Split (2)

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songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Ruth W. GRIBBLE, Plaintiff-Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant-Appellee. No. 80-1431 Summary Calendar. United States Court of Appeals, Fifth Circuit. Unit A Sept. 15, 1980. Mary E. Felps, Austin, Tex., for plaintiff-appellant. Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee. Before BROWN, POLITZ and TATE, Circuit Judges. PER CURIAM: Because it appears from the record that this appeal is not timely, we must dismiss it for want of jurisdiction. Notice of this appeal was filed (March 31,1980) more than six months after the entry of final judgment in the court below (September 11, 1979), but within sixty days of the court’s denial of the appellant’s motion for a new trial (February 5, 1980). That motion was not served until October 15, 1979 — thirty-four days after the entry of final judgment, and twenty-three days beyond the ten day delay allowable for such motions. For reasons to be stated, although a timely motion for a new trial will prevent the running of the sixty day delay period for appeal, an untimely motion will not. The appellant brought this action for judicial review of the final decision of the Secretary of Health and Human Services denying her claim for social security disability benefits. On September 11, 1979, the United States District Court for the Western District of Texas entered its final judgment granting the Secretary’s motion for summary judgment. On October 18, 1979, i the appellant filed a “Motion for Rehearing” (new trial), asking the district court to set aside its judgment and upon reconsideration to deny the summary judgment and remand the case to the Secretary for a new hearing. On February 5, 1980, the district court denied the appellant’s motion, and the appellant filed notice of her appeal on March 31. In civil cases in which the United States or an officer thereof is a party, notice of appeal must be filed within sixty days of the date of entry of the judgment appealed from. Fed.R.App.P. 4(a)(1). The delay period for appeal is “mandatory and jurisdictional.” Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521, rehearing denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978); Edwards v. Joyner, 566 F.2d 960, 961 (5th Cir. 1978). It is, however, tolled by the timely filing of a motion pursuant to Rule 52(b) (to amend or make additional findings of fact and to amend the judgment accordingly), or to Rule 59 (for a new trial or to alter or amend the judgment) of the Federal Rules of Civil Procedure, and it commences anew from the denial of such motion. Fed.R.App.P. 4(a)(4). As a general rule, the untimely filing of such motions will not toll the running of the delay period for appeal. Browder v. Director, Illinois Department of Corrections, 434 U.S. at 264-65, 98 S.Ct. at 561; Martin v. Wainwright, 469 F.2d 1072, 1073 (5th Cir. 1972), cert denied, 411 U.S. 909, 93 S.Ct. 1538,36 L.Ed.2d 199 (1973). However, an exception to this rule has been recognized allowing an appeals court to assume jurisdiction of an untimely appeal when there is a showing of “unique circumstances” that would render it unfair to dismiss the appeal. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979). See Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967); 4 C. Wright & A. Miller, Federal Practice and Procedure; — Civil § 1168 (1969). The Federal Rules of Civil Procedure establish a strict ten day delay period for the serving of motions under Rule 52 and Rule 59(b) and (e). Fed.R.Civ.P. 52(b), 59(b) & (e). These periods, too, are jurisdictional, see Martin v. Wainwright, 469 F.2d at 1073, and cannot be extended in the discretion of the district court. Fed.R. Civ.P. 6(b). As Wright & Miller point out, however, the “unique circumstances” doctrine has been used by circuit courts of appeal to temper the strict requirements of Rule 6(b), and to allow untimely appeal, when the appellant has reasonably relied upon a district court’s erroneous extension of the time allowed for filing Rule 52 or Rule 59 motions, or its entertaining of such motions despite their untimeliness. 4 Wright & Miller, supra, § 1168. In the instant case, the appellant’s motion for a new trial was served some thirty-four days after the entry of final judgment in the district court — well beyond the ten day period provided in Rule 59. Thus, it must be held to have been untimely and insufficient to have interrupted the running of the sixty day delay period for appeal. Application of the “unique circumstances” doctrine would be particularly inappropriate with regard to this appellant. Having waited, with no apparent good reason, for more than three times the allowable delay period before serving her motion for a new trial, and having faced the appellee’s objection to the untimeliness of her motion (an objection raised within the sixty day period allowed for appeal), she was clearly on notice that her motion was not timely and that the delay period for appeal had not been interrupted, and any reliance she might have placed on the district court’s entertaining of her motion can hardly be characterized as reasonable. 4 Wright & Miller, supra, § 1168, at 641 & n. 22. Since the applicable delay period has run, this court is without jurisdiction to hear this appeal and must therefore dismiss it. APPEAL DISMISSED. 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_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". Earl Q. MORSE and Mrs. Earl Q. Morse, Appellants, v. Dr. Frederic A. MORETTI and Doctors Hospital, Inc., Appellees. No. 20826. United States Court of Appeals District of Columbia Circuit. Argued Nov. 30, 1967. Decided Jan. 25, 1968. Mr. Dale L. Button, Bethesda, Md., for appellants. Mr. John L. Laskey, Washington, D. C., for appellee Doctors Hospital. Mr. Walter J. Murphy, Jr., Washington, D. C., with whom Mr. John L. Ridge, Jr., Washington, D. C., was on the brief, for appellee Moretti. Before Edgerton, Senior Circuit Judge, and McGowan and Leventhal, Circuit Judges. PER CURIAM: The plaintiffs in a medical malpractice suit appeal from a judgment based on a directed verdict for the defendants. They say the case should have gone to the jury. Appellants are husband and wife. While the husband was a patient in Doctors Hospital, one of the appellees, the other appellee, Dr. Moretti, removed a cataract from his right eye and after-wards performed a similar operation on his left eye. A urinary infection developed in the left eye, further surgery was necessary, and as a result the eye is sightless. The evidence must be construed most favorably to the appellants. Goodwin v. Hertzberg, 91 U.S.App.D.C. 385, 201 F.2d 204 (1952). So construed, it would support a finding that both appellees were negligent. But this is not enough. In a suit for personal injuries the plaintiff must prove that negligence caused the injury. Since the appellants produced no significant evidence on this point, the court did not err in directing a verdict. The judge stated his reasons for directing a verdict, which is commendable. But we suggest that judges may well consider submitting some cases to the jury even though they would set aside a verdict for the plaintiffs. “Where the trial court has any doubt as to whether to grant the motion for a directed verdict, the better practice is for the judge not to direct a verdict but to reserve decision and let the jury bring in a verdict, * * *” 5 Moore’s Federal Practice § 50.05 [3], The jury might return a verdict for the defendants. Furthermore, if a verdict for the plaintiff were erroneously set aside, the appellate court could merely reinstate it and a new trial would be unnecessary. See Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142 (1944); Williams v. Greenblatt, 106 U.S.App.D.C. 335, 272 F.2d 564 (1959). Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_respond1_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. James L. POLK and Mattie B. Polk, Plaintiffs-Appellants, v. DIXIE INSURANCE COMPANY, Defendant-Appellee. No. 88-4737 Summary Calendar. United States Court of Appeals, Fifth Circuit. Sept. 20, 1991. Jim Waide, Tupelo, Miss., for plaintiffs-appellants. Suzanne Saunders, Sheila R. Fortenber-ry, Saunders, Abel & Fortenberry, Jackson, Miss., for defendant-appellee. On Remand From the Supreme Court of the United States Before POLITZ, GARWOOD and JOLLY, Circuit Judges. GARWOOD, Circuit Judge: This is a diversity action brought by plaintiffs-appellants James L. and Mattie B. Polk (the Polks) against defendant-appellee Dixie Insurance Company (Dixie) for fire insurance proceeds and for punitive damages for bad faith denial of their insurance claim. The district court granted Dixie’s motion for summary judgment on the punitive damages claim, and the policy claim was later tried to a jury, which returned a verdict for Dixie, on which the district court rendered judgment. The Polks then appealed to this Court. They raised three claims of error. The first was that the district court erred in refusing their motion that Dixie’s counsel be required to indicate a nonracial motive for exercising two of its peremptory challenges. The record reflected that before Dixie’s counsel had an opportunity to respond to this motion, the district court denied it on the basis that the government was not involved in the case. We sustained the district court’s ruling in this respect on the authority of the ruling of the en banc Court in Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990), that the doctrine of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not apply to civil suits between private parties. See Polk v. Dixie Insurance Co., 897 F.2d 1346, 1347 (5th Cir.1990). The Polks’ second assertion of error on appeal to this Court concerned the admission of certain testimony at the jury trial phase of this case. We rejected that assertion of error also. Id. at 1347-48. We also rejected the Polks’ third and final claim of error that related to the district court’s grant of summary judgment in favor of Dixie on the punitive damages claim. Id. at 1350-51. Thereafter, the United States Supreme Court reversed the decision of our en banc Court in Edmonson and held that Batson applied to civil suits between private parties. Edmonson v. Leesville Concrete Co., Inc., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The Supreme Court then granted the Polks’ petition for writ of certiorari, and in that connection vacated the judgment of this Court and ordered that “the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Edmonson v. Leesville Concrete Co., Inc. ...” Polk v. Dixie Insurance Co., — U.S. -, 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991). We now have the case pursuant to this remand by the Supreme Court. We do not interpret the Supreme Court’s decision as in any way affecting our ruling that the district court properly granted Dixie’s motion for summary judgment on the punitive damages claim or our disposition of the asserted evidentiary error raised by the Polks in their appeal to this Court. With respect to the Batson claim, we note that the district court, being of the view that Batson was wholly inapplicable since the suit before it was a civil action between private parties, made no determination whether the Polks had presented a prima facie case of racial discrimination by Dixie in its exercise of its peremptory chai-lenges; nor was Dixie ever afforded an opportunity in the district court to make any showing of nonracial reasons for its peremptory challenges. In these circumstances, and having reconsidered the case in light of the Supreme Court’s opinion in Edmonson, we order that the case be remanded to the district court with directions to determine in the first instance whether the Polks presented a prima facie case of racial discrimination by Dixie in the exercise of its peremptory challenges. If the district court determines that such a prima facie case was presented, it shall afford Dixie the opportunity to show that its complained-of challenges were made for nonracial reasons. If Dixie fails to make such a showing, the district court shall grant the Polks a new trial on their claim to the policy proceeds (but the summary judgment on the punitive damages claim shall not be disturbed). Otherwise, the district court shall deny the Polks relief. The cause is accordingly remanded to the district court for further proceedings in accordance with this opinion and the Supreme Court’s opinion in Edmonson. REMANDED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_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. RAILWAY MAIL ASS’N v. STAUFFER. No. 9065. United States Court of Appeals District of Columbia. Argued Oct. 26, 1945. Decided Dec. 10, 1945. Mr. Francis C.-Brooke, of Washington, D. C., with whom Mr. Paul B. Cromelin, of Washington, D. C., was on the brief, for appellant. Mr, John D. Sadler, of Washington, D. C., for appellee. Before EDGERTON, WILBUR K. MILLER, and PRETTYMAN, Associate Justices. WILBUR K. MILLER, Associate Justice. Frank J. Stauffer, a retired mail clerk about seventy-four years of age, died on December 6, 1943. He had been in ill health for more than two years and had undergone three operations during that time. He had suffered from arteriosclerosis, hypertension and an irreducible inguinal hernia. In addition, in March prior to his death he had the misfortune of sustaining a broken hip. Some ten days before his death, Stauffer was seriously ill and was advised by a physician to.remain in bed at all times. Late in the evening of December 5, Stauffer’s wife, the appellee here, who was in the room next to that -occupied by him, went into the decedent’s room and discovered that he was attempting to get out of bed. He was endeavoring to elevate his body by the use of his elbows, and had succeeded in getting one foot out of the bed. Mrs. Stauffer put him back in bed and admonished him that he must not get up. In about twenty minutes Stauffer became quite pale, and within a short time he died. An autopsy revealed that an intraperitoneal hemorrhage was the immediate cause of death. The medical testimony is to the effect that the necessarily strained and awkward attempt made by the decedent to raise himself in the bed had drawn the omentum from the scrotal contents (into which it had descended previously and where apparently it had adhered) into the abdominal cavity and had ruptured a peritoneal vessel. The hemorrhage resulted. The medical witnesses agree that except for the existence of the hernia, there would have been no hemorrhage. Stauffer held a certificate of insurance issued by the appellant which obligated the latter to pay the appellee $4,000 should his death occur by accidental means. By this appeal, the appellant seeks to review a judgment obtained by the appellee against it in the lower court in an action on the certificate. The certificate of insurance contained the following provisions: “Provided, however, no benefit or sum whatsoever shall be payable in any case whatsoever unless the accident alone results in producing visible external marks of injury or violence suffered by the body of the member, nor unless the death or disability results wholly from the injury, and within the time limit above specified. Nor shall ■any benefit be paid where death or disability results from voluntarily inflicted injuries, by the member, be he sane or insane; nor from poison or other injurious matter taken or administered accidentally or otherwise; nor as the result of any surgical operation. “Accidental death shall be construed to be either sudden, violent death from external, violent and accidental means, resulting directly from such accidental means, independently and exclusively of any other causes, and not the direct or indirect result of the member’s own vicious or unlawful conduct; or death within one yeár, as the sole result of accidental means alone. There shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death.” It will thus be seen that the insurance company did not agree to be liable for any accidental death, but only for (a) a sudden death which was caused by “external, violent and accidental means,” or (b) death within one year as the sole result of accidental means. The “accident” relied on by the appellee in the count of the complaint involved in this appeal was the attempt to move, and the consequent rupture. It occurred very shortly before death. So, the death was sudden, but there is no proof that it was caused by external, violent and accidental means. For the insurer to become liable, the death must result “directly from such accidental means, independently and exclusively of any other causes.” It is to be noted also that the contract stipulates that “There shall be no liability whatever when disease, defect or bodily infirmity is a contributing cause of death.” These provisions of the contract of insurance are similar to those of the policy involved in Landress v. Phoenix Mut. Life Insurance Co. The Supreme Court pointed out in that opinion that the carefully chosen words of the contract which define liability distinguish between the result and the external means which produce it. Landress had died of sunstroke suffered while playing golf, and the plaintiffs theory was that the sun’s rays constituted the external, accidental cause of death. But, Mr. Justice Stone said in the opinion, “The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental. The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself. Petitioner’s pleadings do not suggest that there was anything in the sun’s rays, the weather, or other circumstances external to the insured’s own body and operating to produce the unanticipated injury, which was unknown or unforeseen by the insured.” We are of the opinion that the evidence in the case at bar does not establish liability as defined in the certificate of insurance. There is no proof that any unforeseen or unintended condition or combination of circumstances, external to the decedent’s body, contributed to his death. Nor does the evidence show that there was anything accidental, unforeseen, involuntary or unexpected in Stauffer’s effort to rise. Mrs. Stauffer is the only witness who testified, or could have testified, about what took place at that time. She said nothing in her description of the incident on which there could be based an inference that the means which Stauffer voluntarily employed to get out of bed included anything unforeseen, unexpected or unusual. In this, the facts of the present case differ from the facts considered by the Supreme Court in United States Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60. There Dr. Barry voluntarily leaped from a platform four or five feet to the ground below. He suffered an injury from which death resulted, although previously he had been a vigorous, sound and healthy man. The Supreme Court held that the trial court had acted properly in leaving it to the jury to determine whether after Barry left the platform, or in the act of alighting, there was some unexpected or unforeseen or involuntary movement. In the present case there was no such question to submit to the jury, nor was Stauffer sound in body before he attempted to raise himself by his elbows; on the contrary, his body was frail and diseased, except for which the movement could not have caused the hemorrhage. As the company agreed to pay only if accidental means caused an injury which produced death, independently and exclusively of any other causes, it follows that the evidence does not support the judgment. We do not overlook Patterson v. Ocean Accident & Guarantee Corporation, 25 App. D.C. 46, cited by the appellee. The insured in that case was an osteopath who strained himself in treating a patient. It was held by the court: “ * * * That a strain received in the ordinary course of the assured’s business, if received at all, is an accident within the contemplation of the policy we can have no doubt. United States Mut. Accident Ass’n v. Barry, 131 U.S. 100, 121, 9 S. Ct. 755, 33 L.Ed. 60, 67.” The Patterson case was decided by this court many years before the Landress opinion was handed down by the Supreme Court. We have noted also, in considering this matter, that in Prudential Insurance Co. of America v. Beckwith, 67 App.D.C. 209, 91 F.2d 240, 244, the majority opinion distinguished the Patterson case from the later Landress case written by the Supreme Court by saying: “It appears therefore that this court’s opinion in the foregoing (Patterson) case is consistent with Landress v. Phcenix Mutual Life Ins. Co., supra, for in the case just cited the osteopath suffered a mishap or accident while treating his patient, which mishap or accident was the means causing his death.” In the Patterson opinion the strain is treated as the means and the death as the result, while in the Beckwith opinion, it was considered that the carrying of a’heavy burden was the means, and the heart strain was the result. There was nothing accidental about the carrying of the burden. In the Patterson case the osteopath strained himself while treating a patient, but there was nothing to indicate that there was anything accidental in the manner in which he had given the treatment. So the two cases seem to be indistinguishable as to the facts with respect to whether the means which produced the result, as differentiated from the result, were accidental. The Supreme Court held in the Barry case that the means, and not the result, must be accidental, and-its holding in the Landress case is consistent therewith. It seems to us, as pointed out by the dissenting opinion in Prudential Insurance Co. of America v. Beckwith, that the opinion in Patterson v. Ocean Accident & Guaranty Corporation departs from that rule. Insofar as it indicates that the means need not be accidental, the Patterson case is overruled. The majority opinion in the Beckwith case is helpful in the consideration of the present case. Beckwith and another had carried a bathtub down a flight of stairs and immediately afterward carried a replacement tub up the same steps. During this work there was no mishap of any kind, such as stumbling, slipping, falling, or dropping the tub, and no undue strain was thrown on either Beck with or his companion except the ordinary strain of weight-carrying. Beckwith died a few minutes after the completion of the work. An autopsy showed the existence of chronic myo-endocarditis. The physicians agreed that the carrying of the tub was an undue stress and strain on Beckwith and was the precipitating cause of the heart attack from which he died. They believed that had Beckwith not undergone any undue stress, or strain he could have continued indefinitely in his ordinary labors. Under these circumstances this court concluded that the death of the insured did not result from “bodily injury solely through external, violent and accidental means.” Not only is there a complete absence of evidence that any external accidental means produced Stauffer’s hemorrhage, but also it appears clearly that he had a bodily infirmity which was a contributing cause of death, in which event the certificate of insurance stipulates that there shall be no liability whatever. The trial court should have directed the jury to find for the appellant. Reversed 291 U.S. 491, 54 S.Ct. 461, 462, 78 L. Ed. 934, 90 A.L.R. 1382. 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_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. Robert THOMAS and Susan B. Thomas, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16838. United States Court of Appeals Fifth Circuit. April 17, 1958. E. Snow Martin (of Bryant, Martin & Kibler), Lakeland, Fla., John J. Trenam, Sherwin P. Simmons (of Fowler, White, Gillen, Yancey & Humkey), Tampa, Fla., for appellant. Charles K. Rice, Asst. Atty. Gen., Robert N. Anderson, John N. Stull, Karl Schmeidler, Lee A. Jackson, Attys., Dept. of Justice, Nelson P. Rose, Chief Counsel, Int. Rev. Serv., John M. Morawski, Spl. Atty., Int. Rev. Serv., Washington, D. C., for respondent. Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges. JONES, Circuit Judge. The appellants, Robert Thomas, sometimes here called the taxpayer, and his wife, Susan B. Thomas, filed a joint income tax return for 1950. We have for review a determination of their tax liability for that year made by the Tax Court. Thomas v. Commissioner, 28 T.C. 1. The taxpayer grew up in the phosphate producing area of Florida and, over the years, acquired a knowledge of phosphate, the manner of locating it, and an acquaintance with the phosphate prospectors of the vicinity. In 1946 he was released from active duty with the Navy and took over the operation of a ranch of nearly twelve thousand acres owned by his father. This ranch he purchased in 1948. In the latter part of 1947 the taxpayer became a registered real estate broker and had his name on the door of the office of his father, who was an active real estate broker, and had a desk in his father’s office. He was not associated with his father in the real estate brokerage business and, except for the transactions here discussed, the taxpayer did not engage in the business of real estate broker. In 1947 and 1948 the taxpayer was employed for a couple of phosphate prospecting jobs. While engaged in this work he was asked by F. L. Holland, who owned sixty acres of land at Homeland, Florida, to explore it for phosphate. This the taxpayer did. Holland took care of the taxpayer’s out-of-pocket costs but paid him nothing for his services. Phosphate was found on the land. The area was too small to be of interest to a producer. Holland and the taxpayer discussed the putting together of enough land to interest one of the several phosphate mining companies in the area. They interested M. C. Peters who bought one eighty-acre tract. Holland, Peter» and the taxpayer bought a tract of about fifty acres. Holland and the taxpayer purchased two parcels, one of twenty and the other of sixty acres. The taxpayer, individually, acquired a small parcel of eleven or twelve acres. On two tracts the taxpayer had an arrangement with the owners that their lands might be included in any sale that was made and if sold the taxpayer would receive a commission. These eight parcels of land formed a contiguous block and were known as the Homeland Assembly. On his own behalf and for the others who had ownership interests in the Assembly, the taxpayer had conferences with representatives of International Minerals & Chemical Corporation looking to the sale of the properties. Options were given to International. It conducted prospecting operations. Its decision regarding the acquisition of the Assembly was delayed by the absence of some of its executives from the country. It elected to purchase and on March 3, 1950, the sale of the several tracts to International was concluded. The taxpayer and Holland negotiated for another tract adjacent to those in the Assembly. Because of a defective title this parcel was not acquired until August 10, 1950. It was contemplated that if this parcel was purchased by the taxpayer and another or others it would be sold to International. It was sold to International in 1951. In February, 1950, the taxpayer and others bought a piece of phosphate-bearing land about a mile from the Homeland Assembly. This land was sold in 1952. The taxpayer received a commission on the sale of two parcels of the Assembly in which he had no proprietary interest. In his income tax return for 1950 he reported these commissions as ordinary income. His portion of the profits on the sale of the lands owned by him or in which he had an ownership interest was returned as long-term capital gains. On his income tax returns the taxpayer listed his occupation in various ways. In 1948 his business was listed as “Ranch owner and Misc. Activities”; in 1949 it was listed as ^'Cattle Raising, and' Timber Growing (combined)”; in 1950' he described himself on the face of the return as “Real Estate Broker”; and on the schedule of profit from business he designated his business as “Real Estate Broker (Rancher)”; in 1951 this order was reversed and the face of the return showed him to be “Real Estate Broker— Rancher”; and on the schedule he referred to the business as “Registered Real Estate Broker”; and the same designations were followed in 1952. The Commissioner of Internal Revenue concluded that the sale by the taxpayer-of his interest in the Homeland Assembly was of “property held by the taxpayer primarily for sale to customers in the ordinary course of trade or business” and taxable as ordinary income under 26 U.S.C.A. (I.R.C.1939) § 117(a) (1). A deficiency was determined by the Commissioner. The Tax Court sustained the Commissioner and we have its decision before us for review We need not again set forth the usual applicable tests in resolving cases of this kind. See Smith v. Dunn, 5 Cir., 1955, 224 F.2d 353;. Gamble v. Commissioner, 5 Cir., 1957, 242 F.2d 586. Nor need we labor the point that such eases are primarily fact cases. King v. Commissioner, 5 Cir., 1951, 189, F.2d 122, certiorari denied 342 U.S. 829, 72 S.Ct. 54, 96 L.Ed. 627; Lobello v. Dunlap, 5 Cir., 1954, 210 F.2d 465; Smith v. Dunn, 5 Cir., 1955, 224 F.2d 353; Consolidated Naval Stores Co. v. Fahs, 5 Cir., 1955, 227 F.2d 923. It is the total fact situation which is controlling rather than, in the usual case, specific factors. Consolidated Naval Stores Co., v. Fahs, supra; Smith v. Commissioner, 5 Cir., 1956, 232 F.2d 142. In the case before us there is no basic disagreement as to the eviden-tiary facts. In such situation, as has been said on several occasions, if the conclusion of the trial court as to the ultimate' fact is merely, as here, a product of legal, reasoning, that conclusion is subject to appellate review free from the restraint of the clearly erroneous rule. Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217; Goldberg v. Commissioner, 5 Cir., 1955, 223 F.2d 709; Consolidated Naval Stores Co. v. Fahs, supra; Smith v. Commissioner, supra; Fahs v. Taylor, 5 Cir., 1956, 239 F.2d 224; Gamble v. Commissioner, supra. The evidence justifies, perhaps requires, the conclusion that the taxpayer’s interest in the Homeland Assembly Was acquired for sale and was being held for sale at the time it was sold. While the purpose for which property is purchased is a factor for consideration, the purchase and holding of land for sale does not, per se, require a determination that the property was held in the ordinary course of the trade or business of the purchaser. Fahs v. Crawford, 5 Cir., 1947, 161 F.2d 315. As in many of the cases there are, in this case, factors casting weight upon each side of the question. Consolidated Naval Stores Co. v. Fahs, supra. It has been held that the statement in a tax return of a taxpayer’s business as “real estate, ranching and investments” is an admission against interest in a capital gains case. White v. Commissioner, 5 Cir., 1949, 172 F.2d 629. Cf. Consolidated Naval Stores Co. v. Fahs, supra, Thomas did not show his occupation as Real Estate. He designated himself as a Real Estate Broker or’ as a Registered Real Estate Broker. “A broker is one whose occupation it is to bring parties together to bargain, or to bargain for them in matters of trade, commerce, or navigation. He is essentially a middleman or go-between.” New Roads Oilmill & Mfg. Co. v. Kline, Wilson 6 Co., 5 Cir., 1907, 154 F. 296. The Florida statute under which the taxpayer was registered and licensed provides that -x- * nor s}!aii the term broker or salesman be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify Fla.Stat.Ann. § 475.01. The taxpayer, as a real estate broker, received commissions on the sales of the Snell and Gassett tracts and these were returned by him for taxation as ordinary income. Not infrequently are real estate brokers in the business of buying and selling for their own account, but one who acts as a broker with respect to lands of another does not, merely by reason of so doing, become engaged in the holding of similar and related property for sale in the ordinary course of trade or business. The procurement of a real estate broker’s license, and the absence of such a license, have been considered and commented upon in resolving questions such as the one before us. White v. Commissioner, supra; Fahs v. Crawford, supra; Delsing v. United States, 5 Cir., 1951, 186 F.2d 59. In the entire pattern of events out of which this controversy arises the designation of the taxpayer on his income tax returns and his procurement of a real estate broker’s license are of little significance in fixing the character of the holding of the property of the taxpayer sold by him. The relation of the taxpayer’s income from real estate sales to his total income is stressed by the Commissioner as a factor. Gamble v. Commissioner, supra. The disparity is not controlling, The taxpayer’s ranching business was an enterprise upon which the taxpayer had only recently embarked and it had not, so his testimony showed, as yet reached the stage of substantial earnings. Here the real estate profits which the Commissioner would compare With other income were present only in one year and were realized out of a single venture, so that the comparison of these profits with total income has little persuasive weight. Cf. Delsing v. United States, supra. The conduct of the enterprise stretched over a three-year period. The taxpayer's time consumed was, as stated in the Tax Court’s opinion, “relatively small when compared with the over-all lapse of time from the beginning of the venture until it was closed.” There were few potential purchasers for the property and there was but a single sales transaction. The taxpayer acquired one parcel of land and an undivided interest in each of three others. This enterprise was not recurring but was the only operation of its kind in which the taxpayer had participated. Frequency and continuity of sales transactions have been regarded as important tests. If we regard the purchase transactions as the equivalent of sales for the purpose of applying the test, we would still be unable to avoid the conclusion that the taxpayer’s transactions were not such as to constitute a business. See Dunlap v. Oldham Lumber Co., 5 Cir., 1950, 178 F.2d 781; Fahs v. Crawford, supra; Smith v. Dunn, supra. The situation here, as we see it, is that the taxpayer entered upon a speculative investment. With some help, financial and otherwise, he put together the Assembly, and had about a sixth interest in it. It was a non-recurring venture. The Assembly, although composed of several parcels of land, could be regarded as a single entity in the sale. Robert Thomas was not engaged in an occupational undertaking which required the habitual devotion of time, attention or effort with substantial regularity. Fahs v. Crawford, supra; Dunlap v. Oldham Lumber Co., supra. The determination of the Tax Court that the taxpayer’s interest in the Homeland Assembly was property held primarily for sale to customers in the ordinary course of his trade or business was, we conclude, clearly erroneous. For the entry of a judgment in keeping with this conclusion, the judgment appealed from is Reversed and remanded. 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_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. Samuel J. CORBIN, Appellant, v. WASHINGTON FIRE AND MARINE INSURANCE COMPANY; St. Louis Fire and Marine Insurance Company; and The Insurance Company of St. Louis, Appellees. No. 12275. United States Court of Appeals Fourth Circuit. Argued June 20, 1968. Decided July 17, 1968. Morris D. Rosen, Charleston, S. C. (G. M. Howe, Jr., Charleston, S. C., on the brief), for appellant. Wm. H. Grimball, Charleston, S. C. (Grimball & Cabaniss, Charleston, S. C., on the brief), for appellees. Before SOBELOFF, WINTER and BUTZNER, Circuit Judges. PER CURIAM: The question presented by this appeal is whether under South Carolina law an absolute privilege protects defamatory statements uttered in the course of private arbitration proceedings. The District Court held that such statements were absolutely privileged and granted defendants’ motion for summary judgment. We affirm on the basis of the District Court’s opinion, 278 F.Supp. 393 (D.S.C.1968). Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_dissent	0	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. UNITED STATES of America, Appellant, v. Charles Edward MURPHY. No. 16388. United States Court of Appeals Eighth Circuit. Jan. 13, 1960. Edward L. Scheufler, U. S. Atty., and Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., for appellant. PER CURIAM. Appeal from District Court dismissed, on motion of appellant. Question: What is the number of judges who dissented from the majority? 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). UNITED STATES of America, Plaintiff-Appellee, v. Richard S. BERRY, Defendant-Appellant. No. 79-1698. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 12, 1980. Decided Sept. 8, 1980. David M. Ochoa, Phoenix, Ariz., for defendant-appellant. Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee; Stephen M. Dichter, Asst. U. S. Atty., Phoenix, Ariz., on brief. Before WRIGHT, CHOY and ALARCON, Circuit Judges. WRIGHT, Circuit Judge: The court’s opinion filed on July 7,1980 is withdrawn and the following Amended Opinion is substituted. Berry argues that his conviction for conspiracy to commit fraud should be reversed because (1) the Arizona District’s jury selection system improperly excluded Indians and (2) the cumulative effect of several errors and instances of prosecutorial misconduct prejudiced him and foreclosed his right to a fair trial. We reject both arguments and affirm the conviction. Berry was indicted for offenses related to perjury and the obstruction of justice by a grand jury selected from the combined Phoenix and Prescott divisions of the District of Arizona. Under the jury selection system then in operation, prospective jurors in each division living more than 100 miles from the division courthouse could exempt themselves from consideration for service. Berry attempted to show that this exemption caused an unconstitutional underrepresentation of Indians. The government challenged his statistical evidence as stale and inaccurate. At his trial, Barnes and Herzberg testified against Berry. Each had been convicted of offenses related to a fraud scheme but, in exchange for their cooperation, the prosecutor informed the parole commission of their cooperation. They testified that Berry advocated their hiding of evidence and lying to the SEC. They were virtually the government’s only witnesses. Berry offered eight witnesses, each of whom testified that the two were untrustworthy. During a recess, the jury foreman read the first few lines of a newspaper story from which he learned that Berry had been disbarred. The foreman was questioned in chambers where he declared that he could still be fair. The court denied the defendant’s motion for a mistrial. In closing argument, the prosecutor declared that the government had separated Barnes and Herzberg so they could not compare their stories. He argued that this made their testimony credible. In rebuttal argument, the prosecutor responded to defense counsel’s attack on Barnes’ credibility by blaming Berry for his criminal conduct. He argued that if Berry had not hidden evidence Barnes would have been incarcerated sooner and could not have committed several crimes. The jury found Berry guilty of conspiracy but not guilty of subornation of perjury or obstruction of justice. On appeal, he argues that his indictment was invalid because the grand jury was selected from a pool in which Indians were unconstitutionally underrepresented and contends that he was prejudiced by the immediate and cumulative effect of various errors and instances of prosecutorial misconduct. CONSTITUTIONALITY OF THE JURY POOL: Berry’s timely motion to dismiss his indictment on the ground that Indians were unconstitutionally excluded by the jury selection system was denied. We review under the test established in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979): In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. at 668. The first element is well satisfied. United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). Berry attempts to establish the second element statistically. He offers figures purporting to show that, although 4.27% of the population in the combined Phoenix and Prescott divisions are Indians, they comprise only 1.15% of the venire. He seeks to prove the third element, that the jury selection system causes the exclusion of Indians, by linking their alleged underrepresentation to the 100-mile exemption. The Duren test combines a fourth element, however, which is fatal to Berry’s argument. The Court declared: Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process. Id. at 366, 99 S.Ct. at 669 (emphasis added). Berry’s jury was selected from jury wheels filled on January 15, 1977. His statistics purport to show that Indians were underrepresented on jury wheels filled during the following two years. He failed to introduce any evidence showing underrepresentation on his venire. PREJUDICIAL ERROR AND PROSECU-TORIAL MISCONDUCT: Berry objects to several alleged errors and instances of prosecutorial misconduct. He argues that he was prejudiced by them separately and cumulatively. Our discussion of his argument follows the three-step analysis outlined in United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). We address these questions: (1) Did any error or prosecutorial misconduct occur? (2) Were the issues preserved for appeal? (3) Was the defendant prejudiced? If all are answered affirmatively, we must reverse. We will discuss each alleged error and instance of misconduct under the three-step analysis and then address their cumulative effect. NEWSPAPER INCIDENT: During the course of the trial, the jury foreman informed the court that he had inadvertently read the first few lines of a newspaper article which described Berry as a disbarred attorney. Later in the article, the cause of disbarment was revealed. Evidence of the disbarment had been ruled inadmissible. Berry argues that the district court failed to make an adequate investigation of the incident and should have declared a mistrial. THE TRIAL COURT’S INVESTIGATION: With all counsel present, the judge questioned the foreman in chambers. He asked whether the juror continued to read the article after he realized it concerned Berry and whether he read anything which might influence him. He responded negatively to both questions. The judge asked the other jurors in open court whether they had read the article. They indicated they had not. Berry insists the judge should have asked the foreman precisely what he remembered from the article and should have questioned each of the other jurors individually in chambers. The decision to conduct a hearing into alleged jury misconduct and to determine its extent and nature is discretionary. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We find no abuse of discretion. The judge’s response was commendable. He questioned the jurors enough to satisfy himself that no significant bias had been caused but refused to conduct such an inquisition that the jurors might conclude that Berry had been involved in other criminal activity. DENIAL OF MISTRIAL MOTION: Berry argues that the judge erred in refusing to grant a mistrial. A mistrial was required if “the misconduct [prejudiced] the defendant to the extent he [did] not receive a fair trial,” United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Hendrix, supra, 549 F.2d at 1229. The conscientious foreman volunteered that he had read the opening lines of the article. In response to the court’s questions, he declared that he stopped reading when he realized Berry was mentioned and that he would not be influenced by it. The foreman learned only that Berry was a disbarred attorney. This information may not have impressed him favorably, but we conclude it was not so prejudicial as to deny Berry a fair trial. Id. Whether this incident contributed to a cumulative prejudicial effect we shall consider later in this opinion. ADMITTING EVIDENCE OF OTHER MISCONDUCT: On the first day of trial, the court let the prosecutor develop evidence concerning Berry’s relationship with Barnes and Herzberg but prohibited detailed inquiries about misconduct not covered by the indictment. On the next day, over Berry’s objection, the prosecutor elicited testimony from Barnes that Berry warned him against cooperation with the government: [he told me,] however, be careful as to what areas that I touch on, so that I didn’t harm either he or several business deals that he and I were involved in together. The prosecutor pursued this line until the court sua sponte ruled the evidence inadmissible and cautioned the jury: conversations alluded to by the witness that occurred at the County Jail with the defendant, the Court has decided that those conversations are not material, or not relevant to the charges before this Court. The jury is therefore instructed to disregard that evidence. The Court strikes the same. A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial or the instruction is clearly inadequate. United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980); United States v. Carlos, 478 F.2d 377 (9th Cir. 1973) (giving jurors impression they may not perform traditional fact finding functions not easily cured). The jury could not have been significantly prejudiced by evidence that Berry engaged in “business deals” with Barnes. It conveyed at most a faint suggestion that Berry had participated in Barnes’ other illegal ventures. This improper suggestion was adequately cured by the judge’s instruction. IMPROPER CLOSING ARGUMENT: In closing argument, the prosecutor told the jury that the government had taken “great pains” to keep Barnes and Herzberg apart so the jury could trust them: The government, knowing that you people would like to get to the truth, kept them apart from each other, presented their testimony, each untainted by the other. The argument was improper because the prosecutor may not imply that the government has taken steps to assure the veracity of its witnesses. United States v. Roberts, 618 F.2d 530-536 (9th Cir. 1980). A jury may naturally doubt the testimony of witnesses who have agreed to cooperate in exchange for favors. The prosecutor may bolster their credibility with corroborating extrinsic evidence, but he may not indicate that the government has arranged for credible testimony. Two other cases have recently come to our attention in which prosecutors from Phoenix made improper arguments. We repeat for their benefit and for the benefit of others, the Supreme Court’s classic admonition: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1334 (1935). See also, United States v. Perez, 491 F.2d 167, 174 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974) (prosecutor should refrain from arguments diverting jury from their duty to decide case only on the evidence). We should not have to repeat these admonitions. PRESERVING THE ISSUE FOR APPEAL: Berry did not object to the prosecutor’s argument so we may reverse only if the misconduct constituted “plain error.” United States v. Rich, 580 F.2d 929, 936 (9th Cir.), cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 33 (1978). Under the plain error doctrine, this court has discretionary authority to grant review when the defendant failed to preserve an issue with a proper objection. United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978). Applying the Plain Error Doctrine Before granting review under the plain error doctrine, we consider (1) whether the error or misconduct was serious and (2) whether the reasons for .requiring an objection apply. This court will not grant discretionary review unless the error of misconduct affected “substantial rights” of the defendant. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405, (1979); Fed.R.Crim.P. 52(b). The test for substantiality is similar to that for prejudicial error: Plain error is not determined in a vacuum. The prejudicial nature of unobjected-to error must be determined by reference to the whole case, [citation omitted] Particularly we should attempt to determine the impact of the error on the jurors’ deliberations. If the probability is high that the error materially affected their verdict, reversal may be justified. United States v. Segna, 555 F.2d 226, 231 (9th Cir. 1977). See also, United States v. Lopez, supra, 575 F.2d at 685 (9th Cir. 1978) (error may be sufficiently serious to prompt review, but not reversal). This court may also consider whether the reasons for requiring an objection apply. Objections caution the opposing party to prevent error and avoid misconduct and alert the court to take corrective action. See, Stone v. Morris, 546 F.2d 730, 736 (7th Cir. 1976) (civil case). The defendant may not allow error to go uncorrected and then ask this court to reverse his conviction. The need for an objection may be wholly or partially obviated in a variety of circumstances. For example, the error or misconduct may be so obvious that the trial court should have corrected it sua sponte. United States v. Lopez, supra, 575 F.2d at 685. Similarly, no objection is required when the prejudice cannot be corrected or when objection would exaggerate it. United States v. Young, 463 F.2d 934, 940 (D.C. Cir.1972); United States v. Freeman, 514 F.2d 1314, 1319 n.34 (D.C.Cir.1975), vacated on unrelated grounds, 598 F.2d 306 (D.C.Cir. 1979). This court does not apply the plain error doctrine rigidly. It will grant review whenever: reversal is necessary in order to prevent a clear miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Segna, supra, 555 F.2d at 231. In the interests of judicial economy, we require the defendant to assert his rights at trial but, in the interest of justice, we may reverse a conviction which is improperly obtained. The prosecutor’s misconduct here was not glaring and the prejudice, though not insignificant, is insufficient to persuade us to invoke the plain error doctrine. The misconduct was to imply that the government had manipulated its witnesses so the jury ought to believe them. This argument was only one of many used to bolster the credibility of Barnes and Herzberg, and we hold that it was not decisive in the jury’s decision to believe their testimony. REBUTTAL ARGUMENT: In rebuttal argument, the prosecutor responded to Berry’s attack on Barnes’ credibility by suggesting that Berry was responsible for several of the witness’s crimes. Berry had argued that Barnes’ convictions for fraud-related offenses showed he was untrustworthy. The prosecutor responded: [defense counsel] tells you about Barnes. Barnes was free in 1975, told all these things regarding sale of stock of people who died in Colorado. I submit to you, ladies and gentlemen, that the reason that Barnes was free in 1975 to do these things was because he was not awaiting trial. He was not in jail. He was not anything else, and the reason he wasn’t is because Herzberg and their lawyer, Dick Berry, kept him out of jail by keeping the S.E.C. stymied for a year. Had the records been produced by these witnesses with their attorney instead of being hidden away, they wouldn’t have been free to do the acts they did in 1975. This was irresponsible argument and counsel properly objected. The court sustained the objection and instructed: Members of the jury, it will be up to you to decide what the evidence in this case is and inferences therein. I will instruct you later regarding comments of attorneys. The next day, the court instructed the jurors that they were the sole judges of credibility, that they were to decide the case on the evidence, and that statements of counsel were not evidence. These instructions adequately cured the prejudice. The argument was patently foolish and the judge’s action reminded the jury of their duty. We will not assume they ignored his instructions. United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). MISSTATEMENT OF THE LAW: In closing argument, Berry insisted that Barnes and Herzberg had not told him of their