We can consider the effect of mitigation measures in determining whether preparation of an EIS is necessary. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). If significant measures are taken to "`mitigate the project's effects,' they need not completely compensate for adverse environmental impacts." Id. (quoting Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1982)). The Corps verified an environmental consultant's estimate that 69.45 acres of wetlands were within the project area. Without mitigation, 30.99 acres of riparian habitat would be lost. Strategic placement of boulders to raise the river stage and irrigation flows from uphill mitigation lands would reduce the loss to 24.69 acres. To compensate for this loss, the Corps required HBHC to implement a mitigation plan that would create 66.64 acres in new wetlands through use of water channels, grass seeding, and tree and shrub planting. The plan also requires monitoring and supplemental mitigation measures if revegetation goals are not met. Although the measures may not compensate completely for adverse impacts, they are significant. The Corps' conclusion that wetlands would not be affected significantly was not arbitrary and capricious. 2. Water Quality Fayette asserts that the Corps relied inappropriately on the Idaho Department of Environmental Quality's certification of compliance with state water quality standards. IDEQ granted the certification after HBHC agreed to implement a three-year water quality monitoring program following project construction. If monitoring indicates violations of state standards, HBHC must adopt a mitigation plan. Fay-ette contends that this after-the-fact monitoring cannot supplant before-the-fact evaluation and discussion of mitigation measures. It argues that the project will have a significant impact on water quality due to a decrease in oxygen and increases in temperature, light penetration and aquatic plant stimulation. The district court noted that although the Corps cannot know exactly how the project will affect water quality, the Corps had reviewed studies attempting to model project impacts. The Corps' reliance on these studies and on a monitoring program that should identify problems before they become serious is not arbitrary and capricious. 3. Fisheries Next, Fayette argues that the EA did not adequately consider the project's impact on the fishery in the bypass stretch. The Corps concedes that decreased flows and power turbines will kill fish and that although the power canal will provide run habitat, it will lack other diversity. The Corps’ permit, however, requires mitigation measures to compensate for these losses. These measures include (1) a plan to enhance fish habitat in nearby Shaffer Creek, (2) an improved monitoring plan, and (3) additional mandatory mitigation measures if monitoring shows that the mitigation plan has not achieved acceptable results. The measures were strengthened at the insistence of the Fish and Wildlife Service, which approved the project. The Corps’ determination that the project would not significantly affect fisheries was not arbitrary and capricious. 4. Endangered Species Payette contends that the Corps did not evaluate the project’s impact on the bald eagles that winter in the project area. We disagree. The Corps, in consultation with the FWS, included two permit conditions designed to protect the eagles and their habitat. First, every five years for the life of the project, HBHC must provide the Corps with a report on the status of the riparian cottonwood forest in the project area. The forest provides eagle habitat. If project impacts prevent the forest from maintaining itself naturally, HBHC must plant cottonwood tubelings as required by the Corps. Second, the permit requires that power transmission lines be designed to minimize shock hazard to bald eagles. Also, the EA notes that “eagles would still be able to use other riparian zones along the Payette River in the immediate vicinity for their wintering activities.” We find no fault with the Corps’ conclusion that the project would not significantly affect endangered species. 5. Recreation Payette also contends that the Corps gave insufficient consideration to recreation issues other than those relating to an agreement between HBHC and the Western Wildwater Association. We disagree. Project plans call for these mitigation measures: a boat ramp upstream from the dam, a portage path at the dam, a water bypass for boats and flotation devices and the removal of the diversion bladder to allow jet boats to use the main channel during annual races. In addition, HBHC, in consultation with state resource agencies, will place boulders in the bypass reach to increase the river’s width. All of these mitigation measures are significant. The Corps’ conclusion that the project would not significantly affect recreational activities was not arbitrary and capricious. 6. Aesthetics Payette argues that the Corps did not consider adequately the project’s impact on aesthetics, particularly the unsightliness of the reduced water flow in the bypass stretch. Article 29 of HBHC’s FERC license requires the company, in consultation with the Idaho Department of Parks and Recreation, to “design the readily visible surface of the project facilities to preserve or enhance the existing visual environment.” Pursuant to this requirement, HBHC consultants prepared a “Visual Resources Plan.” It calls for revegetation of affected areas with native plant species, installation of troughs to capture runoff for irrigation of replanted areas during droughts, use of earthtones to hide from view the partially-buried powerhouse and . grading to restore the natural contours of the landscape. After considering these mitigative measures and the record as a whole, we agree that the Corps did not act arbitrarily and capriciously in determining that the project would not have a significant impact on aesthetics. 7. Icing Next, Payette maintains that the Corps did not consider adequately the possibility that water diversion would increase the potential for ice formation, ice jams and flooding. The EA acknowledges that potential ice-jam flooding is a risk in that area of the Payette River. The Corps’ hydrology branch, however, evaluated the issue and concluded that the project would not result in an increased flood hazard. Upstream, the dam would trap frazil ice (ice crystals formed in turbulent water) causing ice formation. Although the ice cover would raise the water surface up to eight feet above the normal winter low water mark, the Corps concluded that no damage would occur because the lowest upstream structure is 12 feet above the mark. Although the reduced flow could increase ice formation downstream, it would cause ice jams only rarely. 8. Cumulative Impacts Corps regulations require it to evaluate a project’s cumulative impacts. 33 C.F.R. § 320.4(a)(1) (1992). The Corps concluded that the project would not have a substantial cumulative impact on the aquatic environment. In doing so, the Corps relied primarily on FERC’s analysis of the impact of past and future hydroelectric projects within the Payette River Basin. That analysis, the sole subject of FERC’s supplemental EA, concluded that the project would not contribute to cumulative adverse impacts on important resources. We agree with the district court that the Corps sufficiently considered the project’s cumulative impacts. 9. Alternatives Analysis Payette also asserts that the Corps’ alternatives analysis was inadequate. Section 404(b)(1) guidelines provide that no dredge-and-fill permit shall be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). NEPA guidelines require an EA to include brief discussions of alternatives. 40 C.F.R. § 1508.-9(b). Agencies must “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of ■ available resources.” 42 U.S.C. § 4332(2)(E) (1988). The Corps’ EA discusses these alternatives: taking no action, increasing bypass flow, relocating the powerhouse, eliminating an excavation section and providing flushing flows to eliminate the riparian habitat loss. The Corps’ alternatives analysis satisfies both CWA and NEPA requirements. 10.Corps’ Reliance on the FERC EA Lastly, Payette argues that the Corps improperly relied on FERC’s EA and supplemental EA. Both EPA and FWS highlighted inadequacies in the earlier studies, upon which FERC’s EAs were based. The Corps responds that it justifiably relied on the FERC documents based on a memorandum of understanding giving FERC lead agency status for environmental matters involving hydroelectric project licensing. Under the memorandum, the Corps must accept FERC’s resolution of environmental issues. We find no error in the Corps’ approach. The Corps reviewed the studies and then conducted its own independent analysis of the project’s environmental impacts. The Corps responded to FWS and EPA concerns by requiring HBHC to alter aspects of the project to lessen its impacts and by including specific agency concerns as conditions of the final permit. We also find significant the agencies’ approval of the project and their refusal to veto the Corps’ decision to issue the permit. B. Characterization of Canal Wetlands Next, Payette argues that the Corps concluded erroneously that the canal wetlands were not within its jurisdiction for purposes of the § 404 permit process and, consequently, did not require adequate mitigation for their destruction. The district court found that because project construction had already destroyed the wetlands, the mitigation issue was moot. 1. Mootness The Corps’ “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). A controversy is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (quoting Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988)). We review de novo questions of mootness. Williams v. United States General Servs. Admin., 905 F.2d 308, 310 (9th Cir.1990). The district court erred in part in finding this issue moot. Payette sought an injunction to stop the project until the Corps complied with NEPA and the CWA. It did not seek to stop destruction of the wetlands. Rather, it challenged the Corps’ determination that the wetlands were not within its jurisdiction. That issue became moot for NEPA purposes, see Headwaters, 893 F.2d at 1015, but not for CWA purposes. If the wetlands were within the Corps’ jurisdiction, the § 404 permit might contain insufficient mitigation measures to compensate for wetlands loss. 2. Corps Jurisdiction The Corps determined that because the canal wetlands were maintained by irrigation water, they were not subject to its jurisdiction. Generally, the Corps does not consider “[ajrtificially irrigated areas which would revert to upland if the irrigation ceased” as subject to § 404 permit requirements. See 51 Fed.Reg. 41,217, § 328.3 (1986) (discussion of public comments and changes accompanying final regulations for Corps regulatory programs). The Corps may, in its discretion and on a case-by-case basis, determine that a body of water within this category is within its jurisdiction. Id. Payette has presented no evidence showing that the canal wetlands would remain wetlands if irrigation stopped. The Corps’ classification of the wetlands as “non-jurisdictional” was not arbitrary and capricious. See Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir.1992). We also find it significant that the FERC license requires mitigation for destruction of these wetlands. C. Corps Process Payette maintains that the Corps’ decision-making process was flawed because the Corps was racing to meet the March 12th construction deadline mandated by HBHC’s FERC license. Consequently, Payette asserts, public notice was deficient, the public comment period was inadequate and the Corps abused its discretion by not holding a public hearing. We disagree. 1. Public Notice The public notice provided “sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment” as required by Corps regulations. 33 C.F.R. § 325.3(a). It described the project, discussed wetlands impacts and fish habitat mitigation, and notified the public of the Corps’ intent to consult with other agencies regarding potential effects on endangered species, cultural resources and water quality. 2. Public Comment Period The Corps filed the notice on December 18, 1991, and, at the request of agencies and interested individuals, subsequently extended the public comment period from January 17 to January 31, 1992. This six-week period provided sufficient time for interested parties to comment. 3. Public Hearing The Corps’ § 404 permit regulations require it to hold a public hearing, upon proper request, “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.” 33 C.F.R. § 327.4(b). The Corps received more than 250 requests for a hearing. District Engineer Volz denied one saying, “Many technical issues have been raised ... and to hold a public hearing or to further extend the comment period is not considered warranted to gather more technical data.” He noted that public meetings held by HBHC and several governmental bodies and the Corps’ notice adequately informed the public. Volz concluded that a hearing would be useful only as a forum to enable project proponents and opponents to air their views. He also concluded that because the Corps was aware of strong support on both sides, a hearing was unnecessary. In light of the facts identified by Volz and his thorough analysis of all the relevant factors, we hold that the Corps did not abuse its discretion in denying requests for a public hearing. D. District Court Exclusion of Extra-Record Evidence Finally, Payette argues that the district court erred by refusing to admit its experts’ testimony and affidavits regarding the project’s effects on water quality, fisheries, bald eagles, recreation and aesthetics. We review for abuse of discretion the court’s decision to exclude evidence. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir.1988). Generally, review of agency action, including review under NEPA, is limited to the administrative record but may be expanded beyond the record if necessary to explain agency decisions. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). When a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency’s decisions. Id. The extra-record inquiry is limited to determining whether the agency has considered all relevant factors and has explained its decision. Id. The district court may also look outside the record when the agency has relied on documents not in the record and when supplementing the record is necessary to explain technical terms or complex subject matter. Id. The court excluded the testimony of 13 of Payette’s 14 proposed witnesses but allowed William McDonald, the Corps employee who wrote the document, to testify about the agency’s review of HBHC’s application. The court did not abuse its discretion in excluding the proffered evidence. Much of it addressed concerns that the same witnesses had already raised during the public comment period. The administrative record sufficiently explained the Corps’ decision and showed that the agency considered the relevant factors. No additional information was necessary for the court’s review. Ill We conclude that the district court did not err in dismissing this action. It did err in holding that whether the Corps had jurisdiction over the canal wetlands was moot. Because the Corps’ decision that the wetlands were non-jurisdictional was not arbitrary and capricious, however, we need not remand for further proceedings. We AFFIRM the district court on all issues except the mootness issue on which we REVERSE. Because Payette and Idaho Rivers are not prevailing parties, we deny their request for attorneys fees. . The Idaho Division of Environmental Quality and FERC were defendants. The action against IDEQ was dismissed by stipulation. The district court dismissed FERC after finding that we have exclusive jurisdiction over appeals from FERC decisions. . The canal has been used as an irrigation canal since power production ended in 1954. . The record contains a January 1983 letter from Russel Manwaring, an Agriculture Department district conservationist, to Boise Cascade. Manwaring writes that "parts of the canal ... are wet throughout the year and may have standing water of up to 3 feet in depth.” (emphasis added). He adds that the water comes from "various sources, such as runoff into the canal, springs, and Kennedy's (an individual with water rights to the canal) irrigation water.” This does not necessarily contradict the Corps’ conclusion that the area would revert to upland if irrigation ceased. . NEPA regulations require agencies to hold a public hearing when required by statutes applicable to the agency. 40 C.F.R. § 1506.6(c). Question: Are there two issues in the case? A. no B. yes Answer:
songer_othappth	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". The FIRST NATIONAL BANK AND TRUST COMPANY OF OKLAHOMA CITY, OKLAHOMA, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, and John Fawcett, Appellees. No. 7950. United States Court of Appeals Tenth Circuit. June 23, 1965. R. C. Jopling, Jr., Oklahoma City, Okl. (Fowler, Rucks, Baker, Jopling, Gramlich & Mee, Oklahoma City, Okl., on the brief), for appellant. Edgar Fenton, Oklahoma City, Okl. (Fenton, Fenton, Smith & McCaleb, Oklahoma City, Okl., on the brief), for appellee United States Fidelity & Guaranty Co. John A. Johnson, Oklahoma City, Okl. (Savage, Gibson, Benefield & Shelton, Oklahoma City, Old., on the brief), for appellee John Fawcett. Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges. HILL, Circuit Judge. Appellant commenced this diversity action in the Western District of Oklahoma to recover from its insurers the amount of a loss claimed to be compensable under a “Bankers Blanket Bond Insurance Contract”. From a judgment for the defendants, the plaintiff has appealed. The facts are not in dispute. Appellant is a national bank located in Oklahoma City, Oklahoma. Appellee United States Fidelity and Guaranty Company is a Maryland insurance corporation which engages in business in the State of Oklahoma. Appellee Fawcett is an underwriter of Lloyd’s of London. 2United States Fidelity and Guaranty Company issued its Bankers Blanket Bond to appellant on April 22, 1952, in the amount of $50,000, which bond remained in force until April 22, 1961. Also, during this time, Lloyd’s of London, represented here by appellee Fawcett, issued to the bank a similar bond for coverage in excess of $50,000 up to $1,000,000. On April 22, 1961, United States Fidelity and Guaranty Company issued its bond covering losses up to $1,000,000 and the Lloyd’s of London policy was either can-celled or not renewed. In 1961, the appellant bank loaned $129,289.46 to the Sadler Brothers Pipe Line Construction Company, which loan was secured by Sadler assigning to the bank certain accounts receivable which were fictitious, although the signature of Sadler Pipe Line Construction Company in making the assignment was authentic. The parties agreed that this indebtedness by Sadler Pipe Line Construction Company to the bank is uncollectible. The indemnity bond issued by appellees contained the following clauses which are controlling here: “THE LOSSES COVERED BY THIS BOND ARE AS FOLLOWS: SECURITIES (E) Any loss through the Insured’s having, * * * extended any credit or assumed any liability, on the faith of, or otherwise acted upon any securities, documents or other written instruments which prove to have been counterfeited or forged as to the signatures of any maker, drawer, issuer, endorser, assignor * * And further the bond provides under its exclusions that: “Section 1. THIS BOND DOES NOT COVER: (d) Any loss the result of the complete or partial non-payment of or default upon any loan made by or obtained from the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except when covered by Insuring Clause (A), (D) or (E).” Thus, if appellant is to prevail, it must be under Insuring Clause (E) as neither Insuring Clause (A) or (D) are applicable here. The appellant conceded, we believe, that the signature of Sadler Brothers Pipe Line Construction Company was not forged and that the part of Insuring Clause (E) concerning the forgery of a signature is not applicable. The appellant does invoke Clause (E), on the theory that the loss resulted from having “ * * * extended * * * credit * * * on the faith of * * * securities, documents or other written instruments which prove to have been counterfeited * * *.” The question to decide then is if these fictitious accounts receivable which were assigned to the bank can be considered counterfeited. We know of only one case which squarely supports appellant’s argument. The Third Circuit in Fidelity Trust Company v. American Surety Company of New York, 268 F.2d 805 (3rd Cir., 1959) held in a like situation applying Pennsylvania law that Insuring Cause (E) applied and that invoices which covered fictitious transactions were counterfeit. That court indicated the term “counterfeit” should be construed in accordance with business language and, in that lexicon, it means something that purports to be what it is not. The majority of courts which have encountered this problem have held these fictitious invoices and accounts receivable cannot be considered counterfeit within the meaning of Insuring Clause (E). These courts in general agree that the term “counterfeit” means an imitation of an authentic document or writing or a resemblance intended to deceive and to be taken for the original. Clearly in this case, the invoices which formed the basis of the accounts receivable were not imitations of anything original or authentic, but mere fraudulent misrepresentations of fact, to-wit, that certain material had already been delivered. While it is presumed that Oklahoma law would apply, we have found no Oklahoma law which would be dispositive of the matter. The trial judge apparently believed that Oklahoma would follow the majority rule and we give great weight to his interpretation of the law unless it is clearly wrong. Pendergraft v. Commercial Standard Fire & Marine Co., 342 F.2d 427 (10th Cir., 1965). Appellant has raised one further argument here we must consider which is that appellees are estopped from denying coverage under this bond. The facts upon which the estoppel argument is based are these: During 1960 the appellant bank loaned a considerable sum of money to one Walter E. Allen who assigned as security therefor accounts receivable evidenced by invoices of goods shipped to the U. S. Government. The invoices required the signature of an authorized government inspector for validation. The signatures of these government inspectors were obtained either by inserting fictitious invoices between several copies of genuine invoices as if such fictitious invoices were copies of the genuine invoices or by inserting blank forms between genuine invoices and typing in the blanks afterward. However, a few of the invoices bore no signature but merely the typed name of such inspector below the line for the inspector’s signature. At this time, United States Fidelity and Guaranty Company only insured up to $50,000 with Lloyd’s of London indemnifying any loss above that figure not to exceed one million dollars. Both insurers, however, did in that instance indemnify the bank when the notes of Allen became uncollectible. Upon expiration of the bonds under which the Allen claims arose, appellant decided to insure entirely up to one million dollars with United States Fidelity and Guaranty Company. At the time this bond was issued no understanding, other than the contract of insurance, was had between the insurer and the bank as to the coverage afforded by the bank and no representation was made that claims arising out of losses through loans made on fictitious invoices would or would not be paid. The facts in the Allen matter are not identical to those in the present case. In the Allen matter, the invoices upon which the bank relied were the subject of fraud when the government inspectors’ signatures were obtained without their knowledge. Those facts are clearly within the Oklahoma statutory definition of forgery in the second degree, thus within the policy coverage concerning forged documents. Therefore, we see no merit to appellant’s argument on this point. The facts do not show that Fidelity changed its position with respect to the interpretation of the clause in question or misled appellant by its silence at the time of the execution of the renewal insurance contract. Affirmed. “§ 1593. Falsely obtaining signature Every person who, by any false representation, artifice or deceit, procures from another his signature to any instrument, the false making of which would be forgery, and which the party signing would not have executed had he known the facts and effect of the instrument, is guilty of forgery in the second degree.” . Appellee Fawcett appeared in behalf of all of Lloyd’s underwriters who underwrote the insurance of Lloyd’s Banks’ and Trust Companies’ Policy No. 60009. . There was a dispute concerning which bonds covered the loss in question for if the loss was discovered before April 22, 1961, Lloyd’s of London would be responsible for any loss in excess of $50,000; but if the loss occurred after that date, United States Fidelity and Guaranty Company would be solely responsible for the entire amount. The court below saw no reason to decide this matter in view of its determination that in any event, neither appellees were liable for this type of loss. . In all there were .four invoices which were assigned. Each one was on a Sadler Brothers Pipe Line Construction Company invoice form and addressed to Champlin Oil and Refining Company indicating the amount of pipe line laid for Champlin and the price per foot. At the bottom of the invoice was written: “For Value Received, the within account is hereby assigned and transferred to the First National Bank and Trust Company of Oklahoma City, together with the right to collect the same,” followed by the date and the signature of Roy E. Cook as President. The invoices were fictitious in that no pipe was laid for Champlin and hence there was no account receivable to assign. . The Seventh Circuit however has held tlie indemnity bond applicable to a situation similar to this on the basis that the fictitious invoices were forged. Security National Bank of Durand v. Fidelity and Casualty Company of New York, 246 F.2d 582 (7th Cir., 1957). Although Wisconsin law was controlling, apparently none was available. The Seventh Circuit approved a definition of forgery as either a forged signature to a true instrument or a real signature to a false instrument. Subsequently, the Supreme Court of Wisconsin in First American State Bank v. Aetna Casualty and Surety Company, 25 Wis.2d 190, 130 N.W.2d 824 (1964), declined to follow the Seventh Circuit in Durand and held on similar facts that assignment of fictitious accounts receivable were neither forged nor counterfeit. . See generally, The Exchange National Bank of Olean v. Insurance Company of North America, 341 F.2d 673 (2d Cir., 1965) ; State Bank of Poplar Bluff v. Maryland Casualty Co., 289 F.2d 544 (8th Cir., 1961); First National Bank of Memphis v. Aetna Casualty & Surety Company, 309 F.2d 702 (6th Cir., 1962), cert. denied 372 U.S. 953, 83 S.Ct. 951, 9 L.Ed.2d 977 (1963) ; United States Fidelity & Guaranty Company v. First National Bank of Fort Morgan, 147 Colo. 446, 364 P.2d 202 (1961); Metropolitan Nat. Bank of Minneapolis v. National Surety Co., 48 F.2d 611 (D.C.Minn.1931). In two cases, North Carolina National Bank v. United States Casualty Co., 317 F.2d 304 (4th Cir., 1963), cert. denied 375 U.S. 905, 84 S.Ct. 193, 11 L.Ed.2d 144 (1963) and First National Bank of South Carolina of Columbia v. Glens Falls Insurance Company, 304 F.2d 866 (4th Cir., 1962) the Fourth Circuit denied recovery under the blanket bonds because of the words of limitation in the policies “as to any signature” following counterfeit or forged indicate that only a counterfeit signature would allow recovery. . 21 Oklahoma Statutes Annotated § 1593 reads as follows: Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed 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. David DORIN, Counter-Plaintiff-Appellee and Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Counter-Defendant-Appellant and Appellee. Nos. 15374, 15375. United States Court of Appeals Seventh Circuit. June 29, 1967. Barry L. Kroll, Chicago, Ill., for David Dorin, plaintiff-appellee, cross-appellant, Epstein, Manilow & Sachnoff, Chicago, Ill., of counsel. Miles G. Seeley, Wm. Bruce Hoff, Jr., Burton E. Glazov, Chicago, Ill., for The Equitable Life Assurance Society of the United States, Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., of counsel. Before CASTLE, KILEY and FAIR-CHILD, Circuit Judges. FAIRCHILD, Circuit Judge. Cause of action for defamation asserted by counterclaim by David Dorin against his former employer, The Equitable Life Assurance Society of the United States (Equitable). The jury found for Dorin, assessing compensatory damages at $57,500 and punitive damages at $125,-000. The district court, however, ruled that unless Dorin filed a remittitur agreeing to reduce the awards to $17,500 and $7,500, respectively, Equitable’s motion for a new trial would be granted. Dorin filed the remittitur. On appeal, Equitable contends that (1) its motion for a directed verdict should have been granted because the communication was qualif iedly privileged and there was no evidence of malice, (2) its motion for a new trial should have been granted because the district court found “that the jury was inflamed by passion and prejudice in awarding the amount of damages,” and (3) that Dorin’s cross-appeal should be dismissed because by filing the remittitur he waived objection to the judgment. On cross-appeal, Dorin contends that the district court abused its discretion in requiring a remittitur as a condition of the denial of Equitable’s motion for a new trial. 1. Equitable’s motion for a directed verdict. This case is related to Jacobson v. Equitable Life Assurance Soc’y of the United States, 7 Cir., 381 F.2d 955, which was an action by named beneficiaries to recover on a life insurance policy issued by Equitable, Dorin having been the soliciting agent. Equitable denied liability on several grounds, one of which was that the insured concealed material facts relating to a change of health during the period between the time he answered questions in the medical portion of the application and the payment of the first premium, the date the insurance went into effect. During Equitable’s investigation of the Jacobson claim, it obtained information that when Dorin accepted the first premium, he had some degree of knowledge regarding the insured’s change of health and his plans to enter the hospital for corrective surgery and that when Dorin delivered the policies by mail to the insured, he had knowledge that the insured had just had a “long and complicated operation.” Dorin’s employment was terminated and he was joined as a third party defendant in the Jacobson Case, Equitable contending that if it was liable to the beneficiaries, Dorin was liable to it by reason of breaches of contractual and fiduciary duty. Dorin then filed the counterclaim for defamation that is involved here. The issues on the counterclaim were tried separately. After Dorin was terminated by Equitable, he sought employment, or applied for an agency, with Massachusetts Mutual Insurance Company. Massachusetts Mutual granted Dorin an agency contract. The Retail Credit Company was asked to make a routine investigation of Dorin. On May 25, or 26, 1963, the Retail Credit investigator interviewed Dorin’s former supervisor, Ernest C. Wentcher, a general agent for Equitable. The report emanating from that interview, and upon which this action is based, contained the following statements: “He was' employed by the Ernest C. Wentcher Agency of the Equitable Life Ins. Co., for 13 years, and was with the Equitable Life Ins. Co., with various ageancies [sic] since 1-18-37, and terminated on 4-12-63. He was an insurance agent selling life and casualty insurance. He was forced into retiring by the company and not eligible for rehire under andy [sic] circumstances. Applicant wrote a $100,-000.00 policy on a man whom he knew was going into hospital for a very serious operation. The man died on the operating table and survivors contended that the Equitable pay the indemnity. Subject denied at first knowing that the man was sick and going into hospital. One year later he changed his story and admitted that he knew man was sick and going to the hospital and wrote the policy anyway. Subject is now a party in a counter suit between Equitable and the survivors of the deceased. Source stated that they had trouble with him in the past in the fact that he would fail to mention important items in the application that would be important to the underwriter such as health, finances, etc. He it seems deliberately witheld [sic] this information from the company just so he could write the policy with no regard for the applicant and most of all with the employer. Stated to be a person who just wanted to sell insurance, no matter what it took to get the applications through. He was a big producer in the end and it was indicated that he made policy holders cash in older policies in order to pay for new policy, with the greater amounts which he was always trying to sell. Actually subject was fired, however record shows that he was forcefully retired. No salary information would be supplied.” When Massachusetts Mutual received the report, Dor in’s agency contract was cancelled. Both of the parties agree that the communication was qualifiedly privileged and the only question is whether there was sufficient evidence of malice to present the question to the jury. It is apparent that in several respects, Wentcher’s statements in the report were substantially exaggerated beyond the truth. In part they went beyond what Wentcher admitted was his information at the time, and in part went beyond what the jury could well have found was information he had when he made the statements. Wentcher said that Dorin wrote a $100,000 policy on a man he knew was going into the hospital for a “very serious” operation. But the evidence showed that when he accepted the first premium Dorin only knew that the insured had a pain in his leg caused by nerve pressure and that he was going into the hospital to have the pressure relieved. Wentcher stated in the report that the insured “died on the operating table.” In fact, the insured recovered completely from the operation, which was on June 30, 1961, and died several months later, on September 20, 1961, of a coronary occlusion and generalized arteriosclerosis. Wentcher’s report also stated that Dorin would fail to mention important items to the underwriters, such as the insured’s health and finances and that Dorin deliberately withheld information from the company. However, at the trial, Wentcher admitted that in making the statement, he only had in mind one incident where Dorin had attempted to sell a policy which the company would not issue after certain adverse facts came to light. Dorin introduced evidence that he hadn’t been aware of these adverse facts and that after another company issued a policy on the applicant’s life, Equitable issued one after all. The report stated that Dorin was a big producer in the end and that he made policyholders cash in older policies in order to pay for new policies. This would indicate to anyone acquainted with the insurance industry that Dorin was a “twister.” “Twisting” is a particularly opprobrious term in the industry and refers to inducing people to substitute a new policy for an existing one where the change does not serve the best interests of the insured. But Dorin testified that although he did recommend the cashing in of old policies, he only did so because Equitable recently came out with a particularly good policy, the executive policy, and that he only did so after he took “everything into consideration.” In Flannery v. Allyn the court said: “ ‘ * * * But it is not necessary to prove it [malice] by extrinsic evidence. It may be inferred from the relation of the parties, the circumstances attending the publication, and even from the terms of the publication itself.’ “ * * * to find that a communication is qualifiedly privileged means no more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication, and places on the plaintiff the onus of proving malice in fact; but not proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself be submitted to the jury to judge whether there is evidence of malice on the face of it.” The Restatement of Torts does not use the term “malice": § 599. General Principle. “One who publishes false and defamatory matter of another upon a conditionally privileged occasion is liable to the other if he abuses the occasion.” § 603. Purpose of Particular Privilege. “One who upon a conditionally privileged occasion publishes false and defamatory matter of another abuses the occasion if he does not act for the purpose of protecting the particular interest for the protection of which the privilege is given.” The trial court’s order denying Equitable’s motion for directed verdict must be sustained, if, viewing the evidence in the light most favorable to the plaintiff Dorin, there is any evidence which, if believed by the jury, would warrant a verdict against Equitable. The information Wentcher had, much of which has been substantiated on trial, would have justified a report somewhat unfavorable to Dorin, but the jury could find, indeed there is very persuasive evidence, that Wentcher so greatly colored and exaggerated the facts as he understood them that he must have intended to hurt Dorin more than he deserved. 2. Equitable’s motion for a new trial. In his order on Equitable’s motion for a new trial, the judge said: “ * * * The record is clear that Dorin’s annual earnings equaled, if they did not exceed, his earnings prior to the publication. The Court observed the counter-plaintiff on the witness stand and arrived at the conclusion that it would be difficult, if not impossible, to injure the feelings or sensitivity of a person so calloused in nature. His total ignorance, or disregard, of the fiduciary relationship that existed with his employer, The Equitable, is beyond comprehension. To me, it is quite obvious that the jury was inflamed by passion and prejudice in awarding the amount of damages above mentioned. Nevertheless, I have previously ruled, and I still feel, that the record contains sufficient evidence of malice to carry the case to the jury. On this state of the record an alternative should be offered to Dorin.” The judge then ruled that if Dorin filed a remittitur, agreeing to reduce the compensatory damages from $57,500 to $17,500 and the punitive damages from $125,000 to $7,500, Equitable’s motion for a new trial would be denied. Dorin filed the remittitur. If a verdict is the result of appeals to passion and prejudice, the trial court must unconditionally order a new trial and cannot give the plaintiff an option to accept a lesser amount. Equitable contends the rule is automatically applicable in this case because of the language used by the trial judge in his ruling on the motion for new trial. It is within the trial judge’s discretion to conditionally grant a motion for new trial on grounds of exeessiveness, and in the absence of a showing of abuse, his ruling must be affirmed. The trial court was of the opinion that even though the verdict was excessive, the record contained “sufficient evidence” of malice. We are of the opinion, after a careful examination of the record, that the evidence of malice was strong, and that whatever the cause of the jury’s making an excessive award of damages, the judge could properly conclude that such cause did not infect the jury’s finding on the existence of malice to the prejudice of Equitable. There was nothing in the record, other than the size of the award, to impeach the objectivity of the jury or the fairness of the proceedings, and we do not regard the judge’s use of the term “passion and prejudice” as carrying the broad meaning which Equitable would attribute to it. 3. Dorin’s cross appeal. In Casko v. Elgin, Joliet and Eastern Ry. Co. this court held that by consenting to the remittitur, the plaintiff “waived objection to the judgment entered.” While the writer of this opinion, speaking individually, would prefer a rule more liberal to the plaintiff, the Casko decision states the federal rule, followed in this and most circuits. Dorin, however, argues that the law of Illinois is applicable here under Erie R. Co. v. Tompkins. In the Illinois courts, Dorin would not be precluded from asserting that the amount of the verdict was proper because Equitable has appealed. Dorin cites Mooney v. Henderson Portion Pack Co. where, in virtually identical circumstances, the sixth circuit held that the state statute controlled. In Allstate Ins. Co. v. Charneski this court said: “The history of the Erie doctrine has been a continual retreat from conclusionary labels or mechanical solutions and an increasing emphasis has been placed on the consideration and accommodation of the basic state and federal policy goals involved. By this standard we must determine this case.” In Hanna v. Plumer the Supreme Court again considered the choice of law doctrine in diversity cases and stated, with reference to Guaranty Trust Co. v. York, the case enunciating the “outcome determination” test, at page 468: “The ‘outcome determination’ test therefore cannot be read without reference to the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws.” The two rules govern a problem of procedure in the determination of just damages for a wrong, which problem may not arise at all, and will arise, if it does, after completion of trial. Under the federal rule a plaintiff in Dorin’s situation has the choice of taking judgment at the figure set by the judge, or attempting the recovery of a greater amount by a new trial. In theory, if he is entitled to a favorable verdict in a greater amount he will get it from the second jury. Acceptance of the judge’s figure, however, does not protect him from reversal on the appeal of his opponent. Under the Illinois statute such plaintiff is given a “shot” at reinstating his damage verdict on appeal if the defendant appeals, and defendant’s appeal is unsuccessful. With all respect to the sixth circuit which, incidentally, decided Mooney before Hanna v. Plumer, we do not believe that under any “Erie” test this procedural stage in the federal process of adjudication should be governed by the state rule. Dorin’s cross appeal is dismissed, and on Equitable’s appeal the judgment is Affirmed. . Jurisdiction is based on diversity. . Lescher Bldg. Service, Inc. v. Local Union No. 133 of the Sheet Metal Workers Intern. Ass’n (7th Cir. 1962), 310 F.2d 331, 333. . Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin (1931), 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. . Bucher v. Krause (7th Cir. 1952), 200 F.2d 576, 586, cert. den. 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. . (7th Cir. 1966), 361 F.2d 748, 751. . Kennon v. Gilmer (1889), 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110; Lewis v. Wilson (1894), 151 U.S. 551, 555, 14 S.Ct. 419, 38 L.Ed. 267; Koenigsberger v. Richmond Silver Mining Co. (1895), 158 U.S. 41, 52, 15 S.Ct. 751, 39 L.Ed. 889; Woodworth v. Chesbrough (1917), 244 U. S. 79, 82, 37 S.Ct. 583, 61 L.Ed. 1005; Movible Offshore Co. v. Ousley (5th Cir. 1965), 346 F.2d 870, 875, and S. Birch & Sons v. Martin (9th Cir. 1957), 244 F.2d 556, 562, 17 Alaska 230. It appears that the fifth circuit does allow the plaintiff to appeal the judgment after he has accepted a remittitur. Compare Delta Engineering Corp. v. Scott (5th Cir. 1963), 322 F.2d 11, 15-16, cert. den. 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176, and Steinberg v. Indemnity Ins. Co. of North America (5th Cir. 1966), 364 F. 2d 266, 268, with Movible Offshore Co. v. Ousley, supra. . (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188. . 1965 Ill.Rev.Stat. Ch. 110, § 68.1(7). . (6th Cir. 1964), 334 F.2d 7. . (7th Cir. 1960), 286 F.2d 238, 243. . (1965), 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. . (1945), 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079. . Supra, footnote 12. . (1966), 75 Ill.App.2d 365, 221 N.E.2d 89, 97. 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_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). KENTILE FLOORS, INC., Appellant, v. Clifford L. WINHAM and Corinne Winham, Bankrupts, Appellees. No. 23565. United States Court of Appeals, Ninth Circuit. April 12, 1971. Beverly H. McConnell (argued), of Wilson & McConnell, Phoenix, Ariz., for appellant. Rod Wood (argued), Stark & Wood, Phoenix, Ariz., for appellees. Before MURRAH, HAMLEY and BROWNING, Circuit Judges. The Honorable Alfred P. Murrah, Senior United States Circuit Judge from the Tenth Circuit, sitting by designation. HAMLEY, Circuit Judge: In this bankruptcy proceeding a creditor, Kentile Floors, Inc. (Kentile), objected on several grounds to the general discharge of the bankrupts, Clifford L. Winham and Corinne Winham, who operated Winham’s Floor Coverings, a sole proprietorship. After a hearing, the referee held for Kentile on all grounds asserted, and denied a general discharge. On review the district court rejected the referee’s findings and held that the Winhams were entitled to a general discharge. This appeal followed. For a number of years the Winhams operated a small residential floor covering business in Phoenix, Arizona. In 1963 they ventured into the field of comercial floor coverings. Previously they had been procuring materials through Kentile’s distributor. Discussions between the Winhams and representatives of Kentile, early in 1964, resulted in an arrangement involving purchases directly from Kentile. Under this arrangement, Kentile granted the Winhams credit in the amount of $75,000, which was sufficient to handle the commercial jobs the latter then had under contract. Kentile thereafter extended credit whenever it filled an order for materials placed by the Winhams. When bankruptcy proceedings were instituted in 1965 the balance of the Winham account with Kentile was approximately $60,000. Kentile’s objections to discharge, upheld by the referee, but rejected by the district court, are based on section 14(c) (1), (c) (3) and (c) (7) of the Bankruptcy Act (Act), 11 U.S.C. § 32(c) (1), (c) (3) and (c) (7). The referee’s findings of fact dealing with these objections are to be upheld unless they are clearly erroneous. See General Order in Bankruptcy, No. 47. This calls for a review of the entire record to determine whether a mistake has been made. Hudson v. Wylie, 242 F.2d 435, 450 (9th Cir. 1957). See also, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). One of the objections, based on section 14(c) (1) of the Act, is that the bankrupts knowingly and fraudulently concealed from the receiver, trustee and the court cash on hand and accounts receivable. This charge is based on the fact that, in their bankruptcy schedules and oral testimony at the first meeting of the creditors, they stated that they had only $24.50 cash on hand at the time of filing their petitions, whereas they actually had $2,175.00 cash on hand. The bankrupts also omitted from their schedules of assets, accounts receivable from the brother of the bankrupt Clifford L. Winham in the sum of $3,460.28, together with other receivables from employees, including the son of bankrupts, in the sum of $683.00. The referee found the bankrupts knew of the existence of these assets when they filed their schedules. However, the record indicates that the omission of the assets from the schedules was the result of oversight and misunderstanding; in one instance a bookkeeper’s clerical error, in the other, a misinterpretation of legal advice. The affirmance of the schedules under oath occurred under similar circumstances. The record therefore does not warrant the conclusion that these acts of the bankrupts were knowing and fraudulent. Kentile’s objection to discharge based on section 14(c) (7) of the Act, failure to satisfactorily explain losses of assets or deficiency of assets to meet liabilities, was upheld by the referee on the ground that the bankrupts were unable to state the amount of loss attributable to the various factors which the bankrupts testified caused their financial demise. Their explanation, instead, attributed the loss to the following four factors with no calculation as to the amount of loss these factors caused: bankrupts’ lack of experience in commercial jobs, a loss on the Fort Carson job, a labor strike in Phoenix, and a loss on the Mayer Central job. The business records of the bankrupts are complete and accurate. The trustee prepared the bankrupts’ tax return from the business records for the period in question. The bankrupts suffered a substantial tax loss for this period. The amounts of the particular losses were available from the business records. There is no suggestion of culpable conduct in the management of the business. Even the trustee, Kentile’s witness at the hearing, testified that there was nothing in the business records that would alert him to some area or account where an unusually large sum of money had disappeared. Kentile does not dispute the occurrence of the factors mentioned by the bankrupts, nor that they injured the bankrupts’ business. Under all the circumstances, we do not think the explanation was unsatisfactory. Cf. Rameson Brothers v. Goggin, 241 F.2d 271 (9th Cir. 1957). Kentile also objected to a general discharge because Winham’s Floor Coverings obtained extensions of credit by publishing materially false financial statements. See section 14(c) (3) of the Act. Both the referee and the district court found materially false financial statements were published by the bankrupts as sole proprietors of Win-ham’s Floor Coverings. The referee found that Kentile relied on the statements when it subsequently extended credit. The district court found that Kentile did not rely on the statements, and that Kentile had no right to rely on them. The record discloses that Mr. Winham intentionally modified the true figures on his statement of financial condition for the purpose of showing a good statement. He acknowledged that he felt that if a correct statement were submitted, his credit would be curtailed. After receiving the statements, Kentile did extend further credit to Mr. Win-ham. While the law favors discharges in bankruptcy, it will not ordinarily tolerate the bankrupt’s intentional departure from honest business practices where there is a reasonable likelihood of prejudice. A bankrupt who admits that he prepared false financial statements in an effort to obtain or retain credit standing, and who thereafter achieves that goal, has a heavy burden to carry in trying to show that the false statement was not, or should not have been, instrumental in the subsequent extensions of credit. Reliance on the financial statements is necessary to preclude discharge for violation of section 14(c) (3). Rogers v. Gardner, 226 F.2d 864 (9th Cir. 1955). Notwithstanding the bankrupts’ heavy burden of proof, referred to above, we agree with the district court that whatever reliance Kentile placed upon these statements was not reasonable reliance, that Kentile therefore had no right to rely upon the statements in this situation, and that the bankrupts should not, on this ground, be denied a general discharge. A recitation of the facts surrounding the submission of the financial statements and subsequent extensions of credit is necessary to illustrate why Kentile should have been alerted to the actual financial condition of Winham’s Floor Coverings and why Kentile should not have relied upon the financial statements without further investigation. As noted above, the bankrupts had been dealing with Kentile, through its distributor, for a period of time before the arrangement for direct purchases from Kentile was consummated early in 1964. The arrangement corresponded somewhat with the bankrupts’ entrance into the field of commercial floor coverings. Kentile acknowledged the bankrupts’ history of prompt payment prior to 1965. Kentile further acknowledged representatives had been calling on the bankrupts from time to time for the purpose of reviewing the bankrupts’ business records. When Kentile began extending credit to the bankrupts, it did not require publication of a statement of financial condition as a prerequisite. In the spring of 1965 the bankrupts’ payments on the account had become sporadic. Kentile’s credit manager stated that the payments were “not satisfactory.” The record indicates that Kentile was then seriously considering curtailment of Winhams’ credit. Kentile was also aware of Winhams’ sporadic payments on the account with Kentile’s distributor. Kentile was, in fact, aware of many of the difficulties with which the bankrupts were beset in early 1965. By March 1965, Kentile had begun to insist that the bankrupts supply a statement of financial condition. Before having received any financial statement from the bankrupts, however, Kentile had extended approximately $96,000 in credit. This was the amount due Ken-tile from the bankrupts when the first financial statement was submitted in April 1965. The statement purported to reflect the financial condition of Win-ham’s Floor Coverings as of December 31, 1964. Kentile was aware of the financial problems the bankrupts had experienced in the interim. Kentile also knew that the total of all Winhams’ accounts payable on December 31, 1964, as reflected in the financial statement, was substantially less than the amount Win-hams owed Kentile and its distributor when the statement was received in April 1965. Kentile’s credit manager was somewhat equivocal when asked the significance that could be placed on a financial statement such as this. The financial condition reported in the statement seemed, to the credit manager, inconsistent with the manner in which the bankrupts were making payments on the account. The second financial statement submitted by Winham was received by Ken-tile in June 1965, and purported to reflect the financial condition as of March 31, 1965. This statement, compared with the first statement, showed an improvement during the first quarter of 1965, contrary to all other information available to Kentile. Credit was curtailed shortly after its receipt. Credit was not curtailed because Kentile discovered the bankrupts’ true financial condition, but because the payments on the account were not satisfactory. Given the lengthy and apparently fairly close business relationship of Kentile and Winham’s Floor Coverings, we do not think further investigation by Ken-tile would have damaged that relationship had Winham’s been a going concern. We therefore think Kentile acted unreasonably if it relied upon the first statement in extending credit without any further investigation of the bankrupts’ then existing financial condition. While a financial statement is not necessarily unreliable because it reflects the condition as it existed three or four months earlier, Kentile’s knowledge of what occurred in the interim was sufficient to require further inquiry. Reliance on the second statement, showing an improvement of condition in the interim, was similarly unjustified. Affirmed. . We are also mindful of the possibility that granting a discharge to a bankrupt guilty of deliberate falsification may tend to encourage similar conduct in others. Under the facts here, however, that possibility is quite remote. There is no indication that Winham was concerned with bankruptcy or a bankruptcy discharge when he determined to falsify his financial statements. Winham testified, and there is no evidence supporting an inference to the contrary, that he sought further credit from Kentile in an effort to improve his financial condition, to make his business once again profitable. There is no indication that Winham intended to obtain credit in the hopes he would not be held accountable for the debt. As noted above, Winham’s business records are complete and accurate and do not indicate that he was squandering the assets of the business. . One large commercial project was on the verge of bankruptcy, and ICentile knew that Winham stood to lose a substantial sum of money on the project. Kentile knew that the bankrupts were having difficulty collecting money from many of their commercial accounts. Kentile also knew of the labor troubles the bankrupts were experiencing on other commercial jobs and knew, or should have known, how Winhams’ business would be affected. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_typeiss	C	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. Shirley M. RUSSELL, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY and Consumers Public Power District, Appellees. No. 16692. United States Court of Appeals Eighth Circuit. May 31, 1962. Charles E. Kirchner, Omaha, Neb., made argument for the appellant and filed brief. John E. Dougherty, York, Neb., made argument for the appellee and filed brief. Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges. MATTHES, Circuit Judge. The basic question for determination on this appeal is whether the trial court, upon motion interposed by one of the defendants, properly dismissed plaintiff’s cause of action and refused to permit an amendment to the original complaint. The issue presents for our consideration the Nebraska statute of limitations controlling wrongful death actions; the effect of failure of the original complaint, filed within the statutory period, to properly allege legal capacity to sue; and the right of plaintiff to file an amended complaint alleging her right to maintain the action, after the statutory period of limitations had expired. Section 30-809, R.S.Neb., 1956 Reissue, creates the right to recover for the wrongful death of a person. Section 30-810 provides that an action for wrongful death shall be commenced within two years after the death of such person, and “(i)t shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin.” Section 30-810 was considered by the Supreme Court of Nebraska in Swift v. Sarpy County, 102 Neb. 373, 167 N.W. 458, where the pronouncement was made, (167 N.W.) at p. 459: “When damage results from the death of an individual, this statute applies, and requires that an action for negligently causing such death shall be brought in the name of the administrator of the deceased individual.” The Swift case has conclusively established that a wrongful death action in Nebraska must be maintained by the legal representative of the deceased. See Sarpy County v. Galvin, 8 Cir., 251 F. 888; Stevenson v. Richardson Co. (D.C.Neb.), 9 F.R.D. 437. We turn now to the incidents from which this appeal emanated. Shirley M. Russell filed a complaint in the United States District Court for the District of Nebraska on July 25, 1960. She alleged that she was bringing the cause of action for herself and as personal representative of the estate of her husband, James G. Russell, deceased; and that on the 26th day of July, 1958, her husband was fatally injured as a result of the negligence of defendant Consumers Public Power District. There was a general allegation of diversity of citizenship and a prayer for judgment in the amount of $150,000. On August 6, 1960, defendant Consumers Public Power District moved to dismiss the complaint on the grounds (1) that the court lacked jurisdiction over the subject matter because the action was being prosecuted by the wife of the deceased who had no legal capacity to sue or maintain the action, and (2) failure to join an indispensable party, namely, the personal representative, as provided by §§ 30-809, 30-810, R.S.Neb., 1956 Reissue. On September 2, 1960, plaintiff moved for leave to file an amended complaint. In pertinent part this complaint alleged that on August 11, 1960, plaintiff had filed petition for appointment as special administratrix of the estate. of her deceased husband in the County Court of Hamilton County, Nebraska; that she had qualified for such appointment and had been issued letters of special administratrix ; that there were no children of her marriage to James G. Russell, and that she is his sole heir and next of kin. The court took the motion for leave to file the amended complaint under advisement, and on November 8, 1960, filed a memorandum and order sustaining Consumers’ motion to dismiss. This, of course, was tantamount to a denial of the right to file the amended complaint. From the memorandum, not officially published, it is manifest that the court was of the view that the cause of action was vested exclusively in the personal representative of the deceased; that the widow had no right as such to institute and maintain the action, and that because an action had not been commenced by the party having legal capacity under the Nebraska statute, the cause of action is barred by the statute of limitations. Plaintiff has appealed. No brief has been filed on behalf of the defendant New Amsterdam Casualty Company, and defendant Consumers Public Power District appears as appellee in this court. For convenience and brevity we shall hereafter refer to the parties as appellant and appellee. From the action taken by the trial court and reasons assigned therefor, it is apparent that the court failed to come to grips with what we regard as the crucial issue, to wit: the right of appellant to amend her complaint, after the two-year statutory period had expired, by alleging that she had been duly appointed as personal representative of the deceased’s estate and as such had authority to prosecute the same. Resolution of this issue turns on the question of whether an amendment which substitutes a party having legal capacity to sue for one lacking such right but having a beneficial interest in the subject matter, introduces a new and different cause of action. Because of the importance of the question we have made extensive independent research which persuades us to hold that the amendment should have been allowed. A clear statement of the general rule is found in 16 Am.Jur., Death, § 289, p. 201, in this language: “The usual rules as to the amendment of pleadings in civil actions generally prevail in regard to the amendment of a declaration, petition, or complaint in an action for death by wrongful act, and the right to amend is subject to the same general limitations as to changing the form of the action, change of parties, and the substitution or introduction of an entirely new cause of action after the statute of limitations has become a bar. Where an amendment to a complaint in an action for wrongful death introduces no new or different cause of action and does not set up any different state of facts as the ground of action, it relates back to the beginning of the suit and the statute of limitations is arrested at that point; but when the amendment introduces a new and different cause of action, it is treated as a new suit begun at the time when the amendment is filed.” Sections 290 and 291 of the same authority are pertinent. In the former it is stated, at p. 202: “By the weight of authority, if the action to recover for the negligent killing of a person is brought in the name of the wrong plaintiff, the proceedings may be amended to the end that the proper party be made plaintiff therein. * * * Indeed it has even been held, where it was contended that under an amendment bringing in new parties to an action for wrongful death a new cause of action was stated and the statute of limitations had run as to the new parties, that, since no new or different cause of action was introduced, the amendment related back to the commencement of the action and the plea of the statute of limitations was of no avail.” Section 291 is particularly apropos to the instant situation and it states, at p. 203, the rule to be: “In an action for wrongful death properly maintainable only in the name of the personal representative of the decedent, it has been held that an amendment of the original petition, in such an action, by which the plaintiff sued as sole beneficiary, may be made so as to allege the representative capacity of the plaintiff, since such an amendment introduces no new or different cause of action and sets up no different state of facts as the ground of action.” The question has been the subject of numerous court decisions, is annotated in 74 A.L.R. 1269; 8 A.L.R.2d 76-90, the latter being supplemented in A.L.R. Supplement Service, 1960, p. 580, §§ 39 and 40, and in A.L.R. Supplement Service, 1962, p. 131, §§ 39 and 40, and was considered in the analysis of the law of limitations appearing in 63 Harvard Law Review 1177, where this statement appears at p. 1239: “However, * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of the suit, an interest in the subject matter of the controversy.” (Emphasis supplied). The Supreme Court of the United States spoke authoritatively on the subject in Missouri, Kansas and Texas Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, an action under the Federal Employers’ Liability Act of 1908 which required the action to be brought in the name of the personal representative of the deceased. Aside from being an action under the Federal Employers’ Liability Act, which we do not regard as having any controlling significance so far as the instant question is concerned, Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, presented the same problem on an almost identical state of facts. The action was commenced by the mother in her individual capacity on January 23, 1909, to recover for the death of her son, which occurred on November 27, 1908. On January 6, 1911, plaintiff filed her amended petition, alleging that on January 4, 1911, she was appointed temporary administratrix of her son’s estate with full power and authority to prosecute the suit as party plaintiff. The amendment was allowed, she recovered, and on appeal it was contended that the amended petition filed after the statutory period of limitations of two years, and which for the first time set up a right to sue as administratrix, alleged an entirely new and distinct cause of action, and that such amendment could not relate back to commencement of the action. In ruling adversely to this contention, the court stated, 226 U.S. at p. 575, 33 S.Ct. at p. 137: “It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company and by reasons of defects in one of its locomotive engines due to its negligence; and that since the deceased died unmarried and childless, the plaintiff, as his sole surviving parent, was the sole beneficiary of the action.” Continuing on p. 576, 33 S.Ct. p. 137, the court observed further: “Nor do we think it [amendment] was equivalent to the commencement of a new action, so as to render it subject to the two years’ limitation prescribed by § 6 of the Employers’ Liability Act. The change was in form rather than in substance, (citing case). It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit.” (citing cases, including McDonald v. State of Nebraska, 8 Cir., 101 F. 171). The teachings of the Supreme Court in Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, have been applied by the federal courts in wrongful death actions. Reardon v. Balaklala Consol. Copper Co. (Circuit Ct.N.D., Calif.), 193 F. 189, aff’d sub nom. Balaklala Consol. Copper Co. v. Reardon, 9 Cir., 220 F. 584; Quaker City Cab Co. v. Fixter, 3 Cir., 4 F.2d 327; Bochantin v. Inland Waterways Corp., (D.C.E.D.Mo.), 9 F.R.D. 592; and in two cases involving actions on war risk policies, Lopez v. United States, 4 Cir., 82 F.2d 982; United States v. Powell, 4 Cir., 93 F.2d 788. St. Paul Fire & Mar. Ins. Co. v. Continental Bldg. Op. Co., W.D.Mo., 137 F.Supp. 493, involved the effect of an amendment under Missouri law substituting an insurance com-any for the individual plaintiff after expiration of five years, which was the period of limitations. Judge Whittaker, later a Justice of the United States Supreme Court, stated the Missouri law in this manner, at p. 494: “It is clear from an unbroken line of decisions in Missouri that if a suit is brought by one who has no legal right to maintain it, yet, who has a beneficial interest in the subject matter of the action, the substitution of a proper plaintiff will relate back to the time of filing of the original action by the one without authority to prosecute it, and the intervening running of the statute of limitations will not be held to bar the action by the substituted plaintiff, but on the other hand, if the original action was brought by an improper plaintiff who had no legal or beneficial interests in the subject matter of the action and later—but after the statute of limitations has run—a proper party plaintiff is substituted, the substitution will be treated as a new action, and the action will be held to be barred by the Missouri statute of limitations.” (Citing numerous cases). (Emphasis supplied). The principle has been recognized by state courts in Cox v. San Joaquin Light & Power Corp., 33 Cal.App. 522, 166 P. 578; Davis v. Gant (Tex.Civ.App.), 247 S.W. 576; Davis v. Preston (Tex.Civ.App.), 264 S.W. 331, 118 Tex. 303, aff’d 16 S.W.2d 117; Whitson v. Tennessee Cent. Ry. Co., 163 Tenn. 35, 40 S.W.2d 396, which overruled its prior holding in Flatley v. Memphis & C. Railroad, 56 Tenn. 230; Douglas v. Daniels Bros. Coal Co., 135 Ohio State 641, 22 N.E.2d 195, 123 A.L.R. 761, wherein the court made this pertinent observation at p. 198: “The amendment corrects the allegations of the petition with respect to plaintiff’s capacity to sue and relates to the right of action as contradistinguished from the cause of action. A right of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. * * * The requirement of the wrongful death statute that the prosecution of the action be in the name of the personal representative is no part of the cause of action itself, but relates merely to the right of action or remedy.” McDonald v. State of Nebraska, 8 Cir. (1900), 101 F. 171, has received recognition by courts throughout the land and, as we have seen, it was cited by the Supreme Court of the United States in Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355. McDonald was not a wrongful death action but in principal we regard it as persuasive. There the original plaintiff was the state treasurer of Nebraska. The defendant demurred, contending that the plaintiff lacked capacity to maintain this suit. The lower court sustained the demurrer but permitted the State of Nebraska to be substituted as plaintiff even though the statute of limitations had intervened. On appeal it was contended that the substitution was a change of the cause of action; was equivalent to bringing of a new action, and that as the statute of limitations had run against plaintiff’s claim before the amendment was made, the cause of action was barred. This court first considered the question in light of the Nebraska Code, §§ 144 and 145, now §§ 25-852 and 25-853, R.S. Nebraska, 1956 Reissue, and then from the standpoint of the Federal Judiciary Act of 1789 (which was then in effect). As to the former, it was concluded, 101 F. at p. 174: “Beyond all question these provisions authorized the court to allow the amendment that was made in this case.” As to the latter, we said, at p. 176: “But, independent of the Nebraska Code and the decisions of the supreme court of that state, we would have no difficulty in upholding the judgment of the lower court in this case both upon principle and authority. The right and duty of the federal courts to allow amendments does not rest on state statutes only. It is conferred on them by the judiciary act of 1789.” To our knowledge the Supreme Court of Nebraska has not determined the propriety of substituting the party having legal capacity to maintain a wrongful death action as plaintiff for one lacking such capacity, insofar as the statute of limitations of that State is concerned. However, in a number of cases, presenting varying situations, the Court has considered amendments to the original petition where the claim was made that the amendment introduced a new cause of action, and having been made after the statute of limitations had run, the action was barred. See Norfolk Beet-Sugar Co. v. Hight, 59 Neb. 100, 80 N.W. 276, where amendment amplified facts forming basis for cause of action; Chicago, R. I. & P. R. Co. v. Young, 67 Neb. 568, 93 N.W. 922, where amended petition alleged pecuniary loss; State Bank of Gothenburg v. Carroll, 81 Neb. 484, 116 N.W. 276, where amendment substituted State Bank of Gothenburg as plaintiff for the receiver of the bank and where the plea of the statute of limitations was on the theory that the substitution was the commencement of a new action; Tecumseh Nat. Bank of Tecumseh v. McGee, 61 Neb. 709, 85 N.W. 949, where heirs were substituted as plaintiff for the administrator of the estate; Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471, where amended petition elaborated the cause of action; Muenchau v. Swarts, 170 Neb. 209, 102 N.W.2d 129, a mechanic’s lien action where amended petition alleged an agreement with the contractor whereas in original petition he alleged contract with the owner of the premises. As reference to the foregoing opinions will disclose, the issue turned on the question of whether the amended petition presented a new cause of action and in each, the amendment was per- mitted. The view of the Supreme Court of Nebraska is pertinently set out in State Bank of Gothenburg v. Carroll, supra, 116 N.W. 276, at p. 277: “The plea of the statute of tions was based upon the theory and assumption that the filing by the substituted plaintiff of an amended and substituted petition was the commencement of a new action, and that, more than five years having elapsed prior to the filing of such petition, the action was barred. It is conceded that the original action was begun previous to the running of the statute. We think the rule is generally well settled that the substitution of one party plaintiff for another in a pending action is a continuation of the original rather than the commencement of a new action. It is the same cause of action. Only another party has succeeded to the rights of one of the litigants, and in our practice such party may be substituted as the real party in interest in lieu of the one who commenced the action. Since the statute of limitations had not run at the commencement of the original action, it follows that it can be no defense in this action.” We fully recognize the distinguishable factual situations apparent in the cited Nebraska cases but to us they nevertheless strongly indicate that Nebraska has adopted a position of liberality in permitting amendments to the original petition. At least one Judge of the State of Nebraska has expressed his opinion on the precise question before us. W. G. Whitford, County Judge of Madison County, Nebraska, in his work, “Nebraska Probate and Administration,” published in 1954, Vol. I, pp. 473, 474, states: “After death of the decedent the action may be brought only by the personal representative. Action cannot be brought by all beneficiaries jointly or by the sole beneficiary in case there is only one. But, if action is brought by someone not then the personal representative, who subsequently becomes the personal representative, and an amended petition is filed showing this fact and that the action is brought in his representative capacity, the action may proceed and, so far as the statute of limitations is concerned, the amended petition will be treated as though filed at the time of commencing the action.” Judge Whitford’s authority for this statement is Missouri, Kansas and Texas Railway Co. v. Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355. Reverting to the amended complaint—it does not allege any new or different facts as the ground of action. Both the original and amended complaints averred that the deceased was fatally injured on July 26, 1958, as the result of the negligence of defendant Consumers Public Power District. Moreover, and of vital significance, the amended complaint alleged that Shirley M. Russell, the widow, (the plaintiff in the original complaint) is the sole heir and next of kin of James G. Russell. Thus, she is the beneficiary of the subject matter of the action. While we are reluctant to interfere with and overturn the judgment of a district court in a diversity action involving a question of local law, Dierks Lumber & Coal Co. v. Barnett, 8 Cir., 221 F.2d 695, 697; Mothner v. Ozark Real Estate Company, 8 Cir., 300 F.2d 617, we are persuaded on the facts presented and the teachings of the Supreme Court of the United States, the courts of many jurisdictions and the other authorities above referred to, that the order of dismissal was induced by an erroneous concept of the Nebraska law. In summary, we hold that under the circumstances, the amendment did not introduce a new and different cause of action, but went to the right to pursue the same cause of action alleged in the original complaint; that the amendment was therefore procedural, bringing into play Rule 15(c) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., which provides that when the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the original pleading, and, finally, the court improperly dismissed appellant’s cause of action on the ground that it was barred by the statute of limitations. In its brief appellee contends that federal jurisdiction does not exist because of lack of diversity of citizenship. Its theory is that under Nebraska law a non-resident of that state is ineligible for appointment as personal representative of a deceased’s estate; that inasmuch as it is alleged in the amended complaint that Shirley M. Russell was appointed administratrix by the Hamilton, Nebraska County Court that it is presumed she is a resident of Nebraska and since appellee is a political subdivision of that state there is no diversity of citizenship. Section 30-315, R.S.Nebraska, 1956 Reissue, provides in effect that the administration of an estate of a deceased person, dying intestate, shall be granted to someone who is a resident of the state. Appellant meets this suggestion by asserting that this provision does not apply to a special administratrix. For reasons presently stated we refrain from answering this question but we note in passing that federal jurisdiction on the grounds of diversity of citizenship in an action brought by the legal representative of a deceased person is to be determined by the citizenship of the legal representative and not that of his decedent. See Mecom v. Fitzsimmons Drilling Co., Inc., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233; McCoy v. Blakely, 8 Cir., 217 F.2d 227, 230-231; Janzen, Administrator, etc. v. Goos, 8 Cir., 302 F.2d 421. It is of course fundamental that a federal appellate court must, on appeal, satisfy itself not only of its own jurisdiction, but also the jurisdiction of the United States District Court. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338; Illinois Terminal R. Co. v. Friedman, 8 Cir., 208 F.2d 675, 676; Kern v. Standard Oil Co., 8 Cir., 228 F.2d 699, 701, cause ordered dismissed for lack of jurisdiction, 230 F.2d 954; Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., 8 Cir., 283 F.2d 144, 145. The present state of the record is such that it is impossible for us to determine whether there is in fact diversity jurisdiction existing. In this connection we again take occasion to mention that it is diversity of citizenship which controls. 28 U.S.C.A. § 1332; Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., supra, 283 F.2d at p. 145; Burkhardt v. Bates, 8 Cir., 296 F.2d 315, 316. The original complaint alleged that plaintiff is a resident of South Dakota, and that defendant is doing business in the State of Nebraska with headquarters at Columbus, Nebraska. Manifestly, the allegation did not comport to the requirements of the statute. The amended complaint does not allege the state of which the legal representative is a citizen. Neither does the amended complaint meet the requirments of Title 28 U.S.C.A. § 1332 (c), added July 25, 1958, which provides that “a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” We have concluded that plaintiff should have an opportunity to further amend the complaint, if the facts will permit, by alleging proper jurisdictional requirements. The order dismissing the cause of action is reversed and the cause is remanded. . Defendant New Amsterdam Casualty Company was alleged to be the insurer of Russell’s employer under the Nebraska Workmen’s Compensation Law, and that it was joined as a defendant in order that its subrogation rights arising by reason of payments made by it, could be determined. . The complaint alleged that the deceased and plaintiff were “at all times mentioned hereinafter residents of Yankton, South Dakota; that defendant Consumers Public Power District is doing business in the State of Nebraska with headquarters at Columbus, Nebraska; * * ." More will be said of diversity of jurisdiction during the course of the opinion. . There is contrary authority. In § 291 of Am.Jur. it is stated: “In some jurisdictions, however, it has been held that ordinarily an amendment making a change in the party plaintiff from an individual to a representative capacity, or vice versa, is a change in the cause of action which will let in the defense of the limitation of time.” See also: Baltimore & Ohio S. W. R. Co. v. Gillard, 54 Ind.App. 539, 71 N.E. 58; Bolitho v. Buch Exp., Inc., (D.C.E.D.Pa.), 12 F.R.D. 189; Maxson v. McElhinney, 370 Pa. 622, 88 A.2d 747. . The present Federal Employers’ Liability Act, 45 U.S.C.A. § 51, provides for bringing of action for death of employee “[by] personal representative, for the benefit of the surviving widow or husband and children of such employee; * . In these cases the court ruled that the substitution of a party with legal capacity to sue did not change the cause of action so as to let in the defense of limitations. . § 25-852 provides in substance that the court may either before or after judgment, in furtherance of justice, amend any pleading by adding or striking out the name of any party, or by correcting any mistake in the name of a party, or a mistake in any other respect when the amendment does not change substantially the claim. § 25-853 provides that the court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. 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_appnatpr	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. Kevin P. MADDEN, Charles J. Oswald, and Richard W. Kurre, Appellants, v. Jeffrey M. GLUCK, Debra McAlear Gluck, and Landmark St. Louis Bank, Appellees. No. 86-1917. United States Court of Appeals, Eighth Circuit. Submitted Jan. 14, 1987. Decided Feb. 11, 1987. William M. Howard, St. Louis, Mo., for appellants. Jerry J. Murphy and Leo V. Garvin, Jr., St. Louis, Mo., for appellees, Gluck, et al. David W. Harlan, Clayton, Mo., for ap-pellees, Landmark Bank. Before LAY, Chief Judge, and HEANEY and ARNOLD, Circuit Judges. PER CURIAM. Appellants, representatives of an uncerti-fied class of employees and creditors of the defunct St. Louis Globe Democrat, Inc., challenge the district court’s dismissal of an action they brought against Jeffrey M. Gluck, Debra McAlear Gluck, and Landmark St. Louis Bank (collectively referred to as appellees) alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (RICO). We affirm. Since the district court dismissed the appellants’ claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action, we must view the facts alleged in their complaint in the light most favorable to them. See Bennett v. Berg, 685 F.2d 1053, 1057 (8th Cir.1982), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). So viewed, the complaint alleges that from February of 1984, to the time the complaint was filed, the Glucks dominated and controlled the activities of the Globe with the sole purpose of prolonging its life by creating an illusion that the company was solvent and able to pay its debts. The complaint further alleges that the Glucks engaged in such activities in order to divert the Globe’s assets to their own use and later sell their Globe stock for the highest price obtainable. In furtherance of this scheme, the complaint alleges that the appellees engaged in a vast array of fraudulent activities by use of the mail and wire in violation of 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1343 (wire fraud). The alleged acts include: (1) a check kiting scheme whereby, during the first eight months of 1985, the Glucks drew 5,643 checks totaling $4,264,-038.66 on Landmark St. Louis Bank (Landmark) which were returned because the Globe’s accounts contained insufficient funds and on which Landmark received a total of $93,708.92 in bad check fees; (2) diversion of the Globe’s corporate assets including funds totaling $775,000 withheld from or owing to Globe employees for taxes, union dues, health insurance premiums, savings bond purchases, earned vacation pay, and United Way contributions; and (3) defrauding of creditors by preparing and distributing false financial statements and by failing to comply with the terms of a financing agreement with Citicorp Industrial Credit Corporation. On June 25, 1986, 636 F.Supp. 463, the district court granted the appellees’ motion to dismiss for failure to state a claim upon which relief may be granted finding that the complaint failed to adequately allege a “pattern of racketeering activity” as the term has been construed by the United States Supreme Court and this Court. The court, applying our recent decision in Superior Oil Co. v. Fulmer, 785 F.2d 252 (8th Cir.1986), found that although the alleged acts were sufficiently related to form a pattern, they constituted mere subdivisions of only one fraudulent scheme. Thus, the court found that the alleged acts lacked sufficient continuity to form a “pattern of racketeering activity.” Review of the district court’s memorandum opinion reveals that it is fully consistent with our decision in Superior Oil, which we subsequently reaffirmed in Holmberg v. Morrissette, 800 F.2d 205 (8th Cir.1986). In those cases we held that a “pattern of racketeering activity” requires more than one fraudulent scheme. In this case, appellants allege only a scheme to keep the Globe afloat in order to loot it. Without more, the “pattern of racketeering” element of a RICO violation has not been alleged. Accordingly, we affirm. . We are aware of the recent Second Circuit decision criticizing our holding in Superior Oil, and holding that two predicate acts committed with the common purpose of furthering a continuing criminal enterprise provide the continuity and relatedness apparently required by footnote 14 of Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346, 358-59 n. 14 (1985). See United States v. Ianniello, 808 F.2d 184 (2d Cir.1986). Nonetheless, we adhere to our position in Superi- or Oil. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". ZITSERMAN v. FEDERAL TRADE COMMISSION. No. 14533. United States Court of Appeals, Eighth Circuit. Dec. 18, 1952. F. W. James, Evanston, 111., for petitioner. John W. Carter, Jr., Atty. for Federal Trade Commission, Washington, D. C., (W. T. Kelley, Gen. Counsel, and Robert B. Dawkins, Asst. Gen. Counsel, Washington, D. C., on the brief), for respondent. Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges. GARDNER, Chief Judge. This is a petition to review a cease and desist .order entered against petitioner by the Federal Trade Commission. The order was entered after hearing on complaint which alleged in substance that petitioner manufactured push cards and punchboards, selling and distributing them in interstate commerce to manufacturers of and dealers in various other articles .of merchandise and that such push cards and punchboards are so'prepared and arranged that when used in selling merchandise a game of chance, gift enterprise or lottery scheme is involved; that many persons, firms and corporations who distribute and sell merchandise in interstate commerce purchase petitioner’s push cards and punchboards and pack and assemble assortments of merchandise with said push cards and punchboards; that retail dealers who purchase such assortments expose such assortments to the purchasing public and sell merchandise by means of petitioner’s push cards and punchboards; that because of the element of chance involved, members of the purchasing public are induced to buy from such retail dealers and as a result many retail dealers have been induced to deal with manufacturers, wholesale dealers and jobbers who distribute merchandise together with petitioner’s devices; that the sale of merchandise to the public by the use of such push cards and punchboards involved a game of chance to procure merchandise at less than normal retail prices; that the sale of merchandise by this method and means teaches and encourages gambling among members of the public, all to the injury of the public; that the sale of merchandise by chance or lottery is a practice which is contrary to the established public policy of the Government of the United States and constitutes unfair acts and practices in commerce; that by the sale of petitioner’s push cards and punchboards petitioner supplies to and places in the hands of others the means of conducting lotteries, games of chance or gift enterprise's in the sale or distribution of merchandise; that petitioner thus provides others with the means of and instrumentalities for engaging in unfair acts and practices in commerce in the sale of merchandise. The complaint also charged that said acts and practices of petitioner are all to the prejudice and in-juiy of the public and constitute unfair .acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq. By answer petitioner put in issue all •the allegations of the complaint. Although the printed record contains no evidence, nor even a recital that evidence was introduced in support of the allegations of the complaint, it is admitted by counsel for petitioner in his brief that “after issues were joined the Commission held hearings.” Neither does the printed record contain any evidence introduced or offered by the petitioner. The hearing examiner filed his initial decision which included findings of fact and conclusions of law and an order to cease and desist. The findings which are set out in detail in the printed record sustained all the substantial allegations of the complaint and concluded that the petitioner’s acts and practices as found constituted unfair acts and practices in commerce within the intent and meaning of the Federal Trade Commission Aot. An order was entered which directed petitioner to cease and desist from “selling or distributing in commerce as ‘commerce’ is defined in the Federal Trade Commission Act, punch-boards, push cards, or other lottery devices which are to be used, or which may be used, in the sale and distribution of merchandise to the public by means of a game of chance, gift enterprise or lottery scheme.” Petitioner appealed to the Commission from the decision of the trial examiner and on hearing the decision of the trial examiner was affirmed and adopted as the decision of the Commission. By her petition for review in this court petitioner asks that we review “the findings and order of the Federal Trade Commission in said cause and enter a decree in this honorable court setting aside the order of the Federal Trade Commission * * .” In support of her petition she urges: (1) that the hearing granted her did not comply with the due process clause of the Constitution nor with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., in that the trial examiner refused to grant the petitioner adequate hearings; (2) the Commission does not have jurisdiction to restrain the interstate shipment of push cards and punchboards; (3) the order issued is too broad; (4) the proceeding is not in the interest of the public as required by the Federal Trade Commission Act. Although petitioner seeks a review of the findings of the Commission, she has not included in the printed record any of the evidence confessedly introduced in support of the allegations of the complaint. In this situation the findings and conclusions are presumed to be sustained by the evidence and may not be reviewed here. The contention that petitioner was not granted a fair hearing is bottomed on certain alleged rulings of the trial examiner rejecting petitioner’s proffered evidence. The evidence is not in the printed record and Rule 10(b) of this court among other things provides that, “If the appellant or petitioner in his brief challenges rulings upon evidence, such evidence, the objections interposed thereto, and the rulings questioned shall be quoted in the printed record, and if the question of the sufficiency of the evidence to support a finding, ruling, order, verdict or judgment of the court or board is raised by the appellant to petitioner, he shall include in the printed record (in narrative form) all evidence received upon the trial or hearing pertinent to that question.” See Loughran v. Federal Trade Commission, 8 Cir., 143 F.2d 431. It is, however, urged by the petitioner that the record sufficiently reflects the ruling of the court on the admission of evidence because there is printed in the record, under the heading “Ruling,” the following: “The Commission on appeal from the Trial Examiner’s initial decision in upholding the Examiner’s ruling that petitioner could not have hearings for the purpose of introducing evidence on the intrastate use of punch hoards, ruled ‘The Commission is of the opinion that the distribution in commerce of devices which aid and encourage merchandising by gambling is contrary to the interest of the public.’ ” ‘ As there is nothing in this ruling which reflects the circumstances under which the ruling of the examiner was made nor what, if any, evidence was offered, this record leaves much to conjecture and speculation. In the final analysis, however, we think the contention is substantially embodied in petitioner’s argument to the effect that the Federal Trade Commission Act does not confer jurisdiction on the Commission to restrain transportation of the devices here in question in interstate commerce because the devices are used in connection with the sale of merchandise by chance or lottery in intrastate commerce. Unless petitioner’s argument on this question is sound, then manifestly the ruling complained of which it is said denied her the right to make proof that the devices were ultimately to be used for the sale of merchandise only in intrastate commerce, could not be prejudicial. The controversy is concerned with the sale and distribution of lottery devices. Petitioner in her brief admits the sale and distribution in interstate, commerce of lottery devices and their use in the sale and distribution of merchandise, and, indeed, as that is the finding of the Commission it can not, in the condition of the record, be here challenged. This narrows the issue to the question as to whether or not the Commission is without jurisdiction if these devices though transported in interstate commerce are ultimately used in connection with the sale and distribution of merchandise only in intrastate commerce. It is broadly urged that the Commission has no jurisdiction over interstate shipments of lottery devices. In the recent case of Federal Trade Commission v. Raladam Company, 316 U.S. 149, 62 S.Ct. 966, 968, 86 L.Ed. 1336, it is among other things said: “One of the objects of the Act creat■ing the Federal Trade Commission was to1 prevent potential injury by stopping unfair methods of competition in their incipiency. * * ” It is now well settled by controlling decisions that the sale of goods by a plan or method which involves the use of a game of chance, gift enterprise, or lottery is a practice which is contrary to the established policy of the Government of the United States and violative of the Federal Trade Commission Act. It is equally well established that selling in interstate commerce the means or instrumentalities by which merchandise can or may be sold by games of chance, gift enterprise or lottery is' an unfair method of competition. Placing in the hands of others the means of engaging in such acts or practices is contrary to the public policy and the public interest. The Commission found that the act prohibited by the order to> cease and desist was the selling and distribution of lottery devices in interstate commerce and we think the act prohibited by the order is contrary to public policy of the United States Government. The questions have, we think, been conclusively determined against the contentions of the petitioner by a long list of decisions. Chas. A. Brewer & Sons v. Federal Trade Commission, 6 Cir., 158 F.2d 74; Modernistic Candies v. Federal Trade Commission, 7 Cir., 145 F.2d 454; Federal Trade Commission v. F. A. Martoccio Co., 8 Cir., 87 F.2d 561; Lichtenstein v. Federal Trade Commission, 9 Cir., 194 F.2d 607, 609. In Lichtenstein v. Federal Trade Commission, supra, the court among other things said: “Upon a review of the history of Section 5 (a) in connection with the decisions of the court thereon, we are of the opinion that the petitioner’s use of interstate commerce to ship these devices to be used in intrastate commerce in the gambling disposition of merchandise to the ultimate consumer is one of the 'unfair * * * practices in commerce’ subject to tire preventive control of the Commission.” Touching the question of public policy the court in Modernistic Candies v. Federal Trade Commission, supra [145 F.2d 455], among other things said: “There may be in every child the impulse that prompts him to take a chance, but it has been the public teaching and the public policy of the land that gambling is immoral and to be condemned. The Federal Government has made it a criminal offense to transport lottery tickets or to cause them to be transported in interstate commerce. 18 U.S. C.A. § 387. Lotteries used in the marketing of merchandise have long been condemned by the Supreme Court and by this court. The cases are legion.” And again the court said: “It is clear that the Federal Trade Commission has the power to eradicate merchandising by gambling in interstate commerce. We think the Commission also has the power to prohibit the distribution in interstate commerce of devices intended to aid and encourage merchandising by gambling. The gamblers and those who deliberately and designedly aid and abet them are both engaged in practices contrary to public policy. Merchandising by gambling should not be divided into insulated acts, which appear innocent when examined separately. This unfair practice should be viewed as a whole. If the Federal Trade Commission is to police merchandising by gambling, it must police those who designedly and deliberately aid and abet this practice. We think the Commission has such power.” The case of Chas. A. Brewer & Sons v. Federal Trade Commission, supra, decided by the Court of Appeals for the Sixth Circuit, may be said to be on “all fours” with the instant case. The complaint in that case was substantially identical with that in the case at bar. The findings and the order were the same as are here involved and the same contentions of counsel for petitioner were made there as are urged here. These contentions are, we think, convincingly answered by the well considered opinion by Judge Martin which reviews all the pertinent authorities to the date of the opinion. After analyzing the Commission’s findings the court said: “ * * * With deliberate intent, using channels of interstate commerce, they put into the hands of others, including manufacturers and wholesale and retail dealers, the means of using ‘unfair methods of competition’ and ‘unfair or deceptive acts or practices.’ Manufacturers and wholesale dealers who purchase their made-to-order punch boards and push cards frequently make up complete assortments of merchandise and boards or cards, which find their way into interstate commerce. “For the reasons hereinafter appearing, we have reached the conclusion that, in thus aiding and abetting, inducing and procuring manufacturers and wholesale and retail dealers in merchandise to use unfair or deceptive acts or practices and unfair methods of competition, Charles A. Brewer and Son, though manufacturing no merchandise except the tottery devices which they ship in interstate commerce, fall within the restraining power of the Federal Trade Commission as vested by the Federal Trade Commission Act. 52 Stat. 111.” [158 F.2d 77.] As before observed, every argument urged upon us here was considered by the court in the Brewer case and counsel for petitioner frankly admits that if correct the decision in that case is conclusive against him. He contends, however, that the cases above cited, including the Brewer case, are in conflict with the decision of the Supreme Court in Federal Trade Commission v. Bunte Brothers, 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881. The Bunte case, however, is readily distinguishable in its facts from the instant case and this has been done for us by Judge Martin in his opinion in the Brewer case, where it is said: “The case is plainly distinguishable from that at bar, in that, in the Bunte Brothers case, the sale of the petitioner’s products was entirely within the State of Illinois. Here, the petitioners ship in interstate commerce throughout the United States their manufactured tottery devices.” The same view is expressed by the United States Court of Appeals for the Fourth Circuit in the recent case of Consolidated Manufacturing Company, v. Federal Trade Commission, 199 F.2d 417, 418, where it is said inter alia: “No judge anywhere has expressed a contrary opinion and nothing to the contrary can be worked out arguendo from Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881, which held merely that the Commission was without power over purely intrastate transactions.” It is finally urged that the order of the Commission is too broad. This contention was also urged in the Brewer case and in the Consolidated Manufacturing Company case. Both of those courts expressed the view that the order complained of was not too broad. In the last cited case the court said: “We agree with the Court of Appeals of the Third Circuit * * * that the order complained of is not too broad and that, properly interpreted, it prohibits ‘only the distribution in interstate commerce of any push card, punch-board or other device which is’designed to serve as an. instrumentality for the sale of articles of merchandise by lottery methods.’ ” We have given consideration to all other contentions of the petitioner and think they are wholly without merit. The petition to review will be dismissed, and the cease and desist order of the Commission is affirmed and will be enforced, 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_appel1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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". Marilyn WHEELER, Plaintiff-Appellee, v. Main HURDMAN, Defendant-Appellant. No. 85-2601. United States Court of Appeals, Tenth Circuit. July 27, 1987. Tim Correll (Mark P. Field, with him, on brief), The Correll Law Offices, P.C., Denver, Colo., for plaintiff-appellee. Jacques M. Wood, Berkman Ruslander Pohl Lieber & Engel (Jim Clark, Baker & Hostetler, George W. Mueller, Burns, Wall, Smith & Mueller, with him, on briefs), Denver, Colo., for defendant-appellant. Vella M. Fink (Johnny J. Butler and Gwendolyn Young Reams, with her on briefs), Washington, D.C., for amicus curiae E.E.O.C. Before BARRETT, LOGAN and ANDERSON, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. This appeal pursuant to 28 U.S.C. § 1292(b) presents a single substantive issue: whether federal antidiscrimination laws protecting employees applied to the plaintiff, Marilyn Wheeler, during the time she was a general partner of the accounting firm of Main Hurdman, a general partnership. Marilyn Wheeler, a certified public accountant, was employed as an accountant by Main Hurdman, in progressively responsible positions, for nine years, following which she was made a partner in the firm. Seventeen months later, at age forty-seven, she was expelled from the firm. She sued Main Hurdman alleging that the partnership discriminated against her in compensation and work assignments, and expelled her because of her age or sex, in violation of: Title VII of the Civil Rights Act of 1964, (“Title VII”) 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634; and the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d), a subpart of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201-219. Main Hurdman moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) and 12(h)(3), for want of subject matter jurisdiction. It alleged that Wheeler’s complaint did not state a claim under Title VII, the ADEA, or the Equal Pay Act “because as a partner of the Firm she was not an employee” within the definitions of those Acts. The motion was treated as one for summary judgment by the district court because affidavits were submitted, and was denied. In its order denying the motion the district court concluded that although a partner, Wheeler was also an employee for purposes of each of the Acts. It stated that it was bound by Goldberg v. Whitaker House Coop., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961), to apply an “economic realities” test which, in turn, dictated the conclusion reached. The court then certified the question of coverage of the Acts for immediate appeal pursuant to 28 U.S.C. § 1292(b), as a controlling question of law as to which there is substantial ground for difference of opinion. We reverse. NATURE OF THE MOTION UNDER REVIEW As a preliminary matter, this court must decide whether it was appropriate for the district court to “convert” the defendant’s motion to dismiss into a motion for summary judgment. Main Hurdman asserts that its motion was a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and that it was inappropriate to convert it into a motion for summary judgment absent notice to the parties. The appellant’s motion does appear to be a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. As a general rule, a 12(b)(1) motion cannot be converted into a motion for summary judgment under Rule 56. Nichols v. United States, 796 F.2d 361, 366 (10th Cir.1986) (quoting 5 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1366 (Supp. 1986)). See also Crawford v. United States, 796 F.2d 924 (7th Cir.1986); Stanley v. CIA, 639 F.2d 1146, 1157-58 (5th Cir. Unit B Mar. 1981). There is, however, a widely recognized exception to this rule. If the jurisdictional question is intertwined with the merits of the case, the issue should be resolved under 12(b)(6) or Rule 56. Timberlane v. Bank of America, 749 F.2d 1378 (9th Cir.1984) (“Timberlane //”); Sun Valley Gas, 711 F.2d at 139; Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Eaton v. Dorchester Development, Inc., 692 F.2d 727, 733 (11th Cir.1982); Black v. Payne, 591 F.2d 83, 86 n. 1 (9th Cir.1979); see also J. Moore & J. Lucas, Moore’s Federal Practice ¶ 12.07[2.-1] at 12-51 (1986). When subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case, the jurisdictional claim and the merits are considered to be intertwined. Clark v. Tarrant County, 798 F.2d 736, 742 (5th Cir.1986) (Title VII) (determination of whether defendant was an “employer”); Timberlane II, 749 F.2d at 1381-82; Sun Valley Gas, 711 F.2d at 139; Timberlane I, 549 F.2d at 602; McConnell v. Frank Howard Allen & Co., 574 F.Supp. 781, 783-84 (N.D.Cal.1983). Courts have invoked this rule when subject matter jurisdiction has turned on whether a particular investment was a “security” under the federal securities statutes. Odom v. Slavik, 703 F.2d 212, 215-16 (6th Cir.1983); Mason v. Unkeless, 618 F.2d 597, 598 (9th Cir.1980); Smith v. Gross, 604 F.2d 639, 641 (9th Cir.1979); Black v. Payne, 591 F.2d 83 (9th Cir.1979); Roark v. Belvedere, Ltd., 633 F.Supp. 765, 770 (S.D.Ohio 1985); McConnell, 574 F.Supp. at 783-84. We find that the determination of whether Wheeler qualifies as an employee under the federal discrimination statutes is both a jurisdictional question and an aspect of the substantive claim in her discrimination action. Since both parties have submitted additional evidence beyond the pleadings, and since the district court relied on this information, the motion was appropriately characterized as a motion for summary judgment. Main Hurdman argues that it was not given the notice to which it was entitled prior to the court converting and ruling on the motion as a motion for summary judgment. The Tenth Circuit does require notice under such circumstances to prevent “unfair surprise.” Nichols, 796 F.2d at 364. In this case, however, there is no unfair surprise. Both parties submitted material beyond the pleadings. We have previously held that when a party submits material beyond the pleadings in support of or opposing a motion to dismiss, the prior action on the part of the parties puts them on notice that the judge may treat the motion as a Rule 56 motion. Id. The fact that Main Hurdman characterizes its motion as a Rule 12(b)(1) motion does not change our analysis. Main Hurdman identified its motion only as a 12(b) motion without specifying a particular subsection. Although the motion was made on the ground that there was a lack of subject matter jurisdiction, it was also based on the ground that Wheeler “does not and cannot state a claim” upon which relief could be granted. Main Hurdman’s Motion to Dismiss at 11118, 10, 12. Under these circumstances, it was appropriate for the court to consider the motion as a motion in the alternative under 12(b)(1) and 12(b)(6) and to convert the motion to a Rule 56 motion when extraneous evidence was submitted in the form of affidavits by both parties. We find that it was not error for the district court to convert the motion and we will review it as a motion for summary judgment. STANDARD OF REVIEW In reviewing a district court’s grant or denial of summary judgment, we apply a de novo standard of review to legal determinations. See Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir.1987); see also Hydro Conduit Corp. v. American-First Title & Trust Co., 808 F.2d 712, 714 (10th Cir.1986) (“When a district court has granted, summary judgment, the court of appeals applies a de novo standard of review.”); Baker v. Penn Mutual Life Ins. Co., 788 F.2d 650, 653 (10th Cir.1986); Morgan v. Mobil Oil Corp., 726 F.2d 1474, 1477 (10th Cir.1984). As for allegations of fact by the parties, the general rule is that our view of the facts must indulge all reasonable inferences in favor of the party opposing a motion for summary judgment. Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986); Baker, 788 F.2d at 653; Bindley v. Amoco Prod. Co., 639 F.2d 671, 672 (10th Cir.1981). In this case, the essential facts governing our disposition on appeal (as opposed to how those facts are characterized or legal conclusions argued from them by the parties) are uncontested. j BACKGROUND Wheeler’s credentials, including professional activities and affiliations, are substantial. Her employment experience with Main Hurdman was characterized by steady advancement as an employee-accountant. She was made a partner of Main Hurdman in April 1982. At that time approximately 14%, or 502 of Main Hurd-man’s 3570 personnel were partners. Partnership consisted at least of the following: election to the partnership and execution of the Firm’s partnership agreement; change in compensation from salary to a share of the Firm’s profits, paid by draw and an allocation of profits based on points; a contribution to capital; establishment of a capital account; unlimited personal liability for the debts and obligations of the partnership; rights under the partnership agreement to vote on such matters as amendments of the partnership agreement, approval of mergers with other accounting firms of a certain size, admission of new partners, termination of a partner’s interest, approval of draws, shares of net profits, special distributions, and any other income to be allocated to any partners, and dissolution of the firm. In addition, Wheeler became eligible for certain rights and privileges which were enjoyed only by partners of the firm, such as the right to sign audit reports and tax returns and the right to be reimbursed for membership dues in certain clubs; and, she was subject to involuntary termination of her interest in the partnership only by either: (1) a unanimous vote of the firm’s policy board, or (2) an affirmative vote of no less than 75% of the members of the firm’s advisory board, or (3) an affirmative vote of no less than 75% of all partners casting votes. Furthermore, by becoming a partner Wheeler surrendered certain employee benefits including prepaid health insurance and life insurance. Wheeler and the EEOC effectively concede that under laws governing partnerships Wheeler was a bona fide and general partner of Main Hurdman. They similarly concede that Main Hurdman is a bona fide general partnership. It is undisputed that the foregoing facts relating to Wheeler’s admission to partnership are not a sham, and have legal substance. Consonant with those facts, there is no allegation that Wheeler was made a partner, or denominated as such and was continued in that status, as a device for avoiding the Acts in question. However, Wheeler and the EEOC, while not contesting Wheeler’s partnership status, point to other facts which they contend portray the economic reality of employee status co-existing with partner status. After being made a partner Wheeler’s work remained unchanged. She had the same client load, same duties and responsibilities, same support staff, and was supervised in her work and work assignments, by the same department head. A personnel file was maintained with respect to her and all other personnel, including partners. The amounts charged for her services were established by managing partners. The number of partnership points allocated to her for income purposes was, as a practical matter, determined by the managing partner of her office. Also as a practical matter, a recommendation by the same managing partner that she or any other partner of that office be expelled from the partnership was the final word, since such recommendations, according to Wheeler, were routinely adopted and appeals of such decisions pursuant to terms of the partnership agreement were unavailing. Wheeler Aff. para. 14. Wheeler and the EEOC also emphasize that Main Hurdman is a large firm, with eighty offices nationwide. They portray it as a highly organized, centrally managed, business institution of indefinite and ongoing duration; in other words, it looks like a corporation. The operating structure of the partnership, within which Wheeler functioned, is set forth on an exhibit to Wheeler’s affidavit in the district court. That exhibit shows the partners of Main Hurdman as the governing body, below which is a policy board and an advisory board to which partners are elected. Below those two boards there is a managing partner/CEO and a chairman who, presumably, are responsible for the day-to-day operations of the partnership. Thereafter, there appear on the organizational chart a myriad of assignments, including international, marketing, human resources, management consulting, professional standards, tax services, finance, and so on. The chart also shows a partner in charge of operations and under that partner six geographical regions with a partner in charge of each. Within each region the location of Main Hurdman offices is identified, with a local “partner in charge” of each office. The local partner in charge oversees assignment of department heads, allocation of partner credit for client hours managed, the establishment of performance goals for all personnel, assignment of CPAs to clients, the amount to be charged for services, and the hours, dates and places when and where work is to be performed. It is contended that although each partner is entitled to vote at annual or special meetings, the votes are primarily for the purpose of ratifying decisions made by the managing partner, policy board or “nominating” committee. Finally, Wheeler and the EEOC make much of the fact that as a partner Wheeler’s initial contribution to capital was just $4,000, representing only a.000058 share of the firm’s total capital account. It is also a fact, however, that thirteen months later Wheeler signed a letter of “withdrawal” from the partnership in which reference was made to her capital account containing a minimum of $15,000 plus an unspecified additional balance, plus additional profit allocations to be determined twelve months from the date of termination — all of which was to be paid to Wheeler as a terminating general partner. West Aff., Ex. B. Thus, whatever the true percentage of Wheeler’s partnership interest, it translated into sums of money which were not insignificant. In April 1983, one year after being made a partner, Wheeler was informed by Richard West, Manager of the Denver office, that she would be severed from the Firm as of September 30 of that year. A letter of “withdrawal” signed by West and Wheeler set forth certain financial and other terms relating to the severance, all of which apparently were honored by the parties. Official severance occurred on September 30, 1983. Following expulsion, Wheeler filed, in January 1984, a charge of discrimination with the EEOC. On October 22, 1984, the EEOC issued to Wheeler a Notice of Right to Sue. This suit, filed on January 22, 1985, followed. I. GENERAL STANDARDS GOVERNING REVIEW OF ANTIDISCRIM-INATION ACTS In our review of the antidiscrim-ination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end. Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir.1984) (Title VII) (quoting Davis v. Valley Distributing Co., 522 F.2d 827, 832 (9th Cir.1975), cert. denied, 429 U.S. 1090, 97 S.Ct. 1099, 51 L.Ed.2d 535 (1977)); see also Owens v. Rush, 636 F.2d 283, 287 (10th Cir.1980) (Title VII). Such interpretation, however, cannot be used as a justification for rewriting the statutes. Legislative ends are circumscribed by statutory means. Thus, while the case before us deals with a charge of discrimination, the root of our inquiry is one of statutory interpretation. II. PARTNER AS COVERED EMPLOYEE UNDER THE ANTIDISCRIM-INATION ACTS A. The Controlling Statutory Language. Title VII provides: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The language of the ADEA is nearly identical. The Equal Pay Act of the FLSA, 29 U.S.C. § 206(d)(1) provides: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. The statutory definition of employee under each of these Acts is virtually identical, and circular in its description. Title YII defines employee as “an individual employed by an employer.” It defines employer as “a person engaged in an industry affecting commerce who has fifteen or more employees.” 42 U.S.C. § 2000e(b). The ADEA definition is identical except that it requires an employer to employ twenty or more employees. See 29 U.S.C. § 630(b). The definition of employer under the FLSA is equally circular: “ ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d), Under each act, a “person” is defined to include partnerships. 29 U.S.C. § 203(a); 29 U.S.C. § 630(a); 42 U.S.C. § 2000e(a). All parties acknowledge that nothing in the legislative history of these Acts explicitly addresses the definition of employee. In general, cases construing definitions of one of the Acts are to be viewed as persuasive authority when interpreting the others. See Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978); Hyland v. New Haven Radiology Assocs., 794 F.2d 793 (2nd Cir.1986). B. Judicial and Agency Postures. 1. Judicial Interpretation. To date, courts have shown no disposition to extend these statutory employee protections to general partners. The most widely recognized recent case is Hishon v. King & Spaulding, 678 F.2d 1022 (11th Cir.1982), rev’d on other grounds, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). That case involved a Title VII claim asserted by a female lawyer-associate with respect to her firm’s alleged refusal to consider her for partnership. In reversing the Eleventh Circuit the Supreme Court concluded “that in appropriate circumstances partnership consideration may qualify as a term, condition, or privilege of a person’s employment” for purposes of Title VII coverage. Hishon, 467 U.S. at 78 n. 10, 104 S.Ct. at 2235 n. 10. However, the Court did not reach the question of application of Title VII to partners themselves. Thus, the views of the Eleventh Circuit on that subject remain as stated in its opinion in Hishon. There, the circuit court expressed reluctance to equate partners with employees, stating “the partners own the partnership; they are not its ‘employees’ under Title VII. We find a clear distinction between employees of a corporation and partners of a law firm.” Hishon, 678 F.2d at 1028. The Seventh Circuit expressed similar views in Burke v. Friedman, 556 F.2d 867 (7th Cir.1977), which involved an accounting firm. The question in Burke was whether individual partners of the partnership could be counted as employees for purposes of the fifteen-employee minimum for Title VII coverage. The Seventh Circuit held they could not, under the facts of that case. In reaching its holding, the court said: Partners manage and control the business and share in the profits and losses. See Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670 (1946); Wilson v. Commissioner of Internal Revenue, 161 F.2d 661, 664 (7th Cir.1947). In light of the foregoing, we do not see how partners can be regarded as employees rather than as employers who own and manage the operation of the business. * H» # # * * [Section] 2000e(f) does not expand the definition of employee to include a partner. Id. at 869-70 (footnote omitted). The reasoning in Burke was reconfirmed by an en banc panel of the Seventh Circuit in 1984 in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (7th Cir.1984). In Dowd, it was held that lawyer/shareholders of a professional corporation were not employees for purposes of Title VII coverage because they were, in essence, partners in a partnership. Within the past year the Second Circuit has taken an opposite view with respect to professional corporations, holding that radiologist/shareholders in a professional corporation were employees of the corporation, rather than partners, for purposes of ADEA coverage. Hyland v. New Haven Radiology Assocs., 794 F.2d 793 (2nd Cir.1986). See also Reiver v. Murdoch & Walsh, 625 F.Supp. 998 (D.Del.1985). But the Second Circuit stressed the importance of the chosen form of business entity, stating: “While those who own shares in a corporation may or may not be employees, they cannot under any circumstances be partners in the same enterprise because the roles are mutually exclusive.” Id. at 798. As to partnerships themselves the court stated: It is generally accepted that the benefits of the antidiscrimination statutes... do not extend to those who properly are classified as partners. # * * * * # The fact that certain modern partnerships and corporations are practically indistinguishable in structure and operation, however, is no reason for ignoring a form of business organization freely chosen and established. Id. at 797-98. Two federal district courts have recently held that partners are not employees for purposes of the ADEA. Maher v. Price Waterhouse, Civ. No. 84-1522 C (2) (E.D.Mo. April 8, 1985) [Available on Westlaw, DCT database]; Holland v. Ernst & Whinney, 35 Empl.Prac.Dec. (CCH) ¶ 34,-653 (N.D.Ala. August 17,1984). Both cases involved partners in “Big Eight” accounting firms. Finally, in his much-quoted concurring opinion in Hishon, Justice Powell stated: I write to make clear my understanding that the Court’s opinion should not be read as extending Title VII to the management of a law firm by its partners. The reasoning of the Court’s opinion does not require that the relationship among partners be characterized as an ‘employment’ relationship to which Title VII would apply. 467 U.S. at 79, 104 S.Ct. at 2236. The significance of Justice Powell’s observation must, of course, be tempered by the fact that no other justice joined the concurring opinion, and by allusions to a highly interactive partnership characterized by common agreement or consent among the partners. 2. Agency Interpretation. Turning from cases to the question of relevant agency interpretation of these Acts we are aided but little. The EEOC refers us to no directly relevant published agency positions regarding the ADEA and FLSA. Two references, twenty years apart, are cited pertaining to Title VII coverage of partners. Both sides rely on them. The first is a 1965 General Counsel opinion letter, which the Commission apparently cannot find, Brief of EEOC at 24 n. 20, but which is asserted by Main Hurdman to rule that partners of a law firm may not be employees. In support of its view, Main Hurdman refers to a listing of the opinion published in a quarterly digest, “Digest of Legal Interpretations Issued or Adopted by the Commission,” October 9, 1965 through December 31, 1965, § 1(B)(6) at 2-3. In contrast, the EEOC refers to the annual Digest listing of the same opinion, which states that although the specific ruling found that partners were not employees, “the determination of whether partners of the [law] firm are ‘employees’ within the meaning of Title VII must be determined on a case-by-case basis.” EEOC, First Annual Digest of Legal Interpretations, July 2, 1965 through July 1, 1966, § 1(B)(5) at 6. Neither reference is sufficiently explanatory to be helpful; they are so scanty and open to argument in almost every respect that they fall short of agency interpretation which guides us. The second and only other reference on point given to us by the EEOC is a 1985 EEOC decision that partners in an eight-partner, twelve-employee law firm were not employees for Title VII purposes. EEOC Decision No. 85-4, 2 Empl.Prac. Guide (CCH) 11 6846 at 7040-41 (1985). The EEOC contends the decision is not inconsistent with its position that partners can be employees under Title VII, and that a case-by-case determination is required. Such argument is based on two considerations. First, a footnote in the decision refers to factors to be considered in determining whether an individual is a partner or an employee in a particular case. Second, the decision itself was based on its own facts. We do not view the decision, however, as squarely supporting the present EEOC position. The decision displays no agency inclination whatsoever to pursue an aggressive inquiry into whether or not, as a matter of economic reality, any of the partners involved in that case were dominated in their work, in management or control of partnership affairs, in decisions on sharing profits, or in any other respect. Yet that is the approach urged upon us by the EEOC in this case. In the 1985 decision all such factors were essentially decided by the Commission by reference to the written terms of the partnership agreement, with only a passing reference to an absence of evidence that the “business is carried out in any other way than as indicated in the partnership agreement.” Id. at 7040. The accompanying footnote, emphasized here by the EEOC, refers first to Justice Powell’s language in Hishon that “an employer may not evade the strictures of Title VII simply by labeling its employees as ‘partners.’ ” Id. at 7041 n. 4 (emphasis added). Following that quote the Commission states: “The Commission recognizes that there may be a case where an individual is called a partner, but who may really be an employee.” Id. (emphasis added). Only then is there reference to factors which may be relevant in making such a determination. It is evident from both the language and tone of that footnote that even as recently as 1985 the Commission did not envision the wholesale inquiries proposed here. It is apparent that the EEOC has not historically espoused the stand it takes here. To the contrary, for many years following its creation under Title VII in 1964, the Commission by its relative silence and inaction, and its approach to the issue when raised, made it seem likely that it doubted any general coverage of partners by Title VII, excluding obvious sham situations. Thus, we accord less weight to the arguments of the EEOC in this case than if the Agency’s position had been clearly developed proximate in time to passage of Title VII or to the transfer of responsibility for the ADEA and the Equal Pay Act from the Department of Labor to the EEOC in 1979, and consistently applied thereafter. Although not one court has applied the Acts to a bona fide general partner against his or her partners or partnership, it is not surprising that Wheeler and the EEOC press the issue now. In recent years, literally dozens of articles touching on the reach of the antidiscrimination statutes have been solidly in favor of definitions which would be broad enough to include general partners. Peripherally relevant extensions of coverage by the courts have occurred, Hishon being the most visible. See Lucido v. Cravath, Swaine & Moore, 425 F.Supp. 123 (S.D.N.Y.1977); EEOC v. Rinella & Rinella, 401 F.Supp. 175 (N.D.Ill.1975). See also EEOC v. Peat, Marwick, Mitchell & Co., 775 F.2d 928 (8th Cir.1985), aff'g, 589 F.Supp. 534 (E.D.Mo.1984), cert. denied, — U.S. -, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986). Furthermore, there are so many partnerships engaged in day to day commerce in this country in ever expanding numbers that the statistical chance of discrimination claims has increased as a result of growth alone. Then too, the changing status of women and minorities figures significantly in the equation. While partnerships of professionals have been common throughout the history of this country, as recently as twenty years ago relatively few women and minorities were represented, which may account for the early absence of discrimination suits against partnerships. Over the past two decades ever increasing numbers of women and minorities have been admitted into professional schools, thence into the professions. Additional years have been required for their advancement to partnership status. Finally, growing experience under and familiarity with these Acts is producing an increase in discrimination claims against partnerships. These facts may provide a better or more complete explanation for the history of judicial and agency actions, omissions, or silence since 1964 concerning the merits of the issue of partners as employees under the Antidiscrimination Acts. Therefore, absence of a long-standing and reliable EEOC position is no surprise. Nonetheless, a disposition on the merits is made more difficult by its absence. C. Partnership Attributes and Proposed Tests for Determining Employee Status. Predictably both sides attempt to control the focus of our inquiry. Main Hurdman dwells largely on characteristics of partnerships, while Wheeler and the EEOC concentrate on traits associated with employment. With respect to employment, various tests and factors which have been judicially created and applied in other situations are proposed. The remedial nature of the Acts is stressed both in conjunction with tests for employee status, and as a justification of its own. We address the parties’ positions first by reviewing aspects of partnerships generally, then by reviewing the proposed employee tests, then by analyzing them together. 1. Partnership Status Generally. While there may be no federal partnership law, as Wheeler argues, partnerships are firmly embedded in our jurisprudence and commonly referred to in universally understood ways by Congress and the courts without the necessity of dissecting the partnership law of each state in order to derive meaning. By the time the FLSA was first enacted in 1938, the Uniform Partnership Act (“UPA”) had been adopted by eighteen states. When Title VII was enacted in 1964 and the ADEA in 1967, forty states had adopted the UPA as the governing body of partnership law. As of 1984, forty-eight states, several territories, and the District of Columbia had adopted the UPA. Only Georgia and Louisiana have not adopted the uniform act. 6 Unif. Laws Ann. 1 (Supp.1984) (table). Despite some differences in partnership law between states, the general indicia of partners and partnership are very similar across state lines. The UPA sets forth, among others, the following characteristics of a partner: (1) unlimited liability (§ 16); (2) the right to share in profits and participate in management subject to agreement between partners (§ 18(a), (e)); (3) the right and duty to act as an agent of the other partners (§ 9); and (4) shared ownership (§ 6). In Freese v. United States, 455 F.2d 1146, 1150-51 (10th Cir.1972), cert. denied, 409 U.S. 879, 93 S.Ct. 85, 34 L.Ed.2d 134 (1972), we stated that the parties’ intent was the touchstone for finding a partnership relationship. Citing those indicia of partnership, Main Hurdman contends that a partner by definition is not an employee under traditional common law principles. Status as a co-owner precludes simultaneous status as an employee. Multiple rebuttals are offered to that argument. Owners in other contexts can be employees. See Goldberg v. Whitaker House Coop., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961) (members/owners of a knitting cooperative considered employees); Zimmerman v. North American Signal Co., 704 F.2d 347 (7th Cir.1983) (corporate vice-president and shareholder considered employee); EEOC v. First Catholic Slovak Ladies Ass’n, 694 F.2d 1068 (6th Cir.1982), (officers-directors considered employees), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983); Hoy v. Progress Pattern Co., 217 F.2d 701 (6th Cir.1954) (shareholder, vice-president, director and chairman of board considered employee). Cf. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir.1982) (sale of corporate stock subject to Title VII where employment status is tied to stock ownership), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984); Marshall v. R. & M. Erectors, Inc., 429 F.Supp. 771 (D.Del.1977) (worker considered an employee and not a partner where there was no written partnership agreement or evidence of partner attributes). For many purposes evolving law now classifies partnerships as separate entities rather than an aggregate of partners; thus, partners can be classed as employees of the partnership 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_circuit	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. RELIABLE TRANSFER CO. v. BLANCHARD. SAME v. GALLAHAR. SAME v. DUNN. No. 11042. Circuit Court of Appeals, Fifth Circuit. Nov. 10, 1944. James S. Bussey, of Augusta, Ga., fop appellant. Jack D. Evans and Randall Evans, Jr., both of Thomson, Ga., for appellees. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. HUTCHESON, Circuit Judge. The appeals in these consolidated causes present the single question whether the district judge erred in refusing to enjoin the prosecution by each of the three appellees of a suit he had brought in the state court" against appellant. The question comes up in this way. Three suits, one by each of appellees, filed in a Georgia state court against the appellant and other defendants, were removed into the District Court of the United States for the Southern District of Georgia, and no further proceedings were had in the state court with respect to them. Prior to the filing of petitions and bonds for removal, appellant filed demurrers and, subsequent to the removals, motions for judgment on the pleadings. Each plaintiff’s motion to remand denied, and motions of defendant, (appellant here) sustained, judgment was rendered, retaining the suits as against the other defendants but dismissing this appellant from them. None of the plaintiffs excepting to, but accepting, the dismissal of appellant from his federal court suit, each filed a suit in the Georgia State Court against appellant alone, alleging independent acts of negligence. Appellant then, by ancillary petition in the federal court, sought an injunction to restrain plaintiffs from further prosecuting the newly filed state court suits against it. The district judge refused the injunction as to Blanchard, granted it as to Mrs. Gallahar, and made no order as to Dunn. Thereafter, on May 3, 1944, he set the order as to Mrs. Gallahar aside and entered an order denying the injunction. At the same time he denied the injunction as to Dunn. Appellant here in all three suits, insisting that the removal proceedings vested the District Court with full jurisdiction of the parties and issues, unaffected by the prohibitions of Sec. 379, 28 U.S.C.A., and that the actions pending undisposed of as to the other defendants jointly sued, “the 'entire case is still in the district court and subject to its control”, Hunteman v. New Orleans Public Service, Inc., 5 Cir., 119 F. 2d 465, 466. It argues the matter to us as though the question for decision were simply one of power. In thus arguing, appellant proceeds upon the wholly incorrect assumption that, conceding power, the issuance of the injunctions was mandatory. It is horn book law that “Courts of equity exercise discretionary power in the granting or withholding of their extraordinary remedies, and that although this discretionary power is not restricted to any particular remedy, it is particularly applicable to injunction since that is the strong arm of equity and calls for great caution and deliberation on the part of the court.” The district judge did not doubt his power, nor decline to issue the injunctions because of a supposed want of it. Indeed, though he later denied the injunctions as to all of the plaintiffs, he at first, on the considerations which he deemed sufficient, granted it as to one of them. What is presented here for review then is not whether there was or was not power to issue the injunctions sought, but whether there was an abuse of discretion in failing to exercise power. Here again it is horn book law that wheth^ er an injunction will or will not issue rests within the sound discretion of the court, and that the exercise of this discretion will not be disturbed unless there has been a clear abuse of it, 45 Am.Jur., Sec. 180, p. 936. The situation here, where none of the plaintiffs has excepted to, or sought to appeal from, but, on the contrary, each has accepted, the judgment of dismissal, and each has brought a new suit against the defendant alone in the state court, is a very different one from that in the Hunteman case, where the pláintiff excepted to, and appealed from, the judgment of dismissal. We need not, however, undertake to determine whether appellant is\ right on his claim that the teaching of that case requires a holding that the judgments dismissing appellant from the removed cases are not final judgments, and are, therefore, not available to appellant as res judicata, Toucey v. N. Y. Life, 314 U.S. 118, at 129, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967. It is sufficient for us to determine, and we do determine, that the record discloses no abuse of discretion in denying the injunctions and that the judgments appealed from should be affirmed. Cf. Toucey v. New York Life, 314 U.S. 118, 129, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967; and Armstrong v. Alliance Trust Co., 5 Cir., 126 F.2d 164, 169. 28 Am.Jur., Sec., 35, p. 230 ; 28 Am. Jur., See. 3, p. 198; See. 23, p. 216; Sec. 24, p. 217; Sec. 35, p. 230; Petroleum Exploration v. Public Serv., 304 U.S. 209, 58 S.Ct. 834, 82 L.Ed. 1294; Virginian Ry. Co. v. System, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Commonwealth of Pa. v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, 96 A.L.R. 1166. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations FOSTER v. CALIFORNIA. No. 47. Argued November 19, 1968. Decided April 1, 1969. Kenneth L. Maddy, by appointment of the Court, 391 U. S. 902, argued the cause and filed briefs for petitioner. Doris H. Maier, Assistant Attorney General of California, argued the cause for respondent. With her on the brief were Thomas C. Lynch, Attorney General, and Charles P. Just, Deputy Attorney General. Mr. Justice Fortas delivered the opinion of the Court. Petitioner was charged by information with the armed robbery of a Western Union office in violation of California Penal Code § 211a. The day after the robbery one of the robbers, Clay, surrendered to the police and implicated Foster and Grice. Allegedly, Foster and Clay had entered the office while Grice waited in a car. Foster and Grice were tried together. Grice was acquitted. Foster was convicted. The California District Court of Appeal affirmed the conviction; the State Supreme Court denied review. We granted certiorari, limited to the question whether the conduct of the police lineup resulted in a violation of petitioner’s constitutional rights. 390 U. S. 994 (1968). Except for the robbers themselves, the only witness to the crime was Joseph David, the late-night manager of the Western Union office.- After Foster had been arrested, David was called to the police station to view a lineup. There were three men in the lineup. One was petitioner. He is a tall man — close to six feet in height. The other two men were short — five feet, five or six inches. Petitioner wore a. leather jacket which David said was similar to the one he had seen underneath the coveralls worn by the robber. After seeing this lineup, David could not positively identify petitioner as the robber. He “thought” he was the man, but he was not sure. David then asked to speak to petitioner, and petitioner was brought into an office and sat across from David at a table. Except for prosecuting officials there was no one else in the room. Even after this one-to-one confrontation David still was uncertain whether petitioner was one of the robbers: “truthfully — I was not sure,” he testified at trial. A week or 10 days later, the police arranged for David to view a second lineup. There were five men in that lineup. Petitioner was the only person in the second lineup who had appeared in the first lineup. This time David was “convinced” petitioner was the man. At trial, David testified to his identification of petitioner in the lineups, as summarized above. He also repeated his identification of petitioner in the courtroom. The only other evidence against petitioner which concerned the particular robbery with which he was charged was the testimony of the alleged accomplice Clay. In United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a “critical stage” in the prosecution, at which the accused must be given the opportunity to be represented by counsel. That holding does not, however, apply to petitioner’s case, for the lineups in which he appeared occurred before June 12, 1967. Stovall v. Denno, 388 U. S. 293 (1967). But in declaring the rule of Wade and Gilbert to be applicable only to lineups conducted after those cases were decided, we recognized that, judged by the “totality of the circumstances,” the conduct of identification procedures may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. Id., at 302. See Simmons v. United States, 390 U. S. 377, 383 (1968); cf. P. Wall, Eye-Witness Identification in Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore, Evidence § 786a (3d ed. 1940); 4, id., § 1130. Judged by that standard, this case presents a compelling example of unfair lineup procedures. In the first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. See United States v. Wade, supra, at 233. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. This Court pointed out in Stovall that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” 388 U. S., at 302. Even after this the witness’ identification of petitioner was tentative. So some days later another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup. See Wall, supra, at 64. This finally produced a definite identification. The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact “the man.” In effect, the police repeatedly said to the witness, “This is the man.” See Biggers v. Tennessee, 390 U. S. 404, 407 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process. In a decision handed down since the Supreme Court of California declined to consider petitioner’s case, it reversed a conviction because of the unfair makeup of a lineup. In that case, the California court said: “[W]e do no more than recognize . . . that unfairly constituted lineups have in the past too often brought about the conviction of the innocent.” People v. Caruso, 68 Cal. 2d 183, 188, 436 P. 2d 336, 340 (1968). In the present case the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable. The respondent invites us to hold that any error was harmless under Chapman v. California, 386 U. S. 18 (1967). We decline to rule upon this question in the first instance. Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice White, with whom Mr. Justice Harlan and Mr. Justice Stewart concur, being unwilling in this case to disagree with the jury on the weight of the evidence, would affirm the judgment. California law requires that an accomplice’s testimony be corroborated. California Penal Code § 1111. There was also evidence that Foster had been convicted for a similar robbery committed six years before. The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution’s case is a matter for the jury. But it is the teaching of Wade, Gilbert, and Stovall, supra, that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations DAVIS v. ALASKA No. 72-5794. Argued December 12, 1973— Decided February 27, 1974 BüRGER, C. J., delivered the opinion of the Court, in which Douglas, BrennaN, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring statement, post, p. 321. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 321. Robert H. Wag staff argued the cause and filed briefs for petitioner. Charles M. Merriner argued the cause for respondent. With him on the brief was John E. Havelock, Attorney General of Alaska. William P. Homans, Jr., filed a brief for Arthur Bembury as amicus curiae. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to consider whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency. (1) When the Polar Bar in Anchorage closed in the early morning hours of February 16, 1970, well over a thousand dollars in cash and checks was in the bar’s Mosler safe. About midday, February 16, it was discovered that the bar had been broken into and the safe, about two feet square and weighing several hundred pounds, had been removed from the premises. Later that afternoon the Alaska State Troopers received word that a safe had been discovered about 26 miles outside Anchorage near the home of Jess Straight and his family. The safe, which was subsequently determined to be the one stolen from the Polar Bar, had been pried open and the contents removed. Richard Green, Jess Straight’s stepson, told investigating troopers on the scene that at about noon on February 16 he had seen and spoken with two Negro men standing alongside a late-model metallic blue Chevrolet sedan near where the safe was later discovered. The next day Anchorage police investigators brought him to the police station where Green was given six photographs of adult Negro males. After examining the photographs for 30 seconds to a minute, Green identified the photograph of petitioner as that of one of the men he had encountered the day-before and described to the police. Petitioner was arrested the next day, February 18. On February 19, Green picked petitioner out of a lineup of seven Negro males. At trial, evidence was introduced to the effect that paint chips found in the trunk of petitioner’s rented blue Chevrolet could have originated from the surface of the stolen safe. Further, the trunk of the car contained particles which were identified as safe insulation characteristic of that found in Mosler safes. The insulation found in the trunk matched that of the stolen safe. Richard Green was a crucial witness for the prosecution. He testified at trial that while on an errand for his mother he confronted two men standing beside a late-model metallic blue Chevrolet, parked on a road near his family’s house. The man standing at the rear of the car spoke to Green asking if Green lived nearby and if his father was home. Green offered the men help, but his offer was rejected. On his return from the errand Green again passed the two men and he saw the man with whom he had had the conversation standing at the rear of the car with “something like a crowbar’’’ in his hands. Green identified petitioner at the trial as the man with the “crowbar.” The safe was discovered later that afternoon at the point, according to Green, where the Chevrolet had been parked. Before testimony was taken at the trial of petitioner, the prosecutor moved for a protective order to prevent any reference to Green’s juvenile record by the defense in the course of cross-examination. At the time of the trial and at the time of the events Green testified to, Green was on probation by order of a juvenile court after having been adjudicated a delinquent for burglarizing two cabins. Green was 16 years of age at the time of the Polar Bar burglary, but had turned 17 prior to trial. In opposing the protective order, petitioner’s counsel made it clear that he would not introduce Green’s juvenile adjudication as a general impeachment of Green’s character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show — or at least argue — that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question. The trial court granted the motion for a protective order, relying on Alaska Rule of Children’s Procedure 23, and Alaska Stat. .