fraudulent schemes. The prosecutor replied that the two had no reason to withhold the information from Berry because they believed communications with an attorney were privileged. Apparently the prosecutor also believed so because he declared: If Barnes had told defendant on or before March 19, 1974, that he had hidden the records and would not turn them over to the SEC, defendant cannot seriously suggest that he would have been able to reveal this confidence to the SEC in the absence of a waiver by his client. The attorney-client privilege does not protect communications made in furtherance of criminal activities. United States v. Hodge and Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977). A prosecutor should not misstate the law in closing argument. United States v. Artus, 591 F.2d 526, 528 (9th Cir. 1979). Berry did not object to this argument, however, and we do not consider the misconduct serious enough to constitute plain error. LAWYER STANDARD OF CONDUCT-. Berry argues that the prosecutor improperly invited the jury to use a stricter “lawyer” standard of conduct to judge him. We read the record differently. The prosecutor argued that Berry was not just a layman involved in a conspiracy but “a lawyer, the person who is sworn to uphold the law as a member of the bar.” The prosecutor was attempting to influence the jurors against Berry, but he was not arguing that a different standard of proof applied to him. Name calling is not an admirable style of argument and we do not condone it, but this court has been reluctant to find it cause for reversal. See U. S. v. Taxe, 540 F.2d 961 (9th Cir.), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1976). Berry did not object to this argument and we do not find it plain error. CUMULATIVE ERROR: In addressing Berry’s charge of cumulative prejudicial error, we consider all errors and instances of prosecutorial misconduct which were preserved for appeal with a proper objection or which were plain error. We will also consider errors and instances of misconduct which we earlier held were adequately cured by the court’s instruction. We recognize that a trace of prejudice may remain even after a proper instruction is given. If we find a residue of prejudice, we will take it into account. We will not consider actions which we held to be not error misconduct or which we decided not to review as plain error. THE HIBLER “DOCTRINE”: This court has declared that it will be especially sensitive to allegations of prejudice when the government’s case rests on uncorroborated accomplice testimony. United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). The Hibler “doctrine” may be restated more generally: the defendant is more likely to be prejudiced by error or misconduct when the government has a weak case. This is simply the logical corollary of the harmless error doctrine which requires us to affirm a conviction if there is overwhelming evidence of guilt. See, United States v. Potter, 616 F.2d 384, 393-94 (9th Cir. 1979). The government’s case against Berry rested on the virtually uncorroborated testimony of Barnes and Herzberg. It was a weak case in which the credibility of the prosecution witnesses was a critical element. Berry charges non-constitutional error, so we will affirm if the error is more probably harmless than not. United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir. 1977). In evaluating this impact, we must keep the Hibler “doctrine” in mind. PREJUDICE: We consider the cumulative prejudicial impact of the following: (1) evidence of Berry’s “business deals” with Barnes, (2) the jury foreman’s knowledge that Berry was a disbarred attorney, and (3) the prosecutor’s argument that Berry was responsible for several of Barnes’ illegal ventures. Irrelevant evidence of Berry’s “business deals” with Barnes was admitted and stricken, and the jury was instructed to disregard it. We conclude this left no residual prejudicial effect. The evidence was relatively benign and a proper instruction was quickly given. The fact that Berry’s foreman knew he was a disbarred attorney may have prejudiced him slightly, but the foreman was a conscientious juror whose desire to be fair is demonstrated by the fact that he brought his conduct to the court’s attention. He stated catergorically that he could set aside what he read and render a verdict solely on the evidence. We conclude that any prejudice to Berry was minimal. The prosecutor’s attempt to blame Berry for Barnes’ illegal ventures was prejudicial, but we do not believe it was so prejudicial that it convinced the jury Berry was guilty. It was inexcusable mud-slinging, but it did not relate to any element of the government’s case nor could it have significantly resuscitated Barnes’ credibility with the jury. We hold that there was no cumulative prejudice and affirm the conviction. . Barnes served two years of a 20-year sentence and Herzberg served about two and one-half years of a 15-year sentence. . The government argues that Berry’s statistics cannot be used because he failed to submit affidavits from those who compiled them. Berry has now moved to make the affidavits part of the record on appeal. Even were we to grant his motion, we would affirm the trial court’s ruling. . The government insists that this argument simply refuted a charge of collusion. But the statements went further, indicating that the government had taken an active role, manufacturing a situation in which collusion was impossible and, that the witnesses remained untainted for the jury. . United States v. Roberts, 618 F.2d 530 (9th Cir. 1980); United States v. Bemis, 620 F.2d 311 (9th Cir. 1980) (Memorandum disposition). . We indicated at oral argument that we are prepared to cite errant prosecutors who persist in such misbehavior and we shall not hesitate to impose sanctions. Continuing to issue admonitions serves little purpose if we affirm convictions in criminal cases while tolerating prosecutors who lack judgment, common sense and knowledge of appropriate courtroom conduct and permissible argument. . We do not employ a two-part test. We weigh the need for an objection and the seriousness of the error or misconduct together. If the harm is serious enough, we may grant review for that reason alone. See Lopez, supra. . Our decision to invoke the plain error doctrine is influenced by the degree of prejudice caused. The cumulative impact of several errors might therefore be sufficient to persuade us to grant review when the impact of each would not. We do not decide whether several errors may constitute “plain error” in the aggregate or whether, once we decline to review an error, we may no longer consider it for any purpose. In this case, we do not consider the cumulative impact sufficient to warrant review. . The jury deliberated for two and one-half days before acquitting Berry on four of five counts. At oral argument, government counsel on appeal characterized this as a “compromise verdict.” Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
sc_respondent	180	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, et al. v. PREISLER et al. No. 30. Argued January 13, Decided April 7, 1969 Thomas J. Downey, First Assistant Attorney General of Missouri, argued the cause for appellants in No. 30. With him on the briefs were Norman H. Anderson, Attorney General, pro se, and Louren B. Wood, Assistant Attorney General. David Collins argued the cause and filed a brief for appellants in No. 31. Irving Achtenberg argued the cause for appellees in both cases. With him on the brief was Paul W. Preisler, pro se. Together with No. 31, Heinkel et al. v. Preisler et al., also on appeal from the same court. Mr. Justice Brennan delivered the opinion of the Court. In Wesberry v. Sanders, 376 U. S. 1 (1964), we held that “[w]hile it may not be possible [for the States] to draw congressional districts with mathematical precision,” id., at 18, Art. I, § 2, of the Constitution requires that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id., at 7-8. We are required in these cases to elucidate the “as nearly as practicable” standard. The Missouri congressional redistricting statute challenged in these cases resulted from that State’s second attempt at congressional redistricting since Wesberry was decided. In 1965, a three-judge District Court for the Western District of Missouri declared that the Missouri congressional districting Act then in effect was unconstitutional under Wesberry but withheld any judicial relief “until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem . . . .” Preisler v. Secretary of State of Missouri, 238 F. Supp. 187, 191. Thereafter, the General Assembly of Missouri enacted a redistricting statute, but this statute too was declared unconstitutional. The District Court, however, retained jurisdiction to review any further plan that might be enacted. Preisler v. Secretary of State of Missouri, 257 F. Supp. 953 (1966), aff’d, sub nom. Kirkpatrick v. Preisler, 385 U. S. 450 (1967). In 1967, the General Assembly enacted the statute under attack here, Mo. Rev. Stat., c. 128 (Cum. Supp. 1967), and the Attorney General of Missouri moved in the District Court for a declaration sustaining the Act and an order dismissing the case. Based on the best population data available to the legislature in 1967, the 1960 United States census figures, absolute population equality among Missouri’s 10 congressional districts would mean a population of 431,981 in each district. The districts created by the 1967 Act, however, varied from this ideal within a range of 12,260 below it to 13,542 above it. The difference between the least and most populous districts was thus 25,802. In percentage terms, the most populous district was 3.13% above the mathematical ideal, and the least populous was 2.84% below. The District Court found that the General Assembly had not in fact relied on the census figures but instead had based its plan on less accurate data. In addition, the District Court found that the General Assembly had rejected a redistricting plan submitted to it which provided for districts with smaller population variances among them. Finally, the District Court found that the simple device of switching some counties from one district to another would have produced a plan with markedly reduced variances among districts. Based on these findings, the District Court, one judge dissenting, held that the 1967 Act did not meet the constitutional standard of equal representation for equal numbers of people “as nearly as practicable,” and that the State had failed to make any acceptable justification for the variances. 279 F. Supp. 952 (1967). We noted probable jurisdiction but stayed the District Court’s judgment pending appeal and expressly authorized the State “to conduct 1968 congressional elections under and pursuant to [the] 1967 . . . Act . . . 390 U. S. 939 (1968). We affirm. Missouri’s primary argument is that the population variances among the districts created by the 1967 Act are so small that they should be considered de minimis and for that reason to satisfy the “as nearly as practicable” limitation and not to require independent justification. Alternatively, Missouri argues that justification for the variances was established in the evidence: it is contended that the General Assembly provided for variances out of legitimate regard for such factors as the representation of distinct interest groups, the integrity of county fines, the compactness of districts, the population trends within the State, the high proportion of military personnel, college students, and other nonvoters in some districts, and the political realities of “legislative interplay.” I. We reject Missouri’s argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the “as nearly as practicable” standard. The whole thrust of the “as nearly as practicable” approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case. The extent to which equality may practicably be achieved may differ from State to State and from district to district. Since “equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,” Wesberry v. Sanders, supra, at 18, the “as nearly as practicable” standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U. S. 533, 577 (1964). Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small. There are other reasons for rejecting the de minimis approach. We can see no nonarbitrary way to pick a cutoff point at which population variances suddenly become de minimis. Moreover, to consider a certain range of variances de minimis would encourage legislators to strive for that range rather than for equality as nearly as practicable. The District Court found, for example, that at least one leading Missouri legislator deemed it proper to attempt to achieve a 2% level of variance rather than to seek population equality. Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes. Therefore, the command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown. Clearly, the population variances among the Missouri congressional districts were not unavoidable. Indeed, it is not seriously contended that the Missouri Legislature came as close to equality as it might have come. The District Court found that, to the contrary, in the two reapportionment efforts of the Missouri Legislature since Wesberry “the leadership of both political parties in the Senate and the House were given nothing better to work with than a makeshift bill produced by what has been candidly recognized to be no more than ... an expedient political compromise.” 279 F. Supp., at 966. Legislative proponents of the 1967 Act frankly conceded at the District Court hearing that resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced districts much closer to numerical equality. The District Court found, moreover, that the Missouri Legislature relied on inaccurate data in constructing the districts, and that it rejected without consideration a plan which would have markedly reduced population variances among the districts. Finally, it is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable. The New York apportionment plan of regions divided into districts of almost absolute population equality described in Wells v. Rockefeller, post, at 545-546, provides striking evidence that a state legislature which tries can achieve almost complete numerical equality among all the State’s districts. In sum, “it seems quite obvious that the State could have come much closer to providing districts of equal population than it did.” Swann v. Adams, 385 U. S. 440, 445 (1967). We therefore turn to the question whether the record establishes any legally acceptable justification for the population variances. It was the burden of the State “to present . . . acceptable reasons for the variations among the populations of the various . . . districts . . . .” Swann v. Adams, supra, at 443-444. II. We agree with the District Court that Missouri has not satisfactorily justified the population variances among the districts. Missouri contends that variances were necessary to avoid fragmenting areas with distinct economic and social interests and thereby diluting the effective representation of those interests in Congress. But to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people. “[N] either history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes.” Reynolds v. Sims, supra, at 579-580. See also Davis v. Mann, 377 U. S. 678, 692 (1964). We also reject Missouri’s argument that “[t]he reasonableness of the population differences in the congressional districts under review must ... be viewed in the context of legislative interplay. The legislative leaders all testified that the act in question was in their opinion a reasonable legislative compromise. ... It must be remembered . . . that practical political problems are inherent in the enactment of congressional reapportionment legislation.” We agree with the District Court that “the rule is one of ‘practicability’ rather than political ‘practicality.’ ” 279 F. Supp., at 989. Problems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster. Similarly, we do not find legally acceptable the argument that variances are justified if they necessarily result from a State’s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries. The State’s interest in constructing congressional districts in this manner, it is suggested, is to minimize the opportunities for partisan gerrymandering. But an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities. Missouri further contends that certain population variances resulted from the legislature’s taking account of the fact that the percentage of eligible voters among the total population differed significantly from district to district — some districts contained disproportionately large numbers of military personnel stationed at bases maintained by the Armed Forces and students in attendance at universities or colleges. There may be a question whether distribution of congressional seats except according to total population can ever be permissible under Art. I, § 2. But assuming without deciding that apportionment may be based on eligible voter population rather than total population, the Missouri plan is still unacceptable. Missouri made no attempt to ascertain the number of eligible voters in each district and to apportion accordingly. At best it made haphazard adjustments to a scheme based on total population: overpopulation in the Eighth District was explained away by the presence in that district of a military base and a university; no attempt was made to account for the presence of universities in other districts or the disproportionate numbers of newly arrived and short-term residents in the City of St. Louis. Even as to the Eighth District, there is no indication that the excess population allocated to that district corresponds to the alleged extraordinary additional numbers of noneligible voters there. Missouri also argues that population disparities between some of its congressional districts result from the legislature’s attempt to take into account projected population shifts. We recognize that a congressional district-ing plan will usually be in effect for at least 10 years and five congressional elections. Situations may arise where substantial population shifts over such a period can be anticipated. Where these shifts can be predicted with a high degree of accuracy, States that are redistricting may properly consider them. By this we mean to open no avenue for subterfuge. Findings as to population trends must be thoroughly documented and applied throughout the State in a systematic, not an ad hoc, manner. Missouri’s attempted justification of the substantial underpopulation in the Fourth and Sixth Districts falls far short of this standard. The District Court found “no evidence . . . that the . . . General Assembly adopted any policy of population projection in devising Districts 4 and 6, or any other district, in enacting the 1967 Act.” 279 F. Supp., at 983. Finally, Missouri claims that some of the deviations from equality were a consequence of the legislature’s attempt to ensure that each congressional district would be geographically compact. However, in Reynolds v. Sims, supra, at 580, we said, “Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.” In any event, Missouri’s claim of compactness is based solely upon the unaesthetic appearance of the map of congressional boundaries that would result from an attempt to effect some of the changes in district lines which, according to the lower court, would achieve greater equality. A State’s preference for pleasingly shaped districts can hardly justify population variances. Affirmed. [For dissenting opinion of Mr. Justice Harlan, see post, p. 549.] [For dissenting opinion of Mr. Justice White, see post, p. 553.] The redistricting effected by the 1967 Act, based on a population of 4,319,813 according to the 1960 census, is as follows: % Variation District No. Population. From, Ideal. One 439,746 + 1.80 Two 436,448 + 1.03 Three 436,099 + 0.95 Four 419,721 - 2.84 Five 431,178 - 0.19 Six 422,238 - 2.26 Seven 436,769 + 1.11 Eight 445,523 + 3.13 Nine 428,223 - 0.87 Ten 423,868 - 1.88 Ideal population per district. 431,981 Average variation from ideal. 1.6% Ratio of largest to smallest district. 1.06 to 1 Number of districts within 1.88% of ideal. 7 Population difference between largest and smallest districts.. 25,802 Contrary to appellants’ assertion, we have not sustained the constitutionality of any congressional districting plan with population variances of the magnitude found in the Missouri plan. In Connor v. Johnson, 386 U. S. 483 (1967), the only issue presented to this Court was whether the districting plan involved racial gerrymandering. Alton v. Tawes, 384 U. S. 315 (1966), and Kirk v. Gong, 389 U. S. 574 (1968), involved situations where the lower courts themselves had reapportioned the districts on an emergency basis, and our affirmances were based on agreement with the use of the plans in that circumstance, and not on any view that the plans in question achieved equality as nearly as practicable. Brief for Appellants 37-38. It is dubious in any event that the temptation to gerrymander would be much inhibited, since the legislature would still be free to choose which of several subdivisions, all with their own political complexion, to include in a particular congressional district. Besides, opportunities for gerrymandering are greatest when there is freedom to construct unequally populated districts. “[T]he artistry of the political cartographer is put to its highest test when he must work with constituencies of equal population. At such times, his skills can be compared to those of a surgeon, for both work under fixed and arduous rules. However, if the mapmaker is free to allocate varying populations to different districts, then the butcher's cleaver replaces the scalpel; and the results reflect sharply the difference in the method of operation.” A. Hacker, Congressional Districting 59 (1964 rev. ed.). Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_casedisposition	D	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. KINDRED NURSING CENTERS LIMITED PARTNERSHIP, dba Winchester Centre for Health and Rehabilitation, nka Fountain Circle Health and Rehabilitation, et al., Petitioners v. Janis E. CLARK et al. No. 16-32. Supreme Court of the United States Argued Feb. 22, 2017. Decided May 15, 2017. Andrew J. Pincus, Washington, DC, for Petitioners. Robert E. Salyer, for Respondents. Andrew J. Pincus, Archis A. Parasharami, Daniel E. Jones, Matthew A. Waring, Mayer Brown LLP, Washington, DC, for Petitioners. James T. Gilbert, Coy, Gilbert, Shepherd & Wilson, Richmond, KY, Robert E. Salyer, Wilkes & McHugh, P.A., Lexington, KY, Stephen Trzcinski, Wilkes & McHugh, P.A., Philadelphia, PA, for Respondents. Justice KAGAN delivered the opinion of the Court. The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements "on equal footing with all other contracts." DIRECTV, Inc. v. Imburgia, 577 U.S. ----, ----, 136 S.Ct. 463, 465, 193 L.Ed.2d 365 (2015) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) ); see 9 U.S.C. § 2. In the decision below, the Kentucky Supreme Court declined to give effect to two arbitration agreements executed by individuals holding "powers of attorney"-that is, authorizations to act on behalf of others. According to the court, a general grant of power (even if seemingly comprehensive) does not permit a legal representative to enter into an arbitration agreement for someone else; to form such a contract, the representative must possess specific authority to "waive his principal's fundamental constitutional rights to access the courts [and] to trial by jury." Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 327 (2015). Because that rule singles out arbitration agreements for disfavored treatment, we hold that it violates the FAA. I Petitioner Kindred Nursing Centers L.P. operates nursing homes and rehabilitation centers. Respondents Beverly Wellner and Janis Clark are the wife and daughter, respectively, of Joe Wellner and Olive Clark, two now-deceased residents of a Kindred nursing home called the Winchester Centre. At all times relevant to this case, Beverly and Janis each held a power of attorney, designating her as an "attorney-in-fact" (the one for Joe, the other for Olive) and affording her broad authority to manage her family member's affairs. In the Wellner power of attorney, Joe gave Beverly the authority, "in my name, place and stead," to (among other things) "institute legal proceedings" and make "contracts of every nature in relation to both real and personal property." App. 10-11. In the Clark power of attorney, Olive provided Janis with "full power ... to transact, handle, and dispose of all matters affecting me and/or my estate in any possible way," including the power to "draw, make, and sign in my name any and all ... contracts, deeds, or agreements." Id., at 7. Joe and Olive moved into the Winchester Centre in 2008, with Beverly and Janis using their powers of attorney to complete all necessary paperwork. As part of that process, Beverly and Janis each signed an arbitration agreement with Kindred on behalf of her relative. The two contracts, worded identically, provided that "[a]ny and all claims or controversies arising out of or in any way relating to ... the Resident's stay at the Facility" would be resolved through "binding arbitration" rather than a lawsuit. Id., at 14, 21. When Joe and Olive died the next year, their estates (represented again by Beverly and Janis) brought separate suits against Kindred in Kentucky state court. The complaints alleged that Kindred had delivered substandard care to Joe and Olive, causing their deaths. Kindred moved to dismiss the cases, arguing that the arbitration agreements Beverly and Janis had signed prohibited bringing their disputes to court. But the trial court denied Kindred's motions, and the Kentucky Court of Appeals agreed that the estates' suits could go forward. See App. to Pet. for Cert. 125a-126a, 137a-138a. The Kentucky Supreme Court, after consolidating the cases, affirmed those decisions by a divided vote. See 478 S.W.3d, at 313. The court began with the language of the two powers of attorney. The Wellner document, the court stated, did not permit Beverly to enter into an arbitration agreement on Joe's behalf. In the court's view, neither the provision authorizing her to bring legal proceedings nor the one enabling her to make property-related contracts reached quite that distance. See id., at 325-326 ; supra, at 1425. By contrast, the court thought, the Clark power of attorney extended that far and beyond. Under that document, after all, Janis had the capacity to "dispose of all matters" affecting Olive. See supra, at 1425. "Given this extremely broad, universal delegation of authority," the court acknowledged, "it would be impossible to say that entering into [an] arbitration agreement was not covered." 478 S.W.3d, at 327. And yet, the court went on, both arbitration agreements-Janis's no less than Beverly's-were invalid. That was because a power of attorney could not entitle a representative to enter into an arbitration agreement without specifically saying so. The Kentucky Constitution, the court explained, protects the rights of access to the courts and trial by jury; indeed, the jury guarantee is the sole right the Constitution declares "sacred" and "inviolate." Id., at 328-329. Accordingly, the court held, an agent could deprive her principal of an "adjudication by judge or jury" only if the power of attorney "expressly so provide[d]." Id., at 329. And that clear-statement rule-so said the court-complied with the FAA's demands. True enough that the Act precludes "singl[ing] out arbitration agreements." Ibid. (internal quotation marks omitted). But that was no problem, the court asserted, because its rule would apply not just to those agreements, but also to some other contracts implicating "fundamental constitutional rights." Id., at 328. In the future, for example, the court would bar the holder of a "non-specific" power of attorney from entering into a contract "bind[ing] the principal to personal servitude." Ibid. Justice Abramson dissented, in an opinion joined by two of her colleagues. In their view, the Kentucky Supreme Court's new clear-statement rule was "clearly not ... applicable to 'any contract' but [instead] single[d] out arbitration agreements for disfavored treatment." Id., at 344-345. Accordingly, the dissent concluded, the rule "r[a]n afoul of the FAA." Id., at 353. We granted certiorari. 580 U.S. ----, 137 S.Ct. 368, 196 L.Ed.2d 283 (2016). II A The FAA makes arbitration agreements "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. That statutory provision establishes an equal-treatment principle: A court may invalidate an arbitration agreement based on "generally applicable contract defenses" like fraud or unconscionability, but not on legal rules that "apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). The FAA thus preempts any state rule discriminating on its face against arbitration-for example, a "law prohibit[ing] outright the arbitration of a particular type of claim." Id., at 341, 131 S.Ct. 1740. And not only that: The Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements. In Concepcion, for example, we described a hypothetical state law declaring unenforceable any contract that "disallow[ed] an ultimate disposition [of a dispute] by a jury." Id., at 342, 131 S.Ct. 1740. Such a law might avoid referring to arbitration by name; but still, we explained, it would "rely on the uniqueness of an agreement to arbitrate as [its] basis"-and thereby violate the FAA. Id., at 341, 131 S.Ct. 1740 (quoting Perry v. Thomas, 482 U.S. 483, 493, n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987) ). The Kentucky Supreme Court's clear-statement rule, in just that way, fails to put arbitration agreements on an equal plane with other contracts. By the court's own account, that rule (like the one Concepcion posited) serves to safeguard a person's "right to access the courts and to trial by jury." 478 S.W.3d, at 327 ; see supra, at 1425 - 1426. In ringing terms, the court affirmed the jury right's unsurpassed standing in the State Constitution: The framers, the court explained, recognized "that right and that right alone as a divine God-given right" when they made it "the only thing" that must be " 'held sacred' " and " 'inviolate.' " 478 S.W.3d, at 328-329 (quoting Ky. Const. § 7 ). So it was that the court required an explicit statement before an attorney-in-fact, even if possessing broad delegated powers, could relinquish that right on another's behalf. See 478 S.W.3d, at 331 ("We say only that an agent's authority to waive his principal's constitutional right to access the courts and to trial by jury must be clearly expressed by the principal"). And so it was that the court did exactly what Concepcion barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement-namely, a waiver of the right to go to court and receive a jury trial. See 563 U.S., at 341-342, 131 S.Ct. 1740 ; see also 478 S.W.3d, at 353 (Abramson, J., dissenting) (noting that the jury-trial right at the core of "the majority's new rule" is "the one right that just happens to be correlative to the right to arbitrate" (emphasis deleted)). Such a rule is too tailor-made to arbitration agreements-subjecting them, by virtue of their defining trait, to uncommon barriers-to survive the FAA's edict against singling out those contracts for disfavored treatment. And the state court's sometime-attempt to cast the rule in broader terms cannot salvage its decision. The clear-statement requirement, the court suggested, could also apply when an agent endeavored to waive other "fundamental constitutional rights" held by a principal. 478 S.W.3d, at 331 ; see supra, at 1426. But what other rights, really? No Kentucky court, so far as we know, has ever before demanded that a power of attorney explicitly confer authority to enter into contracts implicating constitutional guarantees. Nor did the opinion below indicate that such a grant would be needed for the many routine contracts-executed day in and day out by legal representatives-meeting that description. For example, the Kentucky Constitution protects the "inherent and inalienable" rights to "acquir[e] and protect[ ] property" and to "freely communicat[e] thoughts and opinions." Ky. Const. § 1. But the state court nowhere cautioned that an attorney-in-fact would now need a specific authorization to, say, sell her principal's furniture or commit her principal to a non-disclosure agreement. (And were we in the business of giving legal advice, we would tell the agent not to worry.) Rather, the court hypothesized a slim set of both patently objectionable and utterly fanciful contracts that would be subject to its rule: No longer could a representative lacking explicit authorization waive her "principal's right to worship freely" or "consent to an arranged marriage" or "bind [her] principal to personal servitude." 478 S.W.3d, at 328 ; see supra, at 1426. Placing arbitration agreements within that class reveals the kind of "hostility to arbitration" that led Congress to enact the FAA. Concepcion, 563 U.S., at 339, 131 S.Ct. 1740. And doing so only makes clear the arbitration-specific character of the rule, much as if it were made applicable to arbitration agreements and black swans. B The respondents, Janis and Beverly, primarily advance a different argument-based on the distinction between contract formation and contract enforcement-to support the decision below. Kentucky's clear-statement rule, they begin, affects only contract formation, because it bars agents without explicit authority from entering into arbitration agreements. And in their view, the FAA has "no application" to "contract formation issues." Supp. Brief for Respondents 1. The Act, to be sure, requires a State to enforce all arbitration agreements (save on generally applicable grounds) once they have come into being. But, the respondents claim, States have free rein to decide-irrespective of the FAA's equal-footing principle-whether such contracts are validly created in the first instance. See id., at 3 ("The FAA's statutory framework applies only after a court has determined that a valid arbitration agreement was formed"). Both the FAA's text and our case law interpreting it say otherwise. The Act's key provision, once again, states that an arbitration agreement must ordinarily be treated as "valid, irrevocable, and enforceable." 9 U.S.C. § 2 ; see supra, at 1426. By its terms, then, the Act cares not only about the "enforce[ment]" of arbitration agreements, but also about their initial "valid[ity]"-that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. Precedent confirms that point. In Concepcion, we noted the impermissibility of applying a contract defense like duress "in a fashion that disfavors arbitration." 563 U.S., at 341, 131 S.Ct. 1740. But the doctrine of duress, as we have elsewhere explained, involves "unfair dealing at the contract formation stage." Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527, 547, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008). Our discussion of duress would have made no sense if the FAA, as the respondents contend, had nothing to say about contract formation. And still more: Adopting the respondents' view would make it trivially easy for States to undermine the Act-indeed, to wholly defeat it. As the respondents have acknowledged, their reasoning would allow States to pronounce any attorney-in-fact incapable of signing an arbitration agreement-even if a power of attorney specifically authorized her to do so. See Tr. of Oral Arg. 27. (After all, such a rule would speak to only the contract's formation.) And why stop there? If the respondents were right, States could just as easily declare everyone incompetent to sign arbitration agreements. (That rule too would address only formation.) The FAA would then mean nothing at all-its provisions rendered helpless to prevent even the most blatant discrimination against arbitration. III As we did just last Term, we once again "reach a conclusion that ... falls well within the confines of (and goes no further than) present well-established law." DIRECTV, 577 U.S., at ----, 136 S.Ct., at 471. The Kentucky Supreme Court specially impeded the ability of attorneys-in-fact to enter into arbitration agreements. The court thus flouted the FAA's command to place those agreements on an equal footing with all other contracts. Our decision requires reversing the Kentucky Supreme Court's judgment in favor of the Clark estate. As noted earlier, the state court held that the Clark power of attorney was sufficiently broad to cover executing an arbitration agreement. See supra, at 1425 - 1426. The court invalidated the agreement with Kindred only because the power of attorney did not specifically authorize Janis to enter into it on Olive's behalf. In other words, the decision below was based exclusively on the clear-statement rule that we have held violates the FAA. So the court must now enforce the Clark-Kindred arbitration agreement. By contrast, our decision might not require such a result in the Wellner case. The Kentucky Supreme Court began its opinion by stating that the Wellner power of attorney was insufficiently broad to give Beverly the authority to execute an arbitration agreement for Joe. See supra, at 1425 - 1426. If that interpretation of the document is wholly independent of the court's clear-statement rule, then nothing we have said disturbs it. But if that rule at all influenced the construction of the Wellner power of attorney, then the court must evaluate the document's meaning anew. The court's opinion leaves us uncertain as to whether such an impermissible taint occurred. We therefore vacate the judgment below and return the case to the state court for further consideration. See Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 534, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012) (per curiam ) (vacating and remanding another arbitration decision because we could not tell "to what degree [an] alternative holding was influenced by" the state court's erroneous, arbitration-specific rule). On remand, the court should determine whether it adheres, in the absence of its clear-statement rule, to its prior reading of the Wellner power of attorney. For these reasons, we reverse in part and vacate in part the judgment of the Kentucky Supreme Court, and we remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice GORSUCH took no part in the consideration or decision of this case. Making matters worse, the Kentucky Supreme Court's clear-statement rule appears not to apply to other kinds of agreements relinquishing the right to go to court or obtain a jury trial. Nothing in the decision below (or elsewhere in Kentucky law) suggests that explicit authorization is needed before an attorney-in-fact can sign a settlement agreement or consent to a bench trial on her principal's behalf. See 478 S.W.3d, at 325 (discussing the Wellner power of attorney's provision for "managing a claim in litigation" without insisting that such commitments would require a clearer grant). Mark that as yet another indication that the court's demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials. We do not suggest that a state court is precluded from announcing a new, generally applicable rule of law in an arbitration case. We simply reiterate here what we have said many times before-that the rule must in fact apply generally, rather than single out arbitration. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_usc1sect	1651	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". MARTIN v. HIATT, Warden. No. 12666. United States Court of Appeals Fifth Circuit. May 9, 1949. Rehearing Denied May 25, 1949. Joe Freels Martin, of Atlanta, Ga., in prop. per. Walter G. Cooper, of Atlanta, Ga., for amicus curiae Robt. Clayton St. Clair. J. Ellis Mundy, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee. Before HOLMES, McCORD, and WALLER, Circuit Judges. WALLER, Circuit Judge. This is another of the more than 1500 petitions for habeas corpus that have been filed in recent years in the Atlanta Division of the United States District Court for the Northern District of Georgia, wherein release from the custody of 'the United States Penitentiary at Atlanta has been sought The petitioner here, who was sentenced to imprisonment for three years for violation of the National Motor Vehicle Theft Act, Title 18, U.S.C., Sec. 408 [now §§ 2311-2313], by the United State's District Court for the Eastern District of Kentucky, alleges that he was illegally held in custody without arraignment or bail from May 7 to May 21, 1948, contrary to the Fifth and Fourteenth Amendments of the Federal Constitution; that between these dates petitioner was subjected to repeated and protracted questioning by members of the Kentucky State Highway Patrol and of the Federal Bureau of Investigation, during which “petitioner was threatened and coerced by use of reference to his past record and threatened’ reprisal against a you'ng lady in company of petitioner at the time of his arrest”; that he was advised that if he would sign a confession, the young lady in question would be released and he would be given an early trial rather than having to wait until the October term of the Court; that petitioner took notice of thi-s advice and having the welfare of the young lady in mind, as well as the threats of irrelevant matters, and being ignorant and untutored and without the advice of counsel or friends, he agreed to, and did, sign a confession, waive indictment, and plead guilty, in consequence of which he was sentenced. In short, he alleges violation of due process in being held without bail or arraignment between May 7 and May 21, 1948, and in being intimidated into signing a statement while being so held for such period. The writ issued and upon final hearing the petitioner’s application was denied and he was remanded to the custody of the respondent because of the failure of the petitioner to comply with Sec. 2255 of Title 28 U.S.C.A., which reads in part as follows: “§ 2255. Federal custody; remedies on motion attacking sentence “A prisoner in custody under sentence of a court of Che United States claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. “A motion for such relief -may be made ■at any time.” * * * * * * “An application for a writ of 'habeas-corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to-the court which sentenced him, or that such court has denied 'him relief, unless it also appears that the remedy by motion is-inadequate o-r ineffective to test the legality of his detention.” Petitioner, -appealing here, asserts that Sec. 2255 is in violation of Article 1, Sec. 9, Clause 2, of the Federal Constitution,, which provides that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Concededly the great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion, and the sole question presented to us is whether o-r not Sec. 2255 is tantamount to a suspension of the writ. The great writ is of such -antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status-has been far from static. No attempt will be made here to trace its development through the ages, but it is interesting to note that since the First Judiciary Act of 1789 the statutes have provided that judges of the Supreme and District Courts of the United States should have the right to issue writs of habeas corpus, etc., “which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” From time immemorial it was thought that trial courts, State and Federal, had been invested with the primary duty of safeguarding the constitutional rights of defendants, and from the time of the enactment of the statute of 1789 until the present the courts have held in at least half a thousand cases that the writ of (habeas corpus cannot be used as a substitute for a writ of error or an appeal. But for some reason, not readily discernible, there seems to 'have grown up the notion that final judgments in criminal trials in the lower courts should be attended by no favorable presumptions, and that only in the higher courts of the United States does constitutional justice really abide. In drawing to such courts the power through 'habeas corpus to supervise the “intrinsic fairness” of criminal trials in both State and Federal courts, there has been not only a disinclination to accord full faith and credit to final judgments of trial courts of competent jurisdiction but also a readiness to grant permission to petitioners, admittedly guilty of serious offenses, to dispute, orally, collaterally, and as often as they chose, the solemn records and final judgments of the courts. It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. It was doubtless to these ends that Congress .passed Chap. 153, Title 28 U.S.C.A., §§ 2241 to 2255, inclusive, whereby to provide that an -attack upon a final judgment of conviction by a Federal court in a criminal case ought usually to be made first in the court that rendered such judgment, proximate to which the records, the witnesses, and the alleged despoilers of constitutional rights generally reside. It was doubtless believed that there the petitioners could get at these despoilers in frontal, rather than collateral, attacks, no more handicapped by estoppels of records or judgments than if the attacks were made in places far remote if they also alleged that the violated Constitution or “intrinsic fairness” was on their side. Then, if sudh a petitioner’s effort were an ineffective test or if he failed to succeed in the court that had cast the yoke upon him, the right of appeal would still be his; and if either or' both of these efforts should prove inadequate, then he should still have access to the great, age-old, and grossly abused writ of habeas corpus ad subjiciendum. The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Section 454 [now § 2242], Title 28 U.S.C.A. If the petitioner be held under a judgment of a State court, a showing that he has exhausted his State remedies or that the State affords him no remedy is a condition precedent to maintaining the writ in the Federal court. If petitioner appeal's from a judgment of a court of the United States in a proceeding where the detention complained of is by virtue of process issued out of a State court, Sec 466 [now § 2253], Title 28 U.S.C.A., provides that no appeal will be allowed unless the judge of the United States court who rendered the final decision, or a judge of the appellate court, certifies that there is probable cause for the appeal. The procedure in habeas corpus has been the subject of change by legislation down through the centuries but the intent and purpose of the writ have remained substantially unchanged. In the passage of Chapter 153, supra, Congress has not undertaken to suspend the writ but has set up procedure that is designed to supply a more appropriate remedy to those -unlawfully detained as well as to preserve the 'writ for those who are entitled to it and at the same time to protect it from abuse by those who do not deserve it, but who clamor for it incessantly. The additional remedy provided above has not ended or suspended the writ of habeas corpus although it may have lessened its abuse by placing some emphasis on the finality of final judgments against collateral attacks without limit, thereby rendering perjury less tempting to tho-se of little veracity, convenient memory, or evil purpose. The Act in question has had the approval of the Judicial Conference of Senior Circuit Judges, the Congress of the United States, and United States District Courts in the cases of Lowe v. Humphrey, Warden, 80 F.Supp. 442, and Wong v. Vogel, 80 F.Supp. 723. Moreover, a presumption of constitutionality attends the Act. The provisions of Sec. 2255 — which are the only provisions of the chapter here under consideration — whether viewed as an additional method of testing the validity of a detention or as conditions precedent to the issuance of a writ, appear not only to he reasonable and valid but also as a highly desirable means of lessening the abuse of the writ. The judgment of the lower Court is affirmed. The order of the Court erroneously refers to the section as 2455 of Title 28 U.S.C.A. but the record clearly shows that the section involved was 2255 of Title 28 U.S.C.A. Jenks, 18 Quarterly Law Review (1902), p. 64, et seq. See 1 Stat. 81, Sec. 377, Title 28 U. S.C.A.; § 1651, Title 28 U.S.Code Annotated Judiciary and Judicial Procedure. Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172. Carter v. Illinois, supra. 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:
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 NATIONAL COLLEGIATE ATHLETIC ASSOCIATION v. TARKANIAN No. 87-1061. Argued October 5, 1988 Decided December 12, 1988 Rex E. Lee argued the cause for petitioner. With him on the briefs were George H. Gangwere, James H. McLarney, and Daniel L..Sailler. Samuel S. Lionel argued the cause for respondent. With him on the brief were David N. Frederick and Mark A. Solomon. Justice Stevens delivered the opinion of the Court. When he became head basketball coach at the University of Nevada, Las Vegas (UNLV), in 1973, Jerry Tarkanian inherited a team with a mediocre 14-14 record. App. 188, 205. Four years later the team won 29 out of 32 games and placed third in the championship tournament sponsored by the National Collegiate Athletic Association (NCAA), to which UNLV belongs. Id., at 188. Yet in September 1977 UNLV informed Tarkanian that it was going to suspend him. No dissatisfaction with Tarkanian, once described as “the ‘winningest’ active basketball soach,” id., at 19, motivated his suspension. Rather, the impetus was a report by the NCAA detailing 38 violations of NCAA rules by UNLV personnel, including 10 involving Tarkanian. The NCAA had placed the university’s basketball team on probation for two years and ordered UNLV to show cause why the NCAA should not impose further penalties unless UNLV severed all ties during the probation between its intercollegiate athletic program and Tarkanian. Facing demotion and a drastic cut in pay, Tarkanian brought suit in Nevada state court, alleging that he had been deprived of his Fourteenth Amendment due process rights in violation of 42 U. S. C. § 1983. Ultimately Tarkanian obtained injunctive relief and an award of attorney’s fees against both UNLV and the NCAA. 103 Nev. 331, 741 P. 2d 1345 (1987) (per curiam). NCAA’s liability may be upheld only if its participation in the events that led to Tarkanian’s suspension constituted “state action” prohibited by the Fourteenth Amendment and was performed “under color of” state law within the meaning of § 1983. We granted certiorari to review the Nevada Supreme Court’s holding that the NCAA engaged in state action when it conducted its investigation and recommended that Tarkanian be disciplined. 484 U. S. 1058 (1988). We now reverse. I In order to understand the four separate proceedings that gave rise to the question we must decide, it is useful to begin with a description of the relationship among the three parties — Tarkanian, UNLV, and the NCAA. Tarkanian initially was employed on a year-to-year basis but became a tenured professor in 1977. He receives an annual salary with valuable fringe benefits, and his status as a highly successful coach enables him to earn substantial additional income from sports-related activities such as broadcasting and the sponsorship of products. UNLY is a branch of the University of Nevada, a state-funded institution. The university is organized and operated pursuant to provisions of Nevada’s State Constitution, statutes, and regulations. In performing their official functions, the executives of UNLV unquestionably act under color of state law. The NCAA is an unincorporated association of approximately 960 members, including virtually all public and private universities and 4-year colleges conducting major athletic programs in the United States. Basic policies of the NCAA are determined by the members at annual conventions. Between conventions, the Association is governed by its Council, which appoints various committees to implement specific programs. One of the NCAA’s fundamental policies “is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between college athletics and professional sports.” App. 80. It has therefore adopted rules, which it calls “legislation,” ibid., governing the conduct of the intercollegiate athletic programs of its members. This NCAA legislation applies to a variety of issues, such as academic standards for eligibility, admissions, financial aid, and the recruiting of student athletes. By joining the NCAA, each member agrees to abide by and to enforce such rules. The NCAA’s bylaws provide that its enforcement program shall be administered by a Committee on Infractions. The Committee supervises an investigative staff, makes factual determinations concerning alleged rule violations, and is expressly authorized to “impose appropriate penalties on a member found to be in violation, or recommend to the Council suspension or termination of membership.” In particular, the Committee may order a member institution to show cause why that member should not suffer further penalties unless it imposes a prescribed discipline on an employee; it is not authorized, however, to sanction a member institution’s employees directly. The bylaws also provide that representatives of member institutions “are expected to cooperate fully” with the administration of the enforcement program. Id., at 97. The bylaws do not purport to confer any subpoena power on the Committee or its investigators. They state: “The enforcement procedures are an essential part of the intercollegiate athletic program of each member institution and require full and complete disclosure by all institutional representatives of any relevant information requested by the NCAA investigative staff, Committee on Infractions or Council during the course of an inquiry.” Ibid. During its investigation of UNLV, the Committee on Infractions included three law professors, a mathematics professor, and the dean of a graduate school. Four of them were on the faculties of state institutions; one represented a private university. The NCAA Investigation of UNLV On November 28, 1972, the Committee on Infractions notified UNLV’s president that it was initiating a preliminary inquiry into alleged violations of NCAA requirements by UNLV. As a result of that preliminary inquiry, some three years later the Committee decided that an “Official Inquiry” was warranted and so advised the UNLV president on February 25, 1976. That advice included a series of detailed allegations concerning the recruitment of student athletes during the period between 1971 and 1975. Many of the allegations implicated Tarkanian. It requested UNLV to investigate and provide detailed information concerning each alleged incident. With the assistance of the Attorney General of Nevada and private counsel, UNLV conducted a thorough investigation of the charges. On October 27, 1976, it filed a comprehensive response containing voluminous exhibits and sworn affidavits. The response denied all of the allegations and specifically concluded that Tarkanian was completely innocent of wrongdoing. Thereafter, the Committee conducted four days of hearings at which counsel for UNLV and Tarkanian presented their views of the facts and challenged the credibility of the NCAA investigators and their informants. Ultimately the Committee decided that many of the charges could not be supported, but it did find 38 violations of NCAA rules, including 10 committed by Tarkanian. Most serious was the finding that Tarkanian had violated the University’s obligation to provide full cooperation with the NCAA investigation. The Committee’s findings and proposed discipline were summarized in great detail in its so-called “Confidential Report No. 123(47).” App. 122-204. The Committee proposed a series of sanctions against UNLV, including a 2-year period of probation during which its basketball team could not participate in postseason games or appear on television. The Committee also requested UNLV to show cause why additional penalties should not be imposed against UNLV if it failed to discipline Tarkanian by removing him completely from the University’s intercollegiate athletic program during the probation period. UNLV appealed most of the Committee’s findings and proposed sanctions to the NCAA Council. After hearing arguments from attorneys representing UNLV and Tarkanian, the Council on August 25, 1977, unanimously approved the Committee’s investigation and hearing process and adopted all its recommendations. UNLV’s Discipline of Tarkanian Promptly after receiving the NCAA report, the president of UNLV directed the University’s vice president to schedule a hearing to determine whether the Committee’s recommended sanctions should be applied. Tarkanian and UNLV were represented at that hearing; the NCAA was not. Although the vice president expressed doubt concerning the sufficiency of the evidence supporting the Committee’s findings, he concluded that “given the terms of our adherence to the NCAA we cannot substitute — biased as we must be — our own judgment on the credibility of witnesses for that of the infractions committee and the Council.” Id., at 75. With respect to the proposed sanctions, he advised the president that he had three options: “1. Reject the sanction requiring us to disassociate Coach Tarkanian from the athletic program and take the risk of still heavier sanctions, e. g., possible extra years of probation. “2. Recognize the University’s delegation to the NCAA of the power to act as ultimate arbiter of these matters, thus reassigning Mr. Tarkanian from his present position — though tenured and without adequate notice— even while believing that the NCAA was wrong. “3. Pull out of the NCAA completely on the grounds that you will not execute what you hold to be their unjust judgments.” Id., at 76. Pursuant to the vice president’s recommendation, the president accepted the second option and notified Tarkanian that he was to “be completely severed of any and all relations, formal or informal, with the University’s Intercollegiate athletic program during the period of the University’s NCAA probation.” Id., at 70. Tarkanian’s Lawsuit Against UNLV The day before his suspension was to become effective, Tarkanian filed an action in Nevada state court for declaratory and injunctive relief against UNLV and a number of its officers. He alleged that these defendants had, in violation of 42 U. S. C. § 1983, deprived him of property and liberty without the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Based on a stipulation of facts and the testimony offered by Tarkanian, the trial court enjoined UNLV from suspending Tarkanian on the ground that he had been denied procedural and substantive due process of law. UNLV appealed. The NCAA, which had not been joined as a party, filed an amicus curiae brief arguing that there was no actual controversy between Tarkanian and UNLV; thus, the suit should be dismissed. Alternatively, the NCAA contended that the trial court had exceeded its jurisdiction by effectively invalidating the enforcement proceedings of the NCAA, even though the Association was not a party to the suit. Should a controversy exist, the NCAA argued, it was a necessary party to litigate the scope of any relief. Finally, it contested the trial court’s conclusion that Tarkanian had been denied due process. The Nevada Supreme Court concluded that there was an actual controversy but agreed that the NCAA was a necessary party and therefore reversed and remanded to permit joinder of the NCAA. University of Nevada v. Tarkanian, 95 Nev. 389, 594 P. 2d 1159 (1979). The Lawsuit Against NCAA Tarkanian consequently filed a second amended complaint adding the NCAA. The defendants promptly removed the suit to Federal District Court on the ground that joinder of the NCAA substantially had altered the nature of the litigation. The District Court held, however, that the original defendants had waived their right to remove the suit when it was first filed, and therefore granted Tarkanian’s motion to remand the case to the state court. After a 4-year delay, the trial judge conducted a 2-week bench trial and resolved the issues in Tarkanian’s favor. The court concluded that NCAA’s conduct constituted state action for jurisdictional and constitutional purposes, and that its decision was arbitrary and capricious. It reaffirmed its earlier injunction barring UNLV from disciplining Tarkanian or otherwise enforcing the Confidential Report. Additionally, it enjoined the NCAA from conducting “any further proceedings against the University,” from enforcing its show-cause order, and from taking any other action against the University that had been recommended in the Confidential Report. App. 34. Two weeks after the trial court’s opinion was entered, Tarkanian filed a petition for attorney’s fees pursuant to 42 U. S. C. § 1988. Asserting that this was the first time Tarkanian had claimed relief under § 1988, the NCAA again sought removal to Federal District Court on the ground that the litigation had changed substantially. When the university defendants declined to join the removal petition, the NCAA contended that they should be realigned as plaintiffs because they actually wanted Tarkanian to prevail. The District Court, however, again ordered the litigation remanded, and the Ninth Circuit agreed. App. to Pet. for Cert. A120. Even before the Ninth Circuit ruled, the Nevada trial court had awarded Tarkanian attorney’s fees of almost $196,000, 90% of which was to be paid by the NCAA. App. 41-42. The NCAA appealed both the injunction and the fee order. Not surprisingly, UNLV, which had scored a total victory except for its obligation to pay a fraction of Tarkanian’s fees, did not appeal. The Nevada Supreme Court agreed that Tarkanian had been deprived of both property and liberty protected by the Constitution and that he was not afforded due process before suspension. It thus affirmed the trial court’s injunction insofar as it pertained to Tarkanian, but narrowed its scope “only to prohibit enforcement of the penalties imposed upon Tarkanian in Confidential Report No. 123(47) and UNLV’s adoption of those penalties.” 103 Nev., at 343, 741 P. 2d, at 1353. The court also reduced the award of attorney’s fees. As a predicate for its disposition, the State Supreme Cour held that the NCAA had engaged in state action. Severa strands of argument supported this holding. First, the cour assumed that it was reviewing “UNLV’s and the NCAA’s im position of penalties against Tarkanian,” id., at 335, 741 P 2d, at 1347, rather than the NCAA’s proposed sanction.1 against UNLV if it failed to discipline Tarkanian appropri ately. Second, it regarded the NCAA’s regulatory activities as state action because “many NCAA member institutions were either public or government supported.” Ibid. Third, it stated that the right to discipline a public employee “is traditionally the exclusive prerogative of the state” and that UNLV could not escape its responsibility for such disciplinary action by delegating that duty to a private entity. Id., at 336, 741 P. 2d, at 1348. The court next pointed to our opinion in Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (1982), in which we held that.the deprivation of a federal right may be attributed to the State if it resulted from a state-created rule and the party charged with the deprivation can fairly be said to a state actor. Summing up its holding that the NCAA’s activities constituted state action, the Nevada Supreme Court stated: “The first prong [of Lugar] is met because no third party could impose disciplinary sanctions upon a state university employee unless the third party received the right or privilege from the university. Thus, the deprivation which Tarkanian alleges is caused by the exercise of a right or privilege created by the state. Also, in the instant case, both UNLV and the NCAA must be considered state actors. By delegating authority to the NCAA over athletic personnel decisions and by imposing the NCAA sanctions against Tarkanian, UNLV acted jointly with the NCAA.” 103 Nev., at 337, 741 P. 2d, at 1349. II Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be. Shelley v. Kraemer, 334 U. S. 1, 13 (1948); see Jackson v. Metropolitan Edison Co., 419 U. S. 345, 349 (1974). As a general matter the protections of the Fourteenth Amendment do not extend to “private conduct abridging individual rights.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722 (1961). “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law” and avoids the imposition of responsibility on a State for conduct it could not control. Lugar, 457 U. S., at 936-937. When Congress enacted §1983 as the statutory remedy for violations of the Constitution, it specified that the conduct at issue must have occurred “under color of” state law; thus, liability attaches only to those wrongdoers “who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape, 365 U. S. 167, 172 (1961). As we stated in United States v. Classic, 313 U. S. 299, 326 (1941): “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” In this case Tarkanian argues that the NCAA was a state actor because it misused power that it possessed by virtue of state law. He claims specifically that UNLV delegated its own functions to the NCAA, clothing the Association with authority both to adopt rules governing UNLV’s athletic programs and to enforce those rules on behalf of UNLV. Similarly, the Nevada Supreme Court held that UNLV had delegated its authority over personnel decisions to the NCAA. Therefore, the court reasoned, the two entities acted jointly to deprive Tarkanian of liberty and property interests, making the NCAA as well as UNLV a state actor. These contentions fundamentally misconstrue the facts of this case. In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. This may occur if the State creates the legal framework governing the conduct, e. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); if it delegates its authority to the private actor, e. g., West v. Atkins, 487 U. S. 42 (1988); or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior, e. g., Burton v. Wilmington Parking Authority, supra. Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor. This case uniquely mirrors the traditional state-action case. Here the final act challenged by Tarkanian — his suspension — was committed by UNLV. A state university without question is a state actor. When it decides to impose a serious disciplinary sanction upon one of its tenured employees, it must comply with the terms of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Accord, Cleveland Board of Education v. Louder- mill, 470 U. S. 532 (1985); Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972). Thus when UNLV notified Tarkanian that he was being separated from all relations with the university’s basketball program, it acted under color of state law within the meaning of 42 U. S. C. § 1983. The mirror image presented in this case requires us to step through an analytical looking glass to resolve the case. Clearly UNLV’s conduct was influenced by the rules and recommendations of the NCAA, the private party. But it was UNLV, the state entity, that actually suspended Tarkanian. Thus the question is not whether UNLV participated to a critical extent in the NCAA’s activities, but whether UNLV’s actions in compliance with the NCAA rules and recommendations turned the NCAA’s conduct into state action. We examine first the relationship between UNLV and the NCAA regarding the NCAA’s rulemaking. UNLV is among the NCAA’s members and participated in promulgating the Association’s rules; it must be assumed, therefore, that Nevada had some impact on the NCAA’s policy determinations. Yet the NCAA’s several hundred other public and private member institutions each similarly affected those policies. Those institutions, the vast majority of which were located in States other than Nevada, did not act under color of Nevada law. It necessarily follows that the source of the legislation adopted by the NCAA is not Nevada but the collective membership, speaking through an organization that is independent of any particular State. Cf. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 492, 501 (1988) (“Whatever de facto authority the [private standard-setting] Association enjoys, no official authority has been conferred on it by any government...”). State action nonetheless might lie if UNLV, by embracing the NCAA’s rules, transformed them into state rules and the NCAA into a state actor. See Lugar, 457 U. S., at 937. UNLV engaged in state action when it adopted the NCAA’s rules to govern its own behavior, but that would be true even if UNLV had taken no part in the promulgation of those rules. In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), we established that the State Supreme Court’s enforcement of disciplinary rules transgressed by members of its own bar was state action. Those rules had been adopted in toto from the American Bar Association Code of Professional Responsibility. Id., at 360,, n. 12. It does not follow, however, that the ABA’s formulation of those disciplinary rules was state action. The State Supreme Court retained plenary power to reexamine those standards and, if necessary, to reject them and promulgate its own. See id., at 362. So here, UNLV retained the authority to withdraw from the NCAA and establish its own standards. The university alternatively could have stayed in the Association and worked through the Association’s legislative process to amend rules or standards it deemed harsh, unfair, or unwieldy. Neither UNLV’s decision to adopt the NCAA’s standards nor its minor role in their formulation is a sufficient reason for concluding that the NCAA was acting under color of Nevada law when it promulgated standards governing athlete recruitment, eligibility, and academic performance. Tarkanian further asserts that the NCAA’s investigation, enforcement proceedings, and consequent recommendations constituted state action because they resulted from a delegation of power by UNLV. UNLV, as an NCAA member, subscribed to the statement in the Association’s bylaws that NCAA “enforcement procedures are an essential part of the intercollegiate athletic program of each member institution.” App. 97. It is, of course, true that a State may delegate authority to a private party and thereby make that party a state actor. Thus, we recently held that a private physician who had contracted with a state prison to attend to the inmates’ medical needs was a state actor. West v. Atkins, 487 U. S. 42 (1988). But UNLV delegated no power to the NCAA to take specific action against any university employee. The commitment by UNLV to adhere to NCAA enforcement procedures was enforceable only by sanctions that the NCAA might impose on UNLV itself. Indeed, the notion that UNLV’s promise to cooperate in the NCAA enforcement proceedings was tantamount to a partnership agreement or the transfer of certain university powers to the NCAA is belied by the history of this case. It is quite obvious that UNLV used its best efforts to retain its winning coach — a goal diametrically opposed to the NCAA’s interest in ascertaining the truth of its investigators’ reports. During the several years that the NCAA investigated the alleged violations, the NCAA and UNLV acted much more like adversaries than like partners engaged in a dispassionate search for the truth. The NCAA cannot be regarded as an agent of UNLV for purposes of that proceeding. It is more correctly characterized as an agent of its remaining members which, as competitors of UNLV, had an interest in the effective and evenhanded enforcement of the NCAA’s recruitment standards. Just as a state-compensated public defender acts in a private capacity when he or she represents a private client in a conflict against the State, Polk County v. Dodson, 454 U. S. 312, 320 (1981), the NCAA is properly viewed as a private actor at odds with the State when it represents the interests of its entire membership in an investigation of one public university. The NCAA enjoyed no governmental powers to facilitate its investigation. It had no power to subpoena witnesses, to impose contempt sanctions, or to assert sovereign authority over any individual. Its greatest authority was to threaten sanctions against UNLV, with the ultimate sanction being expulsion of the university from membership. Contrary to the premise of the Nevada Supreme Court’s opinion, the NCAA did not — indeed, could not — directly discipline Tarkanian or any other state university employee. The express terms of the Confidential Report did not demand the suspension unconditionally; rather, it requested “the University... to show cause” why the NCAA should not impose additional penalties if UNLV declines to suspend Tarkanian. App. 180. Even the university’s vice president acknowledged that the Report gave the university options other than suspension: UNLV could have retained Tarkanian and risked additional sanctions, perhaps even expulsion from the NCAA, or it could have withdrawn voluntarily from the Association. Finally, Tarkanian argues that the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands. We are not at all sure this is true, but even if we assume, that a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under color of state law. Cf. Jackson, 419 U. S., at 351-352 (State’s conferral of monopoly status does not convert private party into state actor). In final analysis the question is whether “the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State.” Lugar, 457 U. S., at 937. It would be ironic indeed to conclude that the NCAA’s imposition of sanctions against UNLV — sanctions that UNLV and its counsel, including the Attorney General of Nevada, steadfastly opposed during protracted adversary proceedings — is fairly attributable to the State of Nevada. It would be more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law. The judgment of the Nevada Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. The trial court found that Tarkanian, as head basketball coach, “is annually paid (in lieu of his salary as a professor) $125,000, plus 10% of the net proceeds received by UNLV for participation in NCAA-authorized championship games, plus fees from basketball camps and clinics, product endorsements, and income realized from writing a newspaper column, speaking on a radio program entitled ‘THE JERRY TARKANIAN SHOW,’ and appearing on a television program bearing the same name.” App. 18. That compensation was “entirely contingent on [Tarkanian’s] continued status as the Head Basketball Coach at UNLV.” As a tenured professor alone, he would have earned about $53,000 a year, the court found. Ibid. That section provides, in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The fees were awarded pursuant to 42 U. S. C. § 1988, which authorizes a court in its discretion to award the prevailing party in an action brought under § 1983 a reasonable attorney’s fee as a part of the costs. In this case the under-color-of-law requirement of 42 U. S. C. § 1983 and the state-action requirement of the Fourteenth Amendment are equivalent. See Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 928-935 (1982). Although the NCAA’s status as a state or private actor is a novel issue in this Court, lower federal courts have entertained the question for a number of years. Initially, Federal Courts of Appeals held that the NCAA was a state actor for §1983 purposes. E. g., Regents of University of Minnesota v. NCAA, 560 F. 2d 352 (CA8), cert. dism’d, 434 U. S. 978 (1977); Howard University v. NCAA, 166 U. S. App. D. C. 260, 510 F. 2d 213 (1975); Parish v. NCAA, 506 F. 2d 1028 (CA5 1975); Associated Students, Inc. v. NCAA, 493 F. 2d 1251 (CA9 1974) (per curiam). Since our decisions in Lugar v. Edmondson Oil Co., supra, Rendell-Baker v. Kohn, supra, and Blum v. Yaretsky, 457 U. S. 991 (1982), all issued on the same day, lower courts have held to the contrary. E. g., McCormack v. NCAA, 845 F. 2d 1338 (CA5 1988); Karmanos v. Baker, 816 F. 2d 258 (CA6 1987); Graham v. NCAA, 804 F. 2d 953 (CA6 1986); Arlosoroff v. NCAA, 746 F. 2d 1019 (CA4 1984). See Spath v. NCAA, 728 F. 2d 25, 28 (CA1 1984) (dictum). App. 98. Among the sanctions that the Committee may impose “against an institution” are; “(1) Reprimand and censure; “(2) Probation for one year; “(3) Probation for more than one year; “(4) Ineligibility for one or more National Collegiate Championship events; “(5) Ineligibility for invitational and postseason meets and tournaments; “(6) Ineligibility for any television programs subject to the Association’s control or administration; “(7) Ineligibility of the member to vote or its personnel to serve on committees of the Association, or both; “(8) Prohibition against an intercollegiate sports team or teams participating against outside competition for a specified period; “(9) Prohibition against the recruitment of prospective student-athletes for a sport or sports for a specified period....” Id,., at 103-104. Upon finding that misconduct by an employee of a member institution caused NCAA rules to be violated, the Committee may require the member to “show cause why: “(i) a penalty or an additional penalty should not be imposed if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against athletic department personnel involved in the infractions case, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests; or “(ii) a recommendation should not be made to the membership that the institution’s membership in the Association be suspended or terminated if, in the opinion of the Committee (or Council), it does not take appropriate disciplinary or corrective action against the head coach of the sport involved, any other institutional employee if the circumstances warrant, or representatives of the institution’s athletic interests.” Id., at 104. See id., at 141-150, 190, 196. “Most serious is the charge that Coach Tarkanian attempted to frustrate the NCAA’s application of the rules by getting people to ‘change their story’ or to fabricate bodies of countervailing evidence. I am not convinced that the NCAA investigation adequately supports this charge and yet we must remember that the NCAA infractions committee and the NCAA Council, both composed of distinguished scholars, administrators, and lawyers, believed otherwise.” Id., at 72. The court held the NCAA was not liable for fees Tarkanian incurred during the first trial and first appeal to the State Supreme Court. Not only,did those events occur before the NCAA was a party to the litigation, the court explained, but since the trial court’s judgment was reversed, Tarkanian had not prevailed, and thus was not eligible for fees pursuant to § 1988. In a later opinion, the Supreme Court ordered that Tarkanian be allowed additional fees for services performed on his second appeal before that court. “No State shall... deprive any person of life, liberty, or property, without due process of law....” U. S. Const., Amdt. 14. § 1. E. g., Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974) (“[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself”). The situation would, of course, be different if the membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign. See Clark v. Arizona Interscholastic Association, 695 F. 2d 1126 (CA9 1982), cert. denied, 464 U. S. 818 (1983); Louisiana High School Athletic Association v. St. Augustine High School, 396 F. 2d 224 (CA5 1968). The dissent apparently agrees that the NCAA was not acting under color of state law in its relationships with private universities, which constitute the bulk of its membership. See post, at 202, n. 2. Petitioners in Bates, contended that enforcement of disciplinary rules circumscribing attorney advertising violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2, and the First Amendment, made applicable to the States by the Fourteenth Amendment. 