§ 47.10.080 (g) (1971). Although prevented from revealing that Green had been on probation for the juvenile delinquency adjudication for burglary at the same time that he originally identified petitioner, counsel for petitioner did his best to expose Green’s state of mind at the time Green discovered that a stolen safe had been discovered near his home. Green denied that he was upset or uncomfortable about the discovery of the safe. He claimed not to have been worried about any suspicions the police might have been expected to harbor against him, though Green did admit that it crossed his mind that the police might have thought he had something to do with the crime. Defense counsel cross-examined Green in part as follows: “Q. Were you upset at all by the fact that this safe was found on your property? “A. No, sir. “Q. Did you feel that they might in some way suspect you of this? “A. No. “Q. Did you feel uncomfortable about this though? “A. No, not really. “Q. The fact that a safe was found on your property? “A. No. “Q. Did you suspect for a moment that the police might somehow think that you were involved in this? “A. I thought they might ask a few questions is all. “Q. Did that thought ever enter your mind that you — that the police might think that you were somehow connected with this? “A. No, it didn’t really bother me, no. “Q. Well, but ... . “A. I mean, you know, it didn’t — it didn’t come into my mind as worrying me, you know. “Q. That really wasn’t — wasn’t my question, Mr. Green. Did you think that — not whether it worried you so much or not, but did you feel that there was a possibility that the police might somehow think that you had something to do with this, that they might have that in their mind, not that you .... “A. That came across my mind, yes, sir. “Q. That did cross your mind? “A. Yes. “Q. So as I understand it you went down to the— you drove in with the police in — in their car from mile 25, Glenn Highway down to the city police station? “A. Yes, sir. “Q. And then went into the investigators’ room with Investigator Gray and Investigator Weaver? “A. Yeah. “Q. And they started asking you questions about— about the incident, is that correct? “A. Yeah. “Q. Had you ever been questioned like that before by any law enforcement officers? “A. No. “MR. RIPLEY: I’m going to object to this, Your Honor, it’s a carry-on with rehash of the same thing. He’s attempting to raise in the jury’s mind .... “THE COURT: I’ll sustain the objection.” Since defense counsel was prohibited from making inquiry as to the witness’ being on probation under a juvenile court adjudication, Green’s protestations of unconcern. over possible police suspicion that he might have had a part in the Polar Bar burglary and his categorical denial of ever having been the subject of any similar law-enforcement interrogation went unchallenged. The tension between the right of confrontation and the State’s policy of protecting the witness with a juvenile record is particularly evident in the final answer given by the witness. Since it is probable that Green underwent some questioning by police when he was arrested for the burglaries on which his juvenile adjudication of delinquency rested, the answer can be regarded as highly suspect at the very least. The witness was in effect asserting, under protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold “No” answer would have been given by Green absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination. The remainder of the cross-examination was devoted to an attempt to prove that Green was making his identification at trial on the basis of what he remembered from his earlier identifications at the photographic display and lineup, and not on the basis of his February 16 confrontation with the two men on the road. The Alaska Supreme Court affirmed petitioner’s conviction, concluding that it did not have to resolve the potential conflict in this case between a defendant’s right to a meaningful confrontation with adverse witnesses and the State’s interest in protecting the anonymity of a juvenile offender since “our reading of the trial transcript convinces us that counsel for the defendant was able adequately to question the youth in considerable detail concerning the possibility of bias or motive.” 499 P. 2d 1025, 1036 (1972). Although the court admitted that Green’s denials of any sense of anxiety or apprehension upon the safe’s being found close to his home were possibly self-serving, “the suggestion was nonetheless brought to the attention of the jury, and that body was afforded the opportunity to observe the demeanor of the youth and pass on his credibility.” Ibid. The court concluded that, in light of the indirect references permitted, there was no error. Since we granted certiorari limited to the question of whether petitioner was denied his right under the Confrontation Clause to adequately cross-examine Green, 410 U. S. 925 (1973), the essential question turns on the correctness of the Alaska court’s evaluation of the “adequacy” of the scope of cross-examination permitted. We disagree with that court’s interpretation of the Confrontation Clause and we reverse. (2) The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U. S. 400 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). Professor Wigmore stated: “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.” 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940). (Emphasis in original.) Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U. S. 474, 496 (1959). In the instant case, defense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of petitioner. We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided “a crucial link in the proof ... of petitioner’s act.”- Douglas v. Alabama, 380 U. S., at 419. The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer, cf. Alford v. United States, 282 U. S. 687 (1931), as well as of Green’s possible concern that he might be a suspect in the investigation. We cannot accept the Alaska Supreme Court’s conclusion that the cross-examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a “rehash” of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which “ 'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U. S. 1, 3.” Smith v. Illinois, 390 U. S. 129, 131 (1968). (3) The claim is made that the State has an important interest in protecting the anonymity of juvenile offenders and that this interest outweighs any competing interest this petitioner might have in cross-examining Green about his being on probation. The State argues that exposure of a juvenile’s record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, it is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful transgression. We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U. S. 1, 25 (1967). Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record— if the prosecution insisted on using him to make its case— is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness. In Alford v. United States, supra, we upheld the right of defense counsel to impeach a witness by showing that because of the witness' incarceration in federal prison at the time of trial, the witness’ testimony was biased as “given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States.” 282 U. S., at 693. In response to the argument that the witness had a right to be protected from exposure of his criminal record, the Court stated: “[.N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.” Id., at 694. As in Alford, we conclude that the State's desire that Green fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself. The State’s policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records. The judgment affirming petitioner’s convictions of burglary and grand larceny is reversed and the case is remanded for further proceedings not inconsistent with this opinion. u -s go Qrdererl Rule 23 provides: “No adjudication, order, or disposition of a juvenile case shall be admissible in a court not acting in the exercise of juvenile jurisdiction except for use .in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate.” Section 47.10.080 (g) provides in pertinent part: “The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceedings in any other court . ...” In the same opinion the Alaska Supreme Court also affirmed petitioner’s conviction, following a separate trial, for being a felon in possession of a concealable firearm. That conviction is not in issue before this Court. In Greene we stated: “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . .” 360 U. S., at 496. “[A] partiality of mind at some former time may be used as the basis of an argument to the same state at the time of testifying; though the ultimate object is to establish partiality at the time of testifying.” 3A J. Wigmore, Evidence § 940, p. 776 (Chadbourn rev. 1970). (Emphasis in original; footnotes omitted.) Although Alford involved a federal criminal trial and we reversed because of abuse of discretion and prejudicial error, the constitutional dimension of our holding in Alford is not in doubt. In Smith v. Illinois, 390 U. S. 129, 132-133 (1968), we relied, in part, on Alford to reverse a state criminal conviction on confrontation grounds. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appnatpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of 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. Earnestine DOVE et al., Appellants, v. Lee PARHAM et al., Appellees (two cases). Lee PARHAM et al., Appellants, v. Earnestine DOVE et al., Appellees. Nos. 16437, 16448, 16487. United States Court of Appeals Eighth Circuit. Aug. 30, 1960. Robert V. Light and Herschel H. Friday, Jr., Little Rock, Ark., for Parham, et al. George Howard, Jr., Pine Bluff, Ark., and Robert L. Carter, New York City, for Dove and others. Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and DELEHANT, District Judge. JOHNSEN, Chief Judge. These appeals are from orders made by the District Court, 181 F.Supp. 504 and 183 F.Supp. 389 in a transition by Dollar-way School District No. 2, Jefferson County, Arkansas, from a segregated to a desegregated school system. Involved are the things which have occurred in the situation since our remand in Parham v. Dove, 8 Cir., 271 F.2d 132. One of the directions in our mandate, 271 F.2d at page 135, was that an injunction should be entered against the District and its officers to prevent them from continuing to maintain, as against the student plaintiffs and the class represented by them, the system of unconstitutional segregation to which the District had been subjecting them in their educational process. This direction was made because the school board had up to that time taken no steps, even of a transitional nature, to bring about the disestablishment of the existing unlawful status- — -which a recognition of the responsibility made clear by the Brown cases, Brown v. Board of Education etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, ought by then to have prompted. We held, however, that, in view of the enactment of a state pupil placement or assignment statute, Act No. 461 of 1959, Ark.Stats. § 80-1525 et seq., the District would not be summarily required to make admission of the three individual plaintiffs involved to the school they sought to attend, but should be afforded the opportunity to make use of the provisions of the statute as a means or an aid in effecting an orderly location of pupils generally, in relation to the various factors which could be involved as to distribution in its school system, except those of purely racial consideration. 271 F.2d at page 137. The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a “legislative non-racial scheme”, intended to serve in effecting student location through “overall pattern”, instead of by promiscuous result. Id., at page 138. But we cautioned that “the statute cannot * * * be made to serve through artificial application, as an instrument for maintaining * * * a system of racial segregation”. Id., at page 136. Judicial persuasion would not normally tend to be produced that a placement or assignment statute was being used as an auxiliary in effecting an orderly solution of a school district’s integration problems, where the district had refrained from adopting any program to disestablish its previous racial discrimination, where the only application of the statute engaged in by it was to Negro students seeking to escape their segregated status, and where the only result brought about thereby was to leave the racial situation in the school system remaining exactly as before. Standards of placement cannot be devised or given application to preserve an existing system of imposed segregation. Nor can educational principles and theories serve to justify such a result. These elements, like everything else, are subordinate to and may not prevent the vindication of constitutional rights. An individual cannot be deprived of the enjoyment of a constitutional right, because some governmental organ may believe that it is better for him and for others that he not have this particular enjoyment. The judgment as to that and the effects upon himself therefrom are matters for his own responsibility. In summary, it is our view that the obligation of a school district to disestablish a system of imposed segregation, as the correcting of a constitutional violation, cannot be said to have been met by a process of applying placement standards, educational theories, or other criteria, which produce the result of leaving the previous racial situation existing, just as before. Such an absolute result affords no basis to contend that the imposed segregation has been or is being eliminated. If placement standards, educational theories, or other criteria used have the effect in application of preserving a created status of constitutional violation, then they fail to constitute a sufficient remedy for dealing with the constitutional wrong. Whatever may be the right of these things to dominate student location in a school system where the general status of constitutional violation does not exist, they do not have a supremacy to leave standing a situation of such violation, no matter what educational justification they may provide, or with what subjective good faith they may have been employed. As suggested above, in the remedying of the constitutional' wrong, all this has a right to serve only in subordinancy or adjunctiveness to the task of getting rid of the imposed segregation situation. That was the basis on which we held in our previous opinion, 271 F.2d at page 137, that the District was entitled to a use of the placement or assignment statute in relation to its desegregation task, when we stated that the statute was being accorded recognition “only as an implement or adjunctive element * * * for effecting an orderly solution to its (the District’s) desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result”. What has been said up to this point is foundational to our dealing with the questions presented by these appeals. Three appeals are before us. The first one, No. 16,437, involves a determination of whether the trial court was entitled to dismiss the complaint of the plaintiffs and deny them relief from the school board’s refusal to admit them to the school they sought to attend. The second case, No. 16,448, is a cross-appeal by the District and the school board from the holding of the court that it had jurisdiction to deal with the complaint of the plaintiffs on its merits and was not required to make dismissal thereof on the basis that the plaintiffs had not exhausted their administrative remedies under the placement or assignment statute in respect to the board’s action of denial against them. The third appeal, No. 16,487, is by the plaintiffs from the approval granted by the court to the transitional plan and program filed by the District after the other decisions here involved, in response to a requirement of the court that it submit “an affirmative statement of its plans and policies designed to bring about an end to compulsory racial segregation in (its) public schools”. I. It is, we think, quite generally recognized that a solution to the problem of effecting desegregation will in most instances have to come through a series of progressive, transitional steps. And the Brown decisions appear to permit of the handling of a situation in this manner, provided the school' district engages in making a “reasonable start toward full compliance” and continues to move forward with “all deliberate speed”. The question here as to the propriety of the court’s approval of the school board’s plan and program for bringing about an end to the compulsory segregation existing in the District’s school system thus is in its overall significance the most important one before us, and it will accordingly be first considered. The approval order was made on the basis of the court’s expressed view “that the plan provides a start toward the elimination of racial discrimination, and that it is sufficient to initiate a transition period”. 183 F.Supp. at page 393. Our difficulty with this is that what the school board has said it intends to do does not seem to us to contain any demonstrable objectivity, of either effort or aim, so as realistically to be appraisable as a “reasonable start” — not in subjectivity, but in affirmative effort. In substance, the plan states generally that the school board intends to use the provisions of the Arkansas pupil placement or assignment statute in respect to any application made for admission to a school, other than the one which the student is now attending. Application of the provisions of the statute will be made, the plan states, in relation to such policies as that “it is undesirable and unsound educationally to transfer a child from the school which he is presently in attendance (at) to a different school”; that “the Board should give favorable consideration to applications for the lateral transfer of students (that is, the transfer of a student from one school in the District to another school in the District) only in exceptional cases”; and that “When an exceptional case is found by the Board to exist, a lateral transfer may be granted if, in the opinion of the Board, the pupil can make the necessary adjustment and perform and achieve satisfactorily in the school to which transfer is requested.” The steeping of the provisions of the placement statute in such dissuading abstractions, where the board has never given any indication of an existing desegregation opening (such as an announced intention or undertaken action to admit some contemplated number of Negro students, by a designated time, at a particular level), does not afford much basis for it to say, or for a Negro realistically to believe, that the opportunity exists for such students, either in whole or part, to escape from their imposed segregation status. And the more is this .persuasion impelled as to the present situation, in that the only result which the District has demonstrated is subject to being produced by a use of the statute on the foregoing basis is to leave the segregation situation remaining, just as it is. Relatedly, it may be noted that in its announced climate of principles for using the placement statute, the District has further made its processes of application of the statute consist in having applicants for transfer subjected to such devices as the California Mental Maturity Test, the Iowa Silent Reading Test, the Otis Quick Scoring Test of Mental Ability, the California Language Tests, the Bell Adjustment Inventory, and other such things— which, at least in the elementary area of public education, are new adornments upon the entrance doors to school houses and class rooms. Again, in what the District has done and proposes to continue doing, application of these devices is not going to be made to the students generally of the system but only to such individuals as undertake to engage in application for a transfer — which in the realities of the District here simply means, to Negro students seeking to enter a white school. The District admittedly has no intention to engage in any such general application of these devices as to enable it to effect a reconstruction or reorganization of its school system or its class rooms on the basis of the levels that might be arrived at from such individual scorings. Nor can it be said to intend to make the statute serve as a means for making a choice or selection among Negro students in relation to each other, for purposes of some initial, limited, transitional step in effecting the disestablishment of its segregation system — because the plan does not contain any definitive expression of indicated opening at any point for the admission, as suggested above, of some contemplated number of Negro students, by a particular time, at a designated grade-level. The plan does engage in a use of some general softening language in respect to first-grade students, but it does not set forth any definitive program or step on the board’s part for so effecting desegregation, or hold forth any promise of such a result, as a “reasonable start” at this level. The board’s statement says generally that “the educational considerations which make lateral transfers undesirable and unsound do not exist, for the most part, in the case of first graders”; that “they have not established relationships with teachers, formed extensive friendships, become adjusted to a particular environment, established a curriculum pace, adopted a particular course of study, etc.”; that “first graders do not have prejudices and fixed ideas concerning traditions to the extent that older students have”; and that “Therefore, the Board is not concerned ‘with exceptional cases’ in the sense involved in lateral transfers”. But to this there is added that “there must necessarily be a more extensive review of all facts relevant to the assignment criteria in making the initial assignment of first graders”, and that the board “will make this more extensive review”. And while it further is said in general terms that the opportunity will be given for pupils and their parents to make indication of school preference as to initial first-grade assignment, this is followed by the declaration that such assignments will be made “consistent with available school facilities, current teacher load, curriculum, emotional stability, readiness ability, adjustment potential and related matters.” Thus, the board has presented no objective plan for the admission of any Negro students to the first grade of its two white schools, as a step in the process of effecting desegregation in its educational system. It has not held out any indication of reasonable opportunity as a basis for such requests of initial assignment to be chosenly made. Nor has it stated that it is ready to make any such desegregating assignments. Instead, it in effect says that, before it can answer that question, it must, even as to first graders, delve into such things as “emotional stability, readiness ability, adjustment potential, and related matters”. The trial court, on careful consideration, was of the opinion that “The provisions for the initial assignment of first graders are fair on their face and are sufficient, if applied in good faith, to give at least some Negro children entering school for the first time in September of the current year (1960-1961) a reasonable chance of being assigned to the heretofore all-white Dollarway School.” 183 F.Supp. at page 392. But, after a lapse of six years, we think a board should be required to come forth with something more objectively indicative as a program of aim and action than a speculative possibility wx-apped in dissuasive qualifications. What has been said above should be sufficient to indicate to the board its obligations to do more than to engage in generalities. Placement standards and educational doctrines are entitled to their proper play, but that play, as we have emphasized, is subordinate to the duty to move forward, by whatever means necessary, to correct the existing constitutional violation with “all deliberate speed”. We had intended to hold up the filing of this opinion until after the board had takeix such action and produced such result as it intended to operate its school system under during the immediately pending school year. The press now contains a dispatch, indicating that the board has announced that it has assigned one 6-yeax--old Negro girl to the first grade in one of its two white schools for the pending year, and quoting the board as stating that it hoped that its action would help preserve the Ax-kansas pupil assignment law. We do no more than to note the item. The trial court may possibly desire to have indication made, in the more definitive expression of program which the board is being required to make, of what scope of opportunity generally was afforded for admission, in relation to such action. Two further comments should pex’haps here be made. Both we and the trial court have regarded the board as having been acting with subjective good faith. The question here, howevex, is not state of mind but required action. Required action is measurable only by objectivity. The second relates to the statement of the trial court, 183 F.Supp. at page 393, as follows: “The Board has stated with candor that in making assignments consideration will be given to race. As indicated, where a transition period has been initiated, limited consideration in assigning students may be given to race”. Where a board has adopted a definitive plan of effecting desegregation by reasonable transitional steps, the racial question necessarily is geared to the scope of those steps. But only in that sense and within that need, we think, is there basis to say that consideration in assigning students may be given to race. The board may in such a situation find it necessary to make selection between Negro students, and it will be entitled to do so on proper judgment as to what will best serve to accomplish its program. However, as we have said above, it has ■no right to resolve or take action at any time on the basis that it is better for some individual not to have the enjoyment of his constitutional right. II. As to appeal No. 16,437, relating to the court’s refusal to order the three Negro plaintiffs admitted to the 12th and 9th grades respectively of the school they sought to attend, we think that the court was entitled to require in relation to the problem of general achievement, that the enjoyment of their right to desegregation be geared to a reasonable, definitive, transitional program of “all deliberate speed”. That problem, in its sound solution, is in most instances one for general, orderly, reasonable progression. Where the court concludes that a board is warranted in so proceeding, it does not have to leave the door subject to general crash efforts, on a “first come, first served” basis and consequence. This is not to say, of course, that such action may not be resorted to, where it appears to be necessary in order to break down the segregation barrier. III. There remains for consideration No. 16,448, the appeal of the District and the school board from the court’s refusal to dismiss the complaint for lack of jurisdiction to consider its merits. , The contention made is that the plaintiffs could not resort to the federal court ágainst the action of the board in denying their applications for transfer, at leaát until after they had exhausted the remedies of appeal provided from such action to the State Circuit Court and State Supreme Court. The District and the board regard the appeals which are so provided for in the statute as part of the administrative process existing under the placement or assignment statute in respect to an application for transfer. Section 80-1531 of the Arkansas Statutes, as here pertinent, provides for a right of exception to the action of a school board in its assignment of a student, “as constituting a denial of any right of such minor guaranteed under the Constitution of the United States”. If the board does not reconsider its action, “an appeal may be taken from the final action * , on such [constitutional] ground alone, to the Circuit Court * * by filing * * * a petition stating the facts * * * bearing on the alleged denial of his rights under the United States Constitution * * * » While the section further provides that “the Circuit Court will try the said cause de novo”, it seems apparent, from the provision as to the scope of the exception to be made before the board and the requirement as to the contents of the petition (“the facts bearing on the alleged denial of his [constitutional] rights”), that the question which the court is intended to try is that of constitutional violation. Thus, the state remedy afforded is judicial and not administrative in its character and function. Judicial remedies of state courts for vindication of federal constitutional rights do not have to be exhausted, before there can be resort to a federal court, unless some federal statute so requires as to a particular legal situation. Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 875, 83 L.Ed. 1281. See also City Bank Farmers’ Trust Co. v. Schnader, 291 U.S. 24, 30, 54 S.Ct. 259, 78 L.Ed. 628; Carson v. Warlick, 4 Cir., 238 F.2d 724, 729. IV. Cases Nos. 16,437 and 16,448 are affirmed. The order appealed from in case No. 16,487 is vacated, and the cause remanded for further proceedings. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Thomas O. JACKSON and Mattie L. Jackson, Husband and Wife, Oklahoma citizens, Plaintiffs-Appellants, v. Lewis Riley FLETCHER, a California citizen; Shay Distributing Company, Inc., a California corporation; and Protective Insurance Company, an Indiana corporation, Defendants-Appellees. No. 79-1543. United States Court of Appeals, Tenth Circuit. April 20, 1981. Larry A. Tawwater, Lampkin, Wolfe, McCaffrey & Tawwater, Oklahoma City, Okl. (John Sushnik, Chastain, Heath & Sushnik, Oklahoma City, Okl. and Ray Vaughn, Vaughn & Stafford, Edmond, Okl., with him on the brief), for plaintiffs-appellants. Alex Cheek, Oklahoma City, Okl. (Noma D. Gurich with him on the brief), Cheek, Cheek & Cheek, Oklahoma City, Okl., for defendants-appellees. Before BARRETT, DOYLE and SEYMOUR, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The plaintiffs-appellants, Thomas O. Jackson and Mattie L. Jackson, seek review of a judgment based on an unfavorable jury verdict in which the plaintiff, Thomas 0. Jackson, sustained physical injuries in an automobile which was demolished following a collision with a tractor-trailer combination driven by defendant-appellee, Fletcher. Jurisdiction exists by reason of diversity of citizenship. 28 U.S.C. § 1332. This accident occurred on May 10,1977 at an intersection in an outlying section of Oklahoma City. The defendant tractor-trailer truck driver had been proceeding west along 122nd Street and the collision occurred at the intersection of 122nd Street with Bryant. Plaintiff had been driving his passenger automobile south on Bryant Street, a through street. The tractor-trailer truck which was being driven by Fletcher, who had his wife and small son with him, was making delivery of frozen food for Shay Distributing Co., the owner of the tractor-trailer. The defendant, Protective Insurance Company, is the insurance carrier. One Hundred Twenty-Second Street is not a through street. There were no witnesses other than the principals, and they contributed very little. The speed of both vehicles is the product of estimates by so-called experts. However, other witnesses, including an unbiased one, the police officer, who was at the scene immediately after the accident, said that each of the vehicles was travelling 30 miles per hour at the time of impact. A sign showing a black cross and a yellow background, warning of the intersection, is posted on 122nd Street about 750 feet from the intersection. The posted speed limit on Northeast 122nd Street is 45 miles per hour. At the approach to the Bryant Street intersection on 122nd Street there is a warning of the presence of a stop sign ahead to westbound traffic. A stop sign controls not only westbound traffic but eastbound traffic as well on 122nd Street. Thus Bryant is a protected street and traffic on Bryant is not required to stop. The defendant truck driver claimed that he did stop and then proceeded forward at a rate of five miles an hour. The area in question is generally rural; there are only a few houses in the vicinity and they are about a quarter of a mile from the intersection. Plaintiff’s Testimony The accident occurred at approximately 1:00 p. m. in the afternoon and the pavement was dry and the weather was clear. Jackson, the plaintiff, testified that when he was a few feet away from the intersection he recalled seeing a truck in the intersection and he thought he’d swerve to the right to avoid striking the truck and that’s all that he remembered. The accident happened in a short period of time and Jackson was unable to remember whether he had time to put on his brakes. Testimony of Investigating Officer The officer, Mr. Ted Mapes, came to the scene very soon after the collision. He fixed the point of impact from observation of the debris. His location of the point of impact was nine feet east of the west curb line of Bryant and approximately three feet south of the north curb line of 122nd Street. He testified that the truck driven by defendant Fletcher left approximately 20 feet of skid marks and from the point of impact travelled approximately 60 feet west, where it ran off the roadway into a ditch and travelled 126 feet up an incline where it came to rest turned over on its side. Mapes found no skid marks from the plaintiff’s automobile. Based upon his determinations as to positions of the vehicles and his other observations Mapes testified that the speed of the Jackson vehicle at the time of the collision was approximately 30 miles per hour and the speed of the truck was likewise in the neighborhood of 30 miles per hour. Plaintiff’s Expert A physicist, Doctor Moody Coffman, was called by the plaintiff to investigate the accident. Dr. Coffman’s testimony established that the truck did not stop, at the stop sign which faced it. He testified that based upon his observation of the scene, photographs of the vehicles and information furnished by the investigating officer, his opinion was that the Jackson vehicle entered the intersection at a speed of between 21 and 48 miles per hour, and the truck entered the intersection at a speed of between 24 and 59 miles per hour. Additionally he testified that based upon his findings the Jackson vehicle was travelling .88 times as fast as the truck at the time of the collision. Coffman testified that in his opinion it was impossible for the truck to acquire the speed it had reached had it actually stopped at the stop sign; that the truck could not have stopped and then proceeded up the incline 186 feet in first gear, which was the gear which Fletcher maintained it was in at the time of the accident. Testimony of Mr. Fletcher (the truck driver) He said that he saw the stop sign and stopped. He did comment that it was not a good place to put a stop sign (at the bottom of a hill); that if there was too much truck traffic it could make it difficult for the truck to stop and then start back up hill again. His only knowledge of the accident, he said, was a small blur out of the corner of his eye. He heard a bang and then became unconscious. In interrogatories which were read to him during his cross-examination he had testified that he stepped on the brakes of his truck and tried to avoid the accident. Defendants' Experts Defendants’ experts were Dr. Craig Jer-ner, a metallurgist, and his assistant, one John Harcourt. Their testimony was based on experiments they conducted in which it was sought to disprove Coffman’s theory that the truck did not stop. Fletcher had testified that he was driving a 1977 International tractor-trailer which was brand new and in perfect condition. With its load it weighed 69,000 pounds. The experiment was conducted with a 1977 International tractor which was approximately two years old and a trailer which was empty. The result was a difference of 37,000 pounds between the weight of the accident vehicle and the test vehicle. In addition the test vehicle had a different size engine. It had an eight cylinder engine as compared with the accident vehicle which had six cylinders. The person who made the test kept his foot on the accelerator all the way through the intersection, based on the point of impact as located by the defense experts rather than the point described by Mr. Mapes. No skid marks were made by the test vehicle although the officer had said that the truck left at least 20 feet of skid marks and no impact was made with the test vehicle such as was encountered by the accident truck when it struck the Jackson vehicle. In Jer-ner’s opinion the cause of accident was Jackson’s lack of attentiveness as he drove the vehicle. Neither Jerner nor Harcourt placed primary emphasis on Jackson’s speed as the cause of the accident. Dr. Jerner estimated Jackson’s speed at impact to have been 40 miles per hour, while Harcourt placed it at 45 miles per hour. Both men briefly mentioned the possibility that Jackson may have been going faster before impact. However, the primary thrust of their opinions was that Jackson had lacked attention as he approached the intersection and that due to inattention he had failed to 3ee the truck moving slowly through the intersection. By the time he saw the truck it was too late for Jackson to avoid it. Coffman, on behalf of Jackson, had said that the accident was caused from the fact that Fletcher drove the truck straight through the stop sign and the intersection; that he did not see the automobile coming until it was too late to stop and only then did he apply brakes. Testimony of Defendants’ Experts on the Experiment The expert testimony regarding the experiments that were conducted came from Dr. Craig Jerner and his assistant, Mr. Harcourt. The experiments were designed to show the length of time that was required for the Fletcher vehicle to cross the intersection and to overcome the testimony of Dr. Coffman on behalf of the plaintiff that the truck did not stop. As shown before, the truck that Fletcher was driving at the time of the accident was a 1977 International tractor-trailer which was brand new, fully loaded, and weighed approximately 69,000 pounds. The Jerner-Harcourt experiment truck was a 1977 International tractor. It pulled an empty trailer as a result of which the weight differential was shown to be 37,000 pounds lighter than the equipment which was in the accident. The test vehicle at the time of the making of the test started in first gear from a stopped position near the stop sign, and accelerated at full power to the point of impact. As we noted before, the point of impact was in dispute; the defense experts placed it near the west edge of the intersection rather than near the middle of the intersection as determined by Officer Mapes. Consequently the test vehicle had a longer distance to accelerate than it would have had if the point of impact located by Officer Mapes had been the reference point. When the test vehicle reached the point of impact the driver removed his foot from the accelerator and steered the truck west up Northeast 122nd. No effort was made therefore to simulate the effect of a collision or the entering in a ditch 60 feet up 122nd. Dr. Jerner testified that the experiment vehicle went past the point at which the accident vehicle overturned but not in any ditch. At the conclusion of this testimony counsel for plaintiff moved to strike on the ground that an empty truck was being used. The court, however, denied the motion, saying that the difference between the vehicles went to weight of the testimony and not admissibility. On cross-examination Dr. Jerner testified that he seriously doubted that it would make any difference that the experiment truck was steered and remained on the pavement rather than travelling up the ditch for all the distance that the accident vehicle travelled. Further he testified that it would make no difference that the truck had made 20 feet of skid marks prior to impact. Harcourt also testified that the accident vehicle would have moved forward up Northeast 122nd in first gear without acceleration even if the truck had left 20 feet of skid marks or had entered the ditch. As described above Coffman testified that it was not physically possible for the truck to have gone more than 40 feet up 122nd Street if it had been going ten miles per hour on impact. Dr. Coffman also testified that a tractor-trailer of this type will move forward in first gear without acceleration only on level ground where there are no impediments; that it would stall under these conditions as it headed uphill. I. Alleged Error in Instructing the Jury on the Issue of Speed The trial court gave several instructions dealing with the issue of speed. Each of these will be set forth and will be commented upon. Most of these speed instructions were verbatim statements as to the provisions in the Oklahoma City ordinances. One was a state statute. Oklahoma City ordinance § 34-35 provides as follows: No person shall drive a vehicle at a speed greater or less than is reasonable or prudent under the conditions then existing, taking into consideration, among other things, the conditions of the vehicle, roadway and weather, the amount of light and darkness, the amount of traffic, presence of pedestrians in or near the roadways and the obstruction of view. An Oklahoma statute is concerned with this. Its subject matter is as follows: 47 O.S. § ll-801(a): Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard for the traffic, surface and width of the highway and any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop with the assured clear distance ahead. The theme of both instructions is that the operator of a vehicle must drive at a reasonable and prudent speed under the conditions. There are some differences. The ordinance, for example, mentions special surrounding conditions which are to be considered. No doubt the trial court believed that although these have similarity, that both should be given; we do not find fault with that decision. The next one to be considered is Oklahoma City ordinance § 34-35.01, which reads: Notwithstanding the posted speed limits it shall be an offense for any person to drive a vehicle in a residential district at an excessive speed, without having due regard for the safety of persons or property or without taking into consideration the condition of the vehicle, the roadway or the weather; or the amount of light or darkness; or the amount of traffic; or the presence of pedestrians in or near the roadway; or any view obstruction. This is another instruction which deals with the same problem, namely precautions in the light of conditions. However, it deals with posted speed limits and says that notwithstanding the posted speeds, that it is unlawful to drive a vehicle in a residential district at an excessive speed. It then goes on in a companion provision to define what constitutes a residential district and declares: The territory contiguous to and including a highway not comprising a business district when the property on such highway for a distance of three hundred (300) feet or more is in the main improved with residences or residences and buildings in use for business. Counsel for defendants-appellees maintain that inasmuch as the ordinances of Oklahoma City apply citywide that the ordinances are applicable even in an area where there are posted speeds set forth along the highway, such as here. But that is not what this ordinance provides. There is a distinction given between an area which is residential and one which is not residential. The ordinance states that where the property on the highway for a distance of 300 feet or more is in the main improved with residences or residences and buildings used for business, it is a residential district. The area that here is in question does not fit with this definition. Officer Mapes, who was the only witness on this subject, said that the area was rural in character and his other testimony indicates that there was only an occasional house a.t or near the highway and beyond. It must have been confusing to the jury to consider this in connection with the other instructions on speed, that is to say 47 O.S. § ll-801(a) and § 34-35. Thus it is our opinion that this particular instruction, pertaining as it does to residential districts, ought not to have been given. Section 34-37 contained a prohibition in respect to the maximum and minimum speeds. The prohibition was against exceeding the maximum speed and going slower than the minimum speed. Although I do not see that this made any great contribution to the case, it doesn’t appear to be erroneous. We have previously noted that the experts gave their opinions as to the speed of each vehicle, that is, Dr. Coffman gave his opinion as did Dr. Jerner and his assistant. There was also testimony as to the skid marks. The testimony on each side was different. Therefore there was certainly an issue of speed in the case. We have indicated disapproval of the instruction based upon § 34-35.01 of the Oklahoma City Ordinances which dealt with speed in a residential area. We are not, however, holding that the giving of this instruction was reversible error in and of itself. Moreover, we do not hold that the failure of the court to give the definition of a through highway in accordance with § 1-175 of 47 O.S.A. constituted error. One good reason for this holding is that the plaintiff did not request such an instruction. Inasmuch, however, as the case is to be retried, we call attention to this definition and commend it to the trial court in connection with the retrial. The court did give another instruction on the duty of a person entering from a stop street and this is the other side of the coin in relationship to the through highway instruction. The part of the instruction which is contained in the statute recognizes that the person on the highway has the preferential right-of-way. The case of Townley’s Dairy v. Creech, 476 P.2d 79 (Okl.1970) was emphasized by counsel for defendants on rehearing. It dealt with a problem not dissimilar from that which is here presented in that there was a collision between a truck which was on the through highway and a vehicle which was entering the through highway. The conditions, however, were different. A severe storm caused vision to be limited. The Oklahoma Supreme Court approved an instruction which said that the rights, duties and obligations of the drivers of the vehicles involved in the collision were reciprocal and further that it was the duty of each of said drivers as they approached the point where the collision occurred to exercise ordinary care in the management of his vehicle. The court went on to declare that it was the duty of each person to drive his vehicle at a reasonable rate of speed and under reasonable and proper control and that it was likewise the duty of each driver to use reasonable and ordinary care in keeping a lookout ahead consistent with the safety of other vehicles and persons who might be using and travelling upon such street or highway. The opinion by Justice Blackbird concluded as follows: [A] ‘favored’ driver’s right of way does not relieve him of the duty of exercising reasonable care and caution not to injure others at the intersection; and whether or not he has discharged this duty, like the question of whether the ‘unfavored’ driver who entered the intersection has discharged his duty of using due care under the circumstances (see Hansen v. Cunningham, 258 P.2d 906 [Okl.], quoting Wilkinson v. Marcellus, 51 Cal.App.2d 630, 125 P.2d 584, 586) is a question for determination by the trier of facts.... 476 P.2d at 83. To a degree, at least, Townley contains potentially useful guides for the retrial of this case. II. The Question as to Admissibility of the Out of Court Experiments The objection to the admissibility of the experiment was due to the changed circumstances of the experiment. The circumstances of the experiment were different from that of the actual happening. The first difference was the failure to have a vehicle of approximately the same weight as the accident vehicle. The weight differential was not the only variance between the actual happening and the simulated one. Another possible variance was that the test driver did not apply brakes as Mr. Fletcher’s answers to interrogatories indicated he had done. Moreover, the test vehicle did not travel the same route. It did not pursue the ditch for 125 feet as did the accident vehicle. The testimony of defendant was that it would make no difference that the truck had made 20 feet of skid marks prior to impact and that the test truck had travelled on the highway rather than in the ditch. We disagree. The route of the accident vehicle evidenced its momentum. Dr. Coffman testified that in his opinion it was physically impossible for the truck to have gone more than 40 feet up 122nd if it had been going ten miles per hour on impact. Coffman also testified that a tractor of this type would move forward in first gear without acceleration only on level ground with no impediments; that such a tractor would stall under the simulated conditions if it was headed uphill. Did the trial court err in allowing this experiment to be received in evidence with the variances? We must hold that it did. The admissibility of experiments which are performed outside of the courtroom is controversial. However, it is generally within the discretion of the trial judge as to whether such evidence will be received or not and ordinarily such a ruling on admissibility or non-admissibility is not disturbed unless it is clearly a wrong ruling. The question is whether the variances of the experiment from the accident were prejudicial. Such testimony is not readily admissible unless the experiments are carried out in a substantially similar manner and not in a distorted way. See Collins v. B. F. Goodrich Company, 558 F.2d 908 (8th Cir. 1977); Ramseyer v. General Motors Corp., 417 F.2d 859 (8th Cir. 1969); Drake v. Tims, 287 P.2d 215 (Okl.1955). “A party offering evidence of out of court experiments must lay a proper foundation by showing a similarity of circumstances and conditions.” Navajo Freight Lines v. Mahaffy, 174 F.2d 305, 310 (10th Cir. 1949). The object of the rule which requires substantial similarity of conditions is to prevent admission of evidence which tends to mislead and perhaps confuse the jury. Fed. R.Evid. 403; Derr v. Safeway Stores, Inc., 404 F.2d 634 (10th Cir. 1968); Barnes v. General Motors Corp., 547 F.2d 275 (5th Cir. 1977). Evidence of this kind should be received with caution, and only be admitted when it is obvious to the court, from the nature of the experiments, that the jury will be enlightened, rather than confused. In many instances, a slight change in the conditions under which the experiment is made will so distort the result as to wholly destroy its value as evidence, and make it harmful, rather than helpful. Navajo Freight Lines v. Mahaffy, supra at 310. In a recent decision of the Oklahoma Supreme Court, Jones v. Stemco Manufacturing Co., Inc., 624 P.2d 1044 (Okl.1981), this rule that evidence of out of court experiments is admissible only where there is a showing of similarity of conditions was again affirmed and approved by the Oklahoma Court. In Jones the plaintiff had alleged that the cause of the truck accident was a defect in a hub seal, which defect allowed oil to leak from the axle. Defendants introduced evidence of an experiment designed to show that if the seal had leaked, substantially more oil would have been thrown into the wheel area than was actually present. Various differences between the accident vehicle and the test vehicle were shown as well as differences between the conditions under which the test vehicle was driven and actual conditions. The court vacated a jury verdict unfavorable to plaintiff and remanded for new trial. In our case the experiment was not primarily to demonstrate physical principles which can be demonstrated on some occasions without a suggestion arising that the experiment simulates actual events. Millers’ National Insurance Co., Chicago, Ill. v. Wichita Flour Mills Co., 257 F.2d 93 (10th Cir. 1958); Brandt v. French, 638 F.2d 209 (10th Cir. 1981). Where experiments such as this are not based on the facts, however, it must be made clear to the jury that the evidence is admitted for a limited purpose. Thus, where equipment failures are at issue in a case, experiments with the same make and model may be admissible to show normal wear and tear or normal operation. Ramseyer v. General Motors Corp., supra; Midwestern Wholesale Dry, Inc. v. Gas Service Co., 442 F.2d 663 (10th Cir. 1971). Similarly, experiments designed to demonstrate the effect of various types of exposure on a product or material may be admissible. C. F. Church Division of Radiator & Standard Sanitary Corp. v. Golden, 429 P.2d 771 (Okl. 1977). Where, however, an experiment purports to simulate actual events and to show the jury what presumably occurred at the scene of the accident, the party introducing the evidence has a burden of demonstrating substantial .similarity of conditions. They may not be identical but they ought to be sufficiently similar so as to provide a fair comparison. Barnes v. General Motors Corp., supra. In the case before us it cannot be disputed that the truck and trailer which was driven by the defendant came to rest over 180 feet up Northeast 122nd Street. The exhibits and testimony established the truck travelled up a substantial incline. Moreover, the truck was carrying a load of frozen food and weighed approximately 69,000 pounds. Plaintiff’s expert witness testified that it was impossible for the truck to have travelled up the incline 186 feet without acceleration if it had stopped at the stop sign. Defendants’ theory was the truck had moved forward in first gear without acceleration and Mr. Harcourt testified that it was possible for this to occur. The experiment at issue here sought to simulate the actual chain of events, therefore, and thus to lend support to the testimony of defendants’ experts as to how the accident happened. It was essential to the defendants’ theory of the case to convince the jury that the truck could have come to rest where it did without having to run the stop sign. The experts were at odds on this point. Under these circumstances, then, the jury could very well have attached great significance to the experiment. It is in precisely this type of case that the foundation requirement serves to insure that evidence which intends to distort the situation does not impair the fact-finding process. Substantial similarity of conditions is essential in a sensitive situation like the present one in order to avoid the risk that inaccurate or distorted results will cause the jury to be misled and to return a verdict which is based upon conclusions of fact that are contrary to what actually happened. In the present case the conditions under which the experiment was conducted differ in significant respects from conditions present at the accident. Here there is a physical situation on 122nd Street wherein the highway going in a westerly direction moves downhill substantially to the intersection. Similarly the highway which goes away from the intersection goes uphill. Thus a vehicle weighing 37,000 pounds less than the accident vehicle produces an unfair experiment. The test vehicle weighed 54% less than the accident vehicle and in a situation where there is a stop, there must be great difficulty in moving across the intersection and up the hill. This weight differential or disparity makes a vast difference. Furthermore, there was no effort to simulate the undisputed impediments to motion presented by collision and travel off the pavement. Failure to simulate the conditions could have produced a result desired by defendants but not a true depiction. It cannot be denied that the conditions were different in significant ways. The substantial variance from the real happenings prevented a fair comparison. The differences between the experiment and the actual conditions cause concern that the jury could have been misled on a highly important element of the case. With this in mind we must conclude that receipt of this evidence was prejudicial to plaintiff-appellant. There were other instructions regarding which the plaintiff has raised issues in his brief having to do with the damage award to Mr. Fletcher. In view of the fact that the cause is being reversed on other grounds and a new trial is being ordered, these matters can be addressed when the cause is retried. The same would be true of an instruction which defines the through highway. The judgment of the district court is reversed and the cause is remanded to the district court for a new trial consistent with the foregoing opinion. . Section 1-175 of the 47 O.S.A. provides: Every highway or portion thereof on which vehicular traffic is given preferential right-of-way, and at the entrances to which traffic from intersecting highways is required by law to yield right-of-way to vehicles on such through highway in obedience to such stop sign or a yield sign when such signs are created as provided. The plaintiff did not request an instruction involving the definition or character of a through highway. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. DALLAS COWBOYS CHEERLEADERS, INC., Plaintiff-Appellee, v. PUSSYCAT CINEMA, LTD. and Michael Zaffarano, Defendants-Appellants. No. 950, Docket 79-7179. United States Court of Appeals, Second Circuit. Argued April 6, 1979. Decided Aug. 14, 1979. Herbert S. Kassner, New York City (Kassner & Detsky, P. C., Ralph J. Schwarz, Jr., New York City, of counsel), for defendants-appellants. Asa Rountree, New York City (Debe-voise, Plimpton, Lyons & Gates, Richard I. Janvey, Nicole A. Gordon, New York City, of counsel), for plaintiff-appellee. Before MULLIGAN, TIMBERS and VAN GRAAFEILAND, Circuit Judges. VAN GRAAFEILAND, Circuit Judge: This is an appeal from orders of the United States District Court for the Southern District of New York granting plaintiff’s motions for a preliminary injunction prohibiting Pussycat Cinema, Ltd., and Michael Zaffarano from distributing or exhibiting the motion picture “Debbie Does Dallas.” On March 14 this Court granted defendants’ motion to stay the injunction and ordered an expedited appeal. The case was argued before us on April 6, following which we dissolved the stay and reinstated the preliminary injunction. We now affirm the orders of the district court. Plaintiff in this trademark infringement action is Dallas Cowboys Cheerleaders, Inc., a wholly owned subsidiary of the Dallas Cowboys Football Club, Inc. Plaintiff employs thirty-six women who perform dance and cheerleading routines at Dallas Cowboys football games. The cheerleaders have appeared frequently on television programs and make commercial appearances at such public events as sporting goods shows and shopping center openings. In addition, plaintiff licenses others to manufacture and distribute posters, calendars, T-shirts, and the like depicting Dallas Cowboys Cheerleaders in their uniforms. These products have enjoyed nationwide commercial success, due largely to the national exposure the Dallas Cowboys Cheerleaders have received through the news and entertainment media. Moreover, plaintiff has expended large amounts of money to acquaint the public with its uniformed cheerleaders and earns substantial revenue from their commercial appearances. At all the football games and public events where plaintiff’s cheerleaders appear and on all commercial items depicting the cheerleaders, the women are clad in plaintiff’s distinctive uniform. The familiar outfit consists of white vinyl boots, white shorts, a white belt decorated with blue stars, a blue bolero blouse, and a white vest decorated with three blue stars on each side of the front and a white fringe around the bottom. In this action plaintiff asserts that it has a trademark in its uniform and that defendants have infringed and diluted that trademark in advertising and exhibiting “Debbie Does Dallas.” Pussycat Cinema, Ltd., is a New York corporation which owns a movie theatre in New York City; Zaffarano is the corporation’s sole stockholder. In November 1978 the Pussycat Cinema began to show “Debbie Does Dallas,” a gross and revolting sex film whose plot, to the extent that there is one, involves a cheerleader at a fictional high school, Debbie, who has been selected to become a “Texas Cowgirl.” In order to raise enough money to send Debbie, and eventually the entire squad, to Dallas, the cheerleaders perform sexual services for a fee. The movie consists largely of a series of scenes graphically depicting the sexual escapades of the “actors”. In the movie’s final scene Debbie dons a uniform strikingly similar to that worn by the Dallas Cowboys Cheerleaders and for approximately twelve minutes of film footage engages in various sex acts while clad or partially clad in the uniform. Defendants advertised the movie with marquee posters depicting Debbie in the allegedly infringing uniform and containing such captions as “Starring Ex Dallas Cowgirl Cheerleader Bambi Woods” and “You’ll do more than cheer for this X Dallas Cheerleader.” Similar advertisements appeared in the newspapers. Plaintiff brought this. action alleging trademark infringement under section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), unfair competition, and dilution of trademark in violation of section 368-d of the New York General Business Law. The district court, in its oral opinion of February 13, 1979, found that “plaintiff ha[d] succeeded in proving by overwhelming evidence the merits of each one of its contentions.” Defendants challenge the validity of all three claims. A preliminary issue raised by defendants is whether plaintiff has a valid trademark in its cheerleader uniform. Defendants argue that the uniform is a purely functional item necessary for the performance of cheerleading routines and that it therefore is not capable of becoming a trademark. We do not quarrel with defendants’ assertion that a purely functional item may not become a trademark. See In re Honeywell, Inc., 532 F.2d 180, 182-83 (C.C.P.A.1976). However, we do not agree that all of characteristics of plaintiff’s uniform serve only a functional purpose or that, because an item is in part incidentally functional, it is necessarily precluded from being designated as a trademark. Plaintiff does not claim a trademark in all clothing designed and fitted to allow free movement while performing cheerleading routines, but claims a trademark in the particular combination of colors and collocation of decorations that distinguish plaintiff’s uniform from those of other squads. Cf. Socony Vacuum Oil Co. v. Rosen, 108 F.2d 632, 636 (6th Cir. 1940); John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 317 (E.D.Pa.1976). It is well established that, if the design of an item is nonfunctional and has acquired secondary meaning, the design may become a trademark even if the item itself is functional. Ives Laboratories, Inc. v. Darby Drug Co., 601 F.2d 631, 642 (2d Cir. 1979); Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1215 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). Moreover, when a feature of the construction of the item is arbitrary, the feature may become a trademark even though it serves a useful purpose. In re Deister Concentrator Co., 289 F.2d 496, 506, 48 C.C.P.A. 952 (1961); Fotomat Corp. v. Cochran, 437 F.Supp. 1231 (D.Kan.1977). Thus, the fact that an item serves or performs a function does not mean that it may not at the same time be capable of indicating sponsorship or origin, particularly where the decorative aspects of the item are nonfunctional. See In re Penthouse International Ltd., 565 F.2d 679, 681 (Cust. & Pat.App.1977). See also In re World’s Finest Chocolate, Inc., 474 F.2d 1012 (Cust. & Pat.App.1973). In the instant case the combination of the white boots, white shorts, blue blouse, and white star-studded vest and belt is an arbitrary design which makes the otherwise functional uniform trademarkable. Defendants argue that Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S. Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), preclude a finding that plaintiff’s uniform is a trademark. We disagree. In SearsCompco the Court held merely that a state may not, through its law banning unfair competition, undermine the federal patent laws by prohibiting the copying of an article that is protected by neither a federal patent nor a federal copyright. For the Court to have held otherwise would have been to allow states to grant a monopoly to a producer where the federal government had specifically determined that free competition should prevail. This consideration does not apply in a trademark infringement action where the plaintiff does not assert exclusive rights to the sale of a product but merely to a mark indicating its origin or sponsorship. The question presented therefore is one of trademark law, and it is clear that Sears-Compco did not redefine the permissible scope of the law of trademarks insofar as it applies to origin and sponsorship. See Sears, Roebuck & Co. v. Stiffel, supra, 376 U.S. at 232, 84 S.Ct. 784; Ives Laboratories, Inc. v. Darby Drug Co., supra, at 642 nn. 13-14; Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 781 n. 4 (2d Cir. 1964), cert. denied, 380 U.S. 913, 85 S.Ct. 889, 13 L.Ed.2d 799 (1965); Rolls-Royce Motors Ltd. v. A & A Fiberglass, Inc., 428 F.Supp. 689, 692 (N.D.Ga.1977). Having found that plaintiff has a trademark in its uniform, we must determine whether the depiction of the uniform in “Debbie Does Dallas” violates that trademark. The district court found that the uniform worn in the movie and shown on the marquee closely resembled plaintiff’s uniform and that the public was likely to identify it as plaintiff’s uniform. Our own comparison of the two uniforms convinces us that the district court was correct, and defendants do not seriously contend that the uniform shown in the movie is not almost identical with plaintiff’s. Defendant’s contention is that, despite the striking similarity of the two uniforms, the public is unlikely to be confused within the meaning of section 43(a) of the Lanham Act. Defendants assert that the Lanham Act requires confusion as to the origin of the film, and they contend that no reasonable person would believe that the film originated with plaintiff. Appellants read the confusion requirement too narrowly. In order to be confused, a consumer need not believe that the owner of the mark actually produced the item and placed it on the market. See Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 568 (2d Cir. 1971); Boston Professional Hockey Association v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1012 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). The public’s belief that the mark’s owner sponsored or otherwise approved the use of the trademark satisfies the confusion requirement. In the instant case, the uniform depicted in “Debbie Does Dallas” unquestionably brings to mind the Dallas Cowboys Cheerleaders. Indeed, it is hard to believe that anyone who had seen defendants’ sexually depraved film could ever thereafter disassociate it from plaintiff’s cheerleaders. This association results in confusion which has “a tendency to impugn [plaintiff’s services] and injure plaintiff’s business reputation . . . .” See Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183, 1189 (E.D.N.Y.1972). In the Coca-Cola case the defendant had manufactured a poster showing the familiar red and white Coca-Cola design with the word “Cocaine” substituted for “Coca-Cola”. As in this case, the defendant there argued that no reasonable purchaser would be confused by the poster; however the court held that a person of average intelligence could believe “that defendant’s poster was just another effort ... by plaintiff to publicize its product,” although in a distasteful way. Id. at 1190. In another case, a similarity between the plaintiff’s and the defendant’s trade slogans was held to confuse the public and “[threaten] injury to the good name of the first user.” See Chemical Corp. of America v. Anheuser-Busch, Inc., 306 F.2d 433 (5th Cir. 1962), cert. denied, 372 U.S. 965, 83 S.Ct. 1089, 10 L.Ed.2d 129 (1963). There, the defendant advertised its insecticide by changing plaintiff’s slogan “Where there’s life, there’s Bud” to the slogan “Where there’s life, there’s bugs.” The court’s reasoning in upholding the finding of unfair competition is equally applicable here: The gist of this action is that the plaintiff has a property interest in the slogan, built up at great expense, and that it and its products are favorably known as a result of its use of this property right and that the defendant, with full knowledge of the right and with the purpose of appropriating some of the value engendered in the minds of the public by its use has used, and proposes further to make use of, a deceptively similar slogan in a manner that will bring direct financial loss to the plaintiff, both by reason of confusing the source of the defendant’s product, and by reason of the peculiarly unwholesome association of ideas when the word “bugs” was substituted in the slogan for the word “Bud,” referring to a food product. Id. at 437. Plaintiff expects to establish on trial that the public may associate it with defendants’ movie and be confused into believing that plaintiff sponsored the movie, provided some of the actors, licensed defendants to use the uniform, or was in some other way connected with the production. The trademark laws are designed not only to prevent consumer confusion but also to protect “the synonymous right of a trademark owner to control his product’s reputation.” James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 274 (7th Cir. 1976) (Markey, C. J.). The district court did not err in holding that plaintiff had established a likelihood of confusion within the meaning of the Lanham Act sufficient to entitle it to a preliminary injunction and that plaintiff had a right to preliminary relief on its claims of unfair competition and dilution. See id. at 274 n. 16. Defendants assert that the copyright doctrine of “fair use” should be held applicable to trademark infringement actions and that" we should apply the doctrine to sanction their use of a replica of plaintiff’s uniform. Fair use is “a ‘privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent . . . Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966) (quoting Ball, The Law of Copyright and Literary Property 260 (1944)), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The fair use doctrine allows adjustments of conflicts between the first amendment and the copyright laws, see Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978), and is designed primarily to balance “the exclusive rights of a copyright holder with the public’s interest in dissemination of information affecting areas of universal concern, such as art, science and industry.” Id. at 94. It is unlikely that the fair use doctrine is applicable to trademark infringements; however, we need not reach that question. Although, as defendants assert, the doctrine of fair use permits limited copyright infringement for purposes of parody, see Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1965), defendants’ use of plaintiff’s uniform hardly qualifies as parody or any other form of fair use. See Walt Disney Productions v. Mature Pictures Corp., 389 F.Supp. 1397, 1398 (S.D.N.Y.1975). Nor does any other first amendment doctrine protect defendants’ infringement of plaintiff’s trademark. That defendants’ movie may convey a barely discernible message does not entitle them to appropriate plaintiff’s trademark in the process of conveying that message. See Interbank Card Association v. Simms, 431 F.Supp. 131 (M.D.N.C.1977); Edgar Rice Burroughs, Inc. v. Manns Theatres, 195 U.S.P.Q. 159 (C.D.Cal.1976); Coca-Cola Co. v. Gemini Rising, Inc., supra, 346 F.Supp. at 1191. Plaintiff’s trademark is in the nature of a property right, see Hanover Milling Co. v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713 (1915); Alfred Dunhill of London, Inc. v. Dunhill Tailored Clothes, Inc., 293 F.2d 685, 692, 49 C.C.P.A. 730 (1961), cert. denied, 369 U.S. 864, 82 S.Ct. 1030, 8 L.Ed.2d 84 (1962), and as such it need not “yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist.” Lloyd Corp. v. Tanner, 407 U.S. 551, 567, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 31 (1972). Because there are numerous ways in which defendants may comment on “sexuality in athletics” without infringing plaintiff’s trademark, the district court did not encroach upon their first amendment rights in granting a preliminary injunction. See Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir. 1978); Reddy Communications, Inc. v. Environmental Action Foundation, 199 U.S.P.Q. 630, 634 (D.D. C.1977). For similar reasons, the preliminary injunction did not constitute an unconstitutional “prior restraint”. This is not a case of government censorship, but a private plaintiff’s attempt to protect its property rights. The propriety of a preliminary injunction where such relief is sought is so clear that courts have often issued an injunction without even mentioning the first amendment. See, e. g., Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976); Edgar Rice Burroughs, Inc. v. Manns Theatres, supra, 195 U.S.P.Q. 159. The prohibition of the Lanham Act is content neutral, cf. Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), and therefore does not arouse the fears that trigger the application of constitutional “prior restraint” principles. The district court’s issuance of a preliminary injunction is reversible only for abuse of discretion. Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731, 732 n. 1 (2d Cir. 1978). A preliminary injunction is proper where the plaintiff establishes possible irreparable harm and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor. Selchow & Righter Co. v. McGraw-Hill Book Co., 580 F.2d 25, 27 (2d Cir. 1978). Plaintiff has established a probability of success at trial, and the confusion engendered by defendants’ movie would result in irreparable harm to plaintiff were defendants not enjoined from its distribution and exhibition. See Hills Brothers Coffee, Inc. v. Hills Supermarkets, Inc., 428 F.2d 379, 380-81 (2d Cir. 1970); see also Taylor Wine Co. v. Bully Hill Vineyards, Inc., supra, 569 F.2d at 732 n. 1. Accordingly, we affirm the orders of the district court. Affirmed. . The official appellation of plaintiffs cheerleaders is “Dallas Cowboys Cheerleaders”, but the district court found that plaintiff also has a trademark in the names “Dallas Cowgirls” and “Texas Cowgirls” which have been made popular by the media. . Bambi Woods, the woman who played the role of Debbie, is not now and never has been a Dallas Cowboys Cheerleader. . At present plaintiff does not have a registered trademark or service mark in its uniform. However, plaintiff still may prevail if it establishes that it has a common law trademark or service mark. See Boston Professional Hockey Association v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1010 (5th Cir.), cert. denied, 423 U.S. 991, 96 S.Ct. 408, 46 L.Ed.2d 312 (1975); New York General Business Law § 368-d. Whether plaintiffs uniform is considered as a trademark or a service mark, the standards for determining infringement are the same. West & Co. v. Arica Institute, Inc., 557 F.2d 338, 340 n. 1 (2d Cir. 1977). . Plaintiffs design imparts a western flavor appropriate for a Texas cheerleading squad. The design is in no way essential to the performance of cheerleading routines and to that extent is not a functional aspect of the uniform. . Secondary meaning is “[t]he power of a name or other configuration to symbolize a particular business, product or company . . . .” Ideal Toy Corp. v. Kenner Products Division of General Mills Fun Group, Inc., 443 F.Supp. 291, 305 n. 14 (S.D.N.Y.1977). There is no dispute in this case that plaintiffs uniform is universally recognized as the symbol of the Dallas Cowboys Cheerleaders. . Although color alone is not capable of becoming a trademark, a combination of colors together with a distinctive arbitrary design may serve as a trademark. Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 161 (1st Cir. 1977). . To the extent that a finding of likelihood of confusion is based upon a comparison of the two marks, see Beech-Nut, Inc. v. Warner Lambert Co., 346 F.Supp. 547, 550 (S.D.N.Y.1972), aff'd, 480 F.2d 801 (2d Cir. 1973), the appellate court may make an independent judgment as to the similarity of the marks. See Hills Brothers Coffee, Inc. v. Hills Supermarkets, Inc., 428 F.2d 379, 380 (2d Cir. 1970). . Even if plaintiff had not established a likelihood of confusion, it would be entitled to relief under New York General Business Law § 368-d, which permits the enjoining of trademark copying despite the absence of confusion as to source or sponsorship. See Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 543-44, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). . Because the primary purpose of the trademark laws is to protect the public from confusion, see W. E. Basset Co. v. Revlon, Inc., 354 F.2d 868, 871 (2d Cir. 1966), it would be somewhat anomalous to hold that the confusing use of another’s trademark is “fair use”. See also Truck Equipment Service Co. v. Fruehauf Corp., supra, 536 F.2d at 1215. . The question whether “Debbie Does Dallas” is obscene is not before us. 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_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. SCHLABACH COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 77-1610. United States Court of Appeals, Sixth Circuit. Dec. 14, 1979. Milan E. Frase, Frase & Weir, Coshocton, Ohio, for petitioner. Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Bernard Levin, Director, Region 8, N.L.R.B., Cleveland, Ohio, for respondent. Before CELEBREZZE and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Howard E. Perlstein, Barbara G. Gehring, Washington, D.C. ORDER This case is before us on petition for review and cross-petition for enforcement of an order of the National Labor Relations Board. The decision of the Board is reported at 231 NLRB No. 154. The Schlabach Coal Company is a sole proprietorship which operated several small coal mines in the vicinity of Baltic and Cambridge, Ohio. The Board found that the company tired to avert the unionization of its employees by the United Mine Workers Union by fostering a rival union, the Christian Labor Association, in a Board-supervised election. Specifically, the Board found that the company violated the act by assisting the Christian Labor Association, by threatening to go out of business if the United Mine Workers rather than the Christian Labor Association won the election, and by threatening to discharge United Mine Workers Union supporters. In addition, the Board found that the company violated the act by firing employee Larry Mills because of his activities on behalf of the United Mine Workers. The record overwhelmingly supports the Board’s findings. Company supervisors and foremen made no secret of their preference for the Christian Labor Association. They openly stated that Mr. Schlabach would shut down if the United Mine Workers won. Further, there is substantial evidence that the supervisors and foremen threatened to fire anyone who voted for or supported the United Mine Workers and carried out that threat by firing Larry Mills. The company asserts that the shutdown statements were merely truthful responses to employee questions. This claim is precluded by NLRB v. Gissel Packing Co., 395 U.S. 575, 618-19, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The company also claims that Mr. Mills was fired for a number of valid reasons. Suffice it to say that the record supports the Board’s conclusion that the reasons given were pretextual. The Board’s order is enforced. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_r_fed	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. UNITED STATES v. SILVERTON. No. 4671. United States Court of Appeals First Circuit. ■ Dec. 24, 1952. Melvin Richter, Attorney, Department of Justice, Washington, D. C. (Holmes Bald-ridge, Asst. Atty. Gen., George F. Garrity, U. S. Atty., and Edward F. McLaughlin, Jr., Asst. U. S. Atty., Boston, Mass., and Paul A. Sweeney and George F. Foley, Attorneys, Department of Justice, Washington, D. C., on brief), for appellant. David R. Berg, Springfield, Mass., for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. The United States brought suit in the court below against a war surplus purchaser for the balance due on his purchase of certain scrap webbing. Defendant filed his answer, denying liability; asserting that the invitation to bid on scrap webbing was a misrepresentation, because “the goods received by him were not such as the general trade recognizes as scrap webbing and were not free of metal”; and making counterclaim against the United States for “the loss he has sustained due to the misrepresentation by the plaintiff.” Plaintiff’s answer to this counterclaim denied liability thereon, relying upon the terms of the bid contract as calling for a sale of the surplus material “as is”, with no warranty or representation by the government of any kind, express or implied. Defendant Silverton is in the waste material business in Holyoke, Massachusetts. In November, 1945, he received from the War Department an invitation to bid on some surplus material in Camp Blanding, Florida. The invitation to bid listed a large number of items under appropriate generic headings such as “Textile, Cotton”, “Textiles,- Woolen”, and “Paper”. Under the heading “Textile, Cotton”, appeared item “79-A, Webbing, scrap, mixed (nrfau) 40000 Lb.” The bid form contained the following clauses material here: “5. Inspection. Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the time specified in the Invitation. No labor will be furnished for such purpose. In no case will failure to inspect be considered ground for a claim. “6. Sale of Property ‘As Is’. Unless otherwise specified, all property is sold ‘as is’; the Government makes no guaranty, warranty or representation, express or implied, as to the kind, size, weight, quality, character, description or condition of any kind of the property, or its fitness for any use or purpose; this is not a sale by sample.” Defendant was an experienced purchaser of war surplus material, familiar with the provisions of the bid contract here used. Without inspecting the material listed under item 79-A, or writing to some correspondent in Camp Blanding, Florida, to make the inspection for him, or making any inquiry from the camp salvage officer as to the condition of the goods, he submitted a bid of 2.51 cents per lb. on this item. In December, 1945, the War Department accepted his bid. The defendant made payment of $1,004.00, which was the bid price on the basis of 40,000 lbs., and gave the salvage officer instructions to- ship the material direct to the J. A. Manning Paper Company at Troy, New York, to whom the defendant had contracted to resell the goods. Actually the material purchased under item 79-A weighed 45,600 lbs., and this quantity was shipped in a carload lot, as directed. There is no doubt that under the terms of the bid contract the listed weight of 40,000 lb§. was to be treated as merely approximate, and the buyer was bound to pay at the -bid price for any amount in excess of 40,000 lbs. up to fifty per cent of the estimated quantity. Hence the successful bidder, if there were no- other difficulty in the case, owed an additional $140.56 on the contract price, which was the amount the United States sued for in its present complaint. The carload shipment consisted of a loose, miscellaneous assortment of army equipment, such as canteen covers, leggings, cartridge belts, bandoleers, gas masks, haversacks, etc., mostly with pieces of metal attached, such as metal buckles on the cartridge belts .and metal hooks on the leggings. When the carload arrived at the plant of J. A. Manning Paper Company they rejected the shipment and, according to the defendant, called him up to inform him “it wasn’t scrap webbing at all, it wasn’t anything like what I had been shipping them.” In his testimony, the defendant explained that he put in his bid on “Webbing, scrap, mixed” in reliance upon the definite trade usage in the waste material business ascribing to that phrase the meaning that the webbing is free of metal components; that he purchased the material for resale for the purpose of conversion into fiber for paper-making, for which purpose the webbing had to be free of metal; that at the amount he bid for the material, the cost of removing the metal parts would have been prohibitive. ' After attempting unsuccessfully to resell tlie carload lot to another customer, the Spaulding Fibre Company, he had the shipment rerouted to his plant in Holyoke, where he personally examined it for the first time. After that, the defendant called up the salvage officer at Camp Blanding, explained his difficulty, and asked what he should do about it, and the officer told him to write him a letter. It does not appear that the defendant at this time notified the government that he rejected the shipment as not complying with the contract, or that there was any demand upon the government to retake the goods and refusal of the government so to do.' Shortly afterwards the defendant resold the shipment to one Bel-sky, a wholesale scrap dealer, at one-half cent per lb., or a total of $228.00. In his memorandum opinion the district judge found as a fact, in accordance with the defendant’s testimony, that the term “scrap webbing mixed” as used in the salvage material trade “signifies cotton textile webbing without metal or metal parts attached thereto”; and further found, in spite of the exculpatory clauses of the contract, that the government had committed a breach of contract in that “the material shipped- was not that which plaintiff contracted to sell and defendant agreed to buy.” In the course of the trial the judge expressed the view that the situation before him was like ordering apples and getting oranges. He gave judgment for the defendant on the complaint by the United States, and gave an affirmative judgment for $2,228.08, plus interest, against the United States on the defendant’s counterclaim. It seems to us clear that when, under the circumstances above related, the defendant, with knowledge of the alleged defect in the goods shipped, exercised the rights of ownership by offering them for sale to Spaulding Fibre Company, and finally -by selling them to the scrap dealer Belsky, he gave up any possible right to rescind the sale. His acceptance of the goods rendered him liable for the unpaid balance of $140.56 on the agreed purchase price. See 3 Williston on Sales (Rev.Ed.) §§ 483, 490; American Elastics, Inc., v. United States, 2 Cir., 1951, 187 F.2d 109, 113-114, So much for the cause of action by the; United States on the original complaint. But such acceptance of the goods did noft necessarily bar the buyer from maintaining; an action for damages against the seller for breach of contract or breach of warranty. See § 49 of the Uniform Sales Act; 3 Wil-liston on Sales (Rev.Ed.) § 484 et seq. This brings us to a more detailed consideration of the defendant’s counterclaim in the present case. At the threshold, the government asserts that the court below did not have jurisdiction of this counterclaim against the United States. We think the district court rightly held that it had jurisdiction to dispose of the counterclaim on its merits. The United States has not consented to be sued in tort for fraud or misrepresentation. Under the Tucker Act, 28 U.S.C. § 1346(a) (2), it has consented to be sued “upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort.” Its consent to be sued under the Tort Claims Act contains a specific exception of any claim arising out of misrepresentation or deceit, 28 U.S.C. § 2680(h). As appears above, it may be that the defendant meant to base his counterclaim upon a theory of tort, since he claimed damages for “the loss he has sustained due to the misrepresentation by the plaintiff.” But it is clear that the United States, by filing its original complaint against the defendant in the court below, did not thereby consent to be sued on a counterclaim based upon a cause of action as to which it had not otherwise given its consent to be sued. United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888. The district judge, however, did not make any findings of fraud, and apparently based his judgment on the counterclaim upon a theory of allowmg damages for breach of contract. This is evident not only from the language -of his opinion but also from the fact that he included in the award of damages against the United States an item for loss of expected profits. See Smith v. Bolles, 1889, 132 U.S. 125, 10 S.Ct. 39, 33 L.Ed. 279; Sigafus v. Porter, 1900, 179 U.S. 116, 21 S.Ct. 34, 45 L.Ed. 113, It is conceded by the government that the defendant in this case could have brought an original action in the court below against the United States for breach of contract, under the Tucker Act. If he had done so, of course the court below, under Rule 42, F.R.C.P., 28 U.S.C. could have consolidated such action with the pending action brought by the United States. It would be the emptiest technicality to hold that the same jurisdiction could not be invoked by way of counterclaim in the action already brought by the United States. So far as United States v. Nipissing Mines Co., 2 Cir., 1913, 206 F. 431, holds to the contrary, it is certainly out of harmony with the more liberal view as to the waiving of governmental immunity expressed in United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523, a case on which the court below quite justly relied as affording a persuasive analogy. But coming to the merits, we think that the defendant as a matter of law failed to establish a cause of action in contract. Any possibility of breach of warranty must necessarily be excluded, in view of the terms of the contract in which the government specifically disclaimed making any “guaranty, warranty or representation, express or implied, as to the kind, size, weight, quality, character, description or condition of any kind of the property, or its fitness for any use or purpose”. Nor can it be maintained that the United States committed a breach of contract .in failing to deliver what it had contracted to deliver. We must of course accept the district judge’s finding that the defendant interpreted the phrase “Webbing, scrap, mixed” in accordance with the usage in his particular line of business, as signifying cotton textile webbing without any metal attached thereto. But it does not appear that the government officers, in drafting the invitation to bid, used the phrase in that sense, or even knew of such trade usage. In ordinary and general usage, the term was not an inapt description of the miscellaneous surplus equipment classified under item 79-A. In that sense, it was certainly for the most part scrap webbing, though with some admixture of metal. The invitation to bid was evidently framed to spare the government the necessity of attending to the niceties of detail in describing the goods offered, for example, to make the description conform to any possible trade usages of which the salvage officers might not even be aware. Under the terms of the sale, with inspection invited prior to the submission of bids, caveat emptor was certainly intended to be applied to the furthest limit that contract stipulations could accomplish it. As stated by the Court of Claims in Triad Corp. v. United States, 1927, 63 Ct.Cl. 151, 156, a case involving the sale of surplus property under substantially similar contract provisions: “Under the terms of the [contract] it is difficult to perceive how the Government could have given purchasers more specific warning than it did, that they bought at their risk what material it had and was offering for sale; that if a purchaser wished to protect himself he could do so by inspection, full opportunities for which were offered, and that if he failed to inspect and received something other than what he thought he was buying he could have no redress and could not claim allowances by reason thereof. More than that, he was distinctly told that failure to inspect would not be considered as a ground for adjustment. If plaintiff neglected to embrace the opportunity offered it to inspect and purchased the property without doing so, with notice that it bought at its own risk, it created by its own negligence the situation from which it now seeks relief.” See also Mottram v. United States, 1926, 271 U.S. 15, 46 S.Ct. 386, 70 L.Ed. 303; Maguire & Co. v. United States, 1927, 273 U.S. 67, 69, 47 S.Ct. 274, 71 L.Ed. 540. In the latter case the Supreme Court quoted with approval from the opinion below, in the 'Court of Claims: “ ‘If the plaintiff received from the Government a different material from that which it thought it had bought it is not the fault of the Government, and the plaintiff cannot recover for its own negligence [failure to inspect the goods].’ ” We would not press this idea to an extreme ; for instance, if item 79-A had consisted wholly of scrap metal, it might ’be that the bidder, even though he had failed to make an inspection before submitting his bid, could have rejected'the shipment as not .conforming to the contract. By no stretch could a load of scrap metal be construed, in good faith, as being within the description of “scrap webbing mixed”, a subhead under “Textile, Cotton”. No such ridiculous discrepancy is presented here; this is not a case of ordering apples and getting oranges. The defendant himself, though he testified to the trade usage, was somewhat vague and confusing as to what he would call the stuff he got. To the question, “You know belts have metal. Isn’t that webbing?”, he answered, “Yes, that is webbing,” At another point he said that he would “call it webbing even though it has metal on it.” At still another time-he said, “It would be scrap webbing with metal.” Again, he said that the carload contained “absolutely no webbing as I understand the term”; that in his view “they were offering me Textiles, Cotton.” That was the generic heading under which item 79-A was listed. One would suppose that if the presence of metal components did not prevent the materials from being aptly described as “Textile, Cotton”, the same presence of metal parts would not prevent the material from being aptly described as “scrap webbing mixed”, as in the sub-item. Interestingly enough, in that portion of defendant’s testimony dealing with his effort to resell the carload to the Spaulding Fibre Company, he said that he called their purchasing agent “and I told him I had this car of scrap webbing that I told him there might be a little metal, could I ship the car to them.” We are clearly of the opinion that if there was any technical inaccuracy in the listing of item 79-A, the government was saved from liability by the above-quoted disclaimer clause in the contract. The judgment of the District Court is vacated and the case is remanded to that Court with direction to enter judgment for the United States on its complaint, in the amount of $140.56, with interest, and to give judgment for the United States on defendant’s counterclaim. Meaning “non-repairable for Army use.” Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_appel1_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 appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant. Javier DIAZ, et al., Plaintiffs, Appellees, v. Vincent CIANCI, Etc., et al., Defendants, Appellees. Louis DeFrances, et al., Defendants, Appellants. No. 83-1609. United States Court of Appeals, First Circuit. Argued April 4, 1984. Decided June 25, 1984. Joseph F. Penza, Jr., Providence, R.I., with whom Olenn & Penza, Providence, R.I., was on brief, for Vincent Cianci; etc., et al. David A. Cooper, Providence, R.I., for Javier Diaz, et al. Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and HUNTER, Senior District Judge. Of the Western District of Missouri, sitting by designation. ELMO B. HUNTER, Senior District Judge. Javier Diaz sued to recover damages for injuries sustained at the hands of the Providence Police after being stopped for a traffic violation. Diaz’s grandmother joined in the suit to recover medical expenses she incurred for Diaz as a result of the beating. At the close of plaintiffs’ case, the City and its officials were granted a directed verdict and trial proceeded solely against the individual patrolmen. After a three day trial, the jury returned verdicts favorable to both plaintiffs against all three individual defendants granting actual and punitive damages. The defendants appeal the judgment of the district court on three principal grounds: (1) exclusion of evidence of Diaz’s juvenile conviction for assault arising out of the same incident; (2) exclusion of evidence pertaining to the activities of officers Glancy and Grover and evidence that officer Glancy was injured in his struggle at the scene with a third party; and (3) improper jury instruction. (1) The trial court granted plaintiff’s motion in limine and barred introduction of the fact that Diaz had been prosecuted and found guilty of assaulting DeFrances and Grover during the very incident which gave rise to the instant litigation. This ruling was based on alternative reasons. The trial court found that the evidence should be excluded under Federal Rules of Evidence 403. The court exercised its discretion to exclude otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, or if.it would be misleading to the jury. The court found that the juvenile adjudication suffered by the plaintiff if revealed to the jury would result in unfair prejudice. The court was concerned that the evidence would be taken by the jury to indicate that the force the police used was necessary, when in fact the conviction might have been based on a minimum amount of force used by the plaintiff. Since the jury would be able to hear all of the first hand evidence relating to whether the force used by the police was reasonable, the value of introducing the conclusion of a prior fact finder was considered substantially less weighty than the potential unfair prejudice it might cause. Alternatively, the trial court found that the juvenile adjudication was not admissible under Rhode Island General Laws § 14-1-40 which prohibits the use of the disposition of juvenile proceedings as evidence against the child in any case or proceeding in any other court. Given the great possibility of prejudice and the potential for confusion on the part of the jury,' the trial judge acted within the permissible bounds of his discretion in excluding the evidence of Diaz’s juvenile adjudication. See Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir.1970). Since exclusion of the evidence was permissible under the federal rules, we find it unnecessary to decide whether the Rhode Island statute overrides application of the federal rules and required exclusion of the evidence. (2) The trial court excluded some evidence pertaining to officers Glancy and Grover’s activities at the scene of the beating and excluded an emergency room report pertaining to officer Glancy’s injuries inflicted by one of Diaz’s passengers, Dennis Isom. Defendants claim they were entitled to have the jury hear their account of what they were doing with Dennis Isom during the time that Diaz was beaten. They claim the testimony was admissible on the issue of whether they were in a position to intervene to stop the other officer and keep him from violating Diaz’s rights. Defendants concede that the trial court admitted evidence on this point, but claim they should have been able to go into greater detail so that the testimony would have carried more weight. The record is clear that the court did in fact allow both officer Glancy and officer Grover to testify about their activities with respect to Isom at the time officer DeFranees was beating Diaz. For example, officer Grover testified that he saw Isom grab DeFranees around the neck, that Grover and Glancy attempted to enter the back seat to stop Isom and were both kicked by Isom in the process and that Glancy was knocked down. Grover further testified that Glancy and Grover apprehended Isom and placed him in the patrol car, that during their struggle with Isom they didn’t see the struggle going on between DeFranees and Diaz, that after Isom was put in the patrol car De-Frances and Diaz were rolling on the sidewalk and that Grover saw DeFrances strike Diaz. Grover testified that after reporting to the station, they were told to go to the hospital to get medical attention, and that the doctor told him to take off one and one-half days. Glancy testified that while he was trying to get Isom out of the back seat his attention was on Isom and he was unable to observe what was going on in the front seat. Glancy testified that he did not have the ability to observe DeFrances from the time of the initial scuffle with Isom until after Isom had been apprehended and taken into custody. At that point Glancy was approximately 25 feet from the Diaz vehicle, and could not see the ongoing fight with Diaz. . Glancy stated he saw the be-. ginning of the fight with Diaz, and could have been in a position to stop DeFrances, but instead decided to arrest Isom. A review of .the evidence excluded indicates that all of the excluded evidence was cumulative. The record at several points shows testimony pertaining to the confrontation Grover and Glancy claim to have had with Isom. The defense attorney admitted to the trial judge that the principal reason the evidence was offered was to rebut plaintiffs evidence on matters collateral to the central issues of the case. App. at 292-93. The trial judge did not abuse his discretion in excluding the cumulative evidence pertaining to a collateral matter. (3) Defendants contend that the instructions to the jury allowed a finding for the plaintiffs and against officers Glancy and Grover “if they found Glancy and Grover at the scene where a beating was taking place and did nothing to prevent it,” even if there was no finding that Glancy and Grover were in a position to do anything about - the beating. The jury was instructed that there was no evidence that officers Glancy or Grover beat the plaintiff, and that they could only find Glancy and Grover liable upon a finding that: (1) They in fact saw the infliction upon the plaintiff of the alleged beating, that is, of the alleged unconstitutional conduct; and (2) They failed to act, and that their failure to act sprang from an intent on their part to deprive the plaintiff of his civil rights. The instructions as given did go further than the defendant claims is necessary. The cases cited by defendant indicate that a police officer may be liable for mere failure to intervene to stop a violation of civil rights when the officer was in a position to intervene. See, Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981). This would amount to liability for mere unreasonable nonfeasance. The instructions as given allowed the jury to find the defendants liable only if their failure to act was caused by an intent to deprive Diaz of his constitutional rights. In affirming the judgment under the instructions given, we do not decide whether a finding of intent is required to impose liability. Rather, we merely find that if the instructions were erroneous, any error was in favor of and not prejudicial to the appellants. The judgment of the district court is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant? A. Police B. Fire C. Taxation D. Human Services/Welfare/Health Care E. Streets and Highways F. Transportation G. Election processes H. Education I. Other Service Activity J. not ascertained Answer:
songer_abusedis	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". HUNTINGTON SECURITIES CORPORATION v. BUSEY, Collector of Internal Revenue. No. 8288. Circuit Court of Appeals, Sixth Circuit. June 6, 1940. As Amended June 27, 1940. Earl F. Morris, of Columbus, Ohio (Arnold, Wright, Purpus & Harlor, Earl F. Morris, and H. B. Arnold, Jr., all of Columbus, Ohio, on the brief), for appellant. Joseph M. Jones, of Washington, D. C. (James W. Morris, Sewall Key, J. L. Monarch, and Mills Kitchin, all of Washington, D. C, Calvin Crawford, of Dayton, Ohio, and R. J. O’Donnell and Loren G. Windom, both of Columbus, Ohio, on the brief), for appellee. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Appellant, The Huntington Securities Corporation, appeals from a judgment dismissing its suit for the recovery of income and excess profits taxes of $14,919.40 and interest thereon of $1,354.38, claimed to have been overpaid for the calendar years 1933 and 1934. • Appellant was incorporated September 24, 1929, under the laws of Ohio for the purpose of acquiring securities owned by the Huntington National Bank, a corporation existing under the National Banking Act, and also to engage generally in the business of buying and selling securities. In 1929, it had a paid-in capital of $400,-000, substantially all of which was invested immediately in securities. It was an affiliate of the Huntington National Bank and was compelled to go into liquidation in 1933, due to changes of the National Banking Laws. Prior to the closing of its books for the calendar year 1929, its Board of Directors adopted a resolution providing that its securities were to be adjusted on the books as of December 31, 1929, to their then current value and any profit credited to organization expense; such expense being carried on its books as an asset. Similar resolutions were adopted for each t subsequent year. For the years beginning with the year 1929, to and including 1934, appellant duly filed income tax returns in accordance with its book method of accounting, using inventories in arriving at income, which it stated in its return for 1929 were valued at cost. No.representation'as to the basis was made in the',1930' return. It was stated in the 1931 retufn • that the inventories were valued at book cost and, in returns for subsequent years, at cost, no taxable income being shown for any of the years. ■ 1 On audit and review the Commissioner of Internal Revenue accepted the returns as filed lor the years 1929 to arid including 1932. For the years 1933 and1 1934, he changed the taxpayer’s method of valuing inventories to market, which resulted in a deficiency of income taxes ■ for the cálendar year 1933 of $6,967.62, and excess profits taxes of $1,112 and for the calendar year 1934 of $5,598 income takes and $849.9h excess profits taxes. Appellant paid to the appellee the taxes with interest and duly filed claim for refund which was rejected an'd thereafter instituted this action. The cause was submitted on an agreed statement of facts and the court found for appellee, from which judgment it appeals. A single issue is presented, i. b., the right of the Commissioner to change the taxpayer’s method of valuing inventories. The value at which the securities comprising appellant’s inventory were1 carried on its books of account, their actual1 cost, market value and the values used in determining income for each of the years ‘ 1929 to 1934, both inclusive, were as follows: Value of Inventory Actual Date of as Shown Cost of Market Used In Inventory by Books Inventory Value Returns 12-31-192!) $448,560.45 $448,361.97 $425,771.06 $446,690.45 ' 12-31-1930 530,711.60 538,318.55 522,617.96 530,711.60 12-31-1931 557,224.74 572,806.04 450,639.66 557,224.74 12-31-1932 546,529.94 541,097.65 338,888.64 522,690.20 12-31-1933 335,117.43 307,310.11 194,673.00 335,117.43 12-31-1934 122,317.73 114,137.91 72,113.75 122,317.73 The discrepancies between the book and actual cost as shown on the income .tax returns, excluding some slight errors in posting, were caused by the appellant using the profit realized from the sale of blocks of securities of the identical kind to reduce the cost of the remainder or, where losses were realized on the sale of such securities, adding such losses to the cost of the remaining shares and in a few instances partially writing down book below actual cost. The method of keeping; the accounts as used by the taxpayer clearly indicated the cost and sale price of all securities for each annual accounting period. The market value of the securities for none of the annual periods was shown on the books and, in order to determine it, extraneous evidence was necessary. It is a well-settled rule that the taxpayer may make his returns upon either a cost or accrual basis “in accordance with the method of accounting regularly employed in keeping the books of such taxpayer” provided such method clearly reflects income, 45 Stat 805, § 41, 47 Stat. 185, § 41, 48 Stat. 694, § 41, 26 U.S.C.AJnt.Rev.Code, § 41. Section 22(e) of the Revenue Act of 1928, 45 Stat. 791, Revenue Act of 1932, 47 Stat. 169 and the Revenue Act of 1934, 48 Stat. 680, 26 U.S.C.A.Int.Rev.Code, § 22(f), confer on the Commissioner discretionary power to require the use of inventories if necessary in order to clearly determine the income of any taxpayer and when required shall be upon such basis as he determines, conformable as nearly as may be to the best accounting practice in the trade or business to which they relate and as most clearly reflecting income. Pursuant to this statutory power, the Commissioner, with the approval of the Secretary of the Treasury, promulgated regulations [Regulations 74, Article 105; Regulations 77, Article 105; Regulations 86, Article 22(e) (5)] authorizing a dealer in securities who, in his books of account, inventoried unsold securities on hand either at cost, cash or market, whichever is lower, or at market value, may make his return upon the basis on which he keeps his accounts, provided description of such method is included in or attached to his return and that all securities are inventoried by the same method which must be adhered to in subsequent years unless another one is authorized by the Commissioner pursuant to written application filed with him. Appellee insists that the appellant, in keeping its accounts and in making its income tax returns by the use of inventories, used neither (a) cost, (b) cash or market, whichever is lower, nor (c) market value and, not having complied with the law and regulations promulgated pursuant thereto, the Commissioner was authorized, in the exercise of the discretion conferred on him, to correct appellant’s inventories by using market value. Appellant insists that its method of keeping its accounts and making its inventories clearly reflected income and the Commissioner had no discretion to use any other method or basis. It is well-settled and conceded that a taxpayer may make his return upon either a cash or accrual basis in accordance with the method of accounting regularly employed in keeping his books, if his method clearly reflects income [Morris-Poston Coal Co. v. Commissioner, 6 Cir., 42 F.2d 620] and it is equally well-settled that if the taxpayer’s method of accounting does not clearly reflect income, the Commissioner is vested with a wide discretion in following a method which, in his opinion, clearly does reflect income. However, neither the taxpayer nor Commissioner has unlimited discretion. If the taxpayer’s method of accounting clearly reflects income, the Statute is mandatory on both him and the Commissioner that taxable income must be determined in accordance therewith. The selection of a system of accounting is lodged exclusively in the taxpayer provided it is within the statutory limits of clearly reflecting income and whatever method the taxpayer adopts must be consistent from year to year unless the Commissioner authorizes a change. In construing tax statutes, the familiar rule prevails that the natural and ordinary meaning of the words used will be applied unless the Congress has definitely indicated an intention they should be otherwise construed, which was not done in the Act in question here. In other words, the accepted meaning of common language should be given effect. “Method,” as used in the present statute, means the way of keeping the taxpayer’s books acording to a defined and regular plan. “Clearly,” as used in the statute, means plainly, honestly, straightforwardly and frankly, but does not mean “accurately” which, in its ordinary use, means precisely, exactly, correctly, without error or defect. The method used by appellant in valuing its inventories in our opinion clearly, but not accurately, reflected income, which is all that is required. Osterloh v. Lucas, 9 Cir., 37 F.2d 277. Appellant’s books of account accurately showed the cost of the securities from year to year and the differences between actual and hook cost were unsubstantial. They were approximately correct on a cost basis. The errors appearing therein were easily ascertainable and correctible from the books of account which were kept plainly, honestly and straightforwardly. In our opinion, the errors of the taxpayer did not bring into operation the wide discretion of the Commissioner to reject its method of valuing inventories which was approximately correct and to select one which was at variance with the taxpayer’s consistent method. “Basis of keeping accounts” as used in the statute, refers to the general bookkeeping system followed by the taxpayer, and if there be a conflict between that used and the one directed by corporate taxpayer’s board of directors, the basis used in the general bookkeeping system prevails. Since there are special findings of fact not in dispute, there is no occasion for a new trial. Fort Scott v. Hickman, 112 U.S. 150, 5 S.Ct. 56, 23 L.Ed. 636; Rathbone v. Board of Com’rs, 8 Cir., 83 F. 125; Olivier v. Mt. Union Tanning & Extract Co., 3 Cir., 264 F. 601; Walker v. Gulf & I. Ry. Co. of Texas, 5 Cir., 269 F. 885; Routzahn v. Mason, 6 Cir., 13 F.2d 702. The cause is remanded with instructions to render judgment for appellant and for proceedings consistent with this opinion. Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_circuit	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. GENERAL COMMUNICATIONS SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 73-1434. United States Court of Appeals, Ninth Circuit. Dec. 27, 1973. Max C. Richards (argued), Bilby, Thompson, Shoenhair & Warnoek, Tucson, Ariz., for petitioner. Elliott Moore, Asst. Gen. Counsel, W. L. Corbett (argued), National Labor Relations Board, Washington, D. C., Peter G. Nash, Gen. Counsel, and John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, of NLRB, Washington, D. C., James W. Mast, NLRB, Albuquerque, N. M., for respondent. Bruce Thoren, Arizona Director of Communications Workers of America, Phoenix, Ariz., for charging party. Before ELY and' SNEED, Circuit Judges, and SOLOMON, District Judge. Hon. Gus J. Solomon, Senior United States District Judge, Portland, Oregon, sitting by designation. OPINION PER CURIAM: The Board’s Decision and Order is reported at 201 N.L.R.B. No. 135. Our review of the record convinces us that the reasoning of the Board’s Decision was correct. Accordingly, and upon the basis of the Board’s reasoning, the Petition to Review is denied, the respondent Board’s Cross-Application is granted, and the Board’s Order will be Enfoi’ced. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_realapp	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties." Lucy WALKER, Plaintiff-Appellant, v. JEFFERSON COUNTY HOME, et al., Defendants-Appellees. No. 82-7297. United States Court of Appeals, Eleventh Circuit. March 16, 1984. C. Michael Quinn, Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant. Edwin A. Strickland, Michael L. Hall, Birmingham, Ala., for defendants-appellees. Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. TUTTLE, Senior Circuit Judge. Plaintiff-appellant Lucy Walker appeals from a judgment by the United States District Court for the Northern District of Alabama that defendant-appellee Jefferson County Home (the “Home”) did not discriminate against Walker on the basis of race in violation of Title VII of the Civil Rights Act. This Court holds that the Home did violate Title VII. Therefore, we reverse the district court’s judgment. I. BACKGROUND The Home is a nursing home in Jefferson County, Alabama. In 1965, the Home hired Walker, a black woman, to work in the Home's Housekeeping Department. Later, Walker was transferred to Nursing Services as a nurse’s aid. Early in 1972, the Housekeeping Department supervisor was involved in an automobile accident and had to be absent from work for several months. The Home decided to fill the position on a temporary basis. A white employee, Ivory McCutcheon, who had been hired by the Home two months earlier, was transferred from the kitchen to the Housekeeping Department supervisor position. Although McCutcheon had no previous supervisory experience,- the Home did not consider anyone else for the position. After the regular supervisor returned, McCutcheon remained in the Housekeeping Department to assist the supervisor. McCutcheon worked in the Housekeeping Department for fifteen or sixteen months until August 19,1973, when she resigned. The regular supervisor decided to retire in June, 1974 and gave notice sometime earlier. The Home’s director, Lillian Holmes, requested from the Personnel Board of Jefferson County a certified list of names of qualified people from which she could fill the supervisor position. The Personnel Board had established prior supervisory experience and a high school diploma or its equivalent as the qualifications for the position. Walker was certified as qualified and was referred to the Home with two other candidates, both of whom were white and one of whom was McCutcheon. Following interviews of the three candidates, Holmes selected McCutcheon for the position. Walker filed a discrimination charge with the EEOC, which issued a right-to-sue letter. Walker then filed this action in district court on February 20, 1976. II. THE. DISTRICT COURT OPINION The district court applied a disparate treatment analysis to the facts of the case. Disparate treatment occurs when “the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The district court first examined whether Walker had met the requirements of a prima facie disparate treatment case: 1) the existence of a vacant position; 2) the application to the position by appellant; 3) the selection of a person of another race; and 4) the possession by appellant of the necessary qualifications for appointment. See McDonnell Douglas v. Green, 411 U.S. 792,802, 93 S.Ct. 1817,1824, 36 L.Ed.2d 668 (1973). The district court concluded that Walker had met the first three requirements. It found that Holmes chose McCutcheon because she had more recent supervisory experience — in particular, the supervisory experience she had gained when she replaced and then assisted the regular supervisor at the Home. There was some question about the type of supervisory experience that Walker had received prior to her employment with the Home. Prior to 1965, she held three housekeeping or janitorial type jobs, one with a high school and two with hospitals or clinics. Apparently, Walker’s original application for employment with the Home in 1965, her initial application to the Personnel Board in 1973, and a deposition taken under oath several months before the trial, did not- indicate that her positions prior to employment with the Home provided any supervisory experience. By supplementary notation filed June 10, 1974 with the Personnel Board and in testimony at trial, however, Walker indicated that some supervisory duties attached to her earlier positions. Nevertheless, the district court concluded that those earlier positions had little, if any, supervisory responsibilities attached to them. Although the district court found that Walker was not “qualified,” the court noted that circumstances that occurred in 1972 complicated the issue. In particular, the court found that in 1972, when McCutcheon was given the opportunity to acquire supervisory experience, the Home had a general policy, practice, or pattern of favoring whites over blacks for movement into supervisory positions. According to the district court, “this infected at least to some degree the selection of Ms. McCutcheon to be this Acting Housekeeper and in the non-consideration of Ms. Walker or others for that same position.” Although the district court was troubled that the reason for Walker’s nonselection in 1974 arose out of preferential treatment given a white employee in 1972, it concluded that the statute of limitations barred Walker from litigating discriminatory treatment that occurred in 1972. In this appeal, Walker contends that the district court did not apply the proper legal analysis to the facts. III. LEGAL ANALYSIS We must determine whether the district court applied the proper legal analysis to the facts of this case. Although the district court applied a disparate treatment analysis, on appeal, Walker contends that she proved both a disparate impact theory and a disparate treatment theory of discrimination. See Teamsters v. United States, 431 U.S. 324, 338 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (either theory may be applied to a particular set of facts). We hold that Walker has made a showing of discrimination under the disparate impact theory. Disparate impact occurs when an employer bases an employment selection decision on a criterion that is neutral on its face but disfavors black employees' in operation. “Under the Act [Title VII], practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In a disparate impact case, the court clearly may consider evidence of prior discriminatory acts if such evidence is relevant to show independently actionable conduct occurring within the statutory period. See e.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527 (5th Cir.1980); Guardians Association v. Civil Service Commission, 633 F.2d 232 (2nd Cir.1980), cert, denied, - U.S.-, 103 S.Ct. 3568, 77 L.Ed.2d 1410 (1983). In this case, the Home established a requirement of prior supervisory experience for promotion to Housekeeping Department supervisor. On its face, such a policy is neutral because it applies equally to all applicants. The district court found, however, that the Home had a past policy or practice of favoring whites over blacks for movement into positions from which they could gain initial supervisory experience. In turn, that past intentional discrimination was carried into the 1974 policy, which, although neutral on its face, had a discriminatory impact on blacks. In other words, blacks were first denied the opportunity to obtain supervisory experience, and then were told that they were “unqualified” for promotion because they lacked the very quality that had intentionally been denied to them. Thus, the requirement of supervisory experience served to freeze the status quo of prior discriminatory employment practices. Lest it be said that the Home's policy of favoring whites over blacks for supervisory positions had no impact on other blacks who might seek to fill the vacancy, we call attention to a personnel policy of the Home. That policy, which was in effect in 1974, read into the record, was: When filling vacant positions the County. Home gives first consideration to Home employees who meet the job requirements in preference to outside recruitment. However, you must be eligible for appointment under the rules established by the Personnel Board of Jefferson County. Thus, the employees of the Home became a separate group for consideration for promotion. A policy having a disparate impact on the black employees as a class therefore constituted disparate impact. Once the plaintiff has shown that the facially neutral employment practice has a discriminatory impact, the employer may nevertheless prevail by showing that the practice was a “business necessity.” A practice is a business necessity only if it bears “a manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. at 432, 91 S.Ct. at 854. Accord Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). The burden of persuasion shifts to the employer to prove business necessity and rebut the plaintiff’s prima facie case. Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983); Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 752-53 (5th Cir.1981), cert, denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). In determining whether the employer has met its burden, the court looks at the amount of skill required for the position and the economic and human risks involved. “When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job-related.” Spurlock v. United Air Lines, Inc., 475 F.2d 216, 219 (10th Cir.1972). See EEOC v. International Union of Operating Engineers, Local 14 & 15, 553 F.2d 251 (2d Cir.1977) (union admission requirements of city operator’s license, ability to operate more than one piece of equipment, and 200 days’ experience were not job related); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 541-42 n. 27 (5th Cir.1980), cert, denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981) (injunction against 20-year experience requirement for promotion from nonmanagement to management positions upheld in view of racial impact); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert, denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) (experience prerequisite for eligibility for apprenticeship program and on-the-job training found .to perpetuate effects of past discrimination; district court ordered to consider whether experience prerequisite should be shortened). Compare Spurlock v. United Air Lines, Inc., 475 F.2d 216 (10th Cir.1972) (job of airline flight officer requires high degree of skill, and economic and human risks are great); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.1974), cert, denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 822 (1975) (requirement that applicants for bus-driving position be younger than 35 years of age upheld on safety grounds). See generally B. Schlei & P. Grossman, Employment Discrimination Law, 167-72 (1983). The Home failed to meet the rigorous standard of proving that the requirement of supervisory experience was job related and a business necessity. The Home’s only evidence in support of business necessity was its emphasis on the importance of the Housekeeping Department supervisor’s job in a nursing home. The Home did not show that the job of Housekeeping Department supervisor is highly skilled or that the economic and human risks involved in hiring an unqualified applicant are great. Moreover, when McCutcheon was hired as a temporary supervisor in 1972, she had no supervisory experience. Therefore, we are not persuaded that the Home demonstrated that its supervisory experience policy was a business necessity. Under the disparate impact model, if the employer establishes job-relatedness, the burden then shifts to the employee to show the availability of other selection devices with a lesser adverse impact which would serve the employer’s needs, Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), or to show that the employer was using the practice as a pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 447, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). Because the Home failed to establish job-relatedness, we need not examine alternatives or pretext. The Home urges that Walker did not properly raise the occurrence of discrimination in 1972 in her EEOC charge, complaint, or in the pretrial order. We find this argument to be without merit. Accordingly, the judgment is REVERSED and REMANDED to the district court to determine the appropriate relief. . Thus, the statute of limitations does not prevent the court from considering 1972 events. The district court relied on United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), to rule that Walker’s suit was time barred. Unlike our case, however, in Evans the plaintiff relied on a “continuing violation” theory, not on a disparate impact theory- . The Home and the district court questioned whether McCutcheon’s promotion in 1972 occurred prior to or subsequent to March 24, 1972, the date Title VII first became applicable to government employers. The record, however, indicates that McCutcheon was promoted sometime in April 1972. . The Personnel Board announcement described the duties as follows: Plans, assigns and supervises the work of a group of employees performing cleaning, housekeeping, and minor maintenance duties; demonstrates methods and instructs subordinates in the performance of such duties as sweeping, mopping, waxing and polishing floors, washing windows, cleaning restrooms and replenishing necessary supplies; inspects facilities to assure adherence to standards of cleanliness and sanitation; directs the mending, pick-up and distribution of linens; prepares -work schedules and assures adequate staffing, evaluates operations and makes necessary changes to improve the quality of performance; requisitions janitorial and housekeeping supplies; performs related duties as required. . The district court apparently reversed the order of proof. It determined the question of pretext before examining business necessity. Question: Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake? A. both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party) B. the 1st appellant is not a real party C. the 2nd appellant is not a real party D. neither the 1st nor the 2nd appellants are real parties E. not ascertained Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Bell Atlantic Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. US West, Inc., Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Ameritech, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Pacific Telesis Group, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. BellSouth Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Southwestern Bell Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company NYNEX Corporation, Appellant. Nos. 90-5333, 90-5335, 90-5337, 90-5351, 90-5365, 90-5367 and 90-5373. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 21, 1992. Decided July 24, 1992. Stephen M. Shapiro, with whom Mark I. Levy and Michael K. Kellogg, for Bell Companies, John Thorne, Michael D. Lowe, and Michael E. Glover, for Bell Atlantic Corp., Jeffrey S. Bork, for US WEST, Inc., Richard W. Odgers, Margaret DeB. Brown, and Stanley J. Moore, for Pacific Telesis Group, Walter H. Alford and Mark D. Hal-lenbeck, for BellSouth Corp., Liam S. Coo-nan, Ann Meuleman, and Martin E. Gram-bow, for Southwestern Bell Corp., and Raymond F. Burke, for NYNEX Corp., were on the joint brief, for Bell Co. appellants in all cases. Nancy C. Garrison, Atty., Dept, of Justice, with whom James F. Rill, Asst. Atty. Gen., and Catherine G. O’Sullivan, Atty., were on the brief, for Federal appellee in all cases. David W. Carpenter, with whom Mark C. Rosenblum and Howard J. Trienens, were on the brief, for appellee American Tel. & Tel. Co. in all cases. Michael H. Salsbury, with whom Chester T. Kamin and Carl S. Nadler, were on the brief, for appellee MCI Communications Corp. in all cases. Anthony C. Epstein also entered an appearance, for appellee. Martin T. McCue entered an appearance, for appellee U.S. Tel. Ass’n in all cases. Gail L. Polivy entered an appearance, for appellee GTE Corp. in all cases. John E. Ingle, Deputy Associate Gen. Counsel, and Robert L. Pettit, Gen. Counsel, filed a statement, for amicus curiae F.C.C. in 90-5333, explaining an FCC order. Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting Opinion filed by Circuit Judge STEPHEN F. WILLIAMS. SILBERMAN, Circuit Judge: The seven regional Bell Operating Companies (BOCs or Companies) and the United States appeal from the district court’s denial of a waiver of the AT & T consent decree to permit centralized provision of the “signaling” component of long distance telephone calls. The appellants maintain that their motion for a waiver should not be evaluated under the standard set forth in section VIII(C) of the decree — whether the proposal presents no substantial 'possibility of impeding competition — but rather under section VII and the more permissive test for unopposed decree modifications that we applied to the information services portion of the Triennial Review case: whether the requested waiver would be certain to lessen competition. See United States v. Western Elec. Co., 900 F.2d 283, 308 (D.C.Cir.) (Triennial Review Opinion ), cert. denied, — U.S. -, 111 S.Ct. 283, 112 L.Ed.2d 238 (1990). We think that the section VIII(C) standard applies and that the BOCs failed to demonstrate • that their proposal satisfied that standard. We therefore affirm the judgment of the district court. I. The 1982 consent decree settled the government’s antitrust suit against the “Bell System” by first separating the BOCs and their monopolies over local telephone (“exchange”) service from AT & T and its more competitive long distance (“interexchange”) and equipment manufacturing businesses and then — with section II(D)’s “line-of-business” restrictions — prohibiting the BOCs from reentering those and other competitive markets. See generally United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C.1982) (Decree Opinion), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983); United States v. Western Elec. Co., 569 F.Supp. 1057 (D.D.C.) (Reorganization Opinion), aff'd mem. sub nom. California v. United States, 464 U.S. 1013, 104 S.Ct. 542, 78 L.Ed.2d 719 (1983). Section II(D)(1) of the decree, which prohibits the BOCs from providing any “inter-exchange telecommunications services,” was implemented, and the scope of the seven BOCs’ local monopolies defined, by dividing the country geographically into 164 “exchange areas” (better known as “LATAs”). See generally United States v. Western Elec. Co., 569 F.Supp. 990 (D.D.C.1983) (LATA Opinion). Each local operating company (see note 2) encompasses several LATAs but is nevertheless allowed to transmit telecommunications information only between points within a single LATA, providing what is, basically, the traditional local telephone service. When a person in one LATA calls a person in another, the BOC serving the caller’s LATA must transmit the call to an interexchange carrier, such as AT & T or MCI, which then carries the" call on its own network across the LATA boundaries, where it is picked up by the BOC serving the called party’s LATA. (If the caller and called party live in different LATAs within one Company’s region, the same Company both passes and picks up the interexchange call.) Section 11(A) of the decree obliges the BOCs to provide such “exchange access” services to all interexchange carriers, and section IV(F) requires them to do so “at a point or points within [a LATA] designated by [the] interexchange carrier.” These “points of presence” in each LATA are thus the locations where the telecommunications networks of the seven Companies and the numerous interexchange carriers interconnect. See LATA Opinion, 569 F.Supp. at 994 n. 13. The telephone “call” that a Company-passes to an interexchange carrier consists of two components. One is the actual communication (e.g., the voices) of the calling and called parties. The other is “network control signaling,” which directs the operation of the telecommunications network, telling the switches and circuits how and when to set up and disconnect a call. The signaling indicates that a receiver has been picked up, what digits were dialed, whether the called line is ringing or busy, when the phone is hung up, and so forth. When the decree was approved in 1982, almost all signaling was “in-band,” meaning that the communication and its associated network control signals were transmitted over the same circuit and therefore delivered to the interexchange carrier at the same location — the carrier’s point of presence in each LATA. In-band signaling, however, has significant limitations. Because the signals travel over the same circuit as the callers’ communication, they must precede or follow the communication. In-band signaling is also relatively slow and can carry relatively little information. In recent years a new signaling technology has emerged. In “out-of-band” or Common Channel Signaling (CCS), the signals are transmitted over a system of switches and circuits separate from that of the communications they control. The CCS and communications networks are not parallel but rather linked only at special CCS switches known as Signal Transfer Points (STPs). Out-of-band signaling is much more efficient than in-band. The CCS network contains only signals, which can be packeted into bursts of information and loaded into a circuit with no gaps; in contrast, a single voice communication takes up an entire circuit, even when the parties are not saying anything. As a result, a single CCS circuit can carry the signaling for over 10,000 calls. Each STP pair, moreover, can be connected to multiple communications switches, allowing a few STP pairs to serve a very large area. The advantages of CCS are undisputed. Its speed'markedly reduces call set-up time — the time between dialing on one end and ringing on the other — a benefit of particular value to long distance service. It also frees circuits for communications by not clogging them while callers listen to busy signals or service announcements. And it provides the technological foundation for a variety of new telecommunications services, including some for which the signaling functions as part or all of' the communicated information. For example, CCS enables the telephone number of the calling party to be transmitted to the called party, allowing such caller identification features as distinctive ringing and selective call screening, call waiting, and call forwarding. The BOCs have begun to deploy CCS networks for use in providing local (intra-LATA) exchange services. The CCS efficiencies and network structure have allowed the Companies to deploy centralized STP pairs, each pair having the capacity to serve several of a Company's LATAs. US WEST’S STP pair in Minneapolis, for example, serves U S WEST switches in six of its LATAs. In 1989, in fact, the BOCs predicted that all 164 LATAs could be served by only 27 STP pairs, although many more pairs have been installed in the last three years. The interexchange carriers have also been deploying CCS networks for use in their interexchange systems. AT & T inherited the Bell System’s nascent CCS network at divestiture, and MCI has also extended signaling facilities to almost every LATA. The smaller carriers have lagged somewhat behind. This case is brought because the BOCs have not yet installed an STP pair in every LATA and wish to avoid having to do so just to allow the interexchange carriers to connect in every LATA. Instead, they would like authority to provide the carriers access to CCS service only at certain centralized locations. Under their proposal, in other words, there would not be a section IV(B) point of presence — at least for this service — in every LATA. Thé BOCs maintain that meeting the section IV(B) requirement for CCS would be expensive and inefficient for both them and the interexchange carriers, particularly the smaller ones. It is claimed that not all LATAs (especially in less populated areas) have sufficient call volume to cost-justify their own STP and that the smaller carriers also could not afford construction of a CCS link to an STP in every LATA. AT & T and MCI, on the other hand, with significant investment in CCS systems more extensive than their smaller competitors, want interconnections in every LATA so as to benefit from those investments. In February 1989 US WEST filed a motion in the district court requesting a waiver “of the Decree” to allow centralized signaling interfaces. (Under its proposal, the communications component of interexchange calls would still be provided at the point of presence in each LATA, as would in-band signaling if the carrier so requested.) US WEST purported to act “pursuant to section VII of the Decree,” a provision that authorizes the district court to modify the decree upon application of any party. Section VII does not include any criterion for judging proposed changes, so motions under it are presumed to be governed by the appropriate common law standard. See Triennial Review Opinion, 900 F.2d at 305-07. Changes uncontested by any party to the decree are granted if - “within the reaches of the public interest,” id. at 306 (quotation marks omitted) — that is, unless they are “certain to lessen competition,” id. at 308. The positions of the decree parties in this case were divided. The other six BOCs supported US WEST’S motion and filed similar motions of their own. The Department of Justice (DOJ) told the Companies to file directly in the district court, claiming that the motions did not involve a modification of the line-of-business provisions and so the DOJ pre-screening procedure, see United States v. Western Elec. Co., 592 F.Supp. 846, 873-74 (D.D.C.1984), appeal dismissed, 777 F.2d 23 (D.C.Cir.1985), was inapplicable. The DOJ then filed a “memorandum” supporting the CCS waiver request. However, the remaining party to the decree, AT & T, opposed the Companies’ motions, arguing that section IV(F) of the decree expressly obliges the Companies to provide access to network control signaling in every LATA and that the centralization of signaling would allow the BOCs to transmit telecommunications information— the signals — across LATA boundaries in violation of the section II(D)(1) interex-change services ban. AT & T argued that the proposal should therefore be evaluated not under section VII but under the decree’s other provision for modification, section VIII(C). That section was added to the decree to establish an explicit standard governing a particularly important type of modification:, contested changes in the decree’s core line-of-business restrictions. See Triennial Review Opinion, 900 F.2d at 291. Section VIII(C) requires a BOC seeking to waive or remove a section 11(D) restriction to demonstrate that “there is no substantial possibility that it could use its monopoly power [in the local exchange market] to impede competition in the market it seeks to.enter.” The Companies’ blanket, nationwide waiver proposal, AT & T asserted, could not satisfy that test, and the BOCs were unwilling to limit their request to transitional.waivers for the particular LATAs for which a specific showing of low call volume and inefficiency of STP and CCS link installation might be made. MCI, intervening, essentially joined AT & T in these arguments. The district court, shortly after our Triennial Review Opinion issued, held that the waiver proposal did not satisfy the section VIII(C) test. See United States v. Western Elec. Co., 131 F.R.D. 647, 650-52 (D.D.C.1990) (Waiver Opinion), reconsideration denied, Civ. No. 82-0192 [1990 WL 139788, 1990 U.S.Dist. LEXIS 12153] (D.D.C. Sept. 6, 1990) (Reconsideration Opinion). The BOCs and the Department of Justice appeal. II. The dispute between the parties has two main facets. The Companies and the Justice Department contend that the waiver request does not substantially implicate the decree’s line-of-business restrictions and therefore that the standard to determine whether it should be granted is not the potentially demanding section VIII(C) test but- rathér the more relaxed public interest test embodied in section VII. Alternatively, the appellants maintain that the applicability of section VIII(C) turns on the position of the DOJ — the plaintiff and “Prime Mover” in the antitrust ease underlying the decree. Even if section VIII(C) would apply had the government contested the CCS waiver, the argument goes, section VII and the public interest test govern here because the DOJ does support the proposal. AT & T’s opposition to a modification of a line-óf-business restriction, the appellants claim, has no more significance than that of other, non-party interexchange carriers. The first argument is based on the notion that the centralization of signaling interfaces involves primarily not an entry into the interexchange services' market prohibited by section II(D)(1) but rather a redefinition of the Companies’ obligation under section IV(F) to provide network control signaling in each LATA. The appellants assert that a small adjustment in the definition of the BOCs’ exchange access monopoly is distinguishable from an “entry” into a new and competitive line of business, even though the CCS waiver might “affect” the interexchange market. We think that is a distinction without a difference. By that logic, the decree’s most sensitive restriction placed on the Companies might be eroded merely by redefining the decree’s terms. The Companies could, for example, just as well move to redefine “interexchange telecommunications” as transmission of information from one Company’s region to another’s, rather than from one LATA to another, vastly expanding the Companies’ monopolies. It is therefore plain to us that the CCS waiver would not merely change the details of existing exchange access service, but would allow the BOCs to expand their monopolies over exchange access into a slice of the competitive interexchange services market — maybe a narrow slice, involving (for now) only the transmission of traditional network control signaling between the LATAs in each Company’s region, but a slice nevertheless. Therefore, a modification that requires a change in a line-of-business restriction is, if contested, governed by the section VIII(C) test. The more serious argument, that the relaxed section VII public interest standard governs waivers supported by the DOJ whether or not opposed by AT & T— i.e., if the DOJ approves a waiver, it is not “contested” — is largely a product of a footnote in our Triennial Review Opinion. See 900 F.2d at 294 n. 12. We affirmed, in that case, the district court’s refusal to lift the decree’s ban on the BOCs’ manufacturing of telephone equipment, see id. at 301-04, but reversed a similar refusal to allow the Companies to provide information services, see id. at 305-09. We drew a distinction between proposed modifications of the line-of-business restrictions that were unopposed by the other two parties to the decree (the government and AT & T), and waivers contested by either or both of them. The latter were governed by the section VIII(C) standard, whereas uncontested proposals were to be judged by the more lenient “within the reaches of the public interest” standard. See id. at 305-07. We also noted that the decree contemplated that only the Companies could petition under section VIII(C) for modification of the line-of-business restrictions. See id. at 294-95. Therefore, if the DOJ wanted an alteration of those restrictions it would necessarily proceed under section VII, the provision authorizing any party to seek decree modifications. See id. at 294. We then added a footnote raising a question as to what standard would apply to such a motion: The Government opposed the modification sought in Swift, and therefore it is not at all clear to us that the stringent, so-called “unforeseen conditions” test of Swift would apply to motions brought by the DOJ under section VII. Since the DOJ is, as plaintiff, the “Prime Mover” of this case, it may well be that modifications it seeks should be evaluated under a standard somewhat more akin to the “public interest” test of the Tunney Act. Still, it is true that the line of business restrictions were part of what AT & T bargained for in the original decree, therefore suggesting that the modification requests that AT & T opposes should perhaps be viewed differently from those that all the parties agree to. We need not pass on this issue here since the DOJ brought no motion under section VII. Id. at 294 n. 12 (emphasis in original deleted; new emphasis added). Appellants, relying exclusively on the italicized portion of the footnote, assert that by asking the question of what standard applied, we answered it — that we have strongly implied that the government’s support for a waiver causes the public interest test to govern. That is a strained interpretation at best, since we have clearly indicated that if AT & T opposes a line-of-business modification, then DOJ’s support, in whatever1 form, does not relieve the Companies from meeting the section VIII(C) test. Thus, in the Triennial Review Opinion itself we treated the BOCs’ motion to remove the manufacturing line-of-business restriction as contested and subject to the section VIII(C) standard notwithstanding DOJ’s support for the proposal. See id. at 301. And in the subsequent NYNEX Procurement Opinion (United States v. Western Elec. Co., 907 F.2d 1205 (D.C.Cir.1990)), where it was the Justice Department that formally moved for a waiver of a section 11(D) restriction, we said that the Department “bears the same burden that [the BOC] would” and remanded for the district court to determine whether AT & T had properly opposed the waiver. See id. at 1207-09 & n. 3. Appellants nevertheless, and for the first time in this' series of cases, squarely challenge the proposition that AT & T’s opposition to a proposed change should have such important consequences as to trigger the more stringent section VIII(C) standard. They argue that AT & T’s “rights” under the decree are unaffected by changes in the line-of-business restrictions on the BOCs, and therefore that AT & T’s “legal or equitable status” in relation to the CCS waiver should be thought no different than any other interexchange carrier’s — i.e., not significant enough to affect the standard by which we evaluate the proposal. See Triennial Review Opinion, 900 F.2d at 292, 305-07 (opposition by non-party inter-venors does not make the information services modification “contested” and subject to the section VIII(C) test). Appellants point in particular to the Justice Department’s role as the “principal proponent” of the line-of-business restrictions, Decree Opinion, 552 F.Supp. at 186 n. 227, and to AT & T’s' professed neutrality or opposition to those restrictions during the decree negotiations. As those provisions were not part of the “bargain” AT & T sought, we are told, AT & T’s opposition to their, alteration now should be deemed legally inconsequential. It is, however, those line-of-business restrictions that prevent the Companies from a full-bore entry into the interexchange market. It seems more than passing strange to suggest that the decree should be interpreted so as not to allow AT & T to contest, under section VIII(C), the BOCs’ complete entry into the interexchange market. After all, the AT & T lawsuit was based on the premise that a corporation that enjoyed a monopoly on local calls would ineluctably leverage that bottleneck control in the interexchange (long distance) market. See id. at 142, 188-89. The Bell System was for that reason broken up; the local monopolies were taken away from AT & T. (Of course, “AT & T” is a different entity after the decree than it was before.) To claim that AT & T has no interest under the decree in challenging one or more of the Company’s “return” to the interexchange market, there to compete against AT & T with the same sort of local monopoly leverage that caused the government to bring suit against AT & T in the first place, has an ironic, even Kafkaesque, quality. By the appellants’ logic, if the BOCs’ proposed entry into the interex-change market was likely to impede competition (which would violate the section VIII(C) test) but not certain to do so (thus surviving section VII’s public interest test), and if the government did not object, the district judge would be obliged to permit the entry. Are we to believe that AT & T had in 1982, and has today, no interest in effectively objecting to such a proposal? The dissent responds to our question in the negative. Judge Williams argues that AT' & T has no institutional interest in competition in the interexchange market, and thus to read the decree to allow AT & T to object to any sort of BOC entry into that market — including a complete and full-scale entry — is to sanction a broad “allocation” of telecommunications markets in contradiction to the purpose of the antitrust laws. Dissent at 1243-44. That argument, which has the virtue of boldly confronting the core problem with appellants’ case (even if it is an argument that neither appellants nor the government dare make), is nothing less than an attack on the very premise of the consent decree. AT & T today, after all, has the same economic interest vis-a-vis the BOCs’ effort to gain access to the interexchange market that MCI (the company that first sought to'compete against the Bell System in the interex-change market) had at the time the government’s lawsuit was brought against the Bell System. MCI then, and both AT & T and MCI now, seek to confine the BOCs to that portion of the telecommunications market in which they enjoy a historical natural monopoly. Certainly there is nothing in the language of the decree that suggests that AT & T should be thought unconcerned with the line-of-business restrictions, so that it should be regarded as not a “real” party with respect to those matters. It is not, as our dissenting colleague puts it, that we “assume[] that just because the Department of Justice and AT & T are parties to the same contract, and both have interests in the line-of-business restrictions (one acting for the public, the other for its shareholders), it follows that they must have identical rights in relation to those restrictions.” Dissent at 1245. To the contrary, section III treats AT & T as a formal party to the entire decree, with specific authority under section VII to demand enforcement of any section of the agreement. Indeed, in a 1987 filing in the district court, the government stated that AT & T “ha[s] the right to seek enforcement [of a line-of-business restriction]... itself at any time,” citing section VII. Nor have we been shown any precedent applying a variable standard to judge a suggested modification of general language of a decree, depending on which party objects. Appellants have, nevertheless, combed the multitude of documents filed and hearing transcripts generated during the decree approval proceedings and have found numerous examples of Bell System representatives (who now work for AT & T) professing opposition to the line-of-business restrictions or acceptance of them simply as a step towards an overall settlement. Appel-lees in turn point to some statements demonstrating more affirmative interest in the prohibitions. But what are we to make of these offerings? After all, the Bell System (pre-divestiture AT & T) had been defending itself for decades — and presumably would have continued defending itself - if the settlement negotiations failed — on the ground that vertical integration of telecommunications businesses is efficient and pro-competitive. The Bell System representatives also faced a significant inherent conflict of interest: post-divestiture AT & T, as an interexchange carrier and equipment manufacturer,. would obviously favor a complete prohibition on competition from the powerful local monopolies, while the post-divestiture BOCs would undoubtedly desire no such restrictions. The Bell System’s duty at the time was, of course, to maximize the combined future value of AT & T and the BOCs for its (and soon to be their) shareholders. See United States v. Western Elec. Co., 797 F.2d 1082, 1088 (D.C.Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). Perhaps to satisfy that obligation perfectly was psychologically impossible, but we presume that the negotiators fulfilled their duty and thus that the decree, and especially the section 11(D) prohibitions at its core, represents a balanced amalgamation of benefits to and burdens upon both AT & T and the BOCs. For that reason, we think recourse to the decree’s bargaining history to interpret how those who were negotiating for the unified Bell System saw the benefits and burdens distributed between post-divestiture AT & T and the BOCs is of little use today. Cf. Triennial Review Opinion, 900 F.2d at 293 (decree negotiating history may be useful in other contexts). The Justice Department, although it does not go so far as our dissenting colleague in challenging the consent decree as an anti-competitive division of the telecommunications industry, does caution that we should not “interpret” the decree to give AT & T a “strong incentive to oppose pro-competitive decree modifications in order to protect itself from the very competition such modifications could promote.” This contention is, as the dissent elaborates, sort of a variation on the antitrust injury doctrine. See, e.g., Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109-13, 107 S.Ct. 484, 488-91, 93 L.Ed.2d 427 (1986). But if, as the dissent suggests, AT & T should not be thought to have “antitrust standing” to assert its apparent rights under the decree because the BOCs’ entry into the interex-change market would come at AT & T’s expense, Dissent at 1247-48, then it follows that MCI should not have had standing to file suit, see MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983), or to complain to the Justice Department, concerning the Bell System’s activities in the interex-change market in the first place. That AT & T is now the largest carrier in the inter-exchange market hardly immunizes it against antitrust injury from new competitors who are monopolists in the local exchange markets. The flaw in our colleague’s reasoning, we respectfully suggest, is that he entirely ignores the potential anti-competitive leverage that the BOCs’ monopoly position in the bottleneck local markets affords their entry into the interexchange markets. Insofar as the government believes that there are pro-competitive aspects of a BOC’s proposed “reentry” into part or all of the interexchange market, it can aid the BOC in seeking to meet the section VIII(C) test by showing that the proposal will enhance rather than impede competition. The government expresses particular concern that AT & T might somehow use its rights under section VIII(C) to handicap its existing interexchange competitors by making it more difficult for the BOCs to provide services to those competitors in the interexchange market. We note, however, that AT & T’s fiercest competitor, MCI, supports AT & T’s construction of the decree, and that although the BOCs claim that AT & T’s smaller competitors would benefit from both the CCS proposal and their construction of the decree, none of those companies appeared before us. It should be remembered that section VIII(C) does not give AT & T the power to veto truly pro-competitive line-of-business modifications, only to block those changes that are quite possibly, though not certainly, anti-competitive. In any event, as MCI observes, the question before us is not how we would fashion the decree if we were writing on a clean slate. The decree is not ambiguous; it gives AT & T the right, as a party to the decree, to assert its objection to the BOCs’ proposal and thus to invoke section VIII(C). Until this case, the government never even suggested that the decree could be read otherwise. We are thus persuaded by AT & T’s argument that the CCS waiver must be judged according to section VIII(C)’s standard, for whenever a modification implicates the line-of-business restrictions and is contested by any of the parties to the decree, the section VIII(C) test governs. Even if we had doubts, however, we think our prior decisions in the Triennial Review and NYNEX Procurement cases would deter us from accepting appellants’ argument. It may be, as the BOCs contend, that the premise we here reaffirm — that AT & T’s opposition makes a line-of-business modification “undeniably ‘contested,’ ” Triennial Review Opinion, 900 F.2d at 292, regardless of the government’s position — was not forcefully argued in those cases. The BOCs did assert to the district court in Triennial that AT & T had no interest under the decree in the line-of-business restrictions. On appeal, the Companies referenced that argument but emphasized the converse point — that AT & T’s acquiescence in the removal of the information services ban left that proposal uncontested (notwithstanding the opposition of other interexchange carriers that were not decree parties). We were, therefore, clearly focused on the significance of AT & T’s position, and but for AT & T’s opposition, we would have reversed and remanded the manufacturing portion of Triennial just as we did the information services portion. Indeed, in discussing the latter proposal, we explained that “[f]or purposes of identifying the proper standard of review, the critical point is that neither AT & T nor the DOJ opposed the... motion.” Id. at 305 n. 27 (emphasis omitted). And in the NYNEX Procurement Opinion we again viewed AT & T’s position as pivotal, directing the district court on remand to apply the section VIII(C) standard if AT & T had properly contested the (government-supported) waiver. See 907 F.2d at 1209. The proposition that AT & T’s position on a proposed line-of-business modification can be determinative of whether the section VIII(C) test applies has thus been a linchpin of two of our opinions. Although it is true that we cannot be said to have held that AT & T’s opposition makes a requested modification contested — because the point was not directly controverted— we do not think that the Companies can opportunistically, after so much litigation involving the same parties, switch their position and challenge that proposition at this late date. Cf. Northwestern Ind. Tele. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C.Cir.1984) (per curiam). III. The appellants’ submissions to the district court were not clearly focused on the section VIII(c) test — that is, on demonstrating that the CCS waiver posed no substantial possibility of impeding competition in the interexchange services market. Nor are their appellate briefs primarily directed to this point. We are rather disappointed, particularly in light of our remarks in the Triennial Review Opinion as to the importance of the DOJ’s predictive economic analysis, see 900 F.2d at 297-98; accord NYNEX Procurement Opinion, 907 F.2d at 1209, that the Department’s market analysis in this case was so perfunctory. See Reconsideration Opinion, Mem. at 2. Based on the existing record, we do not see how the district judge’s conclusion that the Companies’ proposed waiver does not meet the section VIII(C) test, see Waiver Opinion, 131 F.R.D. at 652, can be thought erroneous. See Triennial Review Opinion, 900 F.2d at 293-94 (discussing standard of review in section VIII(C) cases). In the Triennial Review Opinion, we determined that the BOCs cannot “impede competition,” as that phrase is used in section VIII(C), unless they will possess market power—the ability to restrict output and/or raise, prices—in the market they seek to enter via the proposed decree modification. See 900 F.2d at 296. Although neither the parties nor the district court performed a detailed market definition, it appears, as we have noted, see supra note 11, that the CCS waiver would allow the BOCs to enter the interexchange services market. The district court determined that by transmitting network control signals across LATA boundaries, the BOCs would “adversely affect” a “vital” aspect of existing interexchange competition: interexchange carriers can, and apparently do, compete on the basis of being able to provide over the widest area the superior “network architecture, improved billing, new and unique services, faster call setup,” and other advantages of CCS signaling. Waiver Opinion, 131 F.R.D. at 650; see also Reconsideration Opinion, Mem. at 2. The submissions of the DOJ and Ameritech (in a filing signed by the Companies’ appellate counsel) also conceded that signaling can be used in differentiating interexchange service. The BOCs contend, however, that they merely want to offer an existing exchange access service — the provision of network control signaling — in a very similar (same content and ultimate destination, different interconnection point) but much more efficient manner. This would not “impede competition” in any meaningful way, they claim, because they would still lack market power in the interexchange services market as a whole. There would be no control over output, it is asserted, because the decree requires the Companies to provide signaling with every interexchange call, however many there are. As for' price, appellants suggest that the cost of interex-change calls would in fact decline because the Companies would not be required to install and operate expensive and unnecessary STP pairs in every LATA (and will pass on the savings as lower access charges 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_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL-CIO), Respondent, Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Petitioner, Appellee. No. 6443. United States Court of Appeals First Circuit. Heard March 3, 1965. Decided May 26, 1965. Julius C. Michaelson, Providence, R. I., with whom Richard A. Skolnik, Providence, R. I, was on brief, for appellant. John W. Douglas, Asst. Atty. Gen., with whom Raymond J. Pettine, U. S. Atty., and Morton Hollander and Robert J. Vollen, Attys., Dept, of Justice, were on brief, for appellee. Before ALDRICH, Chief Judge, WATERMAN, Circuit Judge, and GIGNOUX, District Judge. Sitting by designation. GIGNOUX, District Judge. This is an appeal from an order of the District Court directing appellant to comply with a subpoena duces tecum issued under authority of the Secretary of Labor pursuant to Section 601 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 521 (Supp. V 1959-63). We hold that the issuance of the subpoena was a proper exercise of the Secretary's power under Section 601 and that no cause has been shown why appellant should not be required to produce the records sought. We, therefore, affirm the order of the District Court. The subpoena in question was issued incident to the Secretary’s investigation of an election of officers of the appellant union. Title IV of the Labor-Management Reporting and Disclosure Act regulates such elections. 29 U.S.C. § 481 et seq. Section 601 of the Act vests the Secretary of Labor with broad power to investigate violations of the Act. It provides: “(a) The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this Act (except Title I or amendments made by this Act to other statutes) to make an investigation and in connection therewith he may enter such places and inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto. The Secretary may report to interested persons or officials concerning the facts required to be shown in any report required by this Act and concerning the reasons for failure or refusal to file such a report or any other matter which he deems to be appropriate as a result of such an investigation. “(b) For the purpose of any investigation provided for in this Act, the provisions of sections 9 and 10 (relating to the attendance of witnesses and the production of books, papers and documents) of the Federal Trade Commission Act of September 16, 1914, as amended (15 U.S.C. 49, 50), are hereby made applicable to the jurisdiction, powers, and duties of the Secretary or any officers designated by him.” On its face, Section 601 gives the Secretary ample authority to investigate a union election and to issue a subpoena duces tecum in connection with his investigation. Appellant contends, however, that the Secretary’s power to do so is limited by the provisions of Section 402 of the Act, 29 U.S.C. § 482, which reads in pertinent part: “(a) A member of a labor organization — (1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of Section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide. “(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe. The court shall have power to take such action as it deems proper to preserve the assets of the labor organization.” Appellant asks us to construe Section 601 so as to limit the authority of the Secretary to investigate a union election to a situation in which a union member has filed a complaint and has otherwise satisfied the requirements with respect to the exhaustion of internal remedies, which are set forth in Section 402(a) as prerequisites to the institution by the Secretary of a civil action challenging the election under Section 402(b). The precise issue which appellant raises has been fully considered and determined adversely to appellant by the Court of Appeals for the Second Circuit in the recent case of Wirtz v. Local 191, Int’l Bhd. of Teamsters, 321 F.2d 445 (2d Cir. 1963). We agree with the decision in that case and concur in the views expressed by Judge Hays for that court. As Judge Hays notes in his persuasive analysis, certainly the language of Section 601 suggests no limitation on the Secretary’s power to investigate violations of the provisions of Title IV of the Act regulating union elections; indeed the wording of Section 601, which expressly excepts from the Secretary’s investigatory authority “Title I or amendments made by this Act to other statutes,” strongly supports the view that the Secretary has the power to investigate violations of Title IV, which is not listed as an exception. As Judge Hays further points out, the result indicated by this language of the statute is consistent with the legislative history and with Congress’ concern for union democracy as evidenced by its extensive regulation of union election procedures in Title IV. Nor has appellant in this case cast any doubt on Judge Hays’ conclusion that the two sections of the statute can each be given full effect in complete harmony, because they are directed to two different objectives. Section 402 provides for the Secretary’s instituting a court action to set aside an election; his power to do so is conditioned upon the filing of a complaint by an individual union member who has exhausted his internal union remedies. Section 601, on the other hand, authorizes the Secretary to investigate an election; his power to do so is not conditioned upon receipt of a complaint from an individual member of the union. We perceive no conflict which is created by thus reading Section 601 as permitting the Secretary to investigate in circumstances where he could not bring suit under Section 402. Cf. Wirtz v. Local 125, Int’l Hod Carriers, 231 F.Supp. 590 (N.D.Ohio 1964). In addition to the arguments apparently presented to the Court of Appeals for the Second Circuit in Local 191, appellant here advances only two arguments meriting comment. The first is that because the second sentence of Section 601(a) authorizes the Secretary to report to interested persons “concerning the facts required to be shown in any report required by this Act and concerning the reasons for failure or refusal to file such a report * * * ”, the Secretary’s power of investigation is limited to matters required to be reported by the Act; and the Act does not require reports concerning union elections. We cannot agree with this construction of the statute. Apart from the fact that there is no indication in the statutory language that the authority to report conferred upon the Secretary by the second sentence of Section 601(a) was intended in any way to limit the power to investigate granted by the first sentence of that section, appellant’s argument completely ignores the last clause of the second sentence. This clause explicitly gives to the Secretary the power to report not only concerning the subject matter of reports required by the Act, but also concerning “any other matter which he deems to be appropriate as a result of such an investigation.” Appellant’s second new argument is that, in view of the express exclusion of Title I violations from Section 601, the Secretary’s power to investigate the election for Title IV violations was preempted by the fact that a suspended union member, Edwin L. Archibald, apparently has commenced an action in the District Court based on an alleged violation of his rights under Title I of the Act. See Section 102 of the Act, 29 U.S.C. § 412. We must reject this argument also. It rests on the false premise that union misconduct which deprives an individual of rights guaranteed to union members by Title I may not also constitute a violation of duties imposed upon the union by Title IV. Compare Section 101(a) (1) of the Act, 29 U.S.C. § 411(a) (1), with Section 401(b) and (e) of the Act, 29 U.S.C. § 481(b) and (e). Furthermore, we cannot believe that Congress could have intended that the institution of a suit by an individual union member should limit the Secretary’s full power to investigate a union election under Section 601. Cf. Wirtz v. Local 191, Int’l Bhd. of Teamsters, supra, 321 F.2d at 448; International Bhd. of Teamsters v. Wirtz, 346 F.2d 827 (D.C. Cir. April 29, 1965). Appellant also contends that even if the issuance of the subpoena was authorized under Section 601, the District Court erred in ordering production of the records specified in the subpoena pertaining to Archibald’s membership status and to his suspension from membership on or about April 1, 1963. The sole reason advanced is that the Secretary has made no showing that any such records are relevant to the investigation of the election in question, which was held on June 2, 1964, approximately 14 months after the date of Archibald’s suspension. But, as the District Court found, the subpoena on its face indicates that these records are relevant to the investigation which the Secretary is conducting. Section 401(e) of the Act provides that “every member in good standing” of a union shall have the right to vote in union elections “without being subject to penalty, discipline, or improper interference or reprisal of any kind * * 29 U.S.C. § 481(e). Certainly, the appellant union’s records relating to Archibald’s membership status and to his suspension from membership are relevant to an investigation of a possible violation of this section in connection with the election of June 2, 1964. Furthermore, contrary to appellant’s assertion, appellant had the burden of showing that Archibald’s membership records were not relevant to the election investigation. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 218, 66 S.Ct. 494, 90 L.Ed. 614 (1946); FTC v. Standard American, Inc., 306 F.2d 231, 235 (3d Cir. 1962); Goldberg v. Truck Drivers Local 299, supra, 293 F.2d at 812. Appellant does not suggest that it discharged this burden. And the record belies its contention that the District Court denied it an opportunity to do so. Judgment wilhbe entered affirming the order of the District Court. . . Appellant also ai’gues that if Section 601 is construed to empower the Secretary to investigate Title IV violations prior to the date of an election, the investigation might well unduly influence the outcome of the election. Since the investigation in this case was not instituted until after the election had been held, we express no opinion as to the Secretary’s power to commence an investigation during an election campaign. . We do not understand that appellant, by referring to the need for a showing of relevancy, is suggesting that the Secretary must show probable cause, before the Court may order compliance with the subpoena. Such a contention was rejected by us as clearly without merit in Local 57, Int’l Union of Operating Engineers v. Wirtz, 326 F.2d 467, 470 (1st Cir. 1964). Accord, Goldberg Truck Drivers Local 299, 293 F.2d 807 (6th Cir.), cert. denied, 368 U.S. 938, 82 S.Ct. 379, 7 L.Ed.2d 337 (1961); Int’l Bhd. of Teamsters v. Goldberg, 112 U.S.App.D.C. 391, 303 F.2d 402 (D.C.Cir.), cert. denied, 370 U.S. 938, 82 S.Ct. 1589, 8 L.Ed.2d 808 (1962); Int’l Bhd. of Teamsters v. Wirtz, supra. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ALGONQUIN GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Bay State Gas Company, et al., Intervenors. No. 85-2021. United States Court of Appeals, First Circuit. Argued June 4, 1986. Decided Jan. 13, 1987. John T. Ketcham with whom Joseph O. Fryxell and McGee & Ketcham, P.C., Washington, D.C., were on brief, for petitioner. John H. Conway with whom William H. Satterfield, General Counsel, Jerome M. Feit, Sol., and A. Karen Hill, Washington, D.C., were on brief, for respondent. Before BOWNES, Circuit Judge, BROWN, Senior Circuit Judge, and BREYER, Circuit Judge. Of the Fifth Circuit, sitting by designation. JOHN R. BROWN, Senior Circuit Judge. Petitioner Algonquin Gas Transmission Company (Algonquin) brings this petition for review, challenging an order by respondent Federal Energy Regulatory Commission. The Commission denied Algonquin’s request for a rate increase to its customers to recover $900,000 in expenses it incurred in an unsuccessful development of the Eascogas Liquified Natural Gas import project (Eascogas). See Algonquin Gas Transmission Co., 31 FERC II 61,221 (1985). The Commission properly applied its long-standing policy of denying recovery of costs for unsuccessful gas supply projects. Accordingly, we deny the petition for review. Algeria and the Energy Crisis Algonquin is a pipeline company that sells natural gas for resale in interstate commerce. Therefore, the rates Algonquin charges for those services are subject to the Commission’s jurisdiction under Sections 4 and 5 of the Natural Gas Act, 15 U.S.C. §§ 717c and 717d (1982). The question here is whether Algonquin may properly charge its customers under those provisions for a gas supply project that was never completed. Eascogas was a corporation created and jointly owned by Algonquin and other companies. Eascogas had proposed to import Liquified Natural Gas (LNG) from Algeria and deliver it to its own facilities in Staten Island, New York, and Providence, Rhode Island. From there, it would be stored, regasified, and sold to United States customers for subsequent resale in New Jersey and New England. Of the proposed import volume, twenty-eight percent was to be sold to Algonquin’s customers. The feasibility of the Eascogas project depended on the purchase of Algerian gas under low price contracts. These contracts, however, were contingent on the sponsors getting Commission approval by January 1, 1974, for at least the importation and sale aspects of the project. Absent that approval, the project could be terminated and the gas purchase contracts renegotiated at a much higher price. Based on its perception of a crisis in the world’s natural gas supply, the Commission granted to Eascogas (i) a limited authorization under Section 3 of the Natural Gas Act, 15 U.S.C. § 717b (1982), to import the LNG from Algeria, and (ii) a limited certificate of public convenience and necessity for the sale for resale of LNG. Eascogas LNG, Inc., et al, 50 FPC 2075, 2093-94 (1973). It conditioned final certification, however, on “further comprehensive and conclusive evaluations of all issues,” and made clear that it did not “endorse the economic feasibility of the entire Eascogas project.” 50 FPC at 2091. The Eascogas project was actually a series of projects: buying, importing and selling LNG; providing transport ships to bring the gas to terminal and storage facilities; building those facilities; and providing all the attendant distribution lines. When completed, Eascogas was to have imported, over a 22-year period, some 4.76 billion MMBtu’s of Algerian LNG. See Eascogas LNG, Inc. et al., 50 FPC 1921 (1973). Unfortunately, the Algerian Connection was not to be. The contract between Algonquin and Algeria included price escalation provisions pegged to world oil prices. When the price of oil later skyrocketed, the LNG project became economically impossible. In 1977, Algonquin terminated the project. No Eascogas LNG was ever imported or sold. The only “facility” actually built for the LNG import project was the excess capacity that was included in the LNG storage facilities built for Providence Gas. Providence in Providence As one small part of the massive import project, Algonquin negotiated an agreement with Providence Gas Company (Providence), a local distribution company in Rhode Island. Originally, Providence had planned to construct a large 348,000 barrel storage tank as part of its distribution system. Algonquin persuaded Providence to change its plans and allow Algonquin to build its own 600,000 barrel storage tank on the site. Algonquin’s primary aim was to acquire a deep-water LNG terminal site in Rhode Island for its baseload LNG import project. In return, Algonquin guaranteed Providence 348,000 barrels of storage capacity in the 600,000 barrel tank, reserved for and subject to Providence’s use. Algonquin agreed to build the facilities and provide the services for thirty years. Algonquin completed the storage tank facility in late 1973. Although Providence began storing its gas there, there was no Eascogas LNG to store. Algonquin prudently found alternative users for the excess capacity. Algonquin sought and received a temporary Commission authorization, valid for one year, allowing it to use that excess capacity for jurisdictional, i.e., interstate, storage services for other companies and to collect rates for such use. Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 52 FPC 731 (1974). This was renewed on a yearly basis until 1982, when Algonquin received a ten-year authorization to use the excess capacity for jurisdictional storage services, Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 19 FERC ¶ 61,265 (1982). It is this single storage operation that Algonquin claims has magically transformed the aborted Eascogas import project into a success, and thereby made Algonquin eligible for the recovery of its costs. Algonquin Goes to Washington In January 1980, Algonquin filed with the Commission, under Section 4 of the NGA, a request for $17.1 million per year rate increase for service to customers in New England, New York and New Jersey. Algonquin sought to recover approximately $1.5 million in Eascogas costs as “normal regulatory expenses” through an amortization allowance in its cost of service rate increase. Subsequently, this amount has been scaled down to $900,000. Algonquin gave only a general description of the expenses; it did not differentiate as to costs for the excess capacity for the Providence tank. Significantly, facility construction costs for the Providence storage tank were not included. In December 1981, the AU issued her decision on Algonquin’s rate case. 17 FERC 1163,063 (1981). Relying on the prevailing Commission policy, the AU disallowed Algonquin’s Eascogas claim on the grounds that (i) the costs incurred for an unsuccessful gas supply project could not be recovered from ratepayers, but must instead be borne by stockholders, and (ii) Algonquin had not, in any event, borne its burden of showing that it had spent the money on otherwise lawful expenses. 17 FERC at 65,300. In early 1983, the Commission announced its review of the AU’s decisions. 22 FERC H 61,279 (1983). Although it decided the other issues, it expressly postponed consideration of the Eascogas cost recovery question because it was at that time reviewing the same policy of cost recovery in the Natural Gas Pipeline Company case. Accordingly, it reserved judgment on the recovery issue. 22 FERC at 61,502. The Natural decision, issued in May 1984, reaffirmed existing policy: the company could not recover costs for gas supply projects that were abandoned before completion. Algonquin, however, ignored the plain meaning of Natural. In July 1984, Algonquin requested a remand to the AU. Seizing on what it contended were “new” standards announced in Natural, Algonquin demanded additional evidentiary proceedings to demonstrate how Eascogas met the new test. In May 1985, the Commission denied Algonquin’s motion for remand of the reserved cost recovery issue and instead affirmed the AU’s initial decision denying those costs. Algonquin Gas Transmission Co., 31 FERC ¶ 61,221 (1985). The Commission found that Algonquin’s import project did not progress sufficiently beyond the stage of preliminary survey to warrant application of any standard different from the long-established policy reiterated and applied in Natural. In addition, the Commission found that the status of the Providence storage facility was distinct from that of the Eascogas import project. Accordingly, Algonquin could not “bootstrap” the unsuccessful import project onto the much smaller successful storage facility to cast the entire effort as a successful one. On Algonquin’s petition for rehearing, the Commission found no dispute of the material facts and denied the request. Algonquin Gas Transmission Co., 33 FERC 1f 61,181 (1985). Thus, it comes to us. Discussion: Au Natural Algonquin appeals one issue in this case, and its name is Natural. In essence, Algonquin views the Natural decision as the evil spectre that has done in its case. It attacks Natural on three primary fronts. First, it contends that the Natural “test”— promulgated after Algonquin filed its case — is unacceptable revisionism of prior Commission precedent. For the Commission to apply the Natural test to Algonquin's case now, after the record has closed, violates due process. Second, if Natural can apply here, then Algonquin should certainly have the chance to show how, through its Providence storage tank, it now meets the new prudence test. And third, Algonquin contends that Natural’s disingenuous explanation of the disparate treatment of cost recovery for the electric and natural gas industries is hypocritical and unfair. Unfortunately for Algonquin, Natural is neither ground-breaking nor earth shaking. It is, however, an elegant restatement of the Commission’s traditional policy regarding cost recovery for abandoned natural gas projects. The rationale underlying the Natural decision can be neatly stated. As the District of Columbia Circuit aptly observed: The Natural Gas Act simply does not guarantee the shareholders of even a prudently managed utility that ratepayers can always be stuck with the bill for supply projects that turn out to be total failures, however praiseworthy the utility’s motives for undertaking those projects may have been____ In this case, the Commission in effect decided that the public interest in seeing that ratepayers do not pay for services not received was dispositive. Natural, 765 F.2d at 1163-64. We find this reasoning persuasive and applicable to Algonquin’s case. Algonquin’s Inartful Dodging Algonquin first attacks Natural as being revisionist. It contends the Commission has ignored or recast the inconsistencies in the Commission’s prior treatment of the cost recovery issue. It is true that the Commission, in rare cases, has given advanced guarantees to a gas pipeline, assuring it that it may recover some of its project costs even if the project later proves unsuccessful. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982); Ozark Gas Transmission System, 16 FERC H 61,099 at 61,-194-96 (1981), reh’g denied, 17 FERC ¶ 61,024 (1981). These cases, however, are inapposite to Algonquin’s situation. The Commission has granted prior guarantees only when a party has raised public policy considerations and then only when the Commission had considered beforehand whether the project would be in the public interest. Moreover, Algonquin relies on language from these two cases that questions whether the traditional policy — one of non-recovery — might be subject for a change in the future. Not surprisingly, Algonquin neglects to mention that these decisions were issued while the Commission was reexamining the very same policy of non-recovery which was reaffirmed by the later Natural decision. In context, both Ozark and Trailblazer recognize that the usual policy was one of non-recovery. Algonquin has relied on these cases for its claims that, before Natural, the Commission’s policy was different. Such reasoning fails for historical inaccuracy. These two cases were decided in the very different context of providing advanced guarantees that ratepayers would bear some risk of project failure. On appeal, Algonquin cannot complain that it was prejudiced by the Commission’s individualized treatment in Ozark or Trailblazer. After all, Algonquin never even received final certification or unconditional approval, much less an advanced guarantee. Algonquin’s contention that Natural announced a new test is equally unavailing. The Commission explicitly rejected the notion that it was adopting or implementing a new standard of cost recovery for early abandoned projects. 27 FERC at 61,380. Algonquin nevertheless maintains that the following language announces the elements of a new test: “[Whether] the projects were found to be speculative and uncertain, [and] remote in time____”27 FERC at 61,-379. This “test” is nothing of the sort. It is merely one description — an alternative characterization — of the historical traits of projects in which cost recovery was disallowed. Indeed, the remainder of that same sentence, which merely continues this description, concludes, “[and were] without benefit to ratepayers.” Id. The “new” test of “speculativeness” and “remoteness” is merely an amplification of the same old policy. The test remains that a policy must, in the eyes of the Commission, be “of benefit to ratepayers.” The more speculative or remote a project, the less likely it will, in the Commission’s view, benefit ratepayers. Algonquin’s analysis is rejected. Although the test for preliminarily abandoned projects remains unchanged, Natural did prospectively announce a prudence standard to be applied to projects that progressed beyond the preliminary stage before abandonment. The Commission stated, “[W]e do not foreclose reconsideration of the abandoned projects issue in future cases where projects have been carried beyond the stage of preliminary survey and investigation and where the pipeline’s investments are proportionately greater.” 27 FERC at 61,381 (emphasis added). The crucial criteria for this prospective “prudence standard” center on more advanced degrees of investigation and investment. Thus, projects that terminate at a “preliminary” stage will not likely merit Commission eligibility for consideration under the new prudence test. For early abandoned operations, therefore, Natural changes nothing: if the ratepayers never benefited, the costs cannot be recovered. The Little Tank That Could The engine in Algonquin’s drive to distinguish its case from Natural has been the storage tank in Providence. Algonquin so fervently urges the storage tank aspect of the Eascogas project for a very good reason: if it can “bootstrap” the abandoned Eascogas project onto the success of the storage facility, it may no longer be a “preliminary” project, and may be eligible for analysis under the more generous test of the recently expressed prudence standard. Algonquin’s argument runs along this line: The storage tank is successful. (It is commercially profitable, and even has a ten-year jurisdictional certificate from the Commission.) If the storage tank’s success can be attributed to the entire Eascogas project (for which the tank was originally built), then Eascogas can be treated as having progressed beyond the preliminary stage. If Eascogas went beyond the preliminary stage, it (i) can be distinguished from the strictures of Natural, and (ii) more importantly, can claim the benefit of the “prudence test” announced prospectively in Natural. The hoped-for-conclusion to this, of course, is that Algonquin — which has no chance to recover under the Natural preliminary abandonment test — has some chance to recover under a prudence test. However flawless may the logic be, the second premise, alas, is faulty. The Commission was entitled to determine that the storage tank’s success cannot be attributed to the entire Eascogas project. In the words of Commissioner Plumb, The Commission stated, The record demonstrates that Algonquin participated in what are, in effect, two distinct but related LNG projects, i.e., an LNG storage project and an LNG import project. In constructing the facilities needed to serve Providence Gas, Algonquin included excess tank capacity for eventual use in the LNG import project. But independent of the status of the LNG import project, Algonquin made a 30-year commitment to provide delivery and storage capacity for Providence Gas’ own LNG. Algonquin would have continued to provide capacity for Providence Gas even if the LNG import project had been constructed and put into operation. Further, termination of the import project did not affect this service, which Algonquin has provided to Providence Gas since May 1974. Under these circumstances, the existing LNG storage facilities used to serve Providence Gas are distinct from the Eascogas project. The only facility actually constructed for the Eascogas project was the excess capacity included in the Rhode Island site for future use for Algonquin’s own imported LNG. 31 FERC at 61,443. In other words, the bootstrap does not lift. Further, the Commission found that most of Algonquin’s expenditures on the Eascogas project were for preliminary types of activities such as preliminary studies, permits, applications, and the like. Factoring together these aspects, the Commission, concluding that the Eascogas project was terminated at a preliminary stage, found that Natural was controlling and the prudence standard unavailable. The Commission’s finding of two independent projects is supported by voluminous, substantial evidence. The level and type of activity involved in Eascogas by Algonquin has been, from all reasonable perspectives, purely preliminary. The fact that one element — 10% of the total estimated storage capacity — was taken to completion, and is now successfully operating in a manner utterly unrelated to Eascogas, is not decisive. Algonquin, cannot cantilever this “benefit to ratepayers” of the Providence storage tank onto all of the Eascogas project. Thus, as we review this proposed rate increase by Algonquin, we are mindful that, “the [circuit] court’s responsibility is not to supplant the Commission’s balance of [risk and benefit factors involved in rate setting] with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors.” Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312, 350 (1968). We agree with the Commission’s characterization of the Eascogas project as preliminary, and concur in its application of the Natural “of benefit to ratepayers” test. Apples, Oranges and FERC Algonquin’s third argument is that because the Commission permits electric utilities to recover costs under the Federal Power Act for cancelled electric power projects, the Commission must therefore also permit such cost recovery for failed/discontinued projects under the Natural Gas Act. This contention, that two different industries regulated under two different statutes must be treated exactly alike, is utterly unpersuasive. The Commission must preapprove jurisdictional (interstate) pipeline projects under § 7(c) of the NGA. Accordingly, it has the opportunity — if it chooses — to divide cancellation risks between project sponsors and ratepayers beforehand. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982). Under the FPA, however, the Commission has no analogous pri- or approval authority. Thus an electric utility cannot obtain an advance determination, as a pipeline can, of whether the risk of its failure can be shared with ratepayers. Given this lack of preliminary review power under the FPA, it is quite reasonable that the Commission has adopted separate policies of cost recovery for electric and natural gas projects. The disparate approaches to regulation are well-established. As the Commission declared in Natural, While Natural is correct in arguing that there is a lack of complete consistency between the Commission’s amortization policies under the Natural Gas and Federal Power Acts, that fact is not decisive. To approve amortization here would result in a direct transfer of risk and related cost from Natural’s shareholders to its ratepayers____ The Commission’s policy applicable to failed gas supply projects is of long standing and has been consistently applied in numerous cases. The Commission’s policy in this area is therefore well established. We have reviewed that policy in the course of deciding this case and have concluded that no charges are warranted. Natural, 27 FERC 1161,201 at 61,380. We cannot say it any better. Just One More Chance Following the announcement of the Natural opinion, Algonquin has steadfastly maintained that it is entitled to a new evidentiary hearing so that it may supplement the record by new facts or data that will show that Algonquin’s Eascogas project has met the asserted new prudence standard. Algonquin’s arguments are unpersuasive. Algonquin couched its arguments in terms of “unfairness” or failure of due process. These claims are unwarranted. First, Algonquin was clearly heard by the Commission. The Commission, in its order denying the cost recovery, fully responded to Algonquin’s claims of the interrelationship of the import and storage projects and the relation of Algonquin’s case to the Natural decision, and did so again on rehearing. That is sufficient. See, e.g., Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242, 1251 (D.C.Cir.1972) (no hearing required when no material facts in dispute). Algonquin also complains about the Commission’s use of data from its earlier certification proceedings involving Eascogas. It contends that such facts are stale or have been taken under questionably broad “judicial notice.” For example, Algonquin claims that the Commission relied on inaccurate figures in finding the storage tank to be independent from the import project. While it may be true that Algonquin spent more money on the Providence gas storage project than originally planned, this, as the Commission found, cannot change the result that the Providence gas storage tank was a very small part of the massive Eascogas project. Thus, determining the precise amount that Algonquin actually spent in constructing the tank was not significant to the Commission’s conclusion. As discussed above, the success of the storage tank cannot, retroactively or otherwise, transform the status of the Eascogas import project. End of the (Pipeline We end as we began, approving the Commission’s decision: Algonquin’s Eascogas project falls squarely within the Commission’s longstanding precedent concerning disallowance of the costs of gas supply projects terminated at a preliminary stage. Our primary concern is the proper allocation of the risk of loss of such projects between the ratepayers and the shareholders. The Eascogas project was speculative and the potential benefit to ratepayers from LNG importation was remote, uncertain, and in the end, non-existent. Except for the costs associated with the converted storage facility, ratepayers should not bear, consistent with Natural, the costs of the Eascogas project. Because the costs of the converted facility are recoverable through Algonquin’s storage rate, they cannot be amortized in this proceeding. 31 FERC at 61,445. Accordingly, we deny Algonquin’s petition for review. DENIED. . In reviewing a pipeline’s application for a rate increase, the Commission must determine what the pipeline’s appropriate cost of service should be, assuming prudent management, for the rate must be sufficient to recover that cost. The cost of service, in turn, is the sum of the utility's operating expenses, depreciation expense, taxes and a reasonable return on the net value of the property devoted to public service. See generally, Garfield & Lovejoy, Public Utility Economics 56 (1964). . "MMBtu” is an abbreviation for one million Btu, and equals approximately one thousand cubic feet of gas. . Indeed, Algonquin has estimated that $47.6 million additional investment would have been required to bring the project up to speed for the original baseload LNG import project. Algonquin Application for Certificate of Public Convenience and Necessity, Exhibit K (filed Nov. 22, 1972, Dkt. No. CP73-139L . Algonquin did not seek rate base treatment of or a return on the expenses. See supra note 1. . There was testimony at the hearing on the rate increase that these costs included "legal fees, consultant fees, Algonquin's own costs, the airplane rides to Washington, hotel bills,” but Algonquin did not categorize or classify the expenditures in its presentation to the Commissioner: "It is not clear on this record what costs are included in the $1.5 million total, or what dockets were involved.” Algonquin Gas Transmission Co., 17 FERC ¶ 63,063 at 65,298 (1981). . See Natural Gas Pipeline Co., 27 FERC ¶ 61,201 (1984), reh’g denied, 28 FERC ¶ 61,020 (1984), aff'd, Natural Gas Pipeline Co. v. FERC, 765 F.2d 1155 (D.C.Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986). . The Commission formulated the test as follows: A pipeline claiming amortization of costs based on a standard of prudence should be prepared to demonstrate that it (rather than the corporate parent or corporate affiliates) was (i) the source of funds expended, and (ii) that the project, if successful, would have benefited its customers and consumers. The pipeline should also be prepared to present detailed evidence concerning (iii) the degree of planning which went into the project as well as any assumptions which were made prior to commitment of funds. In addition, the pipeline should present evidence concerning (iv) the factors which led to abandonment or failure of any project and (v) actions taken to avoid or mitigate resulting losses. In summary, the record must contain evidence which would be sufficient to enable the Commission to determine the reasonableness and prudence of the projects and the pipeline’s actions concerning them. 27 FERC at 61,381. . See supra note 7. . Storage itself, recall, was but a small element in the grand scheme of import, processing and distribution. See text accompanying supra note 2. . The Natural decision is not unique. The Commission treats the two industries differently in other rate-setting matters as well. See, e.g., Cities of Aitken, et al. v. FERC, 704 F.2d 1254, 1257 n. 4 (D.C.Cir.1982); Arkansas Louisiana Gas Co. v. FERC, 654 F.2d 435, 439 n. 8 (5th Cir.1981). . Stated more graphically, the total construction cost of the one completed Providence tank is estimated to be $17,600,000. Algonquin has disputed this figure, saying that it eventually was "higher.” Regardless of how much "higher” it may be, the Eascogas gas project would have required an estimated (by Algonquin) $47.6 million just to bring the Providence facility up to speed as a baseload LNG import facility. The constructed tank was to be one of three. And the Providence facility was only to store 35% of the imported LNG. Sixty-five percent of the project’s gas was to be stored at the terminal facilities in Staten Island, New York. These facilities, of course, were never constructed. Thus, this lone, bare storage tank, outfitted with inadequate or non-existent dock facilities, unloading lines, send-out facilities, and transmission lines, cannot by any stretch of the imagination be regarded as having progressed "beyond a preliminary stage.” See text accompanying supra note 2. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. ASHLAND OIL, INC. v. CARYL, TAX COMMISSIONER OF WEST VIRGINIA No. 88-421. Decided June 28, 1990 Per Curiam. Appellant Ashland Oil, Inc., a Kentucky corporation, is an integrated oil company that maintains business locations worldwide, including in West Virginia. During the years at issue here, West Virginia imposed a gross receipts tax on persons selling tangible property at wholesale. W. Va. Code § ll-13-2c (1983). Local manufacturers were exempt from the tax. §11-13-2. The West Virginia Tax Department conducted a detailed audit of Ashland’s tax returns for fiscal years ending September 1975 and 1976 and assessed a deficiency in tax payments of $181,313.22 for wholesale sales with West Virginia destinations. Ashland filed a timely petition for reassessment, primarily contending that the tax was unconstitutional as applied because there was an insufficient connection between its in-state activities and the transactions sought to be taxed. Juris. Statement 38a. After the State Tax Commissioner rejected Ashland’s petition, Ashland appealed to the Circuit Court of Kanawha County. While the appeal was pending, this Court decided Armco Inc. v. Hardesty, 467 U. S. 638 (1984), which invalidated the West Virginia tax scheme that had also been applied against Ashland as discriminatory against interstate commerce. The State Circuit Court granted Ashland summary judgment on the basis of our decision in Armco. The West Virginia Supreme Court of Appeals reversed, holding that Armco did not apply retroactively, and remanded for further proceedings. Relying on its state-law criteria for retroactivity, see Bradley v. Appalachian Power Co., 163 W. Va. 332, 266 S. E. 879 (1979), which it considered to “follow closely the analysis employed by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U. S. 97, 106 — [1]07 . . . (1971),” Ashland Oil, Inc. v. Rose, 177 W. Va. 20, 23, n. 6, 350 S. E. 2d 531, 534, n. 6 (1986), the court determined that Armco “represented a reversal of prior precedent, and that retroactive application of the Armco rule would cause severe hardship.” Id., at 25, 350 S. E. 2d, at 536. Accordingly, the court held that the State was not precluded from collecting the gross receipts taxes due for the fiscal years preceding the date of decision in Armco. Id., at 25-26, 350 S. E. 2d, at 536-537. We dismissed Ashland’s appeal of this decision for want of a final judgment. Ashland Oil, Inc. v. Rose, 481 U. S. 1025 (1987). On remand, the Circuit Court rejected Ashland’s remaining claim, and the State Supreme Court of Appeals denied Ash-land’s request for review. In its appeal to this Court, Ashland contends, among other claims, that the State Supreme Court of Appeals erred in determining that Armco applied prospectively only. Because “[t]he determination whether a constitutional decision of this Court is retroactive ... is a matter of federal law,” American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 177 (1990), we must examine the state court’s determination that Armco is not retroactive in light of our nonretroactivity doctrine. Applying the view of retroactivity delineated by either the dissent or the plurality in American Trucking Assns., we must reverse the state court’s decision. Under the reasoning of the dissent in American Trucking Assns., Armco applies retroactively to the taxes assessed against Ashland because constitutional decisions apply retroactively to all cases on direct review. American Trucking Assns., Inc. v. Smith, supra, at 212 (Stevens, J., dissenting). Under the approach of the plurality in American Trucking Assns., the same result obtains, because Armco fails to satisfy the first prong of the plurality’s test for determining nonretroactivity. See Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971), quoted in American Trucking Assns., Inc. v. Smith, supra, at 179 (plurality opinion). The first prong of the Chevron Oil test requires that “the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” 404 U. S., at 106-107 (citation omitted). In Armco, an Ohio corporation contested the applicability of West Virginia’s wholesale tax on its in-state sales of steel and wire rope. In ruling that the tax violated the Commerce Clause, the Court relied on Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 332, n. 12 (1977), which held that a State “may not discriminate between transactions on the basis of some interstate element.” On its face, West Virginia’s statutory scheme had just such a discriminatory effect, as it “provides that two companies selling tangible property at wholesale in West Virginia will be treated differently depending on whether the taxpayer conducts manufacturing in the State or out of it.” Armco, supra, at 642. The Court next considered the argument that the State’s wholesale tax exemption did not discriminate against out-of-state taxpayers because it served as compensation for the imposition of a heavy manufacturing tax on in-state taxpayers. In Maryland v. Louisiana, 451 U. S. 725 (1981), we held that a tax on an out-of-state event may be considered a nondiscriminatory compensation for a tax on an in-state event when the State “is attempting to impose a tax on a substantially equivalent event to assure uniform treatment of goods and materials to be consumed in the State.” Id., at 759. Applying this test to the West Virginia tax scheme, the Court determined that “manufacturing and wholesaling are not ‘substantially equivalent events’ such that the heavy-tax on in-state manufacturers can be said to compensate for the admittedly lighter burden placed on wholesalers from out of State.” Armco, supra, at 643. The Court distinguished Alaska v. Arctic Maid, 366 U. S. 199 (1961), and Caskey Baking Co. v. Virginia, 313 U. S. 117 (1941), two cases that predated the compensatory tax doctrine enunciated in Boston Stock Exchange and Maryland v. Louisiana. Armco, supra, at 643, n. 7. Finally, the Court rejected the argument that Armco should be required to prove the tax had actual discriminatory impact. Instead, the Court asserted that the “internal consistency” test, enunciated in Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 169 (1983), was applicable “where the allegation is that a tax on its face discriminates against interstate commerce.” Armco, supra, at 644. Armco unquestionably contributed to the development of our dormant Commerce Clause jurisprudence. See, e. g., Judson & Duffy, An Opportunity Missed: Armco, Inc. v. Hardesty, A Retreat from Economic Reality in Analysis of State Taxes, 87 W. Va. L. Rev. 723, 740-743 (1985) (suggesting that Armco’s invalidation of a facially discriminatory tax statute signaled a retreat from the economically realistic approach adopted by Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and a return to a more formalistic analysis); Lathrop, Armco — A Narrow and Puzzling Test for Discriminatory State Taxes Under the Commerce Clause, 63 Taxes 551, 558-559 (1985). In adopting the internal consistency test, Armco extended that doctrine beyond the context in which it had originated. See 467 U. S., at 648 (Rehnquist, J., dissenting). Nevertheless, Armco neither overturned established precedent nor decided “an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil, supra, at 106. To be sure, Armco paved the way for Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232 (1987), which arguably “overturn[ed] a lengthy list of settled decisions” and “revolutionize^] the law of state taxation,” id., at 257 (Scalia, J., concurring in part and dissenting in part), by extending the internal consistency test. Armco itself, however, was not revolutionary. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 303 (1987) (O’Con-nor, J., dissenting) (“At most, Armco may be read for the proposition that a tax that is facially discriminatory is unconstitutional if it is not ‘internally consistent’”). Because Armco did not overrule clear past precedent nor decide a wholly new issue of first impression, it does not meet the first prong of the Chevron Oil test. Armco thus applies retroactively under either the rule advocated by the plurality or the rule advocated by the dissent in American Trucking Assns., Inc. v. Smith. Accordingly, the State Supreme Court of Appeals erred in declining to apply Armco retroactively to determine the constitutionality of the State’s imposition of taxes on Ashland for the years at issue. The motion of the Committee on State Taxation of the Council of State Chambers of Commerce for leave to file a brief as ami-cus curiae is granted. We reverse the judgment of the State Circuit Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. The Court’s dismissal for want of a substantial federal question of Columbia Gas Transmission Corp. v. Rose, 459 U. S. 807 (1982), a case raising a nearly identical challenge to the state tax, see 467 U. S., at 644, n. 7, a year prior to deciding Armco, does not amount to the “overruling [of] clear past precedent on which litigants may have relied.” Chevron Oil Co. v. Huson, 404 U. S. 97, 106 (1971). The Court gives less deference to summary dispositions, see, e. g., Caban v. Mohammed, 441 U. S. 380, 390, n. 9 (1979), and it is unlikely that West Virginia relied upon the 1982 dismissal of Columbia Gas, given that the statute struck down in Armco had been in effect for more than 50 years. 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_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). AMERICAN METHYL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Motor Vehicle Manufacturers Association of the United States, Inc., Automobile Importers of America, Inc., United America Fuels, Inc., Intervenors. AMERICAN METHYL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Automobile Importers of America, Inc., Motor Vehicle Manufacturers Association of the United States, Inc., United American Fuels, Inc., Intervenors. Nos. 84-1204, 84-1277. United States Court of Appeals, District of Columbia Circuit. Argued 29 Oct. 1984. Decided 4 Dec. 1984. James W. Moorman, Washington, D.C., with whom Arnold B. Podgorsky and Scott N. Stone, Washington, D.C., were on the brief, for petitioner. David E. Dearing, Atty., Dept, of Justice, Washington, D.C., with whom Margaret N. Strand, Atty., Dept, of Justice, A. James Barnes, General Counsel, Ralph J. Colleli, Jr. and Gerald K. Gleason, Attys., E.P.A., Washington, D.C., were on the brief, for respondent. Charles H. Lockwood, II, Detroit, Mich., with whom William H. Crabtree, V. Mark Slywynsky, William L. Weber, Jr. and Thomas L. Arnett, Detroit, Mich., were on the brief of intervenors, Motor Vehicle Manufacturers Association of the United States, et al. R. Sarah Compton, Washington, D.C., was on the brief of intervenor, United American Fuels, Inc. Before WILKEY, WALD and SCALIA, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. WILKEY, Circuit Judge: In this expedited appeal petitioner American Methyl Corporation challenges the Environmental Protection Agency’s determination that it may reconsider, and if necessary revoke, American Methyl’s waiver to market a methanol/gasoline fuel blend sold as “Petrocoal.” We find that judicial review is appropriate at this time and reverse the agency’s decision that it may revoke waivers under section 211(f) of the Clean Air Act. The Administrator of the EPA is not disabled from regulating Petrocoal, but he may control or prohibit the fuel only through a proceeding complying with the substantive and procedural safeguards of section 211(c) of the Clean Air Act. We remand to the agency for further proceedings in accordance with our judgment and mandate issued 31 October 1984, 746 F.2d 907. I. Facts In 1980 American Methyl developed an additive to be used in a methanol/gasoline blend it called Petrocoal. Because methanol costs about forty cents per gallon, Petrocoal costs less than conventional gasoline. The relative inexpensiveness of Petrocoal and other alcohol/gasoline blends— to say nothing of the fact that they may be produced domestically, thereby reducing America’s reliance on foreign sources of petroleum — makes them attractive substitutes for gasoline. To market the Petrocoal additive, American Methyl sought a waiver from the Administrator of the Environmental Protection Agency. Under section 211(f)(1) of the Clean Air Act, it is unlawful for any manufacturer of any fuel or fuel additive to first introduce into commerce, or to increase the concentration in use, of, any fuel or fuel additive for general use in light duty motor vehicles... which is not substantially similar to any fuel or fuel additive utilized in the certification of any... [1975 or later model year vehicle or engine]. The impetus for this section was the fear that new fuel and new fuel additives, particularly an organomanganese compound known as MMT, would impair the performance of emission control devices in cars and light duty trucks. As Senator Muskie, chief sponsor of the Senate bill, put it: “This action was absolutely essential... [given] the alarming degrees to which MMT, and potentially hundreds of other additives, threaten our entire air pollution control program.” The Administrator of the EPA may waive the section 211(f)(1) prohibition if the manufacturer establishes that the fuel or additive “will not cause or contribute to a failure of any emission control device or system... to achieve compliance by the vehicle” with applicable emissions standards. American Methyl applied for a waiver on 20 February 1981, which the Administrator granted on 28 September of that year. American Methyl’s expenditures in developing and marketing Petrocoal totalled nearly one million dollars. Just over two months later, on 4 December 1981, a trade association of automobile manufacturers known as the Motor Vehicle Manufacturers Association filed a petition for administrative reconsideration of the Petrocoal waiver with EPA and another petition for review of the waiver in this court. Despite questions relating to the high alcohol content and ratio of methanol to cosolvents in Petrocoal, and the possible presence of a corrosive additive, CV-100, in certain test samples, the EPA did not act on MVMA’s petition. Over a year later, on 22 February 1983, MVMA filed a supplemental petition for reconsideration accompanied by new data purporting to show that Petrocoal caused automobiles to exceed limits.for evaporative emissions of hydrocarbons. Prompted by the recently compiled data in MVMA’s supplemental petition, the Administrator on 2 May 1983 published a notice in the Federal Register that he was “considering whether an administrative action is appropriat [sic] to modify or revoke the waiver under section 211(f) or to control or prohibit sale of Petrocoal under section 211(c), or whether the waiver should stand as granted.” Section 211(c), in contrast to section 211(f), imposes a number of substantive and procedural requirements the agency must satisfy before controlling or prohibiting a fuel or fuel additive. The Administrator’s notice elicited no response from American Methyl. Close to another year passed before the Administrator, on 16 March 1984, proposed to revoke the Petrocoal waiver; the decision was published in the Federal Register on 28 March 1984 — nearly two-and-a-half years after the Petrocoal waiver was initially approved. A principal basis of the Administrator’s decision was the new study reported by MVMA which claimed that Petrocoal caused automobiles to exceed limits on evaporative emissions of hydrocarbons. The notice stated that “[i]n reconsidering the Petrocoal waiver, the standard for review of the newly submitted and developed information is that prescribed in section 211(f)(4) of the Act.” Almost at the same time, on 27 March 1984, the parties to the appeals from approval of the original waiver in 1981 jointly moved to remand the record to EPA, so that the agency could take further administrative action with respect to the waiver. On 3 April this court granted the motion. One month later, however, on 3 May 1984, American Methyl formally requested the Administrator to rescind his proposal to revoke the Petrocoal waiver, on the ground that section 211(f) does not permit him to reconsider or revoke a waiver. In a letter dated 8 June 1984, the EPA General Counsel denied American Methyl’s request and asserted the agency’s inherent authority to revoke a waiver pursuant to section 211(f). He also explained that under section 211(f)(4) American Methyl would have to justify the validity of the Petrocoal waiver ab initio: Finally, with regard to your question as to which party has the burden of proof in these proceedings, the March 28, 1984, Federal Register notice clearly states that the standard of review to be used in the reconsideration proceeding will be the same as that used in evaluating waiver applications under section 211(f)(4). 