433 U. S., at 353. The Court unanimously concluded that state action existed in deciding that by the doctrine enunciated in Parker v. Brown, 317 U. S. 341 (1943), respondent was immune from Sherman Act liability. The Court reached the merits of petitioners’ First and Fourteenth Amendment claims without discussing whether state action existed for Fourteenth Amendment purposes. 433 U. S., at 363-384. Although by no means identical, analysis of the existence of state action justifying immunity from antitrust liability is somewhat similar to the state-action inquiry conducted pursuant to § 1983 and the Fourteenth Amendment. In both contexts, for example, courts examine whether the rule in question is a rule of the State. Compare Hoover v. Ronwin, 466 U. S. 558, 569 (1984) (“[T]he Court has required Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Ben-jamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appel-lees. No. 111, Docket 77-7201. United States Court of Appeals, Second Circuit. Argued Oct. 21, 1977. Decided March 6, 1978. Van Graafeiland, Circuit Judge, filed dissenting opinion. Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant. George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways. James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd. Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges. LUMBARD, Circuit Judge: This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions to answer that question in the negative. We reverse. I On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding. This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows: Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed. II The first question we address is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id. Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that [a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States. Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California. Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so. Ill The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350, and a general federal question “arising under” a treaty. The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States. The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations. Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes. IV Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer. A At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953). The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957): The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself. Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967). The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02. Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote: The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier. [1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action. In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975). Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law. B 1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)). The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966). 2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation, [a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. . The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved. Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads: (1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention. (2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent . The unofficial translation reads: (1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. (2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply. . The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action. As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way. 3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that [a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ... Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada). V The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed. We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy. We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight. One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states. Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331. VI Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA. Reversed and remanded for further proceedings consistent with our opinion. . Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention]. . Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention. . Jurisdiction over HSA is alleged under principles of pendent jurisdiction. . Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court. . Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3. . The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. . But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944). . Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins: [T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today. Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959). . We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself. Question: What is the number of judges who dissented from the majority? 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). Benjamin F. RAYBORN, Appellant, v. UNITED STATES of America, Appellee. No. 12602. United States Court of Appeals Sixth Circuit. June 20, 1956. (Benjamin R. Rayborn, Alcatraz, Cal., on the brief), for appellant. William B. Jones, Louisville, Ky. (J. Leonard Walker, Charles M. Allen, Louisville, Ky., on the brief), for appellee. Before SIMONS, Chief Judge, and McALLISTER and STEWART, Circuit Judges. STEWART, Circuit Judge. This appeal is from the district court’s denial of a motion filed under 28 U.S.C.A. § 2255, to vacate and correct the appellant’s thirty year prison sentence. At issue are two aspects of the recurring question of how many separate criminal offenses can properly be carved out of a single transaction. In 1947 the appellant was found guilty by a jury on each of fourteen counts of an indictment. He received the maximum sentence of five years imprisonment on each count, some of the sentences to run concurrently and some consecutively, totalling thirty consecutive years. Two of the counts charged the appellant with receiving stolen government property, each of these counts identifying the property in question as a sub-machine gun of a different serial number. The evidence showed that the two machine guns were received by the appellant on separate occasions, and he concedes that the receipt of each of them constituted a separate offense. Two additional counts charged him with receiving and possessing the same two machine guns which had been transferred in violation of the registration and tax requirements of the Internal Revenue Code. Consecutive five year sentences were imposed upon each of these four counts. The appellant contends that the offenses charged in the first two counts necessarily embraced those specified in the second two, and that only one offense was therefore committed with respect to each machine gun, permitting a maximum sentence of but ten years. Although this argument is not without some force, the district judge was not in error in concluding that four separate crimes had been committed. The test of identity of offenses is gen--erally stated to be, “whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.” Morgan v. Devine, 1915, 237 U.S. 632, 641, 35 S.Ct. 712, 715, 59 L.Ed. 1153. See Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Failure to follow the affirmative procedures required by the Internal Revenue Code with respect to firearms’ is a specific omission, requiring evidence different from that required to prove the receipt and concealment of stolen government property. The remaining counts charged the appellant with the interstate transportation, of various weapons and ammunition at a time when.he was a fugitive from justice. Each weapon and each lot of ammunition of different caliber was made the subject of a separate count. Some of the five year sentences on these counts were made to run concurrently with the, twenty year sentence already discussed, but additional consecutive sentences to-talling ten years were also imposed. All the firearms and ammunition in question were concededly transported simultaneously by the appellant on & single trip from Louisville, Kentucky, to Buffalo, New York. Relying primarily upon Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 622, 99 L.Ed. 905, the appellant' argues that the simultaneous interstate transportation of these guns and ammunition constituted but one offense under the statute. The Supreme Court’s decision in the Bell case was announced after the district court had entered its order in the present case. The Court there decided that the transportation of two women for an immoral purpose on an interstate trip in one vehicle constituted a single offense. It is true as pointed out in the prevailing opinion in the Bell case, that in determining the “ ‘unit of prosecution’ ” under a criminal statute the answers that have been given under other criminal statutes are not' necessarily helpful. Compare Alabama Packing Co. v. United States, 5 Cir., 1948, 167 F.2d 179; Kerr v. Squier, 9 Cir., 1945, 151 F.2d 308; Johnston v. Lagomarsino, 9 Cir., 1937, 88 F.2d 86 with McKee v. Johnston, 9 Cir., 1939, 109 F.2d 273; United States v. Antrobus, 3 Cir., 1951, 191 F.2d 969; Oddo v. United States, 2 Cir., 1949, 171 F.2d 854. Yet the same reasoning that impelled this court in Smith v. United States, 6 Cir., 1954, 211 F.2d 957, to hold that the simultaneous theft of two letters from the mails was only one offense certainly supports the appellant’s position here. Moreover, the reasoning of the Supreme Court’s opinion in the Bell case points clearly to the conclusion that a fugitive who transports several firearms and ammunition on an interstate journey is guilty of a single crime. This follows a fortiori, since under the statute here in question, only the transportation need be proved if the transporter is a fugitive, while under the Mann Act, 18 U.S.C.A. § 2421 et seq. there must be proof of an individualized criminal intent as to each woman transported. In Rivera v. United States, 1 Cir., 1945, 151 F.2d 47, and Mercado v. United States, 1 Cir., 1950, 183. F.2d 486, the Court of Appeals for the. First Circuit held that the single transportation of a firearm and ammunition constituted two punishable crimes. As appellant points out, however, these decisions were based upon the reasoning of that court’s prior decision that the single transportation of five women in the same vehicle constituted five separate Mann Act violations. Crespo v. United States, 1 Cir., 1945, 151 F.2d 44. That reasoning was rejected by the Supreme Court in the Bell decision. Were the government’s argument here to prevail, it is difficult to see why the interstate transportation of each individual bullet could not support a separate five year prison sentence, as was pointed out during oral argument. Such a result would hardly be in accord with the Supreme Court’s words in the Bell decision: “It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.” 349 U.S. at page 83, 75 S.Ct. at page 622. The additional ten year sentence imposed upon the cumulative counts of transporting weapons and ammunition should be expunged and the total sentence reduced to twenty years. The order of the district court is reversed, and the case remanded for that purpose. . At the time of appellant’s conviction the statute he was charged in these two counts with violating provided as follows: “Receiving stolen public property. Whoever shall receive, conceal, or aid in concealing, or shall have or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen, or purloined by any other person, knowing the same to have been so embezzled, stolen, or purloined, shall be fined not more than $5,000, or imprisoned not more than five years, or both; and such person may be tried either before or after the conviction of the principal offender.” 18 U.S.C. § 101 (1946 Ed.). Of. 18 U.S.C.A. § 641. . “Unlawful acts — (a) Possessing firearms unlawfully transferred. It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 2720, 2721(b), 2722, 2723, 2727, and 2731 of this subchapter.” 26 U.S.C. § 2726 (1946 Ed.). . “It shall be unlawful for any person who is under indictment or who has been convicted of a crime of violence or who is a fugitive from justice to ship, transport, or cause to be shipped or transported in interstate or foreign commerce- any firearm or ammunition.” 15 U.S.C.A. § 902(e). . One additional count charged the interstate transportation of a stolen firearm in violation of 15 U.S.C.A. § 902(g), but the five year sentence imposed on this count was made concurrent with the first five years of the twenty year sentence above discussed, and is therefore not here in issue. . Reversing this court’s decision in 6 Cir., 1954, 213 F.2d 629. 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_direct2	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. SAN JOAQUIN BRICK CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 10007. Circuit Court of Appeals, Ninth Circuit Aug. 8, 1942. Lafayette J. Smallpage, of Stockton, Cal., for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Newton K. Fox, and Fred E. Youngman, Sp. Assts. to the Atty. Gen., for respondent. Before WILBUR, STEPHENS, and HEALY, Circuit Judges. STEPHENS, Circuit Judge. Petition to review a decision of the Board of Tax Appeals which affirmed a determination of the Commissioner of Internal Revenue that the petitioner-taxpayer is not entitled to certain claimed deductions in computing its 1934 income taxes. The matter was submitted to the Board of Tax Appeals upon a stipulation of facts, neither the petitioner nor the Commissioner introducing any other evidence. The stipulated facts are, briefly, as follows : The petitioner-taxpayer is a California corporation with its principal office at Stockton, California, and is engaged in the manufacture and sale of building materials. It keeps its books and prepared its income tax returns on an accrual basis. In 1934 and 1935, all shares of its capital stock were owned by I. R. Stein, who has since died. Stockton Medico-Dental' Building, Inc. [herein called Medico-Dental] is a Delaware corporation organized in 1925. It erected a twelve-story office building at Stockton and on June 15, 1926, issued $400,000 six and one-half percent first mortgage bonds and $110,000 seven percent second mortgage bonds, maturing serially up to June 15, 1942, secured by deeds of trust on the building. Between 1926 and 1934, taxpayer acquired some of each class of these bonds. $30,000 second mortgage bonds were received by it for construction materials of that value supplied by it to Medico-Dental in the construction of the building. $10,-000 of these second mortgage bonds were sold by taxpayer in 1927. As of January 1, 1934, taxpayer owned second mortgage bonds of Medico-Dental which it had acquired on the dates, in the quantities and at the costs shown as follows [the $20,000 total of bonds shown to have been acquired in the years 1926 and 1927 represent the remainder of the $30,000 bonds acquired for construction materials to which we have just referred] : Date Acquired Face Value Cost. Sept. 18, 1926 $12,000.00 $12,000.00 Dec. 21, 1926 1,000.00 1,000.00 Feb. 1, 1927 3.000. 00 3.000. 00 Mar. 12, 1927 4.000. 00 4.000. 00 Apr. 4, 1929 10,000.00 8.500.00 Apr. 8, 1929 2.000. 00 1.750.00 Apr. 11, 1929 8,000.00 6.490.00 Apr. 19, 1929 24.000. 00 18.500.00 Apr. 25, 1929 2,000.00 1.600.00 Apr. 29, 1929 1,000.00 825.00 May 1, 1929 4.000. 00 3.200.00 May 20, 1929 5.000. 00 4.625.00 Nov. 9, 1933 23.000. 00 2.300.00 Totals $99,000.00 $67,790.00 In 1929 Medico-Dental was in default on its obligations under the deeds of trust securing its first and second mortgage bonds. Thereupon Medico-Dental Investment Company, a California corporation [hereinafter referred to as Investment Co.] was organized on March 11, 1929, to acquire and operate the building. The Investment Company assumed the first and second mortgage bonds, then outstanding in the amounts of $392,500 and $110,000 respectively, in consideration of a transfer of Medico-Dental property to it. Investment Company issued 615 shares of stock of $50.00 par value, of which 600 were issued to taxpayer for $30,000.00. In 1930 Investment Company defaulted in payment of interest on the second mortgage bonds, and in 1933 it defaulted in payment of interest and sinking fund obligations on the first mortgage bonds. The first mortgage bondholders thereupon formed protective committees which formulated a reorganization plan, and on January 29, 1934, made an agreement with Investment Company and Medico-Dental to carry out the plan. This plan was submitted on June 5, 1934, to holders of first mortgage bonds. The plan provided that if all first mortgage bonds should be deposited with a reorganization committee before August 1, 1934, the trust indenture of June 15, 1926, would be amended so that the six and one-half percent • first mortgage gold bonds would have the effect of “new bonds” and be returned to the parties entitled thereto and the plan of reorganization consummated. If all first mortgage bonds should not be deposited, Investment Company or a new company would acquire the mortgaged building at a trustee’s sale under foreclosure and issue bonds to each depositor in the same principal amount as the bonds deposited. Such new bonds, dated June 15, 1933, and maturing June 15, 1947, would bear four percent interest, and (the company’s earnings permitting) additional interest up to one percent, and coupons for “deferred interest” aggregating three and one-quarter percent of principal and payable in four semi-annual installments ending December 15, 1935, from the promissory note to be given by taxpayer to the new company. To secure the new bonds, a deed of trust would be placed upon the building, requiring that the new company’s net income be paid to a trustee for application to the bonds, and imposing other restrictions safeguarding the loan. The new company’s capital stock would consist of 615 shares of which 600 would be placed in trust as additional security for the bonds, and after fulfillment of obligations under them, would be transferred to taxpayer. Taxpayer was also to pay Investment Company’s accounts payable incurred prior to June 15, 1933, and acquire its accounts receivable as of that date, and pay the expenses of the reorganization plan, including the amount necessary for distribution to the non-depositing stockholders. In considering this plan of reorganization it should be noted that it contemplated the possibility of having deposited 100% of the outstanding first mortgage bonds, in which event [quoting from the plan] “the Committee can accomplish the foregoing plan of reorganization without the trustee’s sale and by merely amending the deed of trust securing said bonds and having the Trustee make' appropriate notation on the bonds”. Of course if this had been accomplished, the proposed modification of the interest rate and maturity dates on the first mortgage bonds would have been effected without any change in equity ownership or revision of debts junior to the first mortgage bonds. The full 100% of the outstanding first mortgage bonds were not deposited, and in accordance with the plan the bondholders’ committee on November 16, 1934, caused Stockton Medico-Dental Building Company [hereinafter referred to as the “New Company”] to be organized as a corporation under the laws of California. The Committee then transferred to the New Company in trust all the bonds which had been pledged to them [$336,700 out of a then outstanding issue of $351,000]. On November 20, 1934, the trustee under the trust indenture securing the first mortgage bonds took possession of the property pledged under the trust indenture, and on December 14, 1934, sold all the assets at public sale to the highest bidder, which was the New Company. The New Company then issued first mortgage notes to the depositors in the full face amount of their deposited bonds, with extended maturity dates bearing interest at four percent guaranteed and one percent additional, if earned. The non-depositing holders of first mortgage bonds received 30 cents on the dollar face value of their bonds. The accounts payable of Investment Company incurred prior to June 15, 1933, and which taxpayer had assumed under the plan of reorganization as above outlined, amounted to $19,959.60. They were all due to taxpayer itself for merchandise, advances and interest. There was also a note to a bank for $5,000 payable with accrued interest on May 28, 1933, on which taxpayer was guarantor. Taxpayer paid on account of its liability on this note the sum of $5,-010.32. Investment Company’s accounts receivable on June 15, 1933, which taxpayer received, amounted to $15,134.15, due-from tenants of stores and offices in the building. Of this, it collected and paid to taxpayer $8,452.69 on November 9, 1934. Taxpayer in 1934 charged off on account of this latter transaction the sum of $16,-517.23, computed as follows: Accounts payable assumed $19,959.60 Note and interest paid 5,010.32 $24,969.92 Dess amount collected on accounts receivable 8,452.69 $16,517.23 Taxpayer claims that it is entitled to deductions in computing its 1934 income tax return in the following amounts : (1) The cost price of the second mortgage bonds of Investment Company totaling $67,790.00. (2) The cost price of shares of stock of investment company totaling $30,000.00. (3) The $16,517.23 difference between the accounts payable and amounts received on accounts receivable as above set forth. In connection with this latter claimed deduction the Board determined that only $9,835.77 was deductible. The $9,835.77 figure was arrived at as follows: Accounts payable assumed $19,959.60 Note and interest paid 5,010.32 $24,969.92 Less accounts receivable 15,134.15 $ 9,835.77 For convenience we shall consider the three claimed deductions separately. We turn first to item (2), the $30,000 expended for stock of Investment Company. The Investment Company Stock. The Board found as a fact that this stock became worthless before 1934, the year in which the taxpayer claimed his deduction. At the outset we are faced with the Commissioner’s argument that this finding is binding on us if supported by evidence. Taxpayer, on the other hand, urges that since the case was submitted upon a stipulation of facts, “this Court has the power and the duty to examine those facts for the purpose of reviewing the reasonableness of the Board’s conclusion”. The point seems to be that the Board’s conclusions from the stipulated facts are either mixed questions of law and fact or conclusions of law, which are subject to our independent judicial review. Commissioner v. Boeing, 9 Cir., 106 F.2d 305, 309. In the Boeing case, supra, we analyzed recent cases decided by the Supreme Court on the power of this Court to review decisions of the Board of Tax Appeals. On tiie basis of Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343, and Helvering v. Tex-Penn Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755, we held that in the case then under consideration the ultimate findings of the Board were “conclusions of law, or mixed questions of law and fact within the meaning of the Supreme Court rulings and as such are subject to independent judicial review by this court.” [106 F.2d 309], The ultimate finding of the Board with which we were there concerned was as to whether the taxpayer was engaged in a “trade or business” which is entirely different from the finding with which we are concerned in the instant case, namely, as to the value of the stock in question prior to the year 1934. The question as to the year in which stock becomes worthless would seem to be purely a question of fact, and if the stipulated facts support the Board’s finding that it became worthless prior to the year 1934, it is our opinion that such finding is binding upon us. But aside from all of that, the argument of both parties to this appeal on the question of the conclusiveness of the Board’s finding discloses a misunderstanding of the expressions often made by the Courts that the Commissioner’s determination is supported by a presumption of correctness and that the taxpayer has the burden of showing it to be wrong. See, for instance, Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212. In Perry v. Commissioner, 9 Cir., 120 F.2d 123, 124, this Court undertook to explain such expressions by saying, “This finding [the determination of the Commissioner] is presumptively correct, that is, until the taxpayer proceeds with competent and relevant evidence to support his position, the determination of the Commissioner stands: When such evidence has been adduced the issue depends wholly upon the evidence so adduced and the evidence to be adduced by the Commissioner. The Commissioner cannot rely upon his determination as evidence of its correctness either directly or as affecting the burden of proof.” It has often been pointed out that in claiming tax deductions the taxpayer must show clearly that he comes within the statute allowing such deductions. But once he presents competent and relevant evidence on every necessary element, the presumption of correctness of the Commissioner’s determination is no longer existent and the outcome of the case depends upon the determination of the trial body after the consideration of the evidence brought before it by both sides. When the evidence on both sides has been adduced, and the Board makes its findings of fact, then the sole question presented to the Court, so far as the facts are concerned, is whether or not the Board’s findings are supported by the evidence. If the taxpayer fails to present substantial evidence on every point necessary to entitle him to the deductions claimed, this Court upon petition for review necessarily will hold against their allowance. In doing so we are not considering proof nor are we weighing the evidence. With these principles in mind we turn to the claims of the taxpayer in the instant case. The law is clear that as to claimed deductions for worthless stock the income tax law contemplates that the deduction must be taken in the year in which the loss is sustained by reason of the stock actually becoming worthless. The statute does not make the loss deduction dependent upon the time of ascertainment but rather upon the time when- the loss is truly sustained. See Bartlett v. Commissioner, 4 Cir., 114 F.2d 634, 638, 639, and cases therein cited. It is conceded by all that the stock of Investment Company was worthless at least after the sale of the property under foreclosure in 1934. But that is not the question. The problem for us to decide is— did taxpayer represent competent evidence tending to prove that the stock actually became worthless in 1934? If it did present evidence on this point, then we must consider whether or not evidence was introduced to support the Board’s conclusion that the stock became worthless prior to the beginning of the year 1934. This leads us to the question: What is necessary for a taxpayer to prove in order to establish the fact that stock which he holds became worthless in the year in which he is claiming a deduction? It would appear, as pointed out by the Court in Dunbar v. Commissioner, 7 Cir., 119 F.2d 367, 369, 135 A.L.R. 1424, that “As a part of his burden in demonstrating that it became worthless in [the year of the claimed deduction] he must of necessity-show that it had some intrinsic or potential value at the close of [the preceding year].” The stipulation of facts upon which this case was presented to the Board of Tax Appeals is entirely silent on this matter. All that we are told is that in 1929 the Investment Company was organized and that there were transferred to it the properties of Medico-Dental. The value of these properties is not shown. No balance sheets of any kind are in the record. We know that the properties transferred to the Investment Company were mortgaged to the extent of some $500,000.00, being the total of the first and second mortgage bonds, and that there was a default on the second mortgage bonds in 1930 and on the first mortgage bonds in 1933, after which protective committees were organized to work out a plan of reorganization. Certainly this all falls far short of evidence to show that the stock of Investment Company which the taxpayer claims to have become worthless in 1934 had any intrinsic or potential value at the close of 1933. In this situation it is our duty to hold that there is no error in the Board’s determination that the taxpayer is not entitled to claim a deduction for the worthlessness of the Investment Company stock in 1934. The Second Mortgage Bonds of Investment Company. As to these bonds we have a different situation. Under Regulations 86 of the Treasury Department [Art. 23 (k) 4] it is provided that “Bonds, if ascertained to be worthless, may be treated as bad debts to the amount actually paid for them * * * ”, And, as pointed out by the decision in Bartlett v. Commissioner, supra [114 F.2d 638], “the law applicable to deductions for worthless stock stands out in clear relief when it is viewed against the background of the law pertaining to deductions for bad debts”. Under the 1934 Revenue Act, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code § 23, the bad debt deduction is set forth as follows: “Debts ascertained to be worthless and charged off within the taxable year * * * It is stipulated by the parties that the taxpayer charged off the purchase price of the bonds in the year 1934, but the dispute between the parties arises out of the question of whether they were “ascertained to be worthless” during that year. We therefore examine the stipulation of facts to determine whether or not it can properly be said that taxpayer presented evidence on every essential element to the proving of its case. Unlike the situation with respect to claiming a deduction for worthless stock, where we have heretofore held that a part of the taxpayer’s case is to show that the stock had some intrinsic or potential value at the close of the preceding year, in the case of bad debts the actual worthlessness of the debt prior to the tax year in which the deduction is claimed is immaterial so long as the debt was “not ascertained to be worthless” by taxpayer prior to that time. The taxpayer must present evidence, then, to show: (1) That the debt actually was uncollectible during the year in which he claims the deduction [this is clear in the instant case from the stipulated fact that the property was lost by foreclosure proceedings in 1934] and (2) that he actually “ascertained” that fact for the first time during the tax year in question. On this second point we have the following stipulated facts: Taxpayer was fully aware of the reorganization proceedings and the foreclosure of the property [this shows that the “ascertainment” was at least as early as 1934 when it claims the deduction] ; that until August 1, 1934 [the deadline for obtaining a deposit of 100% of the first mortgage bonds] the reorganization committee hoped to accomplish the plan of reorganization without a trustee’s sale, thereby, as we have heretofore pointed out, effecting the reorganization without any change in equity ownership or revision of debts junior to the first mortgage bonds; that as late as November, 1933, taxpayer purchased and paid $2,300.00 for $23,000.00 face value of the second mortgage bonds. It is our opinion and we therefore hold that there was sufficient evidence from which the Board could have found that the taxpayer “ascertained” the bonds to be worthless in 1934. In this situation, then, the question for our determination is whether there was evidence on behalf of the Commissioner to sustain the Board’s finding that the bonds were ascertained to be worthless prior to 1934. The Board’s finding in this respect is that the bonds “were in fact worthless before 1934, and the petitioner must be charged with having then ascertained it”. In order to support this finding, it is apparent that there must be evidence (1) that the bonds were in fact worthless before 1934 and (2) that the facts were such that taxpayer is charged with having ascertained the worthlessness of the bonds prior to that year. There is some conflict in the cases as to just when a taxpayer is to be charged with ascertainment of the worthlessness of a debt. It is our opinion and we hold that the case of Rosenthal v. Helvering, 2 Cir., 124 F.2d 474, 476, correctly sets forth the true rule, as follows: “ ‘Losses’ must be deducted in the year in which they are ‘sustained’ and if the taxpayer fails to learn of them in time, he loses the privilege; debts, on the other hand, must be deducted in the year in which the taxpayer ‘ascertains’ them to be ‘worthless,’ and nobody understands that this imposes upon him the absolute risk of selecting the year when they actually became so. * * * However, beginning with Avery v. Commissioner, 5 Cir., 22 F.2d 6, 55 A.L.R. 1277, courts have at times charged taxpayers with the duty of selecting that year in which a prudent person with the same information would have concluded that the debt was uncollectible. * * * In Curry v. Commissioner, 2 Cir., 117 F.2d 307, 309, 310, we held, however, that the ‘subjective test’ as we called it, was the right one; that is, that the proper year was that in which the taxpayer did ‘ascertain’ the fact no matter how much earlier a reasonably prudent person would have done so. * * * “The taxpayer’s failure to ‘ascertain’ the uncollectibility of the debt as early as a prudent person would have done so, must not be actuated by a desire to postpone the deduction to a later year; he may as little choose the year of greatest advantage to himself by deliberately refusing to follow up evidence which will lead to the facts as by refusing to make use of facts themselves. That would be indeed what the Board here called ‘shutting one’s eyes to the facts.’ But it is one thing not to permit a taxpayer to check an inquiry which he would otherwise have made, and another to impose upon him the duty of general vigilance j}! ÍÍC » In other words, the taxpayer is under no’ duty of general vigilance to ascertain the fact of worthlessness of a debt. However, if the taxpayer does know the facts he cannot “shut his eyes” to those facts. The taxpayer’s failure to “ascertain” the uncollectibility of the debt as early as a prudent person would have done so “must not be actuated by a desire to postpone the deduction to a later year”. He cannot deliberately refuse to follow up evidence which will lead to the facts, nor can he refuse to make use of the facts themselves. In the instant case, the taxpayer concededly knew all the facts. It was the principal stockholder and took an active part in the affairs of the company. It would seem, therefore, that if the evidence shows that the bonds were in fact worthless prior to 1934, as the Board found, it would be our duty to hold that that fact would be evidence that the taxpayer actually “ascertained” their worthlessness at that time. At this point it is well to again point out that the Board did not find that taxpayer actually “ascertained” the worthlessness of the bonds prior to 1934, but that it was chargeable with notice of their worthlessness. It is our opinion that in the event we should find that there is evidence from which the Board could properly conclude that the taxpayer did actually “ascertain” the fact of worthlessness prior to 1934, then it would be our duty to remand the cause to the Board to find upon the point. On the other hand, if there is no evidence from which the Board could properly find an actual “ascertainment” of worthlessness by taxpayer, i. e., if there is no evidence to support a finding that a reasonably prudent person with knowledge of the facts would have “ascertained” that the bonds were worthless, then it is our duty to reverse the cause in favor of the taxpayer. And as we have just said, in the particular circumstances of this case the question turns on whether or not there is evidence to support the finding of the actual worthlessness of the bonds prior to 1934. . In urging that the Board’s finding is supported by the evidence, the Commissioner relies upon the stipulated fact that there was no interest paid on the second mortgage bonds after 1930 and that there was a default in 1933 on the interest and sinking fund obligations on the first mortgage bonds. But this is not evidence that the bonds themselves were entirely worthless. The Commissioner also relies on the fact that in 1933 bondholders’ protective committees were organized and that these committees thereafter adopted and filed a plan of reorganization, not making therein [quoting from the Commissioner’s brief] “any provision for holders of second mortgage bonds”. There are two answers to1 this point made by the Commissioner. The first is that as we have pointed out above, under the plan it was contemplated that the reorganization might be accomplished without the necessity of foreclosure, in which event the second mortgage bonds would have remained legal evidences of indebtedness secured by the junior mortgage on the building. The second answer is that the evidence does not disclose that the reorganization plan was worked out in 1933 as is assumed by the Commissioner. The stipulated facts show that the protective committees were organized in 1933, and that these committees entered into an agreement on January 29, 1934 to carry out the plan which they had formulated, and which is set forth in the agreement. On such evidence we cannot sustain a finding that the details of the plan were worked out in the year 1933. The Commissioner also urges that the finding as to the worthlessness of the bonds in 1933 is supported by the fact that in 1934 the property was foreclosed upon and bid in at public sale for $104,000, which provided for the dissenting first mortgage bondholders only 30^ on the dollar. We do not agree that evidence of a sale on foreclosure in December, 1934, at a figure much below the amount of outstanding first mortgage bonds, furnishes support for a finding that as of the end of 1933 there was no equity or value behind the second mortgage bonds. In dealing with the question of the deduction claimed on account of the common stock of the Investment Company we pointed out that there was no evidence as to the worth of the company at the close of the year 1933. There is nothing in the record to indicate the value of the real property on which the first and second mortgage bonds were a lien. In other words, there is no evidence to support a finding that the second mortgage bonds were actually worthless prior to the time of the foreclosure proceedings in December, 1934, or at least prior to the time when it became apparent that the proposed plan of reorganization by obtaining a deposit of 100% of the outstanding first mortgage bonds would not be carried through. We therefore hold for the taxpayer on this point. The $16,517.23 Deduction. As has heretofore been recited, under the reorganization proceedings taxpayer assumed the Investment Company’s accounts payable incurred prior to June 15th, 1933, and received the accounts receivable of said company as of that date. In making its income tax return for the year in question, taxpayer claimed a deduction for the difference between the accounts payable and the amount which it had actually received from the accounts receivable, while the Board allowed a deduction of only the difference between the accounts payable and the gross accounts receivable. In arriving at this -conclusion the Board in effect held that taxpayer was entitled to the deduction for the amounts which it assumed under the reorganization proceedings, but that there must be an offset for income received by it in the same transaction. We are not concerned in this appeal with the propriety of the Board’s holding that the deduction was proper, but only with the holding that taxpayer is chargeable with income in the gross amount of the accounts receivable. In considering this question it is important to keep in mind that taxpayer kept its books and prepared its income tax returns on an accrual basis, and it is therefore clear that the Board was correct in charging taxpayer with income received by virtue of the assignment to it of the Investment Company’s accounts receivable. But taxpayer urges that the accounts receivable over and above the $8,-452.69 collected thereon were valueless, and were charged off by it during the tax year. But a charge-off is not enough to entitle a taxpayer to a deduction for worthless debts. It must be remembered that the debts here claimed as worthless were not those of the Investment Company, but rather of debtors of that company. There was no evidence presented as to the financial responsibility of these debtors or their ability to pay. In this state of the record it is our duty to hold that there was no error in the Board’s refusal to allow the deduction. This holding is not a holding [as is urged by taxpayer] that the accounts receivable were accepted by taxpayer as a payment pro tanto on the indebtedness which it assumed. Taxpayer, being on an accrual basis, is chargeable with income received by virtue of the assignment to it of the accounts receivable. In the absence of a showing that the accounts receivable were “ascertained to be worthless” during the tax year, no deduction is allowable. The decision of the Board in refusing to allow a deduction of the cost price of the second mortgage bonds of Investment Company totaling $67,790.00 is reversed. In. all other respects, the decision is affirmed. The plan recites that this note is to be given by I. R. Stein, who, as we have stated, was taxpayer’s sole stockholder. It is stipulated that all obligations entered into and all action taken by Stein under said agreement were entered into and taken by him as nominee of taxpayer. There appears in one of the exhibits on file a “Registration Statement” filed by the Investment Company with the Federal Trade Commission in connection with the reorganization some time subsequent to May 31, 1934, in which the statement is made “If the securities for which this Registration Statement is filed are ultimately issued, the Second Mortgage 7% Notes of Stockton Medico-Dental Building, Inc. will be retired either by the voluntary surrender of said notes by the holders thereof for cancellation or by the foreclosure * * * of the deed of trust securing the First Mortgage Gold Bonds”. This is the only place in the record where it is indicated that it might have been a part of the plan to retire the Second Mortgage Bonds by voluntary surrender, and this statement was apparently made by the Investment Company some four or five months after the plan was formulated. The plan as outlined in the stipulation of facts, and in the agreement which also outlines the plan both show that if 100% of the first mortgage bonds had been deposited, the reorganization would have been accomplished by merely amending the deed of trust securing the first mortgage bonds and making an appropriate notation on the bonds. It should be kept in mind that the agreement was arrived at by a committee representing only the first mortgage bondholders. This committee could not make any agreement that would wipe out the rights of the holders of the second mortgage bonds without their consent. There is nothing in the record to indicate that such consent was given by the holders of second mortgage bonds. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_casedisposition	D	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. SHAARE TEFILA CONGREGATION et al. v. COBB et al. No. 85-2156. Argued February 25, 1987 Decided May 18, 1987 White, J., delivered the opinion for a unanimous Court. Patricia A. Brannan argued the cause for petitioners. With her on the briefs were David S. Tatel, Joseph M. Hassett, Steven P. Hollman, Irvin N. Shapell, and Kevin J. Lipson. Deborah T. Garren argued the cause for respondents and filed a brief for respondent Remer. With her on the brief was Robert B. Bamhouse Briefs of amici curiae urging reversal were filed for the State of Maryland by Stephen H. Sachs, Attorney General, Dennis M. Sweeney, Deputy Attorney General, and Ralph S. Tyler III and C. J. Messerschmidt, Assistant Attorneys General; for the Anti-Defamation League of B’nai B’rith et al. by Gregg H. Levy, Mitchell F. Dolin, Meyer Eisenberg, David Brody, Edward N. heavy, Steven M. Freeman, Jill L. Kahn, Robert S. Rifkind, Samuel Rabinove, Richard T. Foltin, Eileen Kaufman, Harold R. Tyler, James Robertson, Norman Redlich, William L. Robinson, Judith A. Winston, Joseph A. Morris, and Grover G. Hankins; and for the Ameriean-Arab Anti-Discrimination Committee by James G. Abourezk. Justice White delivered the opinion of the Court. On November 2, 1982, the outside walls of the synagogue of the Shaare Tefila Congregation in Silver Spring, Maryland, were sprayed with red and black paint and with large anti-Semitic slogans, phrases, and symbols. A few months later, the Congregation and some individual members brought this suit in the Federal District Court, alleging that defendants’ desecration of the synagogue had violated 42 U. S. C. §§1981, 1982, 1985(3) and the Maryland common law of trespass, nuisance, and intentional infliction of emotional distress. On defendants’ motion under Federal Rules of Civil Procedure 12(b)(1) and (6), the District Court dismissed all the claims. The Court of Appeals affirmed in all respects. 785 F. 2d 523 (CA4 1986). Petitioners petitioned for writ of certiorari. We granted the petition, 479 U. S. 812 (1986), and we now reverse the judgment of the Court of Appeals. Section 1982 guarantees all citizens of the United States, “the same right ... as is enjoyed by white citizens ... to inherit, purchase, lease, sell, hold, and convey real and personal property.” The section forbids both official and private racially discriminatory interference with property rights, Jones v. Alfred, H. Mayer Co., 392 U. S. 409 (1968). Petitioners’ allegation was that they were deprived of the right to hold property in violation of § 1982 because the defendants were motivated by racial prejudice. They unsuccessfully argued in the District Court and Court of Appeals that Jews are not a racially distinct group, but that defendants’ conduct is actionable because they viewed Jews as racially distinct and were motivated by racial prejudice. The Court of Appeals held that § 1982 was not “intended to apply to situations in which a plaintiff is not a member of a racially distinct group but is merely perceived to be so by defendants.” 785 F. 2d, at 526 (emphasis in original). The Court of Appeals believed that “[bjecause discrimination against Jews is not racial discrimination,” id., at 527, the District Court was correct in dismissing the § 1982 claim. We agree with the Court of Appeals that a charge of racial discrimination within the meaning of § 1982 cannot be made out by alleging only that the defendants were motivated by racial animus; it is necessary as well to allege that defendants’ animus was directed towards the kind of group that Congress intended to protect when it passed the statute. To hold otherwise would unacceptably extend the reach of the statute. We agree with petitioners, however, that the Court of Appeals erred in holding that Jews cannot state a § 1982 claim against other white defendants. That view rested on the notion that because Jews today are not thought to be members of a separate race, they cannot make out a claim of racial discrimination within the meaning of § 1982. That construction of the section we have today rejected in Saint Francis College v. Al-Khazraji, ante, p. 604. Our opinion in that case observed that definitions of race when § 1982 was passed were not the same as they are today, ante, at 609-613, and concluded that the section was “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Ante, at 613. As Saint Francis makes clear, the question before us is not whether Jews are considered to be a separate race by today’s standards, but whether, at the time § 1982 was adopted, Jews constituted a group of people that Congress intended to protect. It is evident from the legislative history of the section reviewed in Saint Francis College, a review that we need not repeat here, that Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. Jews are not foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Robert R. MAYBERRY, Plaintiff, Appellant, v. Benjamin C. ADAMS, etc., Defendant, Appellee. No. 84-1399. United States Court of Appeals, First Circuit. Argued Sept. 13, 1984. Decided Oct. 9, 1984. Lawrence M. Edelman, Hampton, N.H., with whom Sanders & McDermott, Hampton, N.H., was on brief, for plaintiff, appellant. Daniel J. Mullen, Asst. Atty. Gen., Concord, N.H., with whom Gregory H. Smith, Atty. Gen., Concord, N.H., was on brief, for defendant, appellee. Before BOWNES, Circuit Judge, and ALDRICH and SKELTON, Senior Circuit Judges. Of the Federal Circuit, sitting by designation. PER CURIAM. Put simply, the question in this Civil Rights action is whether, following the enactment of Pub.L. 96-364, 94 Stat. 1310 (1980), amending 26 U.S.C. § 3304(a)(15), the State of New Hampshire, in 1981 and 1982, was prohibited, in determining an individual’s unemployment weekly payments, from deducting — or crediting — the amount reasonably attributable to that week that the individual was receiving from a government pension payable to him on account of his having served 20 years or more in the Armed Services. RSA 282-A:28, as it then read. The district court ruled in favor of the State. We affirm, on the basis of the recent Fourth Circuit opinion in Watkins v. Cantrell, 736 F.2d 933 (4th Cir.1984), in which the court answered fully exactly the same arguments that appellant makes today. We add that we are offended by appellant’s concept that because of an at least reasonable statutory interpretation by the State he should receive, if it proved mistaken, in addition to back payments and counsel fees, $100,000 damages for emotional distress and a like sum for punitive damages. A state is obliged to make statutory interpretations for the benefit of its citizens, and it should not have to do so in terrorem. Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-63, 267-69, 101 S.Ct. 2748, 2755-58, 2759-61, 69 L.Ed.2d 616 (1981) (policies of deterrence and punishment of willful wrongdoing may in appropriate circumstances warrant awards of punitive damages against officials personally, but do not support such awards against municipalities; innocent taxpayers should not bear this burden). Affirmed; costs to appellee. 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_suffic	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". William E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Joann SHIRK, individually and doing business as Oregon Meat Cutting School; Frank B. Shirk, individually and doing business as Oregon Meat Cutting School, Defendants-Appellees. No. 86-4121. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 11, 1987. Decided Dec. 8, 1987. Claire Brady White, U.S. Dept, of Labor, Washington, D.C., for plaintiff-appellant. Edward N. Fadeley, Fadeley & Fadeley, Eugene, Or., for defendants-appellees. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. PER CURIAM: This is a case about willfulness, good faith and the Fair Labor Standards Act (“FLSA”). The Secretary of Labor appeals from the relief, inadequate in his view, that was granted in litigation against violators of FLSA. The trial judge found that employers, then before the court as repeat offenders under FLSA, “knew or had reason to know that [their] employees were working overtime hours without compensation.” He also ruled that the employers’ acts and omissions were not “willful,” and were “in good faith.” He applied a two-year statute of limitation, denied liquidated damages, and refused to issue a prospective injunction. Applying controlling authority, we must reverse and remand. I. FACTS The dispositive facts are not contested. Appellees Frank and Joann Shirk operate the Oregon Meat Cutting School and two associated retail outlets. In an Oregon state court action in 1980, they were found guilty of violating the FLSA by failing to pay an employee time and one-half for overtime hours. After judgment was entered in that case, the Shirks installed a time clock in their Springfield work place. They told their employees that they were on “salary,” but required them to punch the time clock for pay purposes. The Shirks posted, and had their employees sign, written rules emphasizing that no overtime would be authorized. Employees actually worked more than their time cards showed. Employees complained to the Department of Labor. Following an investigation of the Shirks’ enterprise, the Secretary of Labor filed suit against the Shirks in federal district court, alleging failure to pay overtime, failure to keep and maintain proper work records in violation, and use of child labor, in violation of 29 U.S.C. §§ 207(a), 211(c) and 212(c). The Shirks alleged as affirmative defenses: (1) they acted at all times in good faith with reasonable grounds for believing they were not violating the FLSA; (2) they were ignorant of any child labor at their enterprise; (3) they were ignorant of any overtime violations, having relied on the employees’ incorrectly punched time cards; and (4) the employees’ actions (including submission of time cards they knew to be incorrect and acceptance of the Shirks’ no overtime policy) estopped this action under the FLSA. The district court absolved the Shirks of the child labor charges. It found, however, that they knew or had reason to know that their employees were covered by the FLSA and were in fact working more than 40 hours per week. It concluded that the Shirks violated the overtime and reporting provisions of the FLSA, but denied the Secretary of Labor’s request for three years back pay, for liquidated damages, and for injunctive relief. The Secretary of Labor appealed. ANALYSIS II. “WILLFUL” VIOLATION OF SECTION 255 The Secretary challenges first the trial court’s determination that the employees’ claims were limited by a two-year statute of limitation. The Portal-to-Portal Act, 29 U.S.C. §§ 251 et seq., provides that: Any action ... to enforce any cause of action for ... unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act ... may be commenced within two years after the cause of action accrued, ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. ... 29 U.S.C. § 255(a) (“section 255”). At issue here is the trial court’s finding that the Shirks’ acts or omissions were not “willful” for purposes of that provision. The meaning of the term “willful” in section 255 is well settled in this Circuit. In Marshall v. Union Pacific Motor Freight Co., 650 F.2d 1085, 1092 (9th Cir.1981), this court explicitly adopted: the following rule for determining willfulness under section 255: A violation is willful when the employer was, or should have been, cognizant of an appreciable possibility that the employees involved were covered by the statutory provisions. See also EEOC v. First Citizens Bank of Billings, 758 F.2d 397 (9th Cir.) (applying the Union Pacific standard), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 228 (1985). We apply that standard here. We review de novo interpretation of the statutory authorization of damages. First Citizens, supra, at 401. See also United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (application of law to undisputed facts reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We try the matter anew, as if it had not been heard before and as if no decision had been previously rendered. Exner v. FBI, 612 F.2d 1202, 1209 (9th Cir.1980). The trial court noted the applicability of First Citizens, but ruled that despite the Shirks’ knowledge that their employees were covered by the statutory provisions, and their knowledge or reason to know that their employees were working overtime without compensation, the Shirks did not necessarily willfully violate the FLSA. We conclude otherwise. On these facts, for purposes of Section 255, the Shirks necessarily, as a matter of law, “willfully” violated the FLSA. The three-year statute of limitation applies. III. LIQUIDATED DAMAGES OR PREJUDGMENT INTEREST The Secretary appeals also the district court’s denial of liquidated damages. Under 29 U.S.C. § 216(b), employers who violate the overtime compensation provisions of the FLSA are liable to their employees both for unpaid overtime compensation and for liquidated damages in an amount equal to the back pay liability: Any employer who violates the provisions of section 206 or section 207 of this Title shall be liable to the employee or employees affected in the amount of their unpaid ... wages ... and in an additional equal amount as liquidated damages. Section 216(b) is mandatory: violators “shall be liable” for liquidated damages. First Citizens, 758 F.2d at 403; 29 U.S.C. § 216(b). That section is modified, however, by section 260, providing that the court may, in its sound discretion, refuse to award liquidated damages if the employer demonstrates that it acted reasonably and in good faith: [I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this Title. Under section 260, the district court may deny liquidated damages if, and only if, the employer shows that he acted in good faith and that he had reasonable grounds for believing that he was not violating the Act.... [B]efore the district court’s discretion may be invoked, the employer has the plain and substantial burden of persuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict. Marshall v. Brunner, 668 F.2d 748, 753 (3rd Cir.1982) (emphasis in original) (citations and footnote omitted). The district court’s determination that the Shirks satisfied their burden of demonstrating that they acted in good faith and on reasonable grounds requires the application of legal principles to established facts. We thus review the district court’s determination de novo. McConney, 728 F.2d at 1202. To meet their statutory burden, the Shirks were required to demonstrate both that “the act or omission giving rise to [the violation] was in good faith and that [they] had reasonable grounds for believing that [their] act or omission was not a violation of the [FLSA].” 29 U.S.C. § 260 (emphasis added). This test has both subjective and objective components. To satisfy the subjective “good faith” component, the Shirks were obligated to prove that they had “an honest intention to ascertain what [the FLSA] requires and to act in accordance with it.” First Citizens, 758 F.2d at 403; see also 29 C.F.R. 790.15 (“ ‘Good faith' requires that the employer have honesty of intention and no knowledge of circumstances which ought to put him upon inquiry.”). It is evident from a review of the district court’s findings that the Shirks failed to demonstrate their good faith in this case. The district court found that the Shirks were repeat offenders who knew both that their employees were covered by the FLSA and that they were working overtime without compensation. These findings belie the Shirks’ claim that they believed in good faith that their failure to pay overtime did not constitute a violation of the FLSA. Their awareness that their employees were working without compensation precludes a finding that they had no knowledge of circumstances which ought to have put them on inquiry. Their knowledge that their employees were covered by the FLSA demonstrates that they lacked an honest intention to find out what the FLSA requires and to act in accordance with its provisions. We are persuaded, therefore, that the district court failed to apply the correct legal standard in making its section 260 determination of “good faith.” To satisfy the objective component of the statutory test, the Shirks were required to prove that “[their] failure to obey the statute was ... predicated upon such reasonable grounds that it would be unfair to impose upon [them] more than a compensatory verdict.” Brunner, 668 F.2d at 753. The district court did not indicate that it considered, much less applied, any such standard when making its section 260 determination. The district court found that the Shirks knew their employees were working overtime but that they “honestly believed” they could avoid liability under the FLSA by telling their employees that overtime would not be “authorized.” The district court then based its denial of liquidated damages on this finding of “honest belief.” Even assuming that the Shirks subjectively believed, in good faith, that they were not required to compensate their employees for “unauthorized” overtime, they failed utterly to satisfy their burden of proving that this belief was reasonable. The facts in this case simply cannot support a finding that the Shirks had objectively reasonable grounds for believing no violation was taking place. The record before us permits only one proper conclusion: that the Shirks, as a matter of law, failed to satisfy their burden of demonstrating that they reasonably and in good faith believed that they were not violating the FLSA. Consequently, the district court had no discretion to mitigate the Shirks’ statutory liability for liquidated damages. Id. We reverse the district court’s decision on this issue and remand with instructions to award liquidated damages in accordance with the requirements of section 216(b). IV. PROSPECTIVE INJUNCTION Finally, the Secretary appeals the district court’s denial of injunctive relief. We review that decision for abuse of discretion or for application of an erroneous legal principle. Brock v. Big Bear Market #3, 825 F.2d 1381, 1383 (9th Cir.1987). The district court based its decision to deny injunctive relief in this case largely on its finding that the defendants honestly believed they were not violating the FLSA. The court explained: [The Shirks’] violation of FLSA was not willful and, despite the violations, I find they were acting in good faith. I find no reason to believe they are not presently complying with the Act or that they will fail to comply with it in the future. Therefore, I do not find it necessary to issue a prospective injunction against them at this time. Though the question of whether the trial court thereby abused its discretion is a close one, examination of our cases indicates that the district court failed to give adequate weight to relevant factors in reaching its decision. We have emphasized that prospective injunctions under FLSA serve a remedial not a punitive purpose: The injunction subjects the defendants to no penalty, to no hardship. It requires the defendants to do what the Act requires anyway — to comply with the law.... [T]he manifest difficulty of the Government’s inspecting, investigating, and litigating every complaint of a violation weighs heavily in favor of enforcement by injunction — after the court has found an unquestionable violation of the Act. Marshall v. Chala Enterprises, Inc., 645 F.2d 799, 804 (9th Cir.1981) (Chala) (emphasis in original) (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir.1962)). We noted that “[i]n exercising its discretion, the district court must give substantial weight to the fact that the Secretary seeks to vindicate a public, not a private, right.” Id. Prospective injunctions place the cost of noncompliance on the employer and are essential to effectuate Congress’s policy of abolishing substandard labor conditions by preventing recurring violations. Id.; see also Big Bear, 825 F.2d at 1383. Thus, though the district court has discretion to deny injunctive relief in appropriate cases, this discretion is limited by consideration of the importance of prospective relief as a means of ensuring compliance with the provisions of the FLSA. Chala, 645 F.2d at 804. In determining whether to award injunctive relief against an employer, the district judge should consider evidence of current compliance, any record of past violations, and the likelihood of future compliance. See Big Bear, 825 F.2d at 1383; Wirtz v. Atlas Manufacturing Co., 377 F.2d 112 (5th Cir.1967) (Wirtz). Current compliance alone is not a sufficient ground for denying injunctive relief. Big Bear, 825 F.2d at 1383; Chala, 645 F.2d at 804. The most important factor the district court must weigh in deciding whether to grant such relief is the likelihood that the employer will comply with the Act in the future. Big Bear, 825 F.2d at 1383 (“a district court must weigh the finding of violations against factors that indicate a reasonable likelihood that the violations will not recur”); Wirtz, 377 F.2d at 116. In determining likelihood of future compliance, the court should consider the employer’s previous conduct and the dependability of its promises for future compliance. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116. Our review of the record convinces us that the district court did not adequately consider these factors in reaching its decision. First, the court failed to give adequate weight to the fact that the Shirks have been guilty of violating the FLSA on at least one prior occasion by failing to pay their employees overtime compensation. We stated in Big Bear that previous violations or bad faith are factors “weighing heavily in favor of granting a prospective injunction.” 825 F.2d at 1383. The district court observed that acts of past noncompliance are “relevant” to a determination of whether injunctive relief is appropriate. It did not, however, mention the Shirks’ past violation in reaching its decision. Second, the court failed to consider adequately the dependability of the Shirks’ promise of future compliance. It stated that “the extent to which the defendant has made a promise of future compliance” is a “relevant factor” in determining whether to grant injunctive relief. This misstates the relevant test. Mere assurances of future compliance do not provide a sufficient basis for denying an injunction. Chala, 645 F.2d at 804. Instead, the inquiry must focus on the dependability of the promise made. Big Bear, 825 F.2d at 1383; Wirtz, 377 F.2d at 116. The judge’s findings and other evidence in the record raise doubt as to the reliability of the Shirks’ promise. They were repeat offenders of the Act. The district court found that, in the case at bar, they had violated the recordkeeping and overtime provisions of the Act. It found that the Shirks had knowledge that their employees were working overtime without compensation, but that they believed they could avoid liability for overtime under the FLSA by instructing their employees that overtime would not be authorized. Mr. Shirk testified in his deposition that he continued the practice of having employees sign a form that stated that no overtime would be authorized. Yet, the district court specifically found it “hard to believe” that the Shirks “seriously preferred]” that their employees not work overtime given the amount and nature of the work they had to do. It thus appears from the record that the Shirks may continue the same practices that led to their liability in this case: instructing their employees not to work overtime under circumstances in which it is likely that their employees will continue to work overtime rather than leave important tasks undone. We cannot find in the district court’s analysis adequate consideration of the factors weighing in favor of injunctive relief in this case. We therefore remand with instructions to reexamine this issue in light of our holdings in Big Bear and Chala. V. CONCLUSION We REVERSE and REMAND. The parties will bear their own costs on this appeal. . The district court found it difficult to credit the Shirks’ assertion that they seriously intended that their employees stop working at the end of their shifts when important tasks (e.g., cleaning the store and packing and refrigerating perishable meat) remained to be done. Findings of fact and evidence in the record clearly indicate that despite the no overtime "rule," the Shirks expected their employees to complete the tasks assigned them even if that required that employees actually work more than forty hours per week. . We recognize that other circuits have questioned that definition of willful, and that the Supreme Court will likely resolve the existing conflict among the circuits. See Brock v. Rich-land Shoe, 799 F.2d 80 (3d Cir.1986), cert. granted, — U.S. —, 108 S.Ct. 63, 98 L.Ed.2d 27 (1987). First Citizens is still the law of this circuit. It controls here. . At oral argument, both counsel queried whether the employees were entitled to liquidated damages, prejudgment interest, or both. We have determined that liquidated damages are mandated by statute. Only one such "make whole” remedy is proper here. See Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir.1987); Hodgson v. Wheaton Glass Co., 446 F.2d 527, 534 (3d Cir.1971). . According to the Pretrial Order contained in the Excerpt of Record, an Oregon court entered a judgment against the Shirks in 1980 for violating the overtime provisions of the Act. Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_appel1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Sandra R. WORSHAM and Walter J. Worsham, III, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee. No. 86-8907 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Oct. 5, 1987. Hinton R. Pierce, U.S. Atty., Kenneth C. Etheridge, Asst. U.S. Atty., Savannah, Ga., for defendant-appellant, cross-appellee. L.E. Maioriello, Edw. B. Stalnaker, Cooper, Maioriello & Stalnaker, P.C., Augusta, Ga., for plaintiffs-appellees, cross-appellants. Before KRAVITCH, JOHNSON and EDMONDSON, Circuit Judges. PER CURIAM: This appeal concerns several issues relating to plaintiffs-appellees’ action under 28 U.S.C. sec. 2671, et seq., the Federal Tort Claims Act. Following a bench trial on plaintiffs’ negligence and malpractice claims, the district court found against plaintiffs, Sandra and Walter Worsham, and in favor of defendant-appellant, the United States. Nevertheless, the court entered an order directing that the United States pay the plaintiffs’ court costs, excluding attorneys’ fees. This appeal and cross-appeal followed. Today we uphold the district court’s findings and conclusion on plaintiffs’ cause of action; but we must reverse the court’s award of costs to plaintiffs. In September 1982 a family physician referred Sandra Worsham, wife of Sergeant First Class Walter Worsham, to Jerry Cole, who worked as an Alcohol & Drug Abuse Prevention and Control Program counselor with the Dwight David Eisenhower Army Medical Center at Fort Gordon, Georgia. After conducting an initial referral interview, Mr. Cole admitted Mrs. Worsham to the program and began counseling her on a weekly basis. Mr. Cole secretly began to socialize with Mrs. Worsham; they had sexual intercourse once in Mr. Cole’s office and then numerous sexual liaisons occurred outside the office until February 1984. Mrs. Worsham underwent two abortions during this period, apparently at the urgings of Mr. Cole. After exhausting their administrative claims, the Worshams commenced this action in the United States District Court for the Southern District of Georgia seeking money damages under the Federal Tort Claims Act, 28 U.S.C. sec. 2671, et seq.; id. sec. 1346(b). Essentially, the Worshams alleged that Mr. Cole committed malpractice and negligently treated Mrs. Worsham; that U.S. government personnel at the hospital failed to supervise Mr. Cole properly; and that, as a result, Mrs. Worsham suffered physical and emotional damages and Mr. Worsham suffered from lost consortium. Following a bench trial, the district court found in favor of the United States. In so ruling the court made a key fact determination: that the relationship between Mr. Cole and Mrs. Worsham did not constitute part of any treatment plan and instead resulted from private, mutual consent and attraction. Consequently, Mrs. Worsham could not recover under a malpractice or negligence theory. While ruling in favor of the United States, the district court awarded costs — but not attorneys’ fees — to plaintiffs. The United States appeals and contests the district court’s authority to do so. We must apply a strict standard of review to plaintiffs’ issue on appeal. Federal Rule of Civil Procedure 52(a) provides the relevant “clearly erroneous” standard, which the Supreme Court has described as follows: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). See also Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 939 (11th Cir.1983) (noting that “an especially heavy burden” rests on the appellant when the district court makes findings based largely on testimonial evidence). The district court recognized that Mr. Cole’s conduct was improper and unethical, but also found that mutual consent and attraction fueled the sexual relationship. State law provides that “no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind.” Ga. Code Ann. sec. 51-11-2 (1982). The trial court carefully considered the testimony of everyone including plaintiffs’ expert witnesses, and we cannot lightly reject his findings concerning liability. We must also determine whether, as a matter of law, the district court erroneously awarded costs to the losing party, plaintiffs. It is well established that sovereign immunity principles prevent anyone from suing the United States government without its consent. See McGowan v. Marshall, 604 F.2d 885, 893 (5th Cir.1979). The relevant statute provides that “a judgment for costs ... may be awarded to the prevailing party in any action brought ... against the United States.” 28 U.S.C. sec. 2412(a) (emphasis added). We must strictly construe this section, see Fenton v. Federal Ins. Administrator, 633 F.2d 1119, 1122 (5th Cir.1981); and nothing in the statute authorizes courts to award costs to a non-prevailing party. Our conclusion that the district court had no authority to award costs to a non-prevailing party gains support from language contained in Federal Rule of Civil Procedure 54(d): while “costs shall be allowed as of course to the prevailing party unless the court otherwise directs,” “costs against the United States ... shall be imposed only to the extent permitted by law.” Our precedent confirms that “Rule 54(d) does not give the District Court the power to award costs to the nonprevailing party, but only gives that court discretion to order that each party bear part or all of its own costs.” Three-Seventy Leasing Corp. v. Ampex Corp., 528 F.2d 993, 999 (5th Cir.1976). Accordingly, we affirm the district court’s judgment on the nonliability of defendant-appellant, the United States; we reverse the district court’s direction that the United States pay plaintiffs’ costs. AFFIRMED in part and REVERSED in part. . Mr. Cole closed and reopened Mrs. Worsham's client file several times, but continued to see her on a personal level. . Apparently no one at the hospital had any direct knowledge of Mr. Cole and Mrs. Worsham's affair, because Mr. Cole effectively “covered up" his activities. During July and August 1983, Mr. Worsham reported his suspicions of an affair to various government personnel; this led to a meeting between Mr. Cole and Lieutenant Colonel Frank Rath, supervising psychologist at the hospital. At the meeting Mr. Cole advised Lt. Colonel Rath and Major Eleanor Law that Mrs. Worsham was a former client and that he was not seeing her at present as a client; but he neither denied nor confirmed the affair. . Because the district court found that Mrs. Worsham’s main claim against the United States fails, as we do today, Mr. Worsham’s derivative consortium claim necessarily fails as well. See Douberly v. Okefenokee Rural Electric Membership Corp., 146 Ga.App. 568, 570, 246 S.E.2d 708, 709 (1978). . The court apparently made this award based on "the absolute lack of care on the part of the Army in resolving this matter ..." "the stubborn silence of one of its agents, Mr. Jerry Cole, ...” and “because of the failure of the Army to in any way pressure him to tell his story____” Worsham v. United States, No. 185-145, at 29-30 (S.D.Ga.1986). . In its reply brief the United States raises miscellaneous issues that do not merit further discussion. The district court found that (1) Mr. Cole was acting within the scope of his employment as a federal employee during his sexual relationship with Mrs. Worsham; and (2) government personnel negligently supervised Mr. Cole during this period. Because these