49 Fed.Reg. 11885. Accordingly, the burden of establishing that Petrocoal meets the criteria for a valid waiver specified in section 211(f)(4), taking into account all available information, should be borne by American Methyl. The General Counsel confirmed, in a letter dated 22 June 1984, that “in keeping with my responsibilities as General Counsel” the 8 June letter, “expressed the Agency’s official position on these legal matters.” American Methyl filed a petition for review of EPA’s notice of proposed revocation on 25 May 1984, and of the 8 June letter on 2 July 1984. American Methyl claimed that its sales, which had been at a record high level before EPA threatened to revoke the Petrocoal waiver under section 211(f), had virtually ceased in a matter of months. On 13 July, American Methyl moved this court to stay a hearing on EPA’s proposal to revoke the Petrocoal waiver, which had been scheduled for 31 July. EPA opposed the motion and on 20 July moved to dismiss both petitions for review. A motions panel composed of two other judges of this court, by order dated 27 July, granted American Methyl’s motions to consolidate and to stay EPA’s proposed revocation proceeding and denied the agency’s motion to dismiss. This appeal presents the following three issues: first, is judicial review appropriate at this stage in the administrative process; second, should American Methyl be es-topped from challenging EPA’s assertion of revocation authority; and third, does section 211(f) of the Clean Air Act empower EPA to revoke the Petrocoal waiver? We find judicial review appropriate at this time and decline to estop American Methyl from challenging the agency’s interpretation of its statutory powers. We hold that the Administrator may not revoke the Petrocoal waiver pursuant to section 211(f), but may forbid the marketing of Petrocoal only pursuant to his authority to control or prohibit fuel and fuel additives under section 211(c). II. Analysis At stake in this procedural battle is the applicability of certain substantive and procedural safeguards to a proceeding in which the Environmental Protection Agency proposes to revoke American Methyl’s waiver to market Petrocoal. Under American Methyl’s interpretation of the Clean Air Act, EPA is authorized to control or prohibit the marketing of Petrocoal only under section 211(c); that section requires EPA to follow specific substantive and procedural guidelines. In contrast, EPA interprets section 211(f), under which the Petrocoal waiver was originally granted, to authorize revocation of the Petrocoal waiver irrespective of the guidelines specified in section 211(c); section 211(f), which doés not admit the existence of a revocation procedure, not surprisingly fails to regulate the conduct of such proceedings. If section 211(f) is construed as EPA would have it, no particular substantive or procedural requirements (apart from whatever procedural minima may be required by the Constitution’s due process clause) need be followed. A. Timing of Judicial Review EPA contends that review of the agency’s purported authority to revoke waivers is premature, on the grounds that the agency’s decision lacks finality and is not ripe for review and that American Methyl has failed to exhaust its administrative remedies. These points formed the basis of a motion to dismiss by EPA, which was considered and rejected by a motions panel of this court last July. There is no theoretical obstacle to our reconsidering the motions panel decision, which, as is usual, was rendered without oral argument and (since it was not dispositive of the appeal) with the participation of only two judges. Moreover, not all of the present panel agree with the motions panel’s disposition. However, given the circumstance that this agency proceeding has already been delayed several times by judicial action, and that the motions panel action has extended the present delay still further; and given what seems to us the clarity of the merits of the matter, which will ultimately require the agency’s action to be set aside if the present challenge is dismissed; we are not inclined to revisit the issues of finality, ripeness, and exhaustion, and without further consideration accept the motions panel’s determination as the law of this case. B. Equitable Estoppel Besides the asserted prematurity of judicial review, EPA also claims that American Methyl should be estopped from challenging its authority to revoke the Petro-coal waiver. According to the Administrator, equitable estoppel is warranted for two reasons. First, American Methyl waited over a year to challenge EPA’s revocation authority, which the agency first broached in its 2 May 1983 Federal Register notice and to which American Methyl did not object until 20 April 1984. Second, EPA points out that American Methyl joined with other parties to the 1981 appeals in a motion to remand to the agency the record compiled in the original waiver proceeding. In our view, American Methyl had no obligation to object until EPA made clear that it would proceed under section 211(f). Although the agency’s 2 May Federal Register notice mentioned revocation of the Petrocoal waiver under section 211(f) as one of three possibilities, we do not think American Methyl was required to object immediately to each item on the agency’s laundry-list of tentative options, even if that list is a short one, or forever hold its peace. The contrary holding would encourage appeals every time an agency announced that it was contemplating some arguably objectionable action. EPA did not elect to proceed under section 211(f) until 16 March 1984, in a Federal Register notice published on 28 March. This notice led to the 3 April remand in which American Methyl acquiesced. That acquiescence was a mistake, but American Methyl objected to the agency less than a month later. Any detriment attributable to that brief delay is de minimis considering the lengthy delays associated with this case. C. Scope of Judicial Review Section 307(d)(9) of the Clean Air Act authorizes this court to “reverse any... action [of the Administrator] found to be... (C) in excess of statutory... authority, or limitations, or short of statutory right.” In exercising this power, the Supreme Court has recently admonished us, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., to give “considerable weight” to the “executive department’s construction of a statutory scheme it is entrusted to administer.” Although “courts are the final authorities on issues of statutory construction,” “[i]f... the court determines [that] Congress has not directly addressed the precise question at issue,... the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Notwithstanding the great deference accorded an agency’s interpretation, “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” In this case, the legislative history is inconsistent with the standardless and open-ended authority to revoke waivers — to be asserted in this case nearly two-and-one-half years after the waiver was granted and based entirely on new evidence — which is sought by EPA. D. The Environmental Protection Agency’s Assertion of Inherent Revocation Authority Section 211(f) does not state whether waivers granted under subsection (f)(4) may be reconsidered and revoked. According to the legislative history, however, Congress contemplated regulation of fuels and fuel additives so waived into commerce only through proceedings under section 211(c); the legislative understanding thus rejects the implied revocation authority claimed by the EPA. Moreover, the interrelationship of subsections (f) and (c)— with subsection (f) regulating the “first” introduction of fuels and fuel additives into commerce and subsection (c) governing the control or prohibition of fuels and fuel additives already in commerce — gives effect to the requirements of each subsection and comports with Congress’s understanding of their interdependence. Finally, our recognition of authority under section 211(c) to regulate fuels and fuel additives in commerce, to the exclusion of an implied revocation authority under section 211(f), is consistent with past administrative practice and effectuates the objectives of the Clean Air Act. 1. The understanding of Congress A revealing paragraph in the committee report on the Senate bill suggests that the EPA administrator, once having waived a new fuel or fuel additive into commerce under section 211(f)(4), may not “revoke” a waiver under that same section: The committee was mindful that the Administrator could choose not to act on the waiver application within the 180 days provided for such action. If the Administrator does fail to act under subsection (d) [now subsection (f) ] to either grant, conditionally grant, or deny the waiver, it does not diminish the Administrator’s power to act against the fuel or fuel additive through the application of the provisions of subsection (c) of this section. Congress, according to this passage, understood that waivers granted by default could not be revoked; rather, the Administrator must initiate appropriate proceedings pursuant to section 211(c) if he wants to control or prohibit a fuel or fuel additive waived into commerce. EPA agrees with this reading of the quoted paragraph, but believes its logic is limited to waivers granted automatically after 180 days: There is absolutely no indication that the committee gave any thought to what remedies EPA might pursue if it appeared that its affirmative decision that the applicant had satisfied section 211(f)(4) had been based on serious factual mistakes. In contrast, waivers granted under the 180-day provision do not involve any affirmative decision that could be called into question or reconsidered later. EPA’s reading of the Senate Report, however, would have the perverse and presumably unintended effect of according the greatest deference to the least thought-out waivers. To permit revocation only of waivers granted after due consideration would inexplicably insulate from reconsideration waivers granted by operation of law and without any thought on the agency’s part. Waivers granted after the statutorily-prescribed determination that the fuel or fuel additive “will not cause or contribute to a failure of any emission control device or system... to achieve compliance... with emission standards” would be open to revocation at any time, based on any evidence, subject to no substantive or procedural safeguards. We cannot believe that Congress would countenance such an ill-conceived revisory power. We have held that agencies have an inherent power to correct their mistakes by reconsidering their decisions within the period available for taking an appeal. That period has long expired here. We need not consider what further inherent or implicit authority might exist in the abstract, since, in the present case, Congress has provided a mechanism for correcting error by authorizing under section 211(c) control or prohibition of fuels and fuel additives mistakenly waived into commerce under section 211(f). Thus, when Congress has provided a mechanism capable of rectifying mistaken actions, in this case by authorizing under section 211(c) control or prohibition of fuels and fuel additives mistakenly waived into commerce under section 211(f), it is not reasonable to infer authority to reconsider agency action. This “ ‘common sense’ ” observation recalls the maxim frequently invoked by the Supreme Court in construing statutes: expressio unius est exclusio alterius, that is, “mention of one thing implies exclusion of another thing.” As the Supreme Court stated in National Railroad Passenger Corporation v. National Association of Railroad Passengers (Amtrak), “ ‘[w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’ ” Thus, while Congress may have wanted the Administrator to correct his mistakes, it provided a mechanism sufficient to this task in section 211(c). It further understood this mechanism as the exclusive means by which he was to correct waivers mistakenly granted by default. We therefore see no need to imply authority under section 211(f) to reconsider waivers granted after due deliberation. What suffices to correct waivers mistakenly granted by default should also suffice to correct the (hopefully) far smaller proportion of waivers mistakenly granted after careful consideration. 2. Consistency with the statutory design The absence of implied revocation authority suggests a straightforward relationship between sections 211(c) and 211(f) which is consistent with the text of the statute and its apparent design: section 211(f) forbids the “first” introduction of new fuels and new fuel additives into commerce; section 211(c) provides for regulation of fuels already in commerce. Section 211(f)(1) on its face governs every “fuel or fuel additive... first introduce[d] into commerce” or whose concentration in any fuel or fuel additive is increased. Waivers of this prohibition under section 211(f)(4) are required only of these same fuels and fuel additives. By way of comparison, section 211(c) authorizes the Administrator to “control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive” in order to reduce harmful air pollution and to maintain the performance of emission control equipment. Construing section 211(f) not to authorize revocation of waivers thus leaves no lacuna in the statute: The Administrator is empowered to take action against an offending fuel or fuel additive under section 211(c) if it impairs the performance of pollution control equipment, which is precisely the evil an implied revocation authority would remedy. Furthermore, our unwillingness to imply revocation authority under section 211(f) is consistent with subsection (f)(4)’s requirement that the Administrator act on a waiver application within 180 days or be deemed to have granted the same. The implication of a standardless revocation authority, exercisable over an indefinite term, would in effect empower the Administrator to deny a waiver after the 180-day period had elapsed, thereby writing the 180-day time limit out of the statute. This revocation power would be exercised, moreover, without regard for the substantive and procedural safeguards afforded by section 211(c) — safeguards which the EPA concedes are applicable to fuels waived into commerce by default by virtue of the paragraph in the Senate Committee Report quoted above. The text and design of section 211 thus support our conclusion that Congress did not authorize the EPA Administrator to revoke waivers granted under section 211(f). 3. Admissions and Administrative Practice of the EPA Our unwillingness to wrest a standard-less and openended revocation authority from a silent statute is strengthened by examination of EPA’s own commitment to revocation authority — a commitment that has been qualified and tepid at best. a. Admissions before this Court In its brief and at oral argument, EPA conceded that a “correct” initial waiver could not be revoked and that any subsequent action against the fuel or fuel additive must perforce be taken in a proceeding under section 211(c). By “correct,” EPA apparently means that the initial waiver must have been warranted by the record compiled at the time the waiver was granted; only if “the original waiver decision was fundamentally wrong because the record, upon re-examination, actually did not support the necessary showings” may the waiver be revoked. Because there is no issue now before us as to the original administrative record justifying the Petrocoal waiver, however, revocation is unwarranted on the agency’s own view of the statute. In its notice of proposed revocation, EPA advanced three reasons for reconsidering the Petrocoal waiver. Two of the reasons appear to be make-weights by EPA’s own admission; the third is based on new evidence and reflects no deficiency in the agency’s original determination. Since this last reason seemingly prompted the Administrator’s second thoughts about Petrocoal, we consider it first. The chronology of events, EPA’s notice soliciting comments on whether to reconsider the Petrocoal waiver, and the agency’s notice of proposed revocation, all show that EPA’s principal concern is that cars using Petrocoal will exceed the limits imposed on evaporative emissions of hydrocarbons. Whatever the validity of this concern, it in no way impugns the validity of the original waiver — the Administrator’s concern is based, as he put it, on “new data.” As he stated in his Federal Register notice proposing revocation: “Based on information submitted in response to the May 2, 1983 Federal Register notice, and other information provided to the Agency since the grant of Petrocoal waiver, the Agency is today proposing to revoke that waiver.” The Administrator’s answer to American Methyl’s argument that expiration of the sixty-day period for judicial review precludes reconsideration, leaves no issue before us as to the adequacy of the original waiver. In a footnote, the Administrator pointed out that the sixty-day time limit was inapplicable because the information on evaporative emissions became available after the period had expired: Moreover, regardless of the merits of American Methyl’s argument with respect to MVMA’s original petition for reconsideration, the petition as supplemented and the comments in response to the May 2, 1983 Federal Register notice clearly present new information not available to the Agency during the comment period.... EPA’s primary reason for revoking American Methyl’s waiver does not relate to a defect in the original grant; thus, under EPA’s own interpretation of its powers, a revocation proceeding is not warranted in this case. EPA’s remaining two reasons for reconsidering the Petrocoal waiver, although they relate to the original waiver grant, are red herrings. In six trim paragraphs of his eight-page, triple-columned, single-spaced notice of proposed revocation, the Administrator now finds that he had no basis for approving the particular alcohol blend used in Petrocoal when he approved the waiver in 1981. Intervenors Motor Vehicle Manufacturers Association raised precisely this contention in their petition for administrative reconsideration filed on 4 December 1981, yet EPA took no action until presented with new data on evaporative emissions a year-and-a-half later. Tellingly, if the Administrator was concerned about the high alcohol content of Petrocoal, one would hardly expect him to dismiss out of hand American Methyl’s offer to reduce the percentage of alcohol. In the pages of the Federal Register the Administrator also professes concern over whether some test samples of Petrocoal contained the metallic additive CV-100. The presence of the additive in test samples but not in the fuel actually marketed could mean that Petrocoal at the pump fails to perform like the Petrocoal submitted for testing and approved by EPA. Yet in a letter denying American Methyl a hearing on this question, the agency declared that “the issue itself is not significant enough to warrant imposition of full trial-type hearing procedures” and adopted the analysis in American Methyl’s “memorandum of April 27,” which recognized that “the presence of CV-100 is at best an ancillary matter, unlikely to influence EPA’s final decision.” Because the Administrator points to no defects in his original approval of the Pe-trocoal waiver, he may not — according to his own interpretation of section 211(f) — reopen that waiver. He may proceed to regulate Petrocoal, if he thinks it necessary, under the powers conferred upon him by section 211(c). b. Prior administrative practice Independent of EPA’s admissions before this court, the agency’s prelitigation administrative practice belies its professed belief in an implied revocation authority. In seven years of administering section 211(f), American Methyl is the first manufacturer subjected to a revocation proceeding. In a prior case, when assertion of such authority would have been appropriate, the Administrator made no mention of it and instead relied on his power under section 211(c), a course of conduct exemplifying the understanding of section 211 we adopt today. A brief recitation of a proceeding involving the Sun Petroleum Products Company exposes the novelty of EPA’s construction of section 211. The Administrator conditioned the grant of Sun Petroleum’s waiver on disclosure of a proprietary additive’s chemical composition; he reserved the right to “revoke the waiver if, after receiving a petition for reconsideration, he determines that based on new data and information not available prior to the public disclosure of the proprietary additive’s chemical composition, the applicant is not entitled to the waiver.” General Motors subsequently filed a petition for reconsideration in the Sun Petroleum proceeding. Because the initial waiver provided for reconsideration, the Administrator applied the same standard of review that he applied to Sun Petroleum’s initial application. The Administrator denied General Motor’s petition and thereby removed the revocation contingency in Sun Petroleum’s waiver. Revealingly, in describing his remaining authority under the Clean Air Act, the Administrator said: This [waiver] does not preclude GM or others from continuing to research this question and developing sufficient date [sic] to support a future rulemaking in this area. I retain the authority under Section 211(c) of the Act to control or prohibit this blend or other alcohol/gasoline blends if new data are presented to warrant such action, Taking EPA’s past administrative practice as implementing the proper reading of section 211, the agency is without authority to revoke a noncontingent waiver, based on new evidence, nearly two-and-one-half years after its initial approval. Combined with Congress’s understanding of section 211 and the consistency of that understanding with the statutory design, the Sun Petroleum precedent constitutes a tacit admission that section 211(f) does not impliedly authorize the reconsideration of waivers in these circumstances. 4. Objectives of the Clean Air Act Our inquiry ends upon ascertaining that the Administrator’s reading of his authority under section 211(f) is contrary to what Congress intended; we note, however, that our interpretation furthers both procedural certainty as well as the public’s need for protection from harmful air pollution. By upholding Congress’s disinclination to grant EPA an unguided and open-ended power to revoke waivers, we ensure that entities subject to regulation under section 211 know what is expected of them. Protecting the legitimate expectations of fuel manufacturers comports with basic fairness; it also encourages investment in technology to create more efficient, less costly, and less polluting substitutes for conventional fuels. Like the sword suspended by a hair above the courtier Damocles, the Administrator’s claimed revocation authority would pose an ever-present threat to the marketing of new fuels, fostering great uncertainty in the business community. Technologically-advanced fuels could be taken off the market at any time, and neither specified hearing procedures nor rules of repose would cabin the Administrator’s discretion. This risk is hardly typical of commercial operations in a regulated economy. Moreover, because the manufacturer’s product is assumed undeserving of waiver, the presumption is against the continued existence of his business even if his waiver is challenged with evidence gathered years after heavy capital investment — an extraordinary risk for a commercial entity to bear, as agency counsel conceded at oral argument. Because a manufacturer could never know ex ante whether his product would be available for sale for a sufficient time to recoup his initial investment, he might well decide not to risk his capital in the first place. As a consequence, the public and this nation would suffer from lack of innovation in fuels and fuel additives, to the ultimate detriment of air quality and our national security. Besides providing procedural certainty, our opinion should also promote more accurate agency decisionmaking in the first instance. Under EPA’s reading of the waiver provision, the agency may permit a waiver to be granted by default after the passage of 180 days and revoke it later if some problem is brought to its attention. Under our reading of section 211(f)(4), however, the agency is motivated to consider a waiver request promptly and thoroughly because it cannot rely on the expedient of a post-grant revocation. The Administrator must do his job well and fast — if he makes a mistake, he must act against the fuel or fuel additive under section 211(c), with its admittedly more cumbersome but congressionally-mandated “procedural safegurads.” Our refusal to imply a power to revoke waivers parallels Congress’s insistence that EPA make a careful, albeit expeditious, decision in the first instance; subsequent proceedings based on new evidence, when substantial investments are at stake, understandably are subject to the more exacting substantive and procedural safeguards contained in section 211(c). III. Conclusion Finding an implied power to revoke waivers under section 211(f) of the Clean Air Act contrary to the intention of Congress and the design of that statute, we set aside the Administrator’s notice proposing to revoke the Petrocoal waiver and his notice announcing a public hearing thereon, and reverse the EPA General Counsel’s refusal to terminate the waiver proceeding brought pursuant to section 211(f). We remand this case for further proceedings under section 211(c), if the Administrator deems them desirable, in accordance with our judgment and mandate issued 31 October 1984. So Ordered. . Other parties to this appeal include United American Fuels, Inc., intervening on the side of American Methyl, and Motor Vehicle Manufacturers Association, intervening on the side of EPA. . Clean Air Act § 211(f), 42 U.S.C. § 7545(f) (1982). . Id. § 211(c), 42 U.S.C. § 7545(c). . Until 30 June 1982, American Methyl was incorporated under the name Anafuel Unlimited. For the sake of clarity, we refer to the corporation by its current name. . Affidavit of Ronald Eames, Appendix I at 84, 85 [hereinafter cited as App.]. . Clean Air Act § 211(f), 42 U.S.C. § 7545(f) (1982). . Id. § 211(f)(1), 42 U.S.C. § 7545(f)(1). . See H.R.Rep. No. 294, 95th Cong., 1st Sess. 308, reprinted in 1977 U.S.Code Cong. & Ad.News 1077, 1387; S.Rep. No. 127, 95th Cong., 1st Sess. 90 (1977), reprinted in 3 Congressional Research Serv., A Legislative History of the Clean Air Act Amendments of 1977, at 1371, 1464 (Comm.Print 1978) [hereinafter cited as Legislative History]. . 123 Cong.Rec. 18,034 (1977) (statement of Sen. Muskie), reprinted in 3 Legislative History, supra note 8, at 759. . Clean Air Act § 211(f)(4), 42 U.S.C. § 7545(f)(4) (1982). . See 46 Fed.Reg. 21,695 (1981) (notice of application for Petrocoal waiver). . See id. at 48,975 (1981) (notice of grant of Petrocoal waiver). The waiver provides that the percentage of total alcohol in Petrocoal cannot exceed fifteen percent, that the ratio of methanol to cosolvents (other alcohols) cannot exceed 6.5 to 1, that the finished fuel must meet the standards of the American Society for Testing and Materials, and that Petrocoal must comply with EPA regulations applicable to unleaded gasoline. See id. at 48,976. . See Affidavit of Ronald Eames, App. I at 84, 86. . See App. II at 30 (excerpts from Motor Vehicle Manufacturers Association’s petition for reconsideration of Petrocoal waiver). . See Motor Vehicle Mfrs. Ass’n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. filed 4 Dec. 1981) (petition for review). General Motors Corporation also filed a petition for review. . See App. II at 30, 35. . EPA conceded the validity of the first two objections later in the litigation. See Brief for Respondent at 15, Motor Vehicle Mfrs. Ass’n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. remanded to agency 3 Apr. 1984). . See App. II at 38, 42-47 (excerpts from Motor Vehicle Manufacturers Association’s supplemental petition for reconsideration of Petrocoal waiver). . 48 Fed.Reg. 19,779, 19,780 (1983) (request for comments on petition for reconsideration of Petrocoal waiver). . See Clean Air Act § 211(c), 42 U.S.C. § 7545(c) (1982). Before the Administrator may “control or prohibit” a fuel or fuel additive under § 211(c), he must among other things (1) consider all pertinent scientific, medical, or economic data; (2) prepare a cost/benefit analysis (for regulation protecting emission controls); (3) formally declare that the fuel or fuel additive causes or contributes to harmful air pollution or would significantly impair the effective functioning of emission control systems; and (4) formally declare that regulation would not result in use of more dangerous additives. See id. . See 49 Fed.Reg. 11,879, 11,885 (1984) (notice of reconsideration and proposed revocation of Petrocoal waiver). . See id. at 11,880-81. . See id. at 11,885. . See Joint Motion for Remand of the Record, Motor Vehicle Mfrs. Ass'n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. remanded to agency 3 Apr. 1984). . See Motor Vehicle Mfrs. Ass'n v. Environmental Protection Agency, Nos. 81-2276 & 81-2279 (D.C.Cir. 3 Apr.1984) (order granting joint motion to remand). . See App. I at 31, 32. . See id. at 63, 63-66. . Id. at 69 (footnote omitted). . See id. at 75, 75 n. 1. . See American Methyl Corp. v. Environmental Protection Agency, No. 84-1277 (D.C.Cir. filed 2 July 1984); American Methyl Corp. v. Environmental Protection Agency, No. 84-1204 (D.C.Cir. filed 25 May 1984). . See Affidavit of Ronald Eames, App. I at 84, 87-89. Mr. Eames, Chief Executive Officer of American Methyl, attributes the precipitous decline in sales to EPA’s assertion of the right to revoke the Petro 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_jurisdiction	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". CANAL ELECTRIC COMPANY, et al., Plaintiffs, Appellees, v. WESTINGHOUSE ELECTRIC COMPANY, Defendant, Appellee, Commonwealth Electric Company, et al., Plaintiffs, Appellants. CANAL ELECTRIC COMPANY, et al., Plaintiffs, Appellees, v. WESTINGHOUSE ELECTRIC COMPANY, Defendant, Appellant. CANAL ELECTRIC COMPANY, et al., Plaintiffs, Appellants, v. WESTINGHOUSE ELECTRIC COMPANY, Defendant, Appellee. Nos. 91-1432, 91-1433 and 91-1504. United States Court of Appeals, First Circuit. Heard Jan. 7, 1992. Decided Aug. 31, 1992. Memorandum and Order on Denial of Rehearing Oct. 16, 1992. Sander A. Rikleen with whom Franklin C. Huntington, IV, Widett, Slater & Goldman, P.C., Mark F. Bruckmann, Wendy B. Millman and Mendes & Mount were on briefs, for Canal Elec. Co., Commonwealth Elec. Co., Cambridge Elec. Light Co. and Montaup Elec. Co. Edward P. Leibensperger with whom Neil P. Motenko, Brian D. Ahern and Nutter, McClennen & Fish were on brief, for Westinghouse Elec. Corp. Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and CYR, Circuit Judge. BREYER, Chief Judge. The consolidated appeals in this diversity case arise out of the discovery, between 1983 and 1985, of tiny cracks (called “fretting”) in the turbine blades of a Canal Electric Company generator. Canal Electric Company sued the firm that had promised to service the generator, Westinghouse Electric Corporation, claiming that Westinghouse had breached both the generator’s service and equipment warranties. Several Canal customers (the third-party plaintiffs) also sued Westinghouse, claiming that the cracks harmed them, by disrupting Canal’s operations, and thereby bringing about higher electricity prices. The two law suits met different fates. The district court ordered a directed verdict against the third-party plaintiffs. Although it also dismissed some of Canal’s claims, it permitted one of those claims — a claim for certain repair costs — to proceed to trial 756 F.Supp. 620. The jury awarded Canal $380,000 plus interest. Westinghouse now appeals the judgment in Canal’s favor. Canal has filed a cross-appeal. And, the third-party plaintiffs appeal the directed verdict against them. We reverse the judgment in Canal’s favor, and we otherwise affirm the determinations of the district court. I Background A The Basic Facts The basic facts in this case are not significantly disputed. They include the following: 1. In early 1983 Westinghouse promised Canal it would inspect and clean a generator, which Westinghouse had sold Canal fifteen years earlier. 2. The basic contract consisted of two purchase orders (dated February 24 and March 4, 1983), both of which cross-referenced (and thereby incorporated) a standard Westinghouse “selling policy” document. That document included an equipment and service warranty and various liability limitations. 3. In late February 1983 Canal found small cracks (the “fretting”), in some of the generator’s turbine blades. Westinghouse replaced the cracked blades in March 1983. 4. In July 1983, only a few months later, the blades broke; they “completely sheared off”. Westinghouse replaced the new blades. The replacement job took four months. In November 1983 the generator was “ready for service” and went back on-line. 5. In April 1985, seventeen months later, Canal took the generator off-line for a routine inspection. During the inspection, Westinghouse found fretting in the same blades it had installed between July and November 1983. 6. Working together with Canal, Westinghouse eventually found ways to overcome the problem that was causing fretting in the turbine blades. But, the necessary studies and repairs were costly. The two companies disagreed about how to split the costs. Canal wanted Westinghouse to pay; Westinghouse thought they should split the costs. B Proceedings Below We shall summarize, simplifying significantly, the lengthy proceedings of this case, while emphasizing matters relevant on this appeal. In their lawsuits, Canal and its customers basically claimed (1) that Westinghouse breached its equipment and service warranties through its failure to replace properly the blades that “sheared off” in July 1983, and (2) that Westinghouse breached its service warranty by failing properly to prevent the blade fretting that occurred between November 1983 and April 1985. The plaintiffs initially focused on the first of these failures, the one in July 1983, seeking to recover for losses suffered during the subsequent generator outage between July and November 1983. The contract’s “selling policy” contained two provisions that posed serious obstacles to the plaintiffs' July 1983 warranty claim. First, the warranty provision itself, while warranting the promised work for “one year” against “any defects in workmanship and material,” also said simply that, “should any defect appear” during that time, Westinghouse “shall correct such nonconformity, by repairing or, at its option, replacing the defective work.” Second, a “limitation of liability” provision said that Westinghouse “shall not be liable” for any “special, indirect, incidental or consequential damages whatsoever,” that the “remedies... set forth herein are exclusive,” and that “the total liability of Westinghouse... shall not exceed the price set forth for the work in the purchase order....” These provisions threatened claims based on the July 1983 blade failure because Westinghouse had already refunded to Canal the purchase price of the blades that had then “sheared off.” Westinghouse also had replaced the defective blades largely free of charge. It thus appeared to have satisfied its promise under the warranties to “repair or replace” defective parts, and seemed also to have reached the maximum liability ceiling set forth by the equipment warranty’s limitation clause. Further, the damages the plaintiffs suffered during the July-November 1983 outage were basically “consequential” damages, such as lost profits and overtime expenses. The “limitation of liability” provision strictly barred recovery for such damages. Faced with these obstacles, Canal and its customers argued that the “limitation of liability” provision was unenforceable. They claimed that Westinghouse, after the July 1983 blade failure, did not “repair[ ] or replace[ ]... the defective work” on time. Rather, it delayed too long in making proper repairs. It thereby failed to live up to the exclusive remedy in the warranty. And, that failure (for various legal reasons), they said, invalidated the “limitation of liability” provision elsewhere in the contract. The district court, uncertain of the legal validity of this argument, certified to the Massachusetts Supreme Judicial Court the following question: Assuming that the Westinghouse exclusive remedy [in its warranty] failed [because Westinghouse failed to replace the sheared-off blades promptly]... is the provision entitled Limitation of Liability enforceable under the circumstances alleged in this case? The Supreme Judicial Court answered that the limitation clause was still enforceable. The district court consequently dismissed Canal’s equipment warranty claims. And, for other reasons (which we shall discuss in Part IV below), it dismissed all the claims of Canal’s customers, the third-party plaintiffs. Following the ruling of the Supreme Judicial Court, Canal reformulated, and then proceeded with, its remaining, “service warranty” claim. It argued that the fretting that occurred between November 1983 and April 1985 (fretting that was discovered in 1985) violated the warranty against defects in workmanship. It sought as damages, not the “consequential” damages flowing from the July-November 1983 generator down-time, but, rather, those exceptional costs involved in the April 1985 outage, including those of diagnosing, and curing, the fretting problem. As we have said, the district court submitted Canal’s service warranty claim to the jury. The jury awarded Canal $380,000 plus interest. Westinghouse appeals this award; Canal cross appeals; and the third-party plaintiffs appeal as well. II The Westinghouse Appeal The Westinghouse appeal turns upon the meaning of a key word in the warranty itself, the word “appear.” The warranty says that the defect must “appear” within one year. Westinghouse argues that the fretting in the blades installed in November 1983 did not “appear” within the next year and that no reasonable juror could find to the contrary. After reading the record, we conclude that Westinghouse is correct. A Service Warranty Background The Warranty Provision. The warranty provision says: Westinghouse warrants that the work performed... will be free of defects in workmanship... beginning with the start of work and ending one year after the unit is... ready for service. Should any failure to conform to this warranty appear within the warranty period, Westinghouse shall correct such nonconformity, by repairing- or, at its option, replacing the defective work. (Emphasis added). This promise amounts to a one-year warranty. See, e.g., Barkley Clark and Christopher Smith, Law of Product Warranties II 11.04, at 11-31 (1984) (“[M]any products are expressly warranted ‘against defects in material and workmanship for one year.’ In such a warranty, the duration is one year_”). And, we can read these two sentences only together, as offering protection against defects that “appear” within the one-year time period. Facts related to the Service Warranty claim. The key facts relevant to the Westinghouse appeal, in addition to those mentioned earlier, include the following: The generator’s service warranty was for one year. That year began to run in November 1983. It ended in November 1984. During the seventeen months between November 1983 and April 1985, the generator was continuously “on-line.” No one stopped the generator or opened it to inspect the blades. No one noticed anything unusual about the generator. In April 1985 Canal took the generator “off-line” for a routine inspection. Then, during that inspection, Westinghouse found fretting in the replacement blades (the “Row 11 blades”) that had been installed in November. At trial Canal’s expert witness and Westinghouse’s expert witness agreed about the nature of “fretting.” When two metal surfaces come into contact (say, where the metal blades in Row 11 of Canal’s turbine touched the metal core of the turbine), tiny submicroscopic irregularities at the contact points may squash. The metal begins to smear or form small particles of debris, which may oxidize. The metal then forms microscopic cracks, invisible to the human eye. The cracks become larger, eventually becoming visible, and continue to grow to the point where the metal breaks. Vibration of some sort likely causes this process to begin and to continue.. The two experts also agreed that, in April 1985, when the metal blades in Row 11 of Canal’s turbine were removed from their settings, the fretting had progressed to the point that one could see with the naked eye both tiny cracks and dark oxide. The two experts disagreed, however, about when the “fretting” began, and when the cracks and oxidizing would have become visible to a competent observer. Canal’s expert said that, in his opinion, the fretting process began soon after the turbine went back on-line in November 1983. The cracks (or oxidizing) would have progressed beyond the microscopic, and become visible, soon thereafter. Westinghouse’s expert, however, said that, once “vibratory stress” begins to cause fretting, the fretting develops rather quickly, with the entire process (depending on how strong the vibration and how long it lasts) taking “hours or days, not weeks or months or years.” This fact suggests that the fretting could have begun, or become visible, only a short time before' it was discovered in April 1985. The expert concluded that, “one cannot tell between November of ’83 and April of ’85 actually which portion of the total time period did the fretting really start.” Given the conflicting views of the experts, the jury might have adopted any one of three reasonable conclusions: 1) that the fretting began, and progressed to the point of visibility, during the year November 1983/November 1984; or 2) that the fretting began during that year but remained invisible to the naked eye until after that year ended; or 3) that the fretting did not even begin until after that year ended. The Jury Instruction. The district court, in effect, defined the word “appear” to mean “exist.” The court told the jury that, if “fretting existed within the year,... then you may find... a breach of warranty.” Since “fretting” begins with tiny invisible smears of metal, followed by cracks too small for even a competent observer to see with the naked eye, this instruction permitted the jury to find a breach of warranty even if the jury (accepting much of what Westinghouse’s expert said) believed that no visible crack appeared until after November 1984. The jury, as we have said, found a breach of warranty. The Dispositive Issue. In order to decide whether the record entitles Westinghouse to a new trial or to a directed verdict, we must decide the meaning of the word “appear” in the warranty. Does that word, as the district court believed, simply mean “exist?” If so, the verdict in Canal’s favor must stand. Does that word, as Westinghouse argues, mean something like “is perceived,” or “is noticed?” If so, we must reverse the verdict, for the parties concede that no one actually noticed, found, or discovered the fretting during the warranty year. Or, lastly, does the word invoke some alternative legal interpretation, one that falls somewhere between these two extremes? The facts relevant to this legal decision are not in dispute. Neither party suggests that extrinsic evidence will help interpret this contractual term. We cannot find the type of fact-related ambiguity as to which a jury’s verdict might be relevant. We therefore interpret the words of the contract as a matter of law. Restatement (Second) of Contracts § 212(2) (1981) (“A question of interpretation... is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence. Otherwise a question of interpretation of an integrated agreement is to be determined as a question of law.”); Robert Indus., Inc. v. Spence, 362 Mass. 751, 291 N.E.2d 407, 409-10 (1973) (“The interpretation of an integrated agreement is a matter of law on which we are not bound by the trial judge’s conclusions unless the problem of interpretation is affected by findings of fact.”); Ober v. National Casualty Co., 318 Mass. 27, 60 N.E.2d 90, 91 (1945); Atwood v. Boston, 310 Mass. 70, 37 N.E.2d 131, 134 (1941); USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass.App.Ct. 108, 546 N.E.2d 888, 893 (1989); Thomas v. Christensen, 12 Mass.App. 169, 422 N.E.2d 472, 476 (1981). See also Hamed v. Fadili, 408 Mass. 100, 556 N.E.2d 1020, 1024 (1990). Cf. Corbin on Contracts §§ 554, 554B (1960 & Supp. 1991). B The Meaning of “Appear” We have examined the many volumes of record and the lengthy briefs, searching for evidence that the parties intended some special meaning when using the word “appear” in this warranty. We have found none. That being so, we have considered ordinary English, the context (repairing a complex machine), and warranty-related case law. We conclude that, for purposes of this warranty, a defect “appears” during the warranty period if either 1) it is in fact perceived during that period, or 2) it would have been perceived during the course of an inspection that a reasonable user would normally have made during that period. We feel compelled to go beyond the first clause of this definition (actual perception), and add the second clause for two reasons. First, in ordinary English, “appear,” while normally referring to the fact of perception (“be in sight”), may also refer to the capacity to be perceived (“be visible,” where visible means “capable of being seen”). Webster’s Third New International Dictionary 2557 (3d ed. 1976). It makes sense, at least sometimes, to talk about the full moon “appearing” above the cabin whose inhabitants do not perceive it, for they are fast asleep. Second, in the context of warranty repairs, it would seem unfair, perhaps irrational, to hold unprotected the warranty holder who, for some special reason, fails to look at the large crack that, say, splits in two his boat’s hull, or his ear’s engine. At least sometimes, it makes sense to say that such a crack “appeared in the boat’s hull,” or “appeared in the ear’s engine,” even if the boat’s or car’s owner did not in fact look at the boat (say, the boat was in dry dock for the winter) or the car (say, the car was being stored in a garage). At the same time, we cannot go to the opposite extreme and hold that a defect “appears” simply if it “exists.” To define the word “appear” so broadly in the warranty context would often make warranty time-limits ineffective. As the Second Circuit explained in an automobile warranty case virtually all product failures discovered in automobiles after expiration of the warranty can be attributed to a “latent defect” that existed at the time of sále or during the term of the warranty. All parts will wear out sooner or later and thus have a limited effective life.... A rule that would make failure of a part actionable based on such “knowledge” would render meaningless time/mileage limitations in warranty coverage. Abraham v. Volkswagen of America, Inc., 795 F.2d 238, 250 (2d Cir.1986). See also Walsh v. Ford Motor Co., 588 F.Supp. 1513, 1536 (D.D.C.1984). Nor can we say that a defect “appears” so long as any inspection, no matter how complex, no matter how unusual, during the warranty period would have turned up signs. One can often imagine some kind of special inspection that might have been, but was not, made during the warranty period, say (to use an exaggerated example for illustrative purposes) the inspection of a boat’s hull by a brigade of wood-specialist Ph.D.’s armed with electron microscopes, that might have uncovered a special weakness that did not, in fact, become a problem until many years later. To insist upon liability for unobserved defects that only such heroic (and hypothetical) inspections may have found would extend a warranty’s life well beyond its specified time period, eroding its intended liability-limiting language. It therefore is not surprising that case law almost uniformly holds that time-limited warranties do not protect buyers against hidden defects — defects that may exist before, but typically are not discovered until after, the expiration of the warranty period. Cf. Black’s Law Dictionary 883 (6th ed. 1990) (latent defect is one “not apparent on [the] face of [the] goods” and which “could not be discovered by reasonable and customary observation or inspection”). Some of the cases turn specifically on the fact that the warranty-period had expired by the time the defect was discovered, irrespective of whether or not the warranties impose a “defect must appear” or “defect must be discovered” precondition. See, e.g., Abraham, 795 F.2d at 250 (rejecting claim that 12 month warranty covers “latent,” undiscovered, defects); To-kar v. Crestwood Imports, Inc., 177 Ill.App.3d 422, 126 Ill.Dec. 697, 699, 703-04, 532 N.E.2d 382, 384, 388-89 (1988) (same); Kodiak Elec. Ass’n v. Delaval Turbine, Inc., 694 P.2d 150, 157 (Alaska 1984) (one-year repair and equipment warranty for electric generator was not breached when “defect did not make its presence known until the time of the [later] generator failure”). See also Special Project, Article Two Warranties in Commercial Transactions: An Update, 72 Cornell L.Rev. 1159, 1261 (1987) (“[time] limitations effectively exclude warranties covering non-conformities that a buyer could not reasonably discover within the prescribed time period”). Other cases involve a warranty that itself specifies that the defect must’ be “found” or “discovered” or the like;' hence they, more easily, reach the same.conclusion. Boston Helicopter Charter, Inc. v. Agusta Aviation Corp., 767 F.Supp. 363, 374 & n. 11 (D.Mass.1991); Hart Eng’g Co. v. FMC Corp, 593 F.Supp. 1471, 1474 (D.R.I.1984); Walsh, 588 F.Supp. at 1536; Taterka v. Ford Motor Co., 86 Wis.2d 140, 271 N.W.2d 653, 657 (1978); Broe v. Oneonta Sales Co., 100 Misc.2d 1099, 420 N.Y.S.2d 436, 437 (Sup.Ct.1978); Moulton v. Ford Motor Co., 13 U.C.C.Rep.Serv. 55, 59 (Tenn. Ct.App.1973), aff'd in relevant part, 511 S.W.2d 690, 694 (Tenn.), cert. denied, 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 109 (1974). But cf. Alberti v. General Motors Corp., 600 F.Supp. 1026, 1027-28 (D.D.C. 1985) (permitting recovery for latent defect under special circumstances); Lidstrand v. Silvercrest Indus., 28 Wash.App. 359, 623 P.2d 710, 714 (1981) (same). To define “appear” as less than “exist” is consistent with the dictionary definitions of the term. For example, Webster’s Third New International Dictionary defines “appear,” in significant part, as “come into view,” “reveal to an observer,” and “become discovered.” Only in one element of its sixth listing does the dictionary define “appear” as “come into existence.” Webster’s Third New International Dictionary 103 (3d ed. 1976). See also The Oxford English Dictionary 566 (2d ed. 1989). For these reasons, we have concluded that we can stretch the scope of the word “appear” only slightly, covering a relatively narrow category of defects that are not actually observed. We have noted that Black’s Law Dictionary defines “apparent defect” as a “defectf ] in goods which can be discovered by simple inspection,” Black’s Law Dictionary 96 (6th ed. 1990), and it defines a “patent defect” as one that is “plainly visible or which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence.” Black’s Law Dictionary 1126 (6th ed. 1990) (emphasis added). In light of these definitions, and the factors discussed previously, we have concluded that the term “appear” can encompass defects that were not, in fact, perceived, but only if they would have been perceived during a reasonable inspection that would normally have been made during the period the warranty is in effect. We intentionally specify that the inspection must be one that normally is made during the time period. A car owner who takes apart the engine each year to search for tiny cracks, or a boat owner who examines the hull each year with magnifying equipment, has not necessarily made an “unreasonable” or “imprudent” inspection, but he has made the kind of inspection that one does not “normally” make on an annual basis. To permit the hypothetical, theoretical, possibility of abnormal, or unusual, annual inspections to trigger warranty liability would undercut the considerations, supported by policy and case law, that we have discussed above. To limit the “reasonable” inspection to those that are “normal” is consistent with those considerations. And, the result seems consistent with common sense. In respect to a one-year warranty, a large crack in an engine block, plainly visible as soon as one lifts the car’s hood, would “appear,” within the year, even if the car’s owner did not, in fact, lift the hood and see the crack. One normally (and reasonably) will lift the car's hood many times each year. But, tiny unseen cracks, inside a car's engine block, would not “appear.” One does not normally look inside a car’s engine block every year. What is normal, and what is not normal, of course, may differ where a ten-year, rather than a one-year, warranty is at issue. C Applying the Interpretation Applying our legal interpretation of the word “appear” in the contract to the facts of this case, we must reverse the verdict and order a directed verdict for Westinghouse. The parties agree that no one, in fact, perceived any fretting during the warranty year November 1983/November 1984. No one stopped the generator to look for fretting, nor did the generator make any special noise, specially vibrate, or give any other outward sign. The experts disagreed over whether the Row 11 blade fretting was visible prior to November 1984, when the warranty period expired. Viewing the evidence favorably to Canal, the jury at most might have believed that an “off-line” blade inspection by a competent observer during the warranty period would have uncovered small, but visible cracks. On this factual assumption, the unseen cracks would have been seen had a reasonably competent observer inspected the Row 11 blades during the year in question. But is an inspection of this sort the kind of inspection that would normally have been made during the year? Having examined the record, we cannot find sufficient evidence to permit a jury to give an affirmative answer. The trial record makes few references to the timing of Canal’s inspections. In one of those references, one of Canal’s witnesses, James P. Bailey, indicated that the company does not ordinarily examine the blades every year. Indeed, Bailey suggested that the company had to conduct a special-inspection of the blades in 1986, just one year after a similar inspection in April 1985. The 1986 inspection, said Bailey, “was to look at Row 11.... Because we wouldn’t have had any other reason to, we don’t normally open that machine once a yea,r, we have no other reason to open it but to look at Row 11.” App. 1245 (emphasis added). This point is underscored by Canal in its own appellate briefs, where the company declared that, “There was also testimony that it would not have been reasonable to inspect Row 11 before it was inspected in April 1985.” (emphasis added). Other testimony suggests that Canal may have opened up the entire football-field length turbine each year; see App. 1013; but, it does not suggest that Canal would normally take apart and examine each part of the turbine every year; nor that Canal would annually inspect the base of the turbine blades where the fretting occurred. Photos in the record, together with the totality of testimony on the matter, would not permit the jury to conclude that inspecting the blades at their roots was normally an annual affair. Canal does not argue the contrary. Indeed, Canal itself confirmed, in earlier proceedings before the district court, that it ordinarily did not examine the turbine blades on a yearly basis. For example, in its memorandum opposing Westinghouse’s motion for directed verdict, Canal said that given the enormous number of parts in turbines and the difficulty and expense in dismantling them, it is impractical to require that buyers inspect every new part purchased from Westinghouse on an annual basis to preserve their warranty rights. Such an inspection is simply not feasible. In oral arguments before the district court, Canal underscored this view: Because the turbine is such a large item — and in fact it’s quite large... there’s a whole building for it — every portion of the turbine is not inspected during every annual outage. Some portions get inspected this year, some portions next year. In fact, the portion in which the blades in question... are housed was not getting looked at every year during the time period that brought us to the event in question. And, later in this hearing, counsel explained, This is not like a spark plug in your car which you change every year or two. the expectation is that these have quite a long life.... This is not a part that you had to look at annually and check for changeover annually. In fact, until we began having problems with [the blades], it was not looked at but every two or three years because of the expectation of long life and reliability. We must conclude: 1) The defect was not found or discovered during the warranty period. 2) Canal’s failure to stop the turbine and inspect the roots of the Row 11 blades during 1984 was not abnormal or extraordinary. Hence, the record would not permit a finding that the defect “appeared,” even in an expanded sense of that word. D Canal’s Final Arguments In oral argument before this court, Canal implied that, had the district court ruled that the term “appear” involved the concept of reasonable and normal inspections, Canal would have presented evidence that an inspection of the Row 11 blades during the year would have been an appropriate, reasonable, and, under the circumstances, normal thing to do. Canal’s counsel told us that: the turbine is maintained on an annual basis. We do one [unit] in the fall and one in the spring. This turbine [unit] gets done every Spring. In the Spring of 1984 there was a meeting in which a discussion took place — this did not show up at trial... but there was a discussion with Westinghouse in the Spring of 1984, ‘should we go in and look at these blades?’ Which would clearly have been within the year. And Westinghouse said, ‘we don’t see any reason to do so if you don’t see any reason to do so.’ As a result of [the district judge’s] ruling that he was going to treat appearance as coming into existence, we didn’t then have to put in evidence that it was reasonable or unreasonable to look within the year. Canal’s contention — that it conducted yearly maintenance inspections of the turbine unit — is consistent with the record evidence and Canal’s previous statements. While Canal may have inspected the unit on an annual basis, Canal did not claim that it examined every component of the turbine during each outage, or that it annually took apart the blades in each row to examine their base. Indeed, as Canal states in its appellate brief, such a comprehensive inspection process would normally have been “unreasonable.” Canal’s argument seems to be that, given the recurring problems in the blades, Westinghouse should have recommended an inspection of the turbine blades in 1984. In that case, it would have noticed the fretting before the expiration of the warranty period. The problem with this argument is simply that it comes too late. Canal did not pursue at trial a claim that Westinghouse violated its warranty by failing to recommend a special inspection. Nor did it produce evidence designed to show that annual examination of the base of the Row 11 blades would have been normal under the circumstances. A party must choose the theories on which it will try its case. Canal asked the court for the instruction defining “appear” as “exist.” It made clear it would try the case on this theory. It knew that Westinghouse opposed its position and that Westinghouse considered that Canal’s proposed instruction improperly included “latent” defects. Both parties mentioned the matter of possible inspections in that context. Canal had notice of the problem. It might have proffered evidence about the timing of inspections. But, it did not do so. And, it cannot now ask for a retrial to put in evidence it did not proffer, but might have offered had it known that the instruction that it sought was incorrect. A party cannot, in this sense, “have it both ways;” otherwise, as a purely practical matter, it would be difficult for courts effectively to resolve disputes within a reasonable time. Moreover, having reviewed the entire record in this hard fought, long, and expensive litigation, we believe that it is fair, both to Canal and to Westinghouse, to review the evidentiary record as it was, not as it might have been, created. Ill Canal’s Cross-Appeal Canal appeals several different district court determinations. Some of these concern the “breach of warranty” claim just discussed; others concern additional claims that Canal raised in its own law suit. A Unconscionability Canal’s cross-appeal challenges, in part, the district court’s dismissal of its earlier, different, claim, the claim that Westinghouse breached its equipment warranty entered into in 1983. As we have previously pointed out, Westinghouse found blade fretting in late February 1983, and in July 1983 the blades “sheared off.” Westinghouse replaced the blades each time, completing its work in November 1983. Canal, in its complaint, said that the blades Westinghouse installed in March violated its equipment warranty. Canal asked largely for “consequential” damages caused by the four-month delay in installing new blades, between July and November, after the March-installed blades failed. The district court dismissed this claim on the ground that the equipment warranty expressly limited Westinghouse’s damage liability, obliging Westinghouse simply to refund the purchase price of the defective blades — which the parties concede Westinghouse did {see Appendix). Canal appeals this dismissal on the ground that the limitation of liability in the contract is invalid because it is “unconscionable.” Mass.Gen.L. ch. 106, § 2-302 (general unconscionability provision); § 2-719(3) (“[consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable”); § 2-719(3), Code Comment (U.C.C. provision authorizing limitations on remedy “is consistent with the provisions of the code... with respect to unconscionable contracts or clauses”). Canal argues that the Massachusetts Supreme Judicial Court did not fully decide the matter, since the certified question came with a stipulated assumption of “no unconscionability.” In evaluating Canal’s argument, we have examined Canal’s specific contract-related reasons for claiming that the liability limitation is “unconscionable.” We have divided them into three categories: a) inadequate contractual remedies, b) unfair allocation of harms, and c) unfair Westinghouse negotiating behavior. We shall consider each category separately. First, Canal points out that the liability limitation means that Westinghouse need do no more than issue a credit for the defective blades, leaving Canal to bear alone the potentially severe harm that defective equipment might produce. Canal says that the limitation is therefore invalid, for it leaves one of the contracting parties (namely, Canal) without “minimum adequate remedies.” Mass.Gen.L. ch. 106, § 2-719, U.C.C.Code Comment 1 (“[I]t is the very essence of a sales contract that at least minimum adequate remedies be available.”). The fatal flaw in this argument derives from the fact that the district court’s certified question required the Supreme Judicial Court to express a view about this very matter. And the Supreme Judicial Court rejected this aspect of Canal’s argument, upholding the limitation clause at least with respect to its exclusion of consequential damages. Canal Elec. Co. v. Westinghouse Elec. Corp., Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RALPH PRINTING AND LITHOGRAPHING COMPANY, Respondent. No. 18570. United States Court of Appeals Eighth Circuit. July 6, 1967. Nancy M. Sherman, Atty., N.L.R.B., for petitioner and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Anthony J. Oba-dal, Atty. for N.L.R.B., were on the brief. John E. Tate of Nelson, Harding, Ack-lie, Leonard & Tate, Omaha, Neb., for respondent and filed brief. Before MATTHES, BLACKMUN and MEHAFFY, Circuit Judges. MATTHES, Circuit Judge. This case is before the Court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168 (1959), for enforcement of its order issued June 6, 1966 against Respondent Ralph Printing and Lithographing Company. The Board’s decision and order are reported at 158 N.L.R.B. No. 128. No jurisdictional issue is presented. We modify the order as hereinafter set out and grant enforcement of it as so modified. Respondent, a Nebraska corporation, is engaged in the business of commercial printing and lithographing in Omaha, Nebraska. During September, 1964 the Lithographers and Photoengravers International Union, AFL-CIO, Local 38 L, began a union organizational drive among Respondent’s employees. On the evening of September 18, 1964 the Union representative, Melford L. Galbraith, held a meeting with the employees and distributed authorization cards to them. Galbraith explained that in signing the authorization cards the employees were authorizing the Union to act as their collective bargaining representative, that the cards would enable him to demand recognition, and that if recognition were granted the Union would proceed to negotiate with Respondent. Nineteen authorization cards were signed by the employees on September 18th. During the next ten days Galbraith obtained a total of 24 authorization cards in a unit later found to comprise a total of 26 employees. Armed with his authorization cards Galbraith conferred with Roy and John Ralph, Respondent’s President and Vice-President, and requested recognition for the Union. He asserted that his Union held signed authorization cards from a substantial majority of Respondent’s employees, numbering over 90%. Roy Ralph refused the request for recognition and expressed a desire to proceed only through a Board election. Galbraith offered to submit the authorization cards to a mutually acceptable third party to determine the Union’s majority status, but Ralph declined the offer and reaffirmed his intention to await the outcome of a Board election. Galbraith informed the Ralphs that his Union represented all of Respondent’s production and maintenance employees, including pressmen. Mr. John Ralph denied the purport of this conversation and stated that Galbraith did not specify the composition of the unit he was seeking to represent, and thus left him in doubt as to whether office-clericals, supervisors and certain other employees were included in the unit sought to be represented. On the same day, after the conference, Galbraith' filed a petition with the National Labor Relations Board requesting a representation election among Respondent’s employees. On October 29th, a pre-election hearing was held and on November 20th, the Regional Director ordered an election to be conducted on January 7, 1965. Subsequently on December 24, 1964 Respondent’s employees, whose normal quitting time was 4:00 P.M., worked through their half-hour lunch period and were released at 1:00 P.M. in the afternoon without loss of pay. Similarly on December 31, 1964 the employees were released at 3:00 P.M., one hour early. Several employees disclosed that Respondent had no set policy on the amount of time off granted on a day preceding a holiday, but that such time off fluctuated with the amount of work orders that had to be filled. The past practice of Respondent, however, as revealed by the testimony of employees Ray Angus and Virgil DeMars, was usually to grant approximately an hour off before Christmas, and little or no time off prior to New Years. On January 4, 1965, three days before the scheduled election, Supervisor Donald Higgins approached Ray Angus, a lino-type operator employed by Respondent for ten years, at his work station and inquired whether Angus intended to attend the union meeting that night. Upon being advised that Angus would attend, Higgins purportedly asked Angus so advise him as to who was present at the meeting. Angus further testified that Higgins requested him to ask certain questions at the meeting relating to the Union’s contract with another printing company. Angus further asserted that on January 6th Higgins thanked him for asking several questions at the meeting. Higgins categorically denied having any such conversation with Angus. The following morning, the Secretary-Treasurer of the Company, Sylvia Fitch Middleton, showed Angus a pink scratch pad on which were written the names of twelve employees who had attended the union meeting the previous evening. Angus testified that Miss Fitch asked him to verify the correctness of the list, and he replied that it was correct. Miss Fitch also inquired of Angus whether an employee, John Dormer, or any of the “new help” attended the union meeting. Subsequently, Angus told three of his fellow employees that the Company had a list of those who had attended the meeting. Miss Fitch repudiated the existence of any such list and denied questioning any employee with reference to his or his coworker’s union activities. On January 7th the Board conducted an election among Respondent’s eligible maintenance and production employees. The Union lost by a narrow margin of 13 to 12. Angus’ undisputed testimony, corroborated in substance by Virgil De-Mars, was to the effect that immediately following the balloting, Vice-President John Ralph happily announced the results of the election, and thanked those employees who had confidence in voting for the Company. Ralph asserted there would be no changes within thirty days and that it would take that long before there would be any improvements. On January 12th, the Union filed timely objections to conduct affecting results of the election. During the pendency of these objections Respondent’s employees received a notice on February 12th that they would receive a ten cent per hour increase in pay effective February 19th. On the above facts the Board found that Respondent violated Section 8(a) (1) of the Act by coercively interrogating employee Angus about his union activities, by requesting him to report on the union activities of his fellow employees, and by creating the impression of surveillance among the employees. The Board also found that Respondent violated Section 8(a) (1) by granting its employees benefits prior to the election and by promising and granting them benefits immediately thereafter, during the period in which objections to the election could be filed. The Board further concluded that Respondent violated Section 8(a) (5) and (1) by refusing to bargain with the Union on or after October 5th, at which time the Union represented a majority of its employees. The Board ordered Respondent to cease and desist from the unfair labor practices found, and, upon request, to recognize and bargain collectively with the Union. SECTION 8(a) (1) — INTERROGATION AND IMPRESSION OF SURVEILLANCE. Contrary to Petitioner’s intimation, the record in this case does not disclose a background of open hostility to the Union by the Respondent. These alleged Section 8(a) (1) violations are based almost exclusively on the testimony of a single employee, Ray Angus, whose testimony was controverted throughout by several of Respondent’s witnesses. We are mindful, however, that questions of credibility are primarily a matter for Board determinations and not for this Court. N. L. R. B. v. Comfort, Inc., 365 F.2d 867, 871 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th Cir. 1963). Accepting Angus’ version of the situation, on a single occasion one of Respondent’s supervisors, Donald M. Higgins, inquired of Angus’ union activities, and asked him to report to the Company on the union activities of his co-workers. An employer’s interrogation of its employees, however, is not unlawful per se, unless conducted with such anti union animus as to be coercive in nature. Higgins’ interrogation of Angus, not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce in its employees a fear of reprisal for lawfully pursuing their union activities. Banner Biscuit Company v. N. L. R. B., 356 F.2d 765, 769-70 (8th Cir. 1966) ; N. L. R. B. v. Ritchie Manufacturing Company, 354 F.2d 90, 99 (8th Cir. 1965). Cf. N. L. R. B. v. Morris Novelty Co., Inc., 378 F.2d 1000 (8th Cir. June 19, 1967). The circumstances surrounding Higgins’ interrogation negative any inference of coercion. The questioning of Angus was not part of any employer plan of systematic intimidation of its employees, but at best was isolated and casual in nature. The questioning, moreover, was totally devoid of any coercive statements, which are usually characteristic of an unlawful interrogation. This isolated form of interrogation, we believe, was insufficient to violate the rights of Respondent’s employees under Section 8(a) (1). In summary, we believe that the Board’s finding of a coercive interrogation is not supported by substantial evidence in the record. We are not prepared, however, to accord similar protection for the more aggravated demeanor of Miss Fitch. Her conduct, we feel, inhibited the employees’ pursuit of their union activities. Miss Fitch attempted to verify on the Company’s behalf the names of those employees who had attended a previous union meeting. The evidence relating to this charge fully supports the finding that Angus and the three other employees to whom he disclosed the existence of the list of Union adherents were left with the clear impression that Respondent was keeping its employees’ union activities under surveillance. An impression of surveillance might well instill in the employee a fear of reprisal from the employer. Such conduct is violative of Section 8(a) (1) as it could inhibit the right of employees to pursue their union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960). SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS. The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize. National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We are convinced, however, that the benefits conferred by Respondent here fall far short of the economic benefits condemned in Exchange Parts Co., supra. In the latter case, one of the economic benefits found to be a violation of the Act was an extra “floating holiday,” which would be taken on the employees’ respective birthdays. In questioning the propriety of such benefits, the Court stated: “We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not ‘interfere with’ the protected right to organize. “ * * * We have no doubt that it [Section 8(a) (1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” 375 U.S. at 409, 84 S.Ct. at 459. The record here, however, does not permit the inference that Respondent intentionally deviated from an established practice as to pre-holiday time off for the purpose of inducing its employees to vote against the Union. On the contrary the testimony of several employees and management representatives unequivocally established that Respondent had no established policy as to the allotment of pre-holiday time off but that such time off was proportionate to its workload. It was customary to release the employees approximately an hour ahead of time. In view of Respondent’s flexible policy, we do not consider the additional two and one-half hours on December 24th and the oiie hour on December 31st materially significant. Rather, we think, it falls within the “de minimis” rule and does not violate Section 8(a) (1). Respondent’s post-election benefits, however, stand on a somewhat different footing. Immediately following the favorable results of the election, before the Union had an opportunity to file its objections to the election, Respondent, through its Vice-President, John Ralph, suggested to its employees that there would be “improvements” after thirty days. In the interim, on January 18th, the Union filed its unfair labor practice charges with the Board to upset the election. Despite the pendency of these objections, however, Respondent initiated its improvements in the form •of a ten cent per hour wage increase. In light of Respondent’s pre-election conduct, the likelihood that the Union would file objections to the conduct of the election cannot be considered remote. The impact of Respondent’s well timed wage increase is clear, for it would tend to seriously impinge on the employees’ choice of a bargaining representative in the event the Board •ordered a second election. The announcement of the wage increase and the increase itself were clearly tantamount to an expression of approval by the Company of the Union’s defeat. The timeliness of Respondent’s announced benefits as well as their unconditional nature warranted the inference that further benefits would be forthcoming if there were a continued rejection of unionization. We cannot ignore the effect on the employees’ freedom of choice which such post-election benefits may have, particularly where a second election is ordered. For these reasons we feel that such benefits plainly violate Section 8 (a) (1). Cedartown Yarn Mills, Inc., 84 N.L.R.B. 1, 8, enforced per curiam, Cedartown Yarn Mills, Inc. v. N. L. R. B. 180 F.2d 579 (5th Cir. 1950); The Hills Brothers Company, 67 N.L.R.B. 1249, 1255, enforced per curiam, N. L. R. B. v. Hills Bros. Co., 161 F.2d 179 (5th Cir. 1947); Northwest Engineering Company, 148 N.L.R.B. 1136, 1144-45 (1964). See also Amalgamated Clothing Workers v. N. L. R. B., 345 F.2d 264, 266 (2d Cir. 1965) (half a day off without loss of pay to celebrate defeat of union). SECTION 8(a) (5) — REFUSAL TO BARGAIN. The Board found that Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union as the authorized collective bargaining representative of a majority of its employees. The Respondent, despite the uncontradicted evidence that the Union represented an overwhelming majority of its employees, persistently demanded that the representation question be determined through the process of a Board conducted election. Respondent, however, has no such vested right to an election. Where a labor organization has been designated by a majority of the eligible employees as their representative in an appropriate bargaining unit, the employer must recognize and bargain with such an organization, irrespective of whether or not it has been certified by the Board as the result of an election. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); Colson Corporation v. N. L. R. B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). If, however, there had been substantial evidence to show that Respondent doubted in good faith that the Union represented a majority of its employees in the appropriate unit, it could justifiably refuse to recognize and bargain with the Union, until the latter’s claim had been established through the procedure of a Board election. N. L. R. B. v. Comfort, Inc., supra. Respondent predicates its good faith doubt of the Union’s majority status on the fact that it was unaware of the composition of the bargaining unit. Respondent’s Vice-President, John Ralph, did express some misgivings as to whether Clyde Nelson and Donald Higgins, supervisory employees of Respondent, were excluded or included in the unit the Union sought to represent. Ralph also stated that Galbraith did not express to him whether he intended to include clerical employees, truck drivers, and shipping employees within the unit. The fact remains, however, that even apart from these disputed employees, the Union still represented a substantial majority of Respondent’s employees at all times. Counsel for Respondent in the trial stipulated that the Union represented a majority of Respondent’s employees at the time of the request for recognition, though he would not specify the extent of the majority. At no time, moreover, did either of the Ralphs verbally express any doubt as to the Union’s majority status. They refused to submit the authorization cards to a mutually acceptable third party to verify the Union’s claims. Their failure to give the Union any opportunity to substantiate its claims of representation is inconsistent with the assertion of good faith. In view of the Union’s substantial majority and Respondent’s subsequent conduct, the Board was justified in concluding that Respondent withheld recognition, not as the result of a good faith doubt, but in order to undermine support for the Union and dissipate the very majority which it contended was-in doubt. THE REMEDY In the final analysis, however, Respondent contends that, even assuming that the Board’s findings and conclusions are supported by substantial evidence, the Board nevertheless exceeded its powers in issuing a bargaining order, rather than directing a second election. Petitioner, on the other hand, asserts that a second election is not an appropriate remedy, in that experience has demonstrated that a majority of rerun elections favor the party who has interfered with the original election. In view of our holding that Respondent has failed to recognize and bargain with the Union in good faith at a time when it represented a majority of Respondent’s employees, we find no alternative but to enforce the Board’s-remedy for the 8(a) (5) violation. A ruling, suggested by Respondent, that would condition the Board’s - bargaining order on the outcome of a second election, would be inconsistent with our determination of a 8(a) (5) violation. In summary, we hold: (1) the Board’s findings that Respondent violated Section 8(a) (1) by interrogation, and by granting pre-election benefits are not supported by substantial evidence; (2) the Board’s findings that Respondent violated Section 8(a) (1) by creating the impression of surveillance and by granting post-election benefits are supported by substantial evidence; (3) the Board’s finding that Respondent violated Section 8(a) (5) by refusing to bargain is supported by substantial evidence. The Board’s findings and order are accordingly modified, and as modified, enforcement is granted. . Local 38 L was later redesignated as Local 203 as a result of a merger with Local 43 P of the same Union. . On November 20, 1964 the Board’s Regional Director found the appropriate collective bargaining unit to consist of all of Respondent’s production and maintenance employees, a total of 26 employees. . In N. L. R. B. v. Ambox, Incorporated, 357 F.2d 138, 141 (5th Cir. 1966), the Company’s grant of benefits while objections to the election were pending was not considered to violate Section 8(a) (1). The Court made it clear, however, that the increases were to be granted retroactively as soon as the election objections were cleared up, and the promise of benefits was not made dependent on the outcome of the election proceeding. . The evidence disclosed that if the disputed truck drivers, janitors, receiving or shipping clerks had been excluded, the appropriate unit would then have numbered twenty-three instead of twenty-six employees. 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_casetyp2_geniss	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations). 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". James M. MARX, Plaintiff, Appellant, v. KELLY, HART & HALLMAN, P.C., d/b/a Kelly, Appleman, Hart and Hallman, et al., Defendants, Appellees. No. 90-1733. United States Court of Appeals, First Circuit. Heard Dec. 4, 1990. Decided March 26, 1991. Bernard Bressler with whom Robert Brantl and Bressler, Amery & Rothenberg, New York City, were on brief, for plaintiff, appellant. Jeffrey B. Rudman with whom Peter J. Macdonald, Heidi E. Brieger and Hale and Dorr, Boston, Mass., were on brief, for defendants, appellees Hale and Dorr. Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. The only issue presented in this appeal is whether the district court abused its discretion in dismissing appellant’s complaint for failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(b)(2)(C). Having reviewed the record in this case, we conclude that the judgment of the district court did not constitute an abuse of discretion. We therefore affirm. I. In December, 1988, James M. Marx filed a lawsuit in the Superior Court of New Jersey, naming as defendants two law firms, Kelly, Appleman, Hart and Hallman (located in Texas), and Hale and Dorr, a Boston, Massachusetts, firm. Marx alleged that the law firms had incorrectly advised him regarding a stock acquisition, thereby causing him substantial financial losses. The defendants removed the case to the United States District Court for the District of New Jersey, where they then moved to dismiss it pursuant to Fed.R. Civ.P. 12(b)(2) for lack of in personam jurisdiction. On January 22, 1990, the district court allowed the motion. Marx’s appeal from that dismissal is currently pending before the Third Circuit. On December 29, 1989, while defendants’ motion to dismiss was still pending in the New Jersey district court, Marx filed the present action against the same two defendants in the United States District Court for the District of Massachusetts. Marx says that his purpose in bringing the present action was to toll the statute of limitations in Massachusetts, thus protecting against the possibility that his action in the District of New Jersey would ultimately be dismissed. Marx’s complaint in the proceeding below stated, therefore, that, [tjhis same action is pending in the U.S. District Court of New Jersey and this Complaint is a protective filing as as [sic] a result of a pending Motion to Dismiss by the defendants for lack of personal jurisdiction. Marx states in his brief on appeal that he “intended to litigate this matter exclusively in New Jersey.” Hale and Dorr filed an answer to the complaint in the District of Massachusetts case on January 16, 1990, and, three weeks later, served its first request for production of documents. In response, Marx did nothing. He neither produced the requested documents, objected to the request, nor sought an extension of time from the district court within which to act. Nor did Marx move, at that time, to stay the case. On March 15th, after Marx had failed to respond in any way to the request within the thirty day period prescribed by Fed.R. Civ.P. 34(b), Hale and Dorr moved to compel production of the documents, pursuant to Fed.R.Civ.P. 37(a)(2). The following day, Marx dismissed his attorney, retained new counsel and notified the district court of the change. At that time, Marx filed a cross-motion to stay the proceedings in the District of Massachusetts, pending resolution of his appeal in the Third Circuit. On April 30, 1990, the district court denied Marx’s motion for a stay and granted Hale and Dorr’s motion to compel. The district court's order required Marx to serve a response to defendant Hale and Dorr's document request and to produce all requested documents on or before the close of business on Friday, 5/18/90. (emphasis in original). The district court also stated as part of this order, Any objections have been waived by failure to serve objections within the time provided by Rule 34(b), Fed.R.Civ.P. Two days before May 18, 1990 — the production deadline established by the court— Marx’s lawyer notified Hale and Dorr by letter that the documents would be produced in New York City “on and after May 18, 1990” (emphasis supplied). The next day, one day before the deadline established by the court’s order to produce, appellant filed another motion, seeking clarification of the court’s order and requesting the court to shift the location of production from Boston to New York City. On May 18, 1990, the final day for production under the court’s order, Marx served on Hale and Dorr a document entitled “Response to Hale and Dorr’s First Request for Production of Documents,” stating that “[t]he documents called for in the Request are available for inspection and copying [in New York City].” However, attached to the response was an appendix identifying over five hundred documents that were being withheld on the grounds of attorney-client privilege. No elaboration or explanation of the privilege claim was provided. On June 8th, Hale and Dorr moved to dismiss the action pursuant to Fed.R.Civ.P. 37(b)(2)(C) for failure to comply with discovery requests. Marx filed an opposition to the motion to dismiss. On June 26th, the district court allowed the motion and dismissed the complaint “by reason of deliberate failure to obey the Order of the Court.” II. The choice of sanctions for failing to comply with an order of the district court lies within the sound discretion of the court. Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988). Absent an abuse of discretion, this court will not disturb a district court’s dismissal of an action for failure of the plaintiff to comply with court orders. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976). The question on appeal is not whether the appellate court would, under the same circumstances, have imposed a more lenient penalty, but whether the district court abused its discretion in imposing the sanction it did. Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072, 1075 (1st Cir.1990). A plaintiff who appeals from a Rule 37 dismissal bears a heavy burden of demonstrating that the district judge was clearly not justified. Damiani v. Rhode Island Hospital, 704 F.2d 12, 17 (1st Cir.1983). To be sure, the district court’s sanction must be "just.” See Fed.R.Civ.P. 37(b); Velazquez-Rivera, 920 F.2d at 1075. This circuit has stated that “[dismissal with prejudice ‘is a harsh sanction’ which runs counter to our ‘strong policy favoring the disposition of cases on the merits.’ ” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (citation omitted). Nonetheless, the Supreme Court has made it plain that the availability of dismissal as a sanction is essential to deter and penalize egregious conduct. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. We believe that the plaintiff’s conduct evidenced a deliberate pattern of delay and disregard for court procedures that was sufficiently egregious to incur the sanction of dismissal. It is evident, and Marx concedes, that he did not wish to proceed in the District of Massachusetts while his New Jersey case was alive. Marx apparently held the mistaken belief that he could simply ignore the former case while he pursued the more conveniently located one in New Jersey. It is true that Marx’s Massachusetts complaint styled that action “a protective filing,” but simply by affixing that label Marx could not exempt himself from duties prescribed in the Federal Rules. Marx’s first dereliction was to ignore defendant’s production request. Under Rule 34(b), he was required to comply with the request or file appropriate objections within 30 days. By doing nothing, Marx engaged in conduct that, without more, was sanctionable. See Fed.R.Civ.P. 37(d). After Hale and Dorr moved to compel production, Marx did retain new counsel and move for a stay. On April 30, however, the district court denied the motion for stay, and granted Hale and Dorr’s motion to compel. The court also ruled on April 30th that, “Any objections have been waived by failure to serve objections within the time provided by Rule 34(b).” By indicating that “any objections” were waived, this ruling raised an obvious red flag to Marx and his counsel relative to Marx’s future right to withhold documents on grounds of privilege. Nonetheless, Marx persisted in foot-dragging. Although the district court’s order gave him three weeks to comply with Hale and Dorr’s production request. Marx waited until two days before the final deadline to notify Hale and Dorr that the documents would be made available in New York “on and after May 18, 1990.” When Hale and Dorr objected to this arrangement, Marx sought “clarification” from the court with respect to the location for the production of documents by filing a “Motion for Clarification” on May 17,1990, the day before the deadline established by the court’s order. Neither the May 16th letter to Hale and Dorr, nor the May 17th motion filed with the court, sought clarification with respect to whether — in light of the April 30th order — Marx would be allowed to withhold privileged documents. Nor did they assert an objection to producing privileged documents, or give any indication that it was Marx’s intention to withhold documents based on an assertion of privilege. On May 18, 1990, the final day for the production of the documents, at 5:25 p.m., Marx served via fax a “Response” to Hale and Dorr’s document request. Marx’s response advised Hale and Dorr that the requested documents would be available for inspection and copying at the offices of Marx’s counsel in New York City and listed, for the first time, over five hundred documents that Marx was withholding on grounds of privilege. Obviously regarding this move as the final straw in what had become a series of delaying tactics, the district court granted Hale and Dorr’s motion to dismiss Marx’s lawsuit under Rule 37(b), citing Marx’s “deliberate failure to obey the Order of the Court.” Marx argues that, by making some documents available to Hale and Dorr and by listing the documents withheld on the basis of privilege, he fully complied with Hale and Dorr’s request and the district court’s production order. In making this argument, Marx relies on Hale and Dorr’s explicit exclusion of privileged material from three out of the firm’s thirty-seven requests for specific documents. This explicit exclusion in these three requests should, he argues, be interpreted as limiting to nonprivileged materials the scope of all documentary discovery requests. In support of this theory, Marx also points to Hale and Dorr’s general instruction requesting that he list all documents withheld on the basis of privilege. He contends that, properly construed, Hale and Dorr’s discovery request provided expressly for the holding back of privileged materials; therefore, he had no obligation either to produce the privileged documents or even to explain or justify his assertion of privilege. Privileged documents were, he contends, simply outside the scope of the request. Marx’s above argument fails to recognize, however, that the documentary requests and instructions were all drafted at the beginning of the discovery process, before Hale and Dorr could know that Marx was not going to respond to its request in a timely and proper way. The fact that, pri- or to plaintiff’s derelictions, defendant might have anticipated the withholding of documents pursuant to a proper claim of privilege, did not allow Marx to short-circuit Rule 34(b) procedures for the raising of objections. Nor can Hale and Dorr be deemed to have surrendered in advance the benefit of the district court’s subsequent order of April 30th, ruling that all objections had been waived. Fed.R.Civ.P. 26(b) itself limits the scope of discovery to “any matter, not privileged, involved in the pending action ...” (emphasis supplied), but this limit is not self-executing. The burden is on the party asserting a privilege to do so in a timely and proper manner and to establish the existence and applicability of the privilege. Privilege claims may be raised as an objection to a specific documentary production request. See Fed.R. Civ.P. 34(b). But the assertion of privilege must be timely and must also be accompanied by sufficient information to allow the court to rule intelligently on the privilege claim. See id.; Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 541 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985). Here, plaintiff’s assertion of privilege was untimely; ran counter to the court’s April 30 waiver order; and was totally uninformative. In context, it gave the appearance of a further stalling tactic rather than a good faith effort to comply with the Rules and the court’s April 30 order. Marx argues that the district court’s order of April 30th exceeded the court’s authority insofar as it determined that all objections had been waived on account of Marx’s failure to serve objections within the 30-day period. In particular, Marx says that such an order is invalid if deemed to foreclose later objections on grounds of the attorney-client privilege. We disagree. Fed.R.Civ.P. 34(b) requires that a party upon whom a request for discovery is served respond within thirty days, either stating its willingness to comply or registering its objections. If the responding party fails to make a timely objection, or fails to state the reason for an objection, he may be held to have waived any or all of his objections. See 4A Moore’s Federal Practice 1134.05[2] (citing Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, and Krewson v. City of Quincy, 120 F.R.D. 6 (D.Mass.1988)). Marx not only failed to register any objection to the discovery request within the appropriate period following Hale and Dorr’s initial request, he subsequently failed to object within the time period defined by the court’s order compelling discovery, nor, within that period, did he seek relief from the court’s waiver order. III. In light of his original failure to respond to the production request and the court’s subsequent statement that any objections had been waived, we hold that Marx withheld the privileged documents at his own peril. The district court’s conclusion that Marx’s tardy assertion of privilege was but one more stalling tactic, taken in bad faith and without intention of compliance, was not unreasonable. We hold that the district court acted within its discretion in imposing dismissal as the sanction. Affirmed. Costs to appellees. . In an order dated June 11, 1990, the district court allowed in part the plaintiffs motion for clarification, outlining three possible locations for production, the offices of Hale and Dorr in Boston, the offices of Marx’s local counsel in Boston, or the offices of Marx's counsel in New York City. If the documents were to be produced in New York City, Marx would be required to reimburse the travel expenses of Hale and Dorr attorneys. By the time this order was issued, however, the focus of the dispute had shifted from the place of production to the issue of privilege. Objecting to the withholding of the allegedly privileged documents, Hale & Dorr apparently did not travel to New York to inspect the documents produced. . Rule 34(b) provides that, following a production request, the party served must, within 30 days, state "that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.” By not so objecting on privilege grounds to requests deemed objectionable, Marx failed to follow the normal avenue the Federal Rules provide for raising the issue of privilege. . Three of Hale and Dorr’s specific requests for documents pertained to meetings and conversations between Marx and his lawyers concerning the Net Operating Losses of Ztel. These included the phrase “to the extent not privileged” or referred to “nonprivileged documents.” . We add that Hale and Dorr’s mention in three of the thirty-seven document requests of the possible exclusion of privileged materials could hardly relieve Marx of the burden of asserting the privilege properly with respect to the other thirty-four requests that did not mention any such possible exclusion. Indeed, that Hale and Dorr explicitly excluded privileged material from only three of its specific requests suggests that it sought, unless otherwise indicated, all other responsive documents. . If the forced waiver order were deemed excessive, Marx was under a duty to challenge the order directly, by moving to have it modified, rather than by simply ignoring and violating it as he did. See, e.g., Vakalis v. Shawmut Corp., 925 F.2d 34 (1st Cir.1991) (upholding the district court’s sanction of dismissal when party chose to ignore rather than challenge directly the court's order). Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations)? 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_genapel2	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 second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. UNITED STATES v. ROHLEDER, et al. (two cases). Nos. 9093, 9123. Circuit Court of Appeals, Third Circuit. Argued May 23, 1946. Decided Aug. 15, 1946. J. Gregory Bruce, of Washington, D. C., (John F. Sonnett, Asst. Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., both of Philadelphia, Pa., and Joseph M. Friedman, Chief, War Frauds Civil Section, of Washington, D. C., on the brief), for the United States. James F. Masterson, of Philadelphia, Pa., (G. Fred Di Bona, of Philadelphia, Pa., on the brief), for defendants. Before MARIS, GOODRICH and Mc-LAUGHLIN, Circuit Judges. McLaughlin, circuit judge. This is a civil suit brought by the United States under Sections 3490-3492 inclusive, and Section 5438 of the Revised Statutes, 31 U.S.C.A. §§ 231-233, 18 U.S.C.A. §§ 80, 82-86, to recover the forfeitures and double damages provided by Section 3490 for submitting false claims for materials supplied as a subcontractor on a Navy shipbuilding project. The government offered no evidence of actual damage at the trial and sought only to recover the statutory forfeitures. The case was tried without a jury. The District Judge found that the defendants had violated Section 3490 as to the sixteen contracts involved. He assessed the statutory penalty of $2,000 against the defendants on each of the contracts. From the judgment entered therein the defendants appeal. The government, claiming that each of the ninety purchase orders in the matter called for a separate forfeiture, cross appeals on that point. The defendant, Charles F. Rohleder, is a building contractor in Philadelphia; the other defendants were employed by him as his agents and carried on with him the activities described below. Rohleder entered into subcontracts with the Cramp Shipbuilding Company, which was under contract with the Navy Department. This main contract between Cramp and the Navy, dated October 29, 1940 (designated NOD 1550), obligated Cramp to improve its shipyards in Philadelphia by the erection of “Emergency Plant Facilities” preparatory to the building of six light cruisers. The provisions of the contract were that the Cramp Company would, without profit to it, by itself or through contracts with others, make improvements of the value of about $12,000,000. Records and accounts of the project were to be kept by Cramp, and capital for carrying it on was obtained by arrangement with a number of banks. The Navy, represented by the Supervisor of Shipbuilding at the Cramp plant, had broad rights of inspection of work and records during and after construction. The Supervisor’s approval was required in advance for all plans, prices, subcontractors and subcontracts involved. At the completion of the work, a Final Cost Certificate would be presented by Cramp to the Navy, which would then reimburse the company from government funds at 1/60 per month. On the same date as the main contract, Cramp entered into the first of sixteen subcontracts with Rohleder, eight of which are classed as principal and eight as extension of work projects. The ensuing fifteen were concluded at various times up to September 8, 1941, the date of the last one. These subcontracts were for the actual construction, required by NOD 1550, by Rohleder. They were on a cost-plus-fixed-fee basis, the estimated cost being $1,935,179 and the fixed fee being $63,003. All but two of the subcontracts expressly ■stated that the work involved was let under and was subject to NOD 1550. All but one of the subcontracts required purchases of $100 or over should be approved by Cramp before being placed. All of the subcontracts were approved about the time of execution by the Navy representative. Before the execution of any of these subcontracts, an authorized Navy representative orally informed some of the Cramp officials that, in order to obtain the ■approval for purchase of material, there would have to be furnished to him in advance, three or more bids together with the vendor’s name and the price submitted by him. This requirement was reduced to memorandum form. The District Court found that the defendants were aware of this requirement and purported to comply with it in connection with purchase orders submitted in their contract work. The vast majority of such orders submitted by defendants are not questioned. But ninety of them were found by the District Court to contain “three or more bids, one or more of which bids the defendants knew or had cause to know were false, fictitious, and not bona fide competitive bids.” The practice as to these of Roh-leder, the other defendants, or their subordinates, was to obtain from dealers bids higher than the one it was desired to have accepted, with the understanding that these bids were not seriously made on the part of the dealers. The ninety items so treated were included in work under all sixteen of the contracts. The bids involved were forwarded by Rohleder to the Cramp Company and approved without suspicion by it. They were sent to the Navy representative who upon inspection and in reliance on the facts presented gave the final approval, also without suspicion. Rohleder was then provided with copies of the correspondence between Cramp and the Navy, indicating the approved bid. This method was followed for each of the ninety items, and for each of them Rohleder was reimbursed by Cramp. In some instances, the material upon which the bids were given had been installed by Rohleder before the approval procedure got under way. The prices thus obtained were reflected in the Final Cost Certificate submitted by Cramp and paid by the United States through the Navy Department under the terms of NOD 1550. The Court below also found that “No evidence of any damage suffered by the United States as a result of the alleged illegal acts was offered,” and that there “is no evidence * * * that the government would have saved any money had genuine * * * bids * * * been submitted.” It appears in the record that the defendants were acquitted of the related criminal action in 1943. The defendants contend that there can be no recovery under Section 3490 unless actual damages, pecuniary or proprietary, are alleged and proved. They argued that as Section 5438 stood at the time it was incorporated into Section 3490, it required pecuniary loss in order that a conviction be sustained. The question is not wholly free from doubt. It is somewhat complicated by the circumstances that Section 5438 was amended in 1918 among other particulars not presently important by inclusion of the phrase “or for the purpose and with the intent of cheating or swindling or defrauding the Government of the United States.” United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616, was decided under the 1918 amendment and the Supreme Court specially stressing the above amendment language held that actual loss to the government was necessary to sustain a conviction. Capone v. United States, 7 Cir., 51 F.2d 609, and United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200, are much to the same effect. Section 5438 was further amended in 1934. The important changes for our purposes were, the dropping of the above quoted part of the 1918 amendment and the addition of the clause “in any matter within the jurisdiction of any department or agency of the United States * * That last amendment was considered by the Second Circuit in United States v. Mellon, 96 F.2d 462, on the contention that there could be no violation of the statute without pecuniary loss to the government. The Court said 96 F.2d at page 463: “Before the amendment of 1934 the scope of the statute was, indeed, so limited. United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616; United States ex rel. Starr v. Mulligan, 2 Cir., 59 F.2d 200.” It is particularly noted that the Court is there referring to Section 5438 with the 1918 “defrauding” phrase relied on in the Cohn opinion and not to the original Section 5438 as it was incorporated into Section 3490. Love v. Mantz, 8 Cir., 72 F.2d 631, does not answer the question either, as the Court there applied the rule of the above cases under the 1918 amendment to indicate that pecuniary loss was a vital element of the claim. Closest to the.present situation is United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, rehearing denied 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163. That was a civil suit by an informer under Sections 3490-3494, 31 U.S. C.A. §§ 231-235. The District Judge correctly held that it must rest on violations of Section 5438 as that section read when it was incorporated in Section 3490. United States v. Hess, D.C.W.D.Pa., 41 F.Supp. 197, 205. This is conceded by both sides in this appeal. In the Hess case, just as here, the government asked for forfeitures on items, among others,- for which no damage was shown. The District Judge said as to this, 41 F.Supp. at page 218: “The next reason urged by .defendants for a new trial is that the court erred in refusal of defendants’ 9th point, which reads as follows: '9. There can be no recovery of any penalty or ■ forfeiture on account of any project in which no actual damages have been shown.’ Section 3490, R.S., expressly provides for a penalty of $2,000, ‘and, in addition, double the amount of damages which the United States may have sustained.’ This makes it plain that regardless of damages sustained, the United States would still be entitled to recover the penalty. This point refers to instances where the United States withheld payments on account of the discovery of the fraud, so that no actual .damage was shown. However, that would not preclude the United States from recovery of the penalty prescribed by Section 3490, R.S.” The judgment of the District Court including the forfeitures • allowed for eight projects as to which no damage had been proven was affirmed by the Supreme Court, supra. The no damage forfeitures were not referred to specifically in the opinion but the concluding paragraph thereof did say [317 U.S. 537, 63 S.Ct. 388], “We have examined the other contentions of the respondents and approve of the disposition of them by the courts below.” The petition for rehearing specially called the attention of the Court to the circumstances surrounding the particular eight projects; nevertheless the petition was denied as stated. In view of the attitude toward just such claims as are before us, by the Supreme Court in the Hess litigation, we conclude that Section 3490 embracing Section 5438 as the latter was when incorporated into Section 3490, permits recovery of a forfeiture thereunder without actual damage being proven. Defendants’ second point is that the defendant Rohleder-had no knowledge that the bids were-fictitious. It is not challenged by the defendants that in connection with many of the- ninety purchase orders the material had already been purchased or contracted for and actually used, prior to Rohleder’s sending in the supposedly competitive bids. A letter in evidence admittedly dictated by Rohleder but never mailed, as the Trial Judge said, “indicates that he was familiar with and had himself engaged in the practice of giving complimentary bids in order to comply with contract requirements for competitive bidding.” The Trial Court further said, “The bids were obtained by his [Rohleder’s] agents for his sole benefit and to the extent that their conduct imposes liability, he is answerable for it.” Defendants question this last quoted finding as not in accord with established principles of agency law but cite no cases to sustain the proposition. Under the circumstances the Court’s statement was proper. United States v. Van Riper, 3 Cir., 154 F.2d 492. Even without the agency inference there is sufficient evidence to warrant the District Judge deciding that Roh-leder knew the bids being submitted were not bona fide. The defendants next urge that the Navy had no. authority to demand competitive bids. The main contract between the Navy and Cramp, Article 1, Section 3, Paragraph 5, provided: “Provided, however, that none of the items of the Emergency Plant facilities shall be acquired or constructed unless the approval of the Department (which for this purpose shall be represented by the Supervisor of Shipbuilding at the plant of the Contractor) shall have first been obtained to the plans and specifications therefor, the purchase price thereof, the subcontractor, supplying or constructing the same, and the terms of any subcontract made by the Contractor therefor.” On October 28,1940, Lieutenant Bishop, acting for the Navy, requested competitive bids. The Navy-Cramp contract was entered into on October 29, 1940, and that, same day the first Cramp-Rohleder agreement was approved. While there was no competitive bidding clause in this or any of the later agreements, all but two of them contained statements that the work under them was subject to the Navy-Cramp contract. The procedure of submitting competitive bids was accepted by Rohleder and ostensibly followed by him throughout his work. There was no indication from him to the Navy or to Cramp that would in any way suggest otherwise. It was testified to that such method was fundamental Navy procedure. Considering the nature of the cost-plus-fee contract Rohleder had, the day to day differentiation in amounts of labor and materials required and the necessity that Rohleder’s prices had to be approved by the Supervisor of Shipbuilding under the terms of the parent agreement, we agree with the Trial.Judge that the Navy requirement of competitive bids was reasonable practice and within the scope of the above quoted paragraph of the Navy-Cramp agreement. Defendants’ final point is devoted to excusable circumstances surrounding the undertaking. They refer to the tremendous time pressure, saying that such irregularities as existed were not caused by any ulterior motive but in the all prevailing effort to get the job accomplished. Undoubtedly this element was present. They refer to the defendant Rohleder having completed his part of the rehabilitation of the Cramp Shipyard speedily at three-fifths of the average overhead and to the satisfaction of all concerned. There is considerable force in these ássertions, but we cannot go along with the defendants when they designate the common sense Navy method of insisting on three genuine competitive bids as “red tape.” Nor can we condone the scheme of paying lip service to the requirement while secretly consumating the ninety purchase orders without actually obtaining such bids. There is testimony in the record that the Supervisor of Shipbuilding had the authority to and on occasion did waive the requirement for competitive bidding when the faots warranted it, but from all that appears no such request was ever made by the defendants. The government cross appeal is concerned with the question of the number of forfeitures allowed! The District Court awarded the statutory forfeiture of two thousand dollars on each of the eight main contracts and on the eight subcontracts. The government insists that there should be a forfeiture declared on each of the ninety purchase orders. United States ex rel. Marcus v. Hess (supra) is also illuminating on this problem. In that case there were fifty-six distinct P.W.A. projects involved and many hundreds of false forms. On the judgment in favor of the plaintiff, the latter urged that the penalty attach not only to the fifty-six items but to each false affidavit certificate submitted by the defendants. The defendants argued that the entire fifty-six projects constituted but one act. The District Court found that each project was a single claim. The Supreme Court in its-opinion 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443, upheld this, saying: “The District Court concluded that the lump sum in damages should be assessed for each separate P.W.A. project. Petitioner does not object to this decision and we conclude that under the circumstances of this case each project can properly be counted separately.” The government argues that in Hess the fraud was in the procurement of the contracts whereas in the situation confronting us the fraud arises from the means taken to obtain the approval of the Supervisor of Shipbuilding. That difference does exist but is not enough to avoid the impact of the Hess opinion. There the Supreme Court said 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443: “The incidence of fraud on each additional proj ect is as clearly individualized as is the theft of mail from separate bags in a post office.” Nor do we think that it can be fairly substantiated that the District Court in limiting the forfeiture to the sixteen contracts overlooked the second and third clauses of Section 5438. The fraud was committed with respect to the contracts. The purchase orders were part of those contracts and not definite projects in themselves. They are analogous to the great number of spurious forms in the Hess case which were absorbed into their respective projects. The grouping by the Trial Judge of the ninety purchase orders under their respective contracts generally corresponds to the distinctions made in United States ex rel. Marcus v. Hess, supra. It is reasonable and has a sound basis in the record. Affirmed. Section 3490 of the Revised Statutes, 12 Stat. 696, reads as follows: “See. 3490. Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title ‘CRIMES,’ shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such an act, together with the costs of the suit; and such forfeiture and damages shall be sued for in the same suit.-’ Section 5438 of the Revised Statutes, 12 Stat. 696, as it appeared at the time of its incorporation in Section 3490, reads as follows: “Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the Government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, * * * every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.” In that one the amount was $200. 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_two_issues	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. MELVILLE CONFECTIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 14252. United States Court of Appeals Seventh Circuit. Jan. 29, 1964. Rehearing Denied March 3, 1964. Frederick W. Turner, Jr., Murray B. Woolley, Chicago, 111., for Melville Confections, Inc. Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Attorney, N. L.R.B., Washington, D. C., Arnold Ord-man, General Counsel, Dominick L. Man-oli, Associate General Counsel, Harold B. Shore, Attorney, N.L.R.B., Washington, D. C., for respondent. Before SCHNACKENBERG, ENOCH and CASTLE, Circuit Judges. CASTLE, Circuit Judge. This case is before the Court on the petition of Melville Confections, Inc. to review and set aside an order of the National Labor Relations Board issued against the company, and upon the Board’s cross-petition for the enforcement of that order. The Board’s decision and order are reported at 142 N.L.R.B. No. 144. The Board found that the company violated Section 8(a) (1) of the Act by maintaining and continuing to maintain a profit-sharing plan for its employees which required as a condition precedent to participation in the plan and its benefits that the employee not be represented by a labor organization for the purposes of collective bargaining. The Board’s order requires the company to cease and desist from conditioning participation in any profit-sharing plan to employees who are not represented by a labor organization for collective bargaining purposes and to cease and desist from interfering with, restraining, or coercing its employees in any like or related manner in the exercise of their rights under Section 7 of the Act. Affirmatively, the order requires the company to amend its profit-sharing plan and to amend a reference thereto in a “Statement of Company Policies” booklet accordingly, and to post designated notices. The complaint against the company was issued on November 9, 1962, following charges filed by the Union on September 18, 1962. Previous representation elections held in 1960 and 1962 had been set aside by the Board because of pre-election statements made by the employer directing attention of the employees to the non-union status required for participation in the company’s profit-sharing plan and to the company’s right to discontinue the plan. The complaint charged: “Since on or about March 19, 1962, and continuing at all times there- . after, Respondent [the company] has interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act by maintaining and continuing to maintain a profit sharing plan for its employees which requires as a condition precedent to participation in the plan and its benefits that employees forego representation by the Union, or other labor organization, for purposes of collective bargaining.” The company contends that the Board’s finding of a Section 8(a) (1) violation is not supported by substantial evidence on the record considered as a whole — the applicable test on review under the guiding principles furnished by Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The company urges that the plan itself does not constitute a violation of Section 8(a) (1) and that the record reveals no proof of any act by the company within the period prescribed by Section 10(b) of the Act which evinces either union animus or intention on the company’s part to interfere with, restrain or coerce any employee in the exercise of a Section 7 right. The company claims that the Board relied upon events (acts and conduct of the company upon which the orders setting aside the previous elections were based) occurring more than six months prior to the filing of the instant charge in making the findings and reaching the conclusion it did. The record reveals that the company established an employee profit-sharing plan June 30, 1958, effective as of July 1, 1957. From its inception the plan has restricted participation to “eligible employees” who have.completed 12 months of continuous service in the company’s employ. An “eligible employee” is defined in the plan as “a regular full-time employee of the Company, not represented by a Union designated as the bargaining agent for the employee.” The plan provides that it may be amended by the company at any time and may be terminated by the company upon 30 days notice. Upon termination the plan trust fund would be distributed pro-rata among present and former participating employees. Benefits are payable to participants upon severance, retirement, disability or death. The company is required to make certain contributions to the plan trust fund. Provision is made for voluntary contributions by participants. A “Statement of Company Policies” booklet distributed to employees contains a reference to the profit-sharing plan in which the following paragraph is set forth in boldface type: “Under the terms of the plan, an individual must be a full-time employee and have had at least one year seniority prior to the start of any fiscal year, and cannot be represented by any union or other outside bargaining agent, in order to share in any benefits for that year. This plan was established voluntarily by the company and the company reserves the right to discontinue it at any time”. At the hearing on the complaint it was stipulated that the provisions applicable to employee eligibility and participation in the profit-sharing plan as originally set forth in the trust agreement and the booklet have remained unchanged since the plan’s inception and are presently in effect, and that copies of the booklet have been distributed to employees beginning July, “1957” (sic) and continuing to-date. It is patent that the plan excludes from participation those employees “represented by a union designated as the bargaining agent for the employee”. And it is clear from the stipulation that the plan was in effect and maintained during the Section 10(b) period and that during such period the employees were advised of the continuation of the plan and its restrictions through the distribution of the booklet. We agree with the Board, and the trial examiner whose findings and conclusions the Board adopted, that under the facts and circumstances disclosed by the record no independent evidence of additional acts of the company either directly establishing animus or specific intent to abrogate employee Section 7 rights, or from which such animus or intent might reasonably be inferred, was necessary to support a finding of a Section 8(a) (1) violation. The conduct of the company in continuing to maintain the provision making union representation a disqualification for eligibility to participate in its employee profit-sharing plan benefits and continuing to bring such restriction to the attention of its employees through distribution of the booklet setting forth company policy constituted a per se violation of Section 8(a) (1). It was employer conduct inherently destructive of rights guaranteed by Section 7. By its inherent nature it interfered with, restrained and coerced employees in the exercise of their right to be represented for collective bargaining by a labor organization. It placed a penalty on such action —a disqualification to participate in profit-sharing benefits. It carried with it its own inherent evidence of intent — it strains credulity to ascribe some other or different intent to the provision. In Radio Officers Union of Commercial Telegraphers Union, A.F.L. v. N.L.R.B., 347 U.S. 17, 45, 74 S.Ct. 323, 338, 98 L.Ed. 455, it was pointed out: “This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct.” The rationale of Radio Officers was reaffirmed in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 227-228, 83 S.Ct. 1139, 10 L.Ed.2d 308. It was applied by this. Court in connection with a Section 8(a) (1) violation in Time-O-Matic, Inc. v. N.L.R.B., 7 Cir., 264 F.2d 96, 99, where we stated: “No proof of coercive intent or effect is necessary under Section 8(a) (1) of the Act, the test being ‘whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.’ N.L.R.B. v. Illinois Tool Works, 7 Cir., 1946, 153 F.2d 811, 814.” Cases such as Quality Castings Company v. N.L.R.B., 6 Cir., 1963, 325 F.2d 36, and Pittsburg-Des Moines Steel Co. v. N.L.R.B., 9 Cir., 284 F.2d 74, relied upon by the company, are not apposite here. Here the disqualification is based solely upon the criterion of union representation. In Quality Castings and Pitts-burg-Des Moines the employee groups excluded from the benefits involved were defined by other than union membership or activity criteria — the action complained of was not clearly discriminatory on its face as being openly and avowedly directed solely at employee activity specifically protected by the Act. Other valid bases could logically be ascribed for the action. In such circumstances intent and motivation become controlling factors and independent proof of motive or intent to interfere with, restrain or coerce employees in the exercise of protected activity is requisite to establish a violation. See concurring opinion of Justice Harlan in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. L.R.B., 365 U.S. 667, 679-680, 81 S.Ct. 835, 6 L.Ed.2d 11. The conduct here involved was continuous from the inception of the profit-sharing plan. It existed during the particular Section 10(b) period here applicable. We find nothing in the examiner’s findings and conclusions which indicates any reliance on conduct of the company prior to the six-month 10(b) period as a basis for the current violation he found. His reference to the fact that prior company conduct had resulted in two elections being set aside was coupled with the observation that “[t]his evidence has been received only for the purpose of giving color, or bringing into clear focus, the conduct which is the gravamen of the complaint”. The fact that the record does not disclose any instance where an employee was rejected for participation in the plan or deprived of benefits thereunder because of union representation is not of significance except to the extent that it may serve to indicate that the company’s conduct in maintaining and publicizing the restriction on participation in the plan apparently succeeded in discouraging union representation of its employees — effectively interfered to coerce and restrain the employees from exercising their right to secure union representation. It was not necessary to await some such further or additional overt act of the company in order to abate this continuing patently unfair labor practice. Nor does the fact that the company’s violation antedated the Section 10 (b) period applicable to the instant charge preclude a finding of a violation which occurred through a continuation of the proscribed conduct during and within the six-month period prior to the filing of the charge. We are not persuaded by the contentions of the company which we have discussed and although we have considered the remaining and subsidiary arguments advanced by the company in support of its position, and the cases cited and relied upon, we are of the view that none of them merit detailed discussion. We conclude that the findings of the examiner adopted by the Board are supported by substantial evidence on the record considered as a whole and that the conclusions reached represent the application of correct legal criteria. The petition of the company to set aside the order of the Board is denied; the order is affirmed; and the Board’s cross-petition for enforcement of the order is granted and enforcement ordered. Enforcement ordered. . Hereinafter referred to as “company’. . All references herein to the “Act” are to the National Labor Relations Act, as amended. 29 U.S.C.A. § 151 et seq. Section 8(a) (1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” them by Section 7 which includes the right of employees to form or join a labor organization and “to bai-gain collectively through representatives. of their own choosing”. . Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AEL-CIO. . Section 10(b) provides that “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * Question: Are there two issues in the case? A. no B. yes Answer:
songer_usc2	18	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES v. KONOVSKY. UNITED STATES v. BRANI et al. Nos. 10672, 10673. United States Court of Appeals Seventh Circuit. March 9, 1953. John D. Knodell, Jr., and Floyd E. Thompson, .Chicago, Ill. (Johnston, Thompson, Raymond & Mayer, Chicago, Ill., of counsel), for appellant. Otto Kerner, Jr., U. S. Atty., Chicago, Ill. Leo F. Tierney, Chicago, Ill., Charles B. Murray, Asst. Atty. Gen., Henry Putzel, Jr., James X. Kilbridge, Attys., Department of Justice, Washington, D. C., for United States. Before MAJOR,. Chief Judge, and DUFFY and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge. Erwin Konovsky, Superintendent of Police of the Town of Cicero, on December 13, 1951, was charged in Count 1 of two counts of an indictment with having conspired with certain named other persons and- still others said to be “unknown to the grand jurors”, in violation of 18 U.S.C. § 371, to . commit an offense against the United States, namely, to deprive, in violation of 18 U.S.C. § 242, Negro inhabitants of certain rights, privileges and immunities secured to them by the Constitution and laws of the United States. In Count 2 Konovsky and Brani and Lange, police officers, were charged with a substantive violation of Section 242. The jury found Konovsky guilty upon both counts, and Brani and Lange guilty' upon Count 2. Each was sentenced to pay a fine and costs. From these judgments, the three defendants have prosecuted their appeals. In view of our disposition of the issues presented, we deem it unnecessary to narrate in detail the voluminous evidence introduced in the trial of a cause which reflected grave factual questions concerning alleged racial discrimination and disgraceful rioting on the part of private persons, but shall content ourselves with the observation that, after careful consideration, the evidence, considered by us, as it.must be, in the light most favorable to the Government, was in the absence of procedural error, adequate to sustain the verdicts. Defendants zealously insist that the trial court erred in denying their motion to dismiss. the indictment. Specifically and essentially Count 1 charged Konovsky, three other named defendants, with whom we are not now concerned, and certain other named conspirators who were not made defendants, with having conspired to commit an offense against the United States, that is to say, that in the conspiracy, they, while acting under the; .color of laws statutes, ordinances and regulations in force in the Town of Cicero, Illinois, intended “willfully and knowingly” to subject and cause to be subjected “any Negro inhabitant of the United States who might then or thereafter seek to lease to or from any person, or to occupy, hold, possess, own or enjoy access to any real property in the. said Town of Cicero, and in particular the premises in the said town known as 6139 West 19th Street, to the deprivation of the rights (1) not to be deprived of liberty or property without due process of law, (2) not to be denied the equal protection of the laws * * , and (3) the right to lease real property to or from any person, and the right to occupy, hold, possess, own or enjoy access to real property free from restraint or hindrance imposed by anyone acting under color’ of law, otherwise than as provided by law * * and, while acting under color of law as aforesaid, together with the alleged co-conspirators * * * named, and divers * * * other persons whose identities were to the Grand Jurors unknown”, * * * willfully to “prevent, hinder, impede and restrain any Negro inhabitant of the United States who might then or thereafter seek to lease to or from any person, or to occupy, hold, possess, own or enjoy access to any real property in the Town of Cicero and in particular the premises in the said Town known as 6139 West 19th Street, from doing so, all 'for the purpose and with the intent of depriving ahy such Negro inhabitant of the constitutional rights aforesaid.” This count, argues defendant Kon-ovsky, did not charge a crime, or sufficiently inform him of the charge against him, so as to enable him to prepare a defense or to plead former jeopardy in the event of a subsequent prosecution. Defendant expressly disclaims any contention that the person “whose rights are the object of the conspiracy must be named in the indictment” or “that it is not a crime to conspire against the existing rights held by a defined class' or group of persons”, but urges that the right deprivation of which is forbidden under Section 242 must be the right of some identified or identifiable inhabitant and not the right of some “conjectural” or possible inhabitant not identified in the indictment. Of course a charge that parties have conspired in violation of Section 371 must include a showing that the object of the conspiracy is to commit an offense under the laws of the United States. United States v. Britton, 108 U.S. 199, 205-207, 2 S.Ct. 531, 27 L.Ed. 698; Brown v. United States, 5 Cir., 21 F.2d 827, 828; United States v. Eisenminger, D.C.Del., 16 F.2d 816, 818. So in the present case, Count 1, in order to be valid must charge a conspiracy to commit a defined offense. This it attempted to do in the language above quoted. Consequently the question in this respect is whether, in view of defendant’s concession that the person whose rights are the object of the conspiracy need not be named in the indictment and that the crime may be committed by conspiring against the existing rights of a defined class, the language of the indictment defines a class or group of persons sufficiently. The conspiracy count charges that the object of the alleged conspirators was to subject or cause to be subjected “any Negro inhabitant” of the United States who might then or thereafter seek to lease, occupy, possess, or enjoy access to any property in the Town of Cicero, and particularly 6139 West 19th Street to deprivation of any right to do so. To our mind, this language means essentially just the same as if the indictment had charged that the alleged participants conspired to subject all Negro inhabitants of the United States who seek to lease, occupy, possess or enjoy access to property in Cicero, and particularly, the specific premises mentioned, to deprivation of the rights enumerated. Paraphrasing still further, we think a fair construction of Count 1 is that the parties named are charged therein with conspiring, under color of law, intentionally and willfully, to deprive all Negro inhabitants of the United States of the constitutional right to have, own or enjoy any property in Cicero and to restrain all such inhabitants from leasing, owning or enjoying any property in Cicero and in particular the premises at 6139 West 19th Street. Stripped of all excessive verbiage, this is the essence of the count and, thus considered, we think it defines sufficiently the class or group of persons who are to suffer the deprivation charged and amounts to a charge of conspiring to commit an offense against the United States, namely, to violate 18 U.S.C. § 242. These are direct averments that the conspirators planned to prevent any Negro from living or enjoying property in Cicero. Examples of the validity of an indictment charging conspiracy against similarly defined classes are to be found in United States v. Stone, D.C.Md., 188 F. 836; Culp v. United States, 8 Cir., 131 F.2d 93 and United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368. Analogous cases, having to do with the protection of civil rights under Section 241, include United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341; United States v. Pleva, 2 Cir., 66 F.2d 529; United States v. Clark, D.C.W.D. Mo., 19 F.Supp. 981; Crolich v. United States, 5 Cir., 196 F.2d 879, certiorari denied 344 U.S. 830, 73 S.Ct. 36. In Count 2 all three defendants were charged with the violation of Section 242 in that, under color of law, they willfully subjected and caused to be subjected one Harvey Evans Clark, Jr., a Negro inhabitant of the State of Illinois, and a lessee of Apartment 5-C in the premises known as 6139 West 19th Street in Cicero, to the deprivation of the following rights secured to him and protected by the Constitution of the United States, namely, “the rights (1) not to be deprived of liberty or property without due process of law and (2) not to be denied the equal protection of the laws, which rights include the right to lease real property from another and the right to occupy, hold, possess and enjoy access to real property free from restraints or hindrances imposed by anyone acting under color of law, otherwise than as provided by law; that is to say, at the time and within the jurisdiction aforesaid, the said defendants did by force and threats of force, and with the purpose and intent of depriving him of the aforesaid constitutional rights, prevent the said Harvey Evans Clark, Jr., from entering, occupying as tenant and having peaceful possession and access to Apartment 5-C in the premises known as 6139 West 19th Street in the said Town of Cicero, Illinois.” This count defendants urge “is deficient in that it does not allege essential elements of the crime”; in that certain averments are mere legal conclusions; in that the count fails to inform the defendants of what statute or ordinance they are charged with having acted under, so that defendants are left “completely in the dark as to the capacity in which they are alleged to have been acting and as to the source of authority they are alleged to have been exercising.” Thus is is argued that there is no positive averment that Clark had a lease on or any right to enter any apartment. We think the criticism is over-meticulous. The count seems to us to charge directly a violation of the express terms of Section 242, reading as follows: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” In substance, the second count, stripped of all superfluity, charges that defendants under color of law “willfully subjected” an inhabitant of the State of Illinois, namely, Clark, lessee of the apartment, to the deprivation of his right to enjoy the property. This is within the terms of the statute. If the defendants had any ground for insistence that they should be more specifically advised as to the facts charged, they had adequate remedy by way of a motion for a bill of particulars. We conclude that each of the counts was sufficient and that the motion to dismiss was properly denied. Over defendants’ objections the Government introduced in evidence an order for a temporary injunction entered by the District Court in a civil suit against Konovsky and certain other persons alleged to have been acting in concert with him, not including, however, defendants Brani and Lange, dated June 26, 1951, almost three weeks after June 8, which the indictment charges as the time of thé commission of the substantive offense. This order was entered in what may be termed a summary hearing upon the complaint and various affidavits. In it the defendants named in that suit were enjoined from interfering with Clark’s right to enter the premises. The Government asserts that the order was admissible, not as proof of violation of the law by defendants on-June 8 but, as a circumstance in the light of which the conduct of the defendants-, should be “evaluated,” and the court so-instructed the jury. The Government’s justifying argument that the decree was relevant goes about as follows: It was “implicit” in its theory of the case that a-, police detail, which, on March 31, had been posted at the apartment building, had been placed there for the purpose of intimidating would-be Negro renters and preventing them from occupying the apartment, while defendants’ theory was that the detail had been posted for the purpose of protecting the property, its inhabitants and the Negroes, themselves.. The Government argues that, in this situation, the fact that, after the preliminary-injunction decree was entered, and presumably in compliance therewith, the police detail was withdrawn, was evidence-that the detail originally had been assigned to the apartment building only for the-purpose of preventing Negroes from occupying the apartment, and that the withdrawal of the detail after the injunction issued was in the nature of an admission-by defendants that such was the case. We-fail- to appreciate the logic of the Government’s rather involved argument. The-adjudication of a fact in a civil proceed— ings, in view of the difference of degree of proof in criminal and civil cases, can afford no basis for the doctrine of res judicata, when offered in a criminal cause, Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917, and, though the jury was instructed that the decree was not received as evidence of guilt we know from common experience that a jury would probably be inclined to follow the court’s finding against the defendants in the civil action and thus prejudice the criminal trial. Defendants’ constitutional right to meet the witnesses face to face was taken from them. We see no escape from the conclusion that the inevitable effect of the introduction of the civil judgment in evidence was to lead the jury in the trial of this criminal case to believe that the same issues had already been determined in the civil action. In our opinion nothing could be more prejudicial to a fair trial. See Hodges v. State, Okl.Cr.App., 222 P.2d 386. What we have said in this respect is applicable to all defendants. Error is even more clearly apparent as to defendants Brani and Lange. They were not even parties to the civil suit. It is said that the defendants waived their objection in this respect. We do not understand that the mere fact that defendants attempted to meet the erroneous evidence constituted waiver upon their part. As said in Salt Lake City v. Smith, 9 Cir., 104 F. 457, 471: “One who objects and excepts to an erroneous ruling which permits his opponent to present improper evidence does not waive or lose his objection or exception, or his right to a new trial on account of it, by his subsequent introduction of the same class of evidence in support of his case.” See also Chicago City R. Co. v. Uhter, 212 Ill. 174, 180, 72 N.E. 195, 197; State v. Beckner, 194 Mo. 281, 91 S.W. 892, 896, 3 L.R.A.,N.S., 535; and State v. Kile, 29 N.M. 55, 218 P. 347, 351. Furthermore, even if defendants had waived the objection, we think it would be our duty under Rule 52(b) of the Rules of Criminal Procedure, 18 U.S.C., to notice the error ourselves. During the course of the trial, one Hartsough, a citizen of Berwyn, living a short distance from the location of the apartment in question, testified, extensively as to events which he claimed to have observed at the time of the “riot”, on the evening of July 11. In the course of his testimony he mentioned having a conversation with an unidentified man. The witness labeled this person ás a police officer but admitted that he had no knowledge of whether the man was in fact a police officer or that he knew what the individual’s name was. Nevertheless he was permitted to testify that this person said: “Our chief has warned these niggers to stay out of here”. This testimony was objected to and the motion to exclude denied. There was no proof whatsoever of any connection between this stranger and any of the defendants at the time of the alleged conversation or at the time, a month before, when, it ' is averred, the crime charged in Count 2 was committed. We fail to find in the record any circumstance, any testimony, any evidence of any character to justify the introduction in evidence of such hear-say evidence, quoting a purported vicious, highly prejudicial statement of an unidentified man. To be admissible against others than the declarant, the declaration must not only be made while the conspiracy is pending but must also be in furtherance of its object, and by some one embraced within it. Logan v. United States, 144 U.S. 263, 309, 12 S.Ct. 617, 36 L.Ed. 429; Brown v. United States, 150 U.S. 93, 98, 14 S.Ct. 37, 37 L.Ed. 1010; Tofanelli v. United States, 9 Cir., 28 F.2d 581, 582; Holt v. United States, 10 Cir., 94 F.2d 90, 93. In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, the court held that a hear-say declaration attributed to a co-conspirator was inadmissible on the ground that it was not made in furtherance of the conspiracy and that its admission could not be considered harmless error. Thus 336 U.S. at page 442, 69 S.Ct. at page 718, it said: “It was made in petitioner’s absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner’s guilt.” So, in Allen v. United States, 7 Cir., 4 F.2d 688, a conspiracy case arising during the prohibition era, where a witness testified to an alleged statement of an unidentified woman behind a bar incriminating some of the defendants, Judge Evans, speaking for the majority, referred to the fact that the defendant’s objection was withdrawn. .He further commented that in view of the fact that there was evidence sufficient to justify the jury in finding that .the woman was a co-conspirátor, the testimony was admissible as a declaration of a conspirator, • having been made while the conspiracy was in force and otherwise pertinent. The intimation is clear that had there been no showing that the woman was a member of the conspiracy, the declaration would have been inadmissible. Judge Alschuler did not agree that there was evidence to show that she was a member of the conspiracy and thought that, therefore, the testimony was inadmissible. He said “I feel constrained to say that, in my opinion the testimony of Harold ..Cross as to the conversation at the ‘Green Mountain Inn’ ought not to.have been admitted, or, having been admitted, should have, been excluded, when (as I believe was the case) the evidence failed to connect with the alleged conspiracy to violate the National Prohibition Act the unidentified woman with whom Cross had the conversation to which he testified.” The Government insists that the statement was part of the res gestae and, therefore, admissible. We do not understand the law to be that statements of unidentified persons not shown to have any connection whatsoever with a conspiracy are in any sense of the word part of the res gestae. The admission of this testimony was prejudicial error. Defendants complain of alleged wrongful reception of hear-say evidence in three other instances. At one stage of the trial, a witness testified that Lt. Johnson of the Sheriff’s police, none of whom was charged with being a member of the conspiracy, told him, in Lt. Con-nerty’s presence, that the latter would not endanger his men by sending them into the crowd. No defendant was present. The statement was not connected or claimed to be made by anyone connected with the alleged conspiracy. In another instance, Mrs. Clark, one of the lessees of the apartment, testified. that the same Lt. Johnson advised her and her husband not to return to the building “that night” and to contact their attorney the following day. The implications of these remarks, of course, were prejudicial to Konovsky. Johnson was not called as a witness, but what he is supposed to have said was related by others. The quotations were completely hear-say. We know of no rule under which defendants can be held accountable for reputed declarations of one in no way connected with any of them. Indeed, if Lt. Johnson had been called as a witness, his opinion and advice, obviously, would have been inadmissible. More unwarranted was its reception in hear-say form. At another time, the court permitted the Clarks to testify that Edwards and Chandler, real estate agents, had told them the two men had authority to lease the apartment, and received in evidence alleged receipts given by them to the Clarks for a month’s rent and for commission. Obviously the declaration of either Edwards or Chandler that they had authority to rent the apartment was inadmissible. Yet the question of whether they had authority to rent the premises was important in determining whether the Clarks had any right to enter the apartment. The authority of the agent may never be proved by his own ex parte declaration. See Nichols v. Republic Iron & Steel Co., 5 Cir., 89 F.2d 927; Brownell v. Tidewater Associated Oil Co., 1 Cir., 121 F.2d 239. Upon each of these three occasions the court improperly received the evidence of hearsay statements made by persons in no wise connected with the conspiracy. We must remember that Count 1 charges a conspiracy, dubbed by Mr. Justice Jackson as an “elastic, sprawling and pervasive offense”. See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. His further comment 336 U.S. at page 453, 69 S.Ct. at page 723, is instructive: “When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. * * * the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. * * * The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257 [92 L. Ed. 154], all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167 F.2d 54.” Defendants complain of the refusal to receive certain evidence. One document offered was a leaflet of communistic character distributed long after the essential elements of the charge had come to pass and after the riots had occurred. To our minds this was foreign to and not material or relevant to any issue involved in this case. It is urged also that excluded testimony as to the fair market value of the building would have thrown some light upon the controverted question of whether the threat of Negro occupancy was being used a club over the local citizenry in order to force purchase of the property at an excessive price. However, it is apparent, we think, that no evidence concerning the reason why the apartment was rented to Clark could have any bearing on his right to occupancy. Defendants complain of reception of evidence of what occurred during the assembling of a mob and subsequent rioting on ¡July 10, 11 and 12 at the apartment building, including pictures of destruction of or damage to- personal property contained in the building and substantial injury to certain portions of the premises, itself. The Government does not contend that these acts of vandalism were committed by any of the defendants; it is clear that they were the acts of some of the several hundred members of the public congregated in the mob. Count 1 charged a conspiracy to deprive Negro inhabitants of the right to occupy property in the Town of Cicero. Among the overt acts it was charged that defendant Konovsky on July 10, 11 and 12 willfully failed to disperse the mob. It was the Government’s theory that this evidence of what the rioters did tended to prove that defendant willfully failed to disperse the mobs and was, therefore, evidence bearing upon the charge of conspiracy to deprive Negro inhabitants of the right to enter. Under this theory we think evidence of what occurred at the time of the riots was properly received in an effort to discover whether at that time defendant Konovsky, under color of his office and authority, willfully failed to disperse the crowd with the intention thereby to further a conspiracy to deprive Negro inhabitants of the right to enter. As we have said, the Government does not contend that this evidence indicated in any way that defendants were participating in the acts of the mob but does assert that the alleged willful failure of Konovsky to do his duty at the time was evidence of furtherance of the conspiracy. Consequently under the charge contained in Count 1, we think evidence of what occurred was material and relevant, at least in a reasonable quantity. However, the photographs reflecting acts of vandalism were highly inflammatory; we are of the opinion that their introduction was improper under the circumstances of this case. This was not a suit to recover damages. The only materiality of any evidence in this respect lay in its evidentiary value in determining whether defendants had willfully and intentionally failed to perform their duty. We think the photographs were of little or no aid in this respect and that, because of their inflammatory character, they should have been excluded. There was no dispute that a shocking riot had occurred and that serious damage had been done. Further than that inflammatory evidence of the acts of vandals was not material or relevant to the question of whether either defendant willfully and. intentionally failed to perform his duty. In this connection, we think also that whether Negroes had lived in the Town of Cicero in the past was wholly immaterial. The jury issue was not whether in times gone by Negroes had lived in Cicero but whether the alleged conspirators named in Count 1 had conspired, in the spring and summer of 1952, to prevent Negro inhabitants from enjoying property rights, intentionally and under color of law. We do not intend to imply that each and every error which we have found to have occurred would, of itself, have amounted to reversible error, but, in view of our conclusions that the judgment must be reversed for a new trial, we have thought it well to consider each contention of the respective parties in order that the trial court may have the benefit, if any, of our thought with regard- thereto. We should add that this record reflects a studious, careful attempt on the part of the trial court to afford all parties a fair and impartial trial. It is not surprising, perhaps, that in the course of a trial in which some 900 pages of testimony were taken and tense issues presented, in a sharply contested suit, despite the court’s careful efforts, some rulings prejudicial to one or the other of the parties might creep in. Our conclusions, therefore, do not imply any criticism of the conduct of the trial judge in his carefully considered efforts to achieve a fair and impartial trial in an unusually difficult case. What we have said with respect to the, various facets of this litigation bear somewhat sharply upon the criticisms of the. court’s charge and its failure to give certain instructions. Perhaps the trial court unduly and at too great length charged the jury upon due process of law and the necessity of every citizen having his day in court, but, if so, this was due undoubtedly to the fact that the Government offered voluminous repetitious instructions in this respect. Some of them were eliminated, but there are more which we think might well have been refused. In one instruction the court charged the jury that it was the mandatory duty of the municipal officers of Cicero to disperse any crowd of more than thirty persons, even though the crowd was not engaged in violence or rioting, if it appeared that there was reasonable cause to fear that the persons assembled would create a disturbance of the peace, yet the express provision of the statute is that it is the duty of the officers to go among the persons assembled, or as near to them as they can safely go, and to command the crowd to disperse and, if the persons assembled do not obey, to command the assistance of all persons present in arresting the persons unlawfully assembled. Thus the instruction placed upon the officer a greater -duty than the statute prescribed and, in view of such a charge, the jury might easily have conceived the idea that it' was the duty of the police to disperse the crowd regardless of danger to themselves and regardless of the extremity of methods which it might, have been necessary to employ and that the mere inability of the officers to disperse the mob was itself a breach of the law. In this connection, it is well to observe that the police are not the only guardians of the peace. The sheriff and his force are likewise police officers. Consequently we believe that the court should have given the instruction requested by the defendants to that effect. See City of Chicago v. Chicago League Ball Club, 196 Ill. 54, 61, 63 N.E. 695. However, we see no error in refusing to give an instruction which would have told the jury that if defendants Brani and Lange were acting only pursuant to orders from their superior, and not willfully, then they should be acquitted. The question was not merely whether they were acting in pursuance of their superiors but whether they willfully aided and abetted in the alleged deprivation of the rights of the Negro inhabitants. If a police officer acts intentionally under color of his office to subject a citizen to deprivation of his constitutional rights, he cannot justify his action in that respect by orders from his superiors, Of course he must have the specific intent. But any instruction to the jury must carefully point out the distinction between the duty of an officer to allow his superior’s instructions in the performance of his duty and the equal duty not to aid and abet in the deprivation of citizens’ rights. The court should advise the jury clearly as to the duty of an officer in that respect as defined in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. Inasmuch as the judgments must be reversed, we find it unnecessary to extend this opinion further. Accordingly the judgments are reversed with instructions to grant defendants a new trial. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). In re SUBPOENAS DUCES TECUM. Fulbright & Jaworski, Vinson & Elkins, Tesoro Petroleum Corporation, Appellants. No. 83-2116. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 29, 1984. Decided July 10, 1984. C. Michael Buxton, Washington, D.C., with whom Robert J. Casey, Washington, D.C., for Vinson & Elkins, Keith A. Jones and David R. Johnson, Washington, D.C., for Fulbright & Jaworski, and Steven B. Rosenfeld, New York City, for Tesoro Petroleum Corp., were on the joint brief, for appellants. Daniel J. Dugan, with whom George Billock, Jr., Pittsburgh, Pa., was on the brief, for appellees. Before WALD, MIKVA and DAVIS, Circuit Judges. Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a). Opinion for the Court filed by Circuit Judge DAVIS. DAVIS, Circuit Judge: Appellants challenge orders of the District Court, 99 F.R.D. 582, granting appellees’ motion to compel compliance with four subpoenas duces tecum on the grounds that the attorney-client and work product privileges had been waived by prior disclosure. We affirm. I Appellees, movants below, are seeking copies of documents which have been furnished by appellants, respondents below, to the Securities and Exchange Commission (SEC or Commission) and to a grand jury. The demand for those documents arose out of complaints filed by appellees as plaintiffs in Pennsylvania and transferred to the U.S. District Court for the Western District of Texas which involve (1) a class action brought against Tesoro Petroleum Corporation (Tesoro) and its officers and directors on behalf of Tesoro stockholders, and (2) a derivative action brought in Tesoro’s name against its officers and directors. Plaintiffs allege in those complaints that defendants manipulated Tesoro stock in 1982 in order to remove enough stock from the public market to convert Tesoro from a public into a private corporation. The claim is that this contemplated corporate change was in part motivated by a desire to become free from public disclosure obligations, which obligations in turn might have caused disclosure of involvement by Tesoro in illegal payments to foreign officials before 1978. In the course of that Texas litigation, plaintiffs sought the papers now in question for use in connection with those suits. Because the documents are now in the possession, within the District of Columbia, of two law firms, Fulbright & Jaworski (Fulbright) and Vinson & Elkins (Vinson), subpoenas duces tecum were issued to those firms by the Clerk of the District Court, and, on their refusal to produce, a proceeding to enforce the subpoenas against them was begun in the court below. Although neither law firm is a party to the law suits in Texas, their involvement here stems from the fact that the subpoenaed documents are the product of an investigation by Fulbright into Tesoro’s alleged illegal payments to foreign officials. This came about as follows: After indications of improper corporate payments to officials, domestic and foreign, had become more frequent in the 1970’s, the SEC established a “voluntary disclosure program,” including independent investigations by the affected companies, and the agency made a general request to those companies to participate in the program. In re Sealed Case, 676 F.2d 793, 800-01 (D.C.Cir.1982). Following such a request to Tesoro, it hired Fulbright to perform a self-investigation on that subject and to help set up a special committee of independent directors to oversee it. Tesoro disclosed the results of the investigation to the SEC under the “voluntary disclosure program.” As stated by the District Court below, that program “promises wrongdoers more lenient treatment and the chance to avoid formal investigation and litigation in return for thorough self-investigation and complete disclosure of the results to the SEC.” See also Sealed Case, supra, 676 F.2d at 801. Made available to the SEC, under that program, were a copy of the investigation’s final report and several binders which contained pertinent corporate records and documents of Tesoro, as well as the notes of the lawyers taken during the course of their investigation. The SEC filed a civil complaint against Tesoro, following the agency’s receipt and consideration of the documents, which was resolved by entry of a consent decree. The Commission also referred some aspects of Tesoro’s circumstances to the Department of Justice, which then presented the matter to a grand jury, convened in October 1978 in the District of Columbia. Vinson represented Tesoro before the grand jury, and also is Tesoro’s counsel in the Texas litigation. The grand jury obtained copies of the same documents through subpoenas served on the law firms. After a hearing on the motion, the District Court ordered compliance, rejecting appellants’ attorney-client and work product arguments. By Supplemental Memorandum and Order, the court denied appellants’ motion for reconsideration, and confirmed its prior decision. A Revised Supplemental Memorandum corrected a reference to the clerk that issued the subpoenas. A motion for a stay pending appeal was subsequently granted by the court below. II The questions before us are whether the District Court correctly determined that appellants’ voluntary disclosure of the documents to the SEC effected waivers of attorney-client and work product privileges with respect to the documents now sought for discovery in the Texas suits. We deal with each privilege in turn. A. Attorney-Client Privilege Attorney-client communications ordinarily are privileged, and thus are protected from discovery by a party opponent under Fed.R.Civ.P. 26(b). By allowing confidentiality of the substance of client and lawyer discussions, the privilege is held by clients as a means of encouraging their candor in discussing their circumstances with their chosen legal representatives. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege, however, is not absolute. As stated by this court in Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C.Cir.1981) (quoting United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980)), “[a]ny voluntary disclosure by the holder of such a privilege is inconsistent with the confidential relationship and thus waives the privilege.” See also Sealed Case, supra, 676 F.2d at 818; see generally 8 J. Wigmore, Evidence §§ 2327-28 (McNaughton rev. 1961); McCormack on Evidence § 93 (Cleary ed. 1972). There was, of course, disclosure here but appellants maintain that, although Tesoro’s disclosure to the SEC was voluntary, their waiver of the attorney-client privilege with respect to those disclosures was limited to the SEC. They contend that Permian is compatible with a theory which allows a “limited waiver” of the attorney-client privilege (excluding disclosures to government agencies) and cite authority from other courts supporting the correctness of that rule. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977). We disagree, and hold that the District Court correctly interpreted and applied this court’s precedent. Contrary to appellants’ assertion, the waiver theory explicated by the court in Permian is not limited to circumstances in which material that has been disclosed to one federal agency is sought by another federal agency. In Permian, Occidental Petroleum Corporation (Occidental) had allowed the SEC access to certain documents pursuant to an agreement by which Occidental attempted to retain its privileges. When the Department of Energy later sought access to some of the privileged materials, Occidental claimed that several of the documents were protected by the attorney-client privilege and that the prior disclosure to the SEC was a limited waiver of the privilege, i.e., it was a waiver with respect to the SEC alone. Rejecting the limited waiver argument, this court stated: “we are aware of no congressional directive or judicially recognized priority system that places a higher value on cooperation with the SEC than on cooperation with other regulatory agencies, including the Department of Energy,” Permian, 665 F.2d at 1221. Appellants use this quotation to urge that the Permian court rejected the limited waiver theory only as between federal agencies. However, such a narrow reading of that case is an incorrect characterization of its reasoning and holding. There is no need to elaborate on this court’s emphatic rejection of the limited waiver doctrine in a lengthy discussion in Permian, see 665 F.2d 1220-1222, in which the court stated that The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit ____ The attorney-client privilege is not designed for such tactical employment. 665 F.2d at 1221. There is no meaningful distinction in the adventitious fact that only federal agencies were involved in Permian. For the purposes of the attorney-client privilege, there is nothing special about another federal agency in the role of potential adversary as compared to private party litigants acting as adversaries. Like Occidental in Permian, Tesoro willingly sacrificed its attorney-client confidentiality by voluntarily disclosing material in an effort to convince another entity, the SEC, that a formal investigation or enforcement action was not warranted. Having done so, appellants cannot now selectively assert protection of those same documents under the attorney-client privilege. A client cannot waive that privilege in circumstances where disclosure might be beneficial while maintaining it in other circumstances where nondisclosure would be beneficial. “We believe that the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality”. Permian, 665 F.2d at 1222. To the same effect, see United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980). Having failed to maintain genuine confidentiality, appellants are precluded from properly relying on the attorney-client privilege. B. Work Product Privilege The harder question concerns appellants’ claim that the District Court erred in concluding that the disclosure effected an implied waiver of their work product privilege. While the attorney-client privilege is intended to promote communication between attorney and client by protecting client confidences, the work product privilege is a broader protection, designed to balance the needs of the adversary system to promote an attorney’s preparation in representing a client against society’s general interest in revealing all true and material facts relevant to the resolution of a dispute. See Hickman v. Taylor, 329 U.S. 495, 509-512, 67 S.Ct. 385, 392-394, 91 L.Ed. 451 (1947); see generally Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Georgetown L.Rev. 917 (1983). As this court stated in United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980), “the work product privilege does not exist to protect a confidential relationship, but rather to promote the adversary system by safeguarding the fruits of an attorney’s trial preparation from the discovery attempts of an opponent____ A disclosure made in the pursuit of such trial preparation, and not inconsistent with maintaining secrecy against opponents, should be allowed without waiver of the privilege.” (Emphasis in original.) Recently this court decided a work product case which called upon the court to discuss the legal considerations underlying waiver of that privilege in the context of the SEC’s voluntary disclosure program, In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982). Sealed Case involved resistance to a grand jury subpoena by a multinational corporation on work product grounds (among others) for its counsel’s records which had been disclosed previously to the SEC in the voluntary disclosure program. This court affirmed the district court’s determination that the corporation had waived its work product privilege: Company entered into an arrangement with the SEC under which, as a matter of both common sense and common knowledge, Company relinquished its right to prevent the government from examining whatever documents were necessary for a fair evaluation of the final report offered to its shareholders and the SEC. Just because Company was successful in hiding crucial documents from the SEC, we need not allow Company to withhold them from a grand jury investigating possible crimes uncovered during the SEC’s investigation. Sealed Case, 676 F.2d at 817. Although the circumstances before us differ — this is a case involving private parties, not a grand jury investigation, and appellees here are seeking the documents which were disclosed to the SEC, not those which might have been successfully hidden — and though that opinion left open the precise case before us, the general reasoning of Sealed Case leads us to a similar conclusion here. As Judge Wright stated, “[t]he doctrine of implied waiver allows courts to retain some discretion to ensure that specific assertions of privilege are reasonably consistent with the purposes for which a privilege was created,” 676 F.2d at 817, and “[t]he question with respect to implied waiver is whether Wigmore’s ‘objective consideration’ of fairness negates [the] assertion of privilege.” Ibid. See also id. at 818. Obviously, the application of such a “fairness” standard is not without difficulty. However, because the underlying rationale of the work product privilege itself is also one of fairness, an analysis of whether that rationale maintains viability in particular circumstances involves of necessity the weighing of more abstract considerations within the context of those particulars. Our present decision that there has been a waiver of the privilege rests on three main factors: (1) “the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege,” Sealed Case, 676 F.2d at 818; (2) appellants had no reasonable basis for believing that the disclosed materials would be kept confidential by the SEC; and (3) waiver of the privilege in these circumstances would not trench on any policy elements now inherent in this privilege. First, the advantage that the appellants seek from their attempt selectively to disclose their work product is greater “than the law must provide to maintain a healthy adversary system.” Id. Fairness and consistency require that appellants not be allowed to gain the substantial advantages accruing to voluntary disclosure of work product to one adversary — the SEC — while being able to maintain another advantage inherent in protecting that same work product from other adversaries. See Sealed Case, 676 F.2d at 818-821. We are convinced that the health of the adversary system — which spawned the need for protection of an attorney’s work product from discovery by an opponent — would not be well served by allowing appellants the advantages of selective disclosure to particular adversaries, a differential disclosure often spurred by considerations of self-interest. “When a corporation elects to participate in a voluntary disclosure program like the SEC’s, it necessarily decides that the benefits of participation outweigh the benefits of confidentiality for all files necessary to a full evaluation of its disclosures. It foregoes some of the traditional protections of the adversary system in order to avoid some of the traditional burdens that accompany adversary resolution of disputes, especially disputes with such formidable adversaries as the SEC.” Sealed Case, 676 F.2d at 822-23 (footnote omitted). There is no question that the SEC was an adversary to Tesoro. This was not a partnership between allies. Tesoro was not simply assisting the SEC in doing its job. Rather, Tesoro independently and voluntarily chose to participate in a thorough disclosure program, in return for which it received the quid pro quo of lenient punishment for any wrongdoings exposed in the process. That decision was obviously motivated by self-interest. Appellants now want work product protection for those same disclosures against different adversaries in suits centering on the very same matters disclosed to the SEC. It would be unreasonable to suppose that litigation with these other adversaries was not anticipated at the time of disclosure to the SEC. It would also be inconsistent and unfair to allow appellants to select according to their own self-interest to which adversaries they will allow access to the materials. Second, appellants did not have any proper expectations of confidentiality which might mitigate the weight against them of such general considerations of fairness in the adversary process. Although we agree with appellants that not all voluntary disclosures effect a work product waiver, there is not here any “existence of common interests between transferor and transferee,” United States v. AT&T, 642 F.2d 1285, 1299 (1980), which might establish a basis for expectations of confidentiality. Appellants contend, however, that such expectations were warranted because the materials were disclosed to the Commission pursuant to (1) SEC regulations which required their confidentiality and, (2) an understanding between Fulbright and the SEC that the materials would remain confidential. There is a dispute between the parties whether the question of SEC regulations said to require confidentiality was raised below by appellants. We put aside this question because the regulations cited by appellants are not relevant to the circumstances before us. See 17 C.F.R. §§ 203.2, 230.122, 240.0-4 (1978). These regulations apply to formal SEC investigations — they afford no protection to documents previously disclosed under the voluntary disclosure program. Appellants maintain that “disclosure” of the materials did not occur until the formal investigation began — and thus the regulations do apply — because the SEC did not have physical possession of the materials until that time. But even before taking physical possession, the SEC unquestionably had full access to all of the documents and perused them. Contrary to appellants’ argument, there is no significance to the distinction between full access and physical possession with respect to the issue of when disclosure took place. The materials were disclosed in full to the SEC prior to the institution of a formal investigation, and the regulations do not apply. Likewise without merit is appellants’ claim that the SEC had agreed by letter to maintain the confidentiality of the submitted materials. Appellants were not entirely forthcoming below on this issue. Only after the District Court held against appellants in its first memorandum did they request reconsideration of that decision based on the new submission of correspondence consisting of two letters between Fulbright and the SEC. Appellants maintain that these letters — one dated October 3, 1978 from Fulbright to the SEC and one dated October 19, 1978 from the SEC to Fulbright — demonstrate that the SEC did agree to maintain the confidentiality of the documents in question. We are not persuaded that the District Court erred in law or fact in its assessment that “there has been no commitment by the SEC to receive and hold the documents in confidence on terms which negate the waiver of [appellants’] work product privilege effected in 1978 when they submitted the documents to the SEC.” Responding to Fulbright’s October 3 letter, which stated appellants’ own understanding concerning disclosure of the documents, the SEC said that “[t]he Commission staff will maintain the confidentiality of any documents produced pursuant to any subpoena issued to your firm or to Tesoro, ... as it does in connection with any other private investigation.” As noted by the District Court, these documents were not “produced pursuant to any subpoena.” They were provided voluntarily by Tesoro to persuade the SEC not to engage in a formal investigation of possible wrongdoings. The distinction between voluntary disclosure and disclosure by subpoena is that the latter, being involuntary, lacks the self-interest which motivates the former. As such, there may be less reason to find waiver in circumstances of involuntary disclosure. With regard to third party access, the SEC stated: In the event that, during the period of investigation and thereafter, the Commission shall receive a request from any third party other than a grand jury or agencies of the federal government for access to any document submitted by your firm or Tesoro, voluntarily or pursuant to subpoena, ... the staff of the Commission will notify Tesoro of the receipt of such a request ____ In the further event that the Commission should determine that it is not able to grant confidential treatment consistent with the provisions of the Freedom of Information Act, the staff will immediately advise Tesoro of such decision and endeavor to afford you ten days notice prior to the release of such documents Clearly, the SEC’s assurance that Tesoro would be notified in the event of a third party request is hardly an agreement to maintain complete confidentiality. Regardless of Fulbright’s attempts to extract such a promise from the SEC, neither these letters nor any other part of the record indicates any such agreement by the SEC. Indeed, the record shows that the exchange of these letters occurred after the SEC had already been given access to all of the documents in question. The letters were sent sometime after the beginning of a formal investigation of Tesoro by the SEC, not prior to the initial disclosure of the documents. The record shows no attempts by appellants to structure a confidentiality agreement prior to making the documents available, much less an agreement to do so by the SEC even after disclosure had been made. See Sealed Case, supra, 676 F.2d at 823. In short, the letters exchanged between Fulbright and the SEC warrant no expectations of confidentiality on appellants’ part for the materials which were made available. The attempt to secure confidentiality occurred after the SEC had seen the voluntarily disclosed documents, and the SEC’s statement concerning third party requests for documents said only that Tesoro would receive notice of any release of materials which would have been deemed appropriate by the Commission. Appellants offer two other factors to support their expectations of confidentiality, neither of which weighs in their favor: (1) The SEC has not in fact released any of the materials, including to a private party who requested copies of the Tesoro documents under the Freedom of Information Act (FOIA), and (2) the SEC apparently will propose legislation concerning waivers of evidentiary privileges by companies involved with the SEC. There is no significance to the fact that the SEC has not released any of the materials. The SEC denied an FOIA requestor by asserting exemption 7(A) (5 U.S.C. § 552(b)(7)(A)) because “the production of such records would ... interfere with law enforcement proceedings,” i.e., with the then on-going grand jury proceedings. However, since the grand jury proceedings have ended, the SEC has advised a requestor that the exemption will no longer be asserted and that the Commission’s FOIA officer will review the Tesoro file to determine whether any material is releasable. This is a slim basis on which to claim an expectation of confidentiality. Likewise without weight is appellants’ contention that confidentiality should be accorded because the SEC has recently announced that it will propose legislation which would “provide that submission of information to the Commission does not waive the attorney-client privilege, or any other applicable evidentiary privilege, and that such information is exempt from the FOIA.” This statement by the SEC hardly supports appellants’ position. Rather, it seems to indicate a belief by the SEC that, under current law, submission of information to the SEC waives applicable evidentiary privileges and is not exempt from FOIA requests. We note that the SEC has not taken any public position in this case concerning judicial resolution of these problems, nor has it adopted regulations embodying the substance of its suggestion to Congress. Finally, we believe that no policy factor now inherent in the work product privilege calls for a special exception for the SEC’s voluntary disclosure program (or similar governmental enforcement projects). A healthy adversary system affords protection to an attorney’s trial preparation as against actual and potential opponents. United States v. American Telephone & Telegraph, supra, 642 F.2d at 1299. But, as we have said, the privilege does not protect against the manipulation of selecting a particular opponent for selective disclosure — most probably for the discloser’s own benefit. The SEC was such a poten-, tial opponent but Tesoro (and the other appellants) voluntarily and deliberately made disclosures to that agency, undoubtedly in the hope and expectation of receiving a benefit under the voluntary disclo- , sure program. It is said that, nevertheless, such voluntary programs will be hindered unless the work product privilege covers disclosures under them. Permian, supra, has already rejected, for the attorney-client privilege, an exception for such disclosure, saying “we cannot see how ‘the developing procedure of corporations to employ independent outside counsel to investigate and advise them’ would be thwarted by telling a corporation that it cannot disclose the resulting reports to the SEC if it wishes to maintain their confidentiality.” The same choice is open under the work product privilege. Or the company can insist on a promise of confidentiality before disclosure to the SEC. Cf. Sealed Case, 676 F.2d at 823. If a change is to be made because it is thought that such voluntary disclosure programs are so important that they deserve special treatment, that is a policy matter for the Congress, or perhaps for the SEC (through a regulation). Courts are not the appropriate forum — for one thing, courts do not know enough — to decide on policy grounds to treat those programs (or others like them) in an exceptional way. See Sealed Case, supra, 676 F.2d at 824. Affirmed. . The orders were entered by District Judge Oberdorfer on September 23 and October 18, 1983 in District Court Misc. No. 83-0217. . Plaintiff-appellees are Robert J. Bolton, George E. Meyer and Leo A. Walker, III, individually and on behalf of all persons similarly situated, and Robert J. Bolton derivatively on behalf of Tesoro. . Tesoro intervened after appellees moved to compel compliance with the subpoenas. . The special committee later retained Vinson to advise it with regard to certain legal matters arising in conjunction with the investigation. . We were informed by letter prior to oral argument that the grand jury investigation had been concluded with a decision not to seek a criminal prosecution. . Appellants are Tesoro and the two law firms. . Fed.R.Civ.P. 26(b)(3) provides: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of docu7 ments and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. . "We do not consider whether we would imply a waiver in other types of litigation for all of Company's privileged files relating to the report." 676 F.2d at 817. . Wigmore stated that "Regard must be had ... in every waiver ... [to] the element of fairness and consistency.” 8 J. Wigmore, Evidence § 2327 at 636 (J. McNaughton rev. 1961)). . As we show infra, the SEC did not promise confidentiality to appellants. . The newly submitted letters between Tesoro and the SEC were exchanged in October 1978. The SEC’s formal investigation of Tesoro commenced in August 1978. Appellants have also placed into evidence a copy of a letter, dated September 18, 1978, from Fulbright to the SEC in which confidentiality was claimed for all documents. This letter, too, was sent after the formal investigation was commenced, and the record shows no response from the SEC. . In Permian, supra, 665 F.2d 1214, the District Court upheld claims to work product protection, and we affirmed. Appellants say that that holding supports their position that their voluntary production of documents to the SEC did not effect a waiver of their work product protection. Permian was quite different, though it involved production of allegedly privileged documents to the SEC. Those documents had first been produced in private litigation in which both a stipulation between the parties and a judicial protective order stated that inadvertent production of a privileged document would not be deemed a waiver. The District Court found that work product waiver had not in fact occurred for 36 documents at issue because a special agreement with the SEC established a protective attitude of confidentiality. The question on appeal was the correctness of the District Court’s factual findings concerning the agreement with the SEC. That finding was upheld by this court as not clearly erroneous. 665 F.2d at 1218-19. Here, on the other hand, the District Court found no such special agreement, and we agree that its decision was correct on this record. . Taken from a letter dated February 22, 1984 from John S.R. Shad, SEC Chairman, to the Honorable Timothy E. Wirth, Chairman of the House Energy and Commerce Committee Subcommittee on Telecommunications, Consumer Protection and Finance. 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_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. PARSONS et al. v. CLARKE. Circuit Court of Appeals, Ninth Circuit. February 13, 1928. No. 5114. 1. Covenants 14 — Under California statute, in bargain and sale deed without express warranty, no warranty of title is implied (Civ. Code Cal. § 1113). Under Civ. Code Cal. § 1113, in a bargain and sale deed, containing no express warranty, the only covenants implied by law are a covenant that previous to execution of the deed grantor had not conveyed the same estate,_ or any right, title, or interest therein, to any other person, and a covenant against incumbrances. 2. Covenants <§=314 — Easements <§=»!, 3(2)— Under California statute, right of way is appurtenance to land conveyed, and is real property, and failure of title of grantee by bargain and sale deed gives him no right of action against grantor, in absence of express warranty (Civ. Code Cal. §§' 657, 658, 662). Under Civ. Code Cal. §§ 657, 658, 662, a right of way conveyed by bargain and sale deed to land is appurtenant to the land, and is real property, and failure of title thereto gives the grantee no right of action against the grantor, in absence of express warranty. In Error to the District Court of the United States for the Southern Division of the Northern District of California. Action at law by Edward G. Y. Clarke against William B. Parsons, Anna C. Parsons, his wife, and Elizabeth Hamilton. Judgment for plaintiff, and defendants bring error. Reversed and remanded. Rittenhouse & Snyder, of Santa Cruz, Cal., Wm. T. Kearney, of Richmond, Cal., and Andrew E. Burke, of San Francisco, Cal., for plaintiffs in error. Ralph H. Smith, of Santa Cruz, Cal., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. RUDKIN, Circuit Judge. This is a writ of error to review a judgment in favor of the plaintiff in an action to recover damages for breach of warranty. The case has been brought here on the judgment roll without a bill of5 exceptions, and the sufficiency of the complaint to support the judgment is the only question presented for our consideration. The sufficiency of the complaint was not challenged by demurrer or otherwise in the court below, and under such circumstances the complaint is aided by certain presumptions, the nature and scope of which we need not consider, in view of the fact that the plaintiff claims no right of action against the defendants other than that specifically set forth in his complaint. See, however, U. S. Fidelity & Guaranty Co. v. Whittaker (C. C. A.) 8 F.(2d) 455. For convenience, we will refer to the parties as designated in the court helow. Briefly stated, the complaint alleged that the defendants by bargain and sale deed granted to the plaintiff a certain described tract of land, together with a right of way over an adjoining tract as a means of ingress and egress to and from the granted premises; that by the terms of the deed the defendants warranted that they had the right to grant, bargain, sell, and convey, as an appurtenance to the real property described in the deed, the right to travel over, across, and upon the right of way mentioned and described therein; that the defendants had no right whatever to grant, bargain, sell, or convey to the plaintiff, or to any other person, the right of way in question at the time of the execution of the deed, or at any other time, or at all; that R. W. Butcher and Sarah B. Butcher, his wife, were, at the date of filing the complaint, and at all times therein mentioned, by themselves and their predecessors in interest, the owners in fee simple absolute of the traet of land through and over which the right of way was granted; that immediately upon the execution and delivery of the deed the plaintiff attempted to travel over the right of way, but Butcher and wife erected a fence across the right of way and prevented the plaintiff from using the same; that the plaintiff commenced an action in the superior court of Santa Cruz county against Butcher and wife to quiet his title to the right of way, and in such action it was adjudged that the plaintiff was without right, and had no estate, right, title, or interest whatsoever in or to the right of way; that no appeal has been prosecuted from such judgment, and the same has become final; that the plaintiff was compelled to and did pay $110 as rental for the use of a certain right of way between certain dates; that he paid the sum of $250 for a new right of way and incurred expenses in the sum of $3,600 in constructing a roadway thereon; that he expended the sum of $350 in the prosecution of the action in the superior court of Santa Cruz county to establish his title to the right of way; that the market value of the real property conveyed to the plaintiff, together with the right to travel over, across, and upon the right of way therein mentioned, was the sum of $3,800; and that the market value without such right of way was the sum of $100. On this complaint a judgment was entered in favor of the plaintiff in the sum of $3,490, together with costs of suit. If the right of way in question is real property, the plaintiff does not contend that his complaint states a cause of action, or that he has any right of recovery. On the contrary, his, sole contention is that the right of way is personal property; that in the sale of personal property there is an implied warranty of title, under section 1765 of the Civil Code of the state, and that there has been a breach of such implied warranty. If the right of way in question is real property, it seems quite apparent that the complaint states no cause of action. The bargain and sale deed contains no express warranty, and the only covenants implied by law are a covenant that .previous to the time of the execution of the conveyance the grantor had not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee, and a covenant against incumbrances. Civil Code, § 1113. With the implied covenant against incumbrances we have no present concern. The complaint not only failed to allege that the defendants had conveyed the same estate, or some right, title, or interest therein, to a person other than the grantee, prior to the execution of the deed to the plaintiff, but, on the contrary, it alleged affirmatively that the defendants at no time had any right whatever to grant, bargain, sell, or convey the right of way, and that Butcher and wife, and their predecessors in interest, were at all times the owners in fee simple absolute of the traet of land over which the right of way was granted. It thus appears affirmatively from the complaint that there has been no breach of any warranty, express or implied, if the right of way is to be considered as real property. But, as already stated, the plaintiff contends only that the right of way was personal property, and that the complaint alleged a breach of the implied warranty of title. This latter contention cannot be sustained. The Civil Code provides that property is either real or immovable, or personal or movable; that real property consists of land, that which is affixed to land, that which is incidental or appurtenant to land, and that which is immovable by law; and that a thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or water course, or of a passage for light, air, or heat' from or across the land of another. Civil Code, §§ 657, 658, 662. The right of way .in question was appurtenant to land, and-was, therefore, clearly real property as defined by the laws of the state. For this reason, the complaint not only fails to state a cause of action, but shows affirmatively upon its face that there has been no breach of warranty, and that no right of action had accrued or existed in favor of the plaintiff. The judgment of the court below must therefore be reversed. The jurisdiction of that court was invoked, apparently, upon the ground that the plaintiff was an alien and the defendants citizens of the United States; but the complaint failed to allege the citizenship of the defendants, and their citizenship does not appear elsewhere in the record. So far as the record discloses, therefore, the court below was without jurisdiction. The judgment is reversed, and the cause is remanded for further proceedings, with leave to amend the complaint, if the plaintiff is so advised. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_casesourcestate	17	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. SMITH v. ILLINOIS. No. 158. Argued December 7, 1967. Decided January 29, 1968. Gerald W. Getty argued the cause for petitioner. With him on the briefs were James J. Doherty and Marshall J. Hartman. John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Philip J. Rock, Assistant Attorney General. Opinion of the Court by Mr. Justice Stewart, announced by Mr. Justice Fortas. In Pointer v. Texas, 380 U. S. 400, 403, this Court held that the Sixth Amendment right of an accused to confront the witnesses against him is a “fundamental right . . . made obligatory on the States by the Fourteenth Amendment.” The question presented in this case is whether Illinois denied that right to the petitioner, Fleming Smith. He was convicted in a criminal court of Cook County, Illinois, upon a charge of illegal sale of narcotics, and his conviction was affirmed on appeal. We granted certiorari to consider his constitutional claim. At the trial the principal witness against the petitioner was a man who identified himself on direct examination as “James Jordan.” This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two Chicago police officers. The officers corroborated part of this testimony, but only this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner’s version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness. On cross-examination this witness was asked whether “James Jordan” was his real name. He admitted, over the prosecutor’s objection, that it was not. He was then asked what his correct name was, and the court sustained the prosecutor’s objection to the question. Later the witness was asked where he lived, and again the court sustained the prosecutor’s objection to the question.' As the Court said in Pointer, “It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” 380 U. S., at 404. Even more recently we have repeated that “a denial of cross-examination without waiver . . . would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Jams, 384 U. S. 1, 3. In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself. In Alford v. United States, 282 U. S. 687, this Court almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the “place of residence” of a prosecution witness over the insistence of defense counsel that “the jury was entitled to know 'who the witness is, where he lives and what his business is.’ ” 282 U. S., at 688-689. What the Court said in reversing that conviction is fully applicable here: “It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. ... To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . . "... The question 'Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. . . . “The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. . . . But no such case is presented here. . . 282 U. S., at 692-694. In Pointer v. Texas, supra, the Court made clear that “the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding.” 380 U. S., at 407-408. In this state case we follow the standard of Alford and hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution. D , Reversed. 70 Ill. App. 2d 289, 217 N. E. 2d 546. 387 U. S. 904. The officers testified that the witness had entered the restaurant with the marked money and without narcotics, and that he had emerged with a bag of heroin. They also testified that they had found some of the marked money in the petitioner’s possession when they arrested him. The petitioner testified that he had refused to sell the witness narcotics but had directed him to another man in the restaurant from whom he believed a purchase had been made. The petitioner also testified that he used a $5 bill to purchase a cup of coffee, and must have received the marked money in his change. “MR. PRide: Is James Jordan your correct name? “Mr. Martwick: Object. “Mr. Pride.* I have a right to know if it is his correct name. “The Court: He may answer if it is his correct name or not. “Mr. Pride: Is that your correct name? “A. No, it is not. “Q. What is your correct name? “Mr. Martwick: Object. “The Court: I won’t have him answer that.” “Q. Now, where do you live now? “Mr. Martwick: Objection. “Mr. Pride: This is material. “Mr. Martwick: Objection, Judge. “The Court: Yes, objection allowed.” The record shows that in fact the petitioner and his lawyer knew “Jordan” and that the lawyer had once represented him. However, there is no evidence in the record that either the petitioner or his lawyer knew “Jordan’s” correct name or where he was living at the time of this trial. See Pointer v. Texas, 380 U. S., at 404. It is to be noted that no claim of the privilege against compulsory self-incrimination was asserted by “James Jordan.” Cf. United States v. Cardillo, 316 F. 2d 606. Nor are this Court’s decisions in McCray v. Illinois, 386 U. S. 300, and Roviaro v. United States, 353 U. S. 53, relevant here. In neither of those cases was the informer a witness for the prosecution. Another recent Illinois decision seems to have recognized that the state evidentiary informer privilege is not involved when the informer is himself a witness at the trial. People v. Smith, 69 Ill. App. 2d 83, 89, 216 N. E. 2d 520, 523. See 8 Wigmore, Evidence §2374, n. 6 (McNaughton rev. 1961). Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_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 Walter JACONSKI, Appellant, v. AVISUN CORPORATION and W. V. Pangborne & Co., Inc. No. 15420. United States Court of Appeals Third Circuit. Argued Jan. 3, 1966. Decided April 13, 1966. Avram G. Adler, Abraham E. Freedman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant. John Francis Gough, Thomas Raeburn White, Jr., White & Williams, Philadelphia, Pa., for appellee, W. V. Pang-borne & Co., Inc. Martin A. Heckscher, James J. McCabe, Jr., Duane, Morris & Heckscher, Philadelphia, Pa., for appellee, Avisun Corp. Before BIGGS, GANEY and FREEDMAN, Circuit Judges. BIGGS, Circuit Judge. This appeal is taken from a pretrial order entered by the court below dismissing the plaintiff’s, Jaconski’s, case, based on diversity and jurisdictional amount for “lack of jurisdiction.” The operative facts as they appear from the record follow. On January 23, 1962, Jaconski brought suit to recover damages for personal injuries allegedly sustained by him on the afternoon of August 1, 1961, while he was employed as a pipefitter and welder for Bechtel Corporation. Bechtel was the general contractor in connection with the erection of a polypropylene manufacturing plant for the defendant, Avisun Corporation, Avisun. At the time of the accident the defendant, W. Y. Pangborne & Co., Inc., Pangborne, was engaged in electrical-installation work at Avisun’s plant under a subcontract from Bechtel. At the time of the accident Jaconski was assisting in the construction of a gas line on a “pipe bridge.” When Jaconski attempted to get a length of pipe into place it came into contact with an overhead wire. This contact caused 12,000 volts of electricity to run through the pipe and into and through the body of the plaintiff, throwing him some ten feet. In March 1962 Avisun and Pangborne served separate but similar interrogatories requiring Jaconski to furnish information regarding the nature and extent of his injuries. On July 26, 1962, Jaconski filed answers to Pangborne’s interrogatories only, which stated that as a result of the accident he had suffered severe electrical burns on both his hands and feet, aggravation of a prior injury to his left foot, and severe shock to his nervous system with residual anxiety neuroses. He also stated that he still suffered “from residual muscle and tendon damage to right hand and increasing difficulty with left foot.” The extent of Jaconski’s alleged injuries is set out more fully in his deposition taken on April 11, 1963. This deposition, however, was not filed in the court below until after the pretrial order dismissing the case was filed and was not considered by the court below. The use of this deposition will be discussed at a later point in this opinion. Jaconski’s answers to the interrogatories further alleged only $400 in special damages. On December 28, 1964 the plaintiff’s pretrial memorandum, then filed, alleged a permanent partial disability and listed as special damages in the amount of $58,-500, for loss of past earnings and estimated loss of future earnings, and $200, for medical bills. Avisun, on March 1, 1965, filed a motion to compel the plaintiff to furnish to it up-to-date information regarding the claimed injuries. At a hearing held on March 17, 1965, the plaintiff’s attorney agreed to furnish such information before the pretrial conference or be barred from showing additional damages at the trial. No further answers to the interrogatories were filed and, aside from Jaconski’s deposition, no further information as to his injuries has been furnished by Jaeonski. Avisun’s answer and the pretrial mem-oranda of both Pangborne and Avisun raised the defense of lack of necessary amount in controversy. 28 U.S.C. § 1332(a). On April 8, 1965, the pretrial conference was held, but no stenographic report was made of the proceedings and it appears that none is available. At the close of the conference the order dismissing the action for lack of jurisdiction was entered. The problem of ascertaining the “sum or value” of the matter in controversy in a suit based on diversity jurisdiction has puzzled the courts for many years. The problem arises, of course, from the fact that lower federal courts possess only that jurisdiction which has been specifically conferred upon them by Congress. United States Constitution, Art. Ill; Sheldon v. Sill, 8 How. 440, 49 U.S. 440, 12 L.Ed. 1147 (1850). In order to comply with the Federal Rules of Civil Procedure in respect to jurisdictional amount all that is necessary is that the complaint contain “a short and plain statement of the grounds upon which the court’s jurisdiction depends * * Rule 8(a)(1), Fed.R.Civ.Proc., 28 U.S.C. An uncontroverted allegation that the requisite jurisdictional amount exists is deemed sufficient ordinarily to comply with Rule 8(a) (1). See 2 Moore, Federal Practice § 8.11 at 1666 (2d ed. 1965). However, where the amount in controversy is challenged, the burden of proving the matter in controversy exceeds the jurisdictional minimum rests upon the party alleging the sufficiency of the amount in controversy. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). Moreover, in McNutt the Supreme Court stated that even if the jurisdictional amount is not challenged by an adversary “the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” See 298 U.S. at 189, 56 S.Ct. at 785. There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in “good faith”. Norwood Lumber Corporation v. McKean, 153 F.2d 753 (3 Cir. 1946). On its face, the phrase “good faith” would seem to imply that the relevant consideration is the plaintiff’s state of mind and that, therefore, it is a subjective test. In fact one of the expressions of the rule, whether the demand is colorable and laid for the purpose of giving jurisdiction to the federal court, would suggest this conclusion. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 29 L.Ed. 729 (1886). But it is obvious that the plaintiff’s actual mental state can never be satisfactorily measured without recourse to objective facts. Thus the basic criterion for determining “good faith” is that “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 288-289, 58 S.Ct. 590 (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a “legal certainty” that he cannot re-cover an amount above the jurisdictional minimum. Cumberland v. Household Research Corp. of America, 145 F.Supp. 782 (D.Mass.1956); Cohen v. Proctor & Gamble Distributing Co., 16 F.R.D. 128 (D.Del.1954). It follows, therefore, that in order to find a plaintiff’s claim lacking in “good faith”, the court must be able to conclude from the record before him that the plaintiff cannot recover a sum by way of damages above the $10,000 jurisdictional floor. We entertain no doubt that a trial judge has the power to determine whether the facts requisite to jurisdiction exist. Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 (1898). However, the determination of jurisdictional issues must always be such as to enable a reviewing court to ascertain whether the evidence supports the trial court’s finding. Id. at 121-122, 18 S.Ct. 293; Shaffer v. Coty, Inc., 183 F.Supp. 662, 665 (S.D.Cal.1960). The record before us is meager, and the court below did not state the basis for its conclusion that the jurisdictional amount does not exist. Moreover, our review of the record does not permit us to conclude that it is apparent to a “legal certainty” that Jaconski could not recover sufficient damages to constitute the requisite amount. We are not unmindful of the mounting caseloads in our heavily burdened metropolitan courts and of the very substantial number of cases awaiting trial. In fact the attempt to limit these burgeoning caseloads was one of the major reasons for increasing the jurisdictional amount. S.Rep. 1830, U.S.Code Cong, and Admin.News, 85th Cong.2d Sess. pp. 3099, 3101 (1958). But despite that increase in the jurisdictional amount the statistics published by the Director of the Administrative Office of the United States Courts show that no reduction in private civil litigation, including tort cases, has been effected. It has been contended that the reason for this unfortunate result is the inflexibility of the applicable “good faith-legal certainty” test. But Congress was aware of this test and had been advised that an increase in the jurisdictional amount would undoubtedly be followed by an increase in the damages claimed in tort cases. Congress was surely aware of this difficulty and intended to afford some degree of relief therefrom by enacting Section 1332(b), Title 28, U.S.C. This provision states that when a plaintiff is adjudged to be entitled to less than the jurisdictional amount the court may deny him costs and, in addition, may impose costs on him. Congress “aimed” Section 1332(b) “at deterring the filing of inflated claims made in order to bring the actions in the district courts.” Section 1332(b) has not reduced the number of inflated claims, perhaps because it has not been often applied, but because Congress did enact this section it would seem to follow that it did not attempt to change the “good faith-legal certainty” test. It remains the rule, and the reason for its rather strict application resides, we believe, in the fear of depriving a plaintiff of his right to a jury trial. Except in the plainest cases the issue of jurisdictional amount should not be decided if the ruling constitutes at the same time a decision on the merits. Ordinarily the desirable, indeed the necessary, choice is to permit the case to proceed to trial. Cf. Wade v. Rogala, supra. The grounds for the trial court’s decision in the instant case are far from plain. Can it be said that in the case at bar on the present record, prior to trial, that the jurisdictional amount is lacking ? We are without a statement by the trial court as to the basis for a conclusion of law, in fact unstated by the trial court, that the plaintiff’s allegations of jurisdictional amount were not made in “good faith”. We are dissatisfied with the record here. Counsel for Jaconski was lax. The judge presiding at the March 17th hearing, who was not the judge who presided at the actual pretrial hearing, pointed out to Jaconski’s counsel clearly that it was his duty to bring up to date the operative facts relating to his client’s damages. Jaconski’s counsel replied: “That’s my responsibility and I accept that responsibility.” He failed in that clearly stated obligation. Jaconski’s deposition was taken on April 11, 1963. The deposition was not filed until May 3, 1965, more than two years later. This was a long delay. May 3, 1965 was the day on which the notice of the appeal was filed. But the court below did not inform Jaconski’s counsel that it would dismiss the action if information concerning the nature, character and extent of Jaconski’s injuries were not brought up to date by the time of the pretrial conference on April 8, 1965, though Jaconski’s counsel could, and perhaps should have drawn an inference that since the court was of the view that the record as constituted then and now would not sustain the allegation of the jurisdictional amount and that therefore the action might possibly be dismissed for lack of jurisdiction. The trial memoranda of Avisun and Pangborne made the jurisdictional amount an issue in the case. But Jaconski’s counsel filed no answering memorandum so far as we are aware. On the other hand, neither Avisun nor Pangborne moved to dismiss the action for lack of jurisdiction. The court aparently entered the order of dismissal sua sponte. Perhaps the unrecorded proceedings at the pretrial conference would disclose an oral motion but without that record we are uninformed as to what transpired and, as has been stated, we are entitled to know on what basis the court below dismissed the case. Cf. Arnold v. Troccoli, 344 F.2d 842 (2 Cir. 1965). The trial court must examine all available evidence. Gilbert v. David, 235 U.S. 561, 568, 35 S.Ct. 164, 59 L.Ed. 360 (1915). Cf. Sansone v. Ocean Accident and Guarantee Corp., 228 F.Supp. 554 (E.D.La. 1964). Moreover, we cannot conclude that the arguments of Avisun and Pang-borne based on the failure of Jaconski to make use of Rule 75 (n) is a factor requiring the determination of this case in their favor. The use of Rule 75 (n) is permissive, not mandatory. In the instant case we must deal with the jurisdictional facts as they are presently on the record. The court below on remand must seek to have counsel make available on the record, for the information of the reviewing tribunal, sufficient facts to determine the good faith of the allegations of the complaint. Another pretrial conference should be held and pretrial to be effective must be full and adequate. If it were not for the unusual procedural difficulties presented by this case we would deem it unnecessary to comment further. We point out, however, that the court below on remand should determine the issue as to whether or not Jaconski’s attorney’s failure to update the answers to the interrogatories or otherwise to bring up to date on this record the operative facts as to the extent of Jaconski’s injuries should limit Jaconski’s proof as to the extent of those injuries. See 4 Moore Fed.Praetice j[ 33.28, at 2340-41 (2d ed. 1963); Michigan Window Cleaning Co. v. Martino, 173 F.2d 466 (6 Cir. 1949); Fisher v. Underwriters at Lloyd’s London, 115 F.2d 641 (7 Cir. 1940). Cf. United States v. 42 Jars, More or Less, 264 F.2d 666 (3 Cir. 1959). Cf. Rules 33 and 37, Fed.R.Civ. Proc., 28 U.S.C. If such a limitation be imposed by the trial judge it will not affect the necessity of making a determination of the jurisdictional amount in controversy which is to be ascertained, not by the amount which Jaconski is able to prove, but by the amount demanded by him, if that demand is found to have been made in good faith. Miller-Crenshaw Co. v. Colorado Mill & Elevator Co., 84 F.2d 930, 932 (8 Cir. 1936); National Surety Corporation v. City of Excelsior Springs, 123 F.2d 573, 156 A.L.R. 422 (8 Cir. 1941). The order of the court below will be vacated and the cause will be remanded with instructions to proceed in accordance with this opinion. . The grounds for dismissal are not set out specifically in the pretrial order of dismissal which reads as follows: “And now, this 8th day of April, 1965, this case is dismissed for lack of jurisdiction.” There is, however, no question of diversity of citizenship since the complaint and answer reveal that the plaintiff is a citizen of New Jersey and the defendant, Avisun Corp., is incorporated under the laws of Delaware and has its principal place of business in Philadelphia, Pennsylvania and the defendant, W. V. Pang-borne & Co., Inc., is incorporated under the laws of Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania. . Bechtel Corporation is not a party to the present litigation. . The practice in laying the gas line required Jaconski to stand on the “pipe bridge” while his working partner handed up 20-foot lengths of pipe to him. As soon as a pipe length was in place Jaeonski’s partner would come on the “pipe bridge” and assist him in welding the pipe into place. . Jaconski’s answers to the interrogatories state: (1) that he was treated at the Delaware Hospital, Wilmington, on the afternoon of the accident but that he was not hospitalized at any other time; (2) that he reported to work the morning after the accident and lost no wages while finishing his job with Bechtel; (3) that during the eleven months after the accident he worked for five separate employers and claimed only the loss of one week’s wages in the amount of $168 in November, 1961, and (4) that his total out-of-pocket expenses totalled less than $400, including approximately $200 in medical expenses. . The following colloquy took place between counsel in the presence of the court: “Mr. Heckscher (counsel for Avisun): The other motion [by Avisun] is to compel the filing of either answers to our [Avisun’s] interrogatories which have never been filed or up-to-date answers to Pangborne’s interrogatories which stated that they [the interrogatories] were continuing and inasmuch as this case is about to reach pretrial conference we felt that we should have up-to-date information. “Mr. Adler (counsel for Jaeonski): Tour Honor when they furnished their interrogatories I submitted the answers to Pangborne which were almost identical interrogatories, sworn to and— “Mr. Heckscher: No question about that, we don’t care which interrogatories are up to date, but the pretrial memorandum has alleged damages which did not appear to be supported by the previous answers filed, and we would like up-to-date, whether they are our interrogatories that are answered or whether up-to-date information is supplied in answer to Pangborne’s interrogatories. “The Court: Well, at the time of the pretrial conference it will be up to the parties concerned to have their interrogatories up to date. If not up to date at the time of the pretrial conference plaintiff will be limited— “Mr. Adler: That’s right. “The Court: —and you won’t be able to prove it. “Mr. Adler: That’s my responsibility and I accept that responsibility. “The Court: I don’t think you need more than that. “Mr. Heckscher: Thank you, Tour Honor. “The Court: So that the second order in the petition [sic.] will not be signed. “Mr. Heckscher: Nor need it be listed as I understand it from what Tour Hon- or has said. “The Court: No, because the responsibility is on plaintiff’s attorney to amend if he chooses to go forward on some phase of damages that are not in the original pretrial memorandum.” The second order requested by Avisun’s motion, referred to by the court below as a “petition” is not relevant here. . The first Act limiting federal jurisdiction required a $500 minimum amount in controversy. Act of Sept. 24, 1789, ch. 20, § 11, 1 Stat. 78. Since 1789, Congress has increased this amount three times. Act of March 3,1887, 24 Stat. 552 ($2,000); Act of March 3, 1911, ch. 231, § 24, 36 Stat. 1091 ($3,000); and Act of July 25, 1958, 72 Stat. 415 (now 28 T7.S.C. §§ 1331, 1332) ($10,000). . See the statistics cited in Arnold v. Troe-coli, 344 F.2d 842, 844-845 (2 Cir. 1965) and the Annual Reports of the Director of the Administrative Office of the United States Courts for the fiscal years 1957— 64, Table C 2. . See Report of Committee on Jurisdiction and Venue of the Judicial Conference of the United States, U.S.Code Cong, and Admin.News, 8th Cong.2d Sess. 3114, 3123 (1958). . S.Rep. 1830, U.S.Code Cong, and Admin. News, 85th Cong.2d Sess. pp. 3099-3100 (1958). . The plaintiff in the instant ease demanded a jury trial in his complaint. . We cannot and do not consider the contents of JaconsM’s deposition in connection with the issue sub judice. We can consider the record only as it existed at the time the court below made the order dismissing the action. Of. Williams v. Murdoch, 330 F.2d 745 (3 Cir. 1964) , note 3 cited to the text. See Dictograph Products Co. v. Sonotone Corporation, 231 F.2d 867 (2 Cir. 1956), appeal dismissed by stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956). . See Section 753(b), Title 28, U.S.C. The desirability of having a court reporter present at pretrial conferences and causing the reporter to record verbatim the proceedings is demonstrated by the instant case. In this connection compare United States v. Sigal, 341 F.2d 837 (3 Cir. 1965) . . Rule 75 (n), Eed.R.Civ.Proc., 28 U.S.O., provides: “Appeals When No Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the eourt in the record on appeal.” . Avisun and Pangborne cite two cases in support of their position. The first case, Murphy v. St. Paul Fire and Marine Insurance Company, 314 F.2d 30 (5 Cir. 1963), the recording discs of the court reporter had melted. It was impossible, therefore, for the Court of Appeals to pass on an alleged error in the trial judge’s charge on the doctrine of res ipsa loquitur. In the second case, Kayo Oil Company v. Sammons, 321 F.2d 729 (5 Cir. 1963), the alleged error concerned prejudicial statements allegedly made in the closing argument to the jury which were not recorded. It is obvious that if an error had occurred in either of the cited cases it would appear in a record prepared under Rule 75 (n). . See note 5, supra. 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_casetyp1_7-3-5	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". WEBSTER v. UNITED STATES. No. 7662. Circuit Court of Appeals, Sixth Circuit. Oct. 13, 1937. Thos. N. Hazelip, of Louisville, Ky., for appellant. Bunk Gardner, of Louisville, Ky., for the United States. Before SIMONS and ALLEN, Circuit Judges, and NEVIN, District Judge. PER CURIAM. The court being of the opinion that inspection by the Post Office Department of an unsealed package not having upon it stamps sufficient to qualify it as first class mail was not an invasion of appellant’s immunity from unreasonable search and seizure, and, finding no prejudicial error in the trial, it is ordered that the judgment below be, and it is hereby, affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations MAGGIO, WARDEN v. WILLIAMS No. A-301. Decided November 7, 1983 Per Curiam. On October 23, 1983, less than two days before Williams’ scheduled execution, the Court of Appeals for the Fifth Circuit stayed the execution “pending final action of the Supreme Court.” Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams’ execution. H-I Williams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, La. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So. 2d 369 (1980). After we denied Williams’ petition for certiorari, 449 U. S. 1103 (1981), and his request for rehearing, 450 U. S. 971 (1981), he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first petition for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams’ petition. See Williams v. Blackburn, 649 F. 2d 1019, 1021-1026 (CA5 1981) (incorporating District Court’s decision). The District Court’s judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, ibid., but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams’ many objections to his conviction and sentence and affirmed the judgment of the District Court. Williams v. Maggio, 679 F. 2d 381 (1982) (en banc). On June 27, 1983, we again denied Williams’ petition for certiorari, 463 U. S. 1214, and we denied his request for rehearing on September 8, 1983, 463 U. S. 1249. After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams’ execution. Williams v. King, 573 F. Supp. 525 (1983). Because it believed Williams’ contentions to be “frivolous and without merit,” the District Court also denied his request for a certificate of probable cause, which, under 28 U. S. C. §2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay. The court reviewed Williams’ claims and “expressly [found] that each is without merit.” Williams v. King, 719 F. 2d 730, 733 (1983). In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams’ “proportionality” claim that “a complete review of the law on this matter may be anticipated. With a person’s life at stake, we must await that review or further directions from the Supreme Court.” Ibid. II Just last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. Barefoot v. Estelle, 463 U. S. 880, 895 (1983). A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists “ ‘a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.’” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers)). We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect. The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated. Williams’ claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a districtwide rather than a statewide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor’s closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason. Third, the trial court’s instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in Hopper v. Evans, 456 U. S. 605 (1982), and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams’ trial, although proper under Witherspoon v. Illinois, 391 U. S. 510 (1968), allegedly deprived Williams of a jury representative of a fair cross-section of the community. Williams’ second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor’s closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two justices indicated that the prosecutor’s statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams v. Blackburn, 396 So. 2d 1249 (1981). Williams’ failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974), the District Court examined the prosecutor’s closing argument at length and concluded that it did not render Williams’ trial fundamentally unfair. The trial court’s instruction on lesser offenses was clearly proper under state law, and the District Court’s review of the record led it to conclude that the evidence fully justified the trial court’s charge. Williams’ challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that “the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.” 391 U. S., at 518. Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted. Williams’ challenge to the Louisiana Supreme Court’s proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court’s procedure and found that it “provides adequate safeguards against freakish imposition of capital punishment.” Williams v. Maggio, 679 F. 2d, at 395. This conclusion was challenged in this Court in Williams’ petition for certiorari following the Court of Appeals’ decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Pulley v. Harris, 460 U. S. 1036 (1983). Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court’s proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, post, p. 908; James v. Louisiana, post, p. 908; Sonnier v. Louisiana, 463 U. S. 1229, rehearing denied, 463 U. S. 1249 (1983). See also Narcisse v. Louisiana, post, p. 865. Williams asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, Baldwin v. Maggio, 463 U. S. 1251 (1983). But our decision there turned not on the substantiality of applicant’s Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. Strickland v. Washington, 462 U. S. 1105 (1983); United States v. Cronic, 459 U. S. 1199 (1983). As Williams notes, Justice White recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, post, p. 1301. Also, on October 31, the Court declined to vacate that stay. Post, p. 925. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant’s case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry’s execution should be stayed pending the decision in Pulley, or until further order of the Court. That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to districtwide, rather than statewide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court’s decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams’ sentence was not disproportionate regardless of whether the review was conducted on a districtwide or statewide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing. Ill The District Court’s careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court’s conclusion that Williams’ contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated. It is so ordered. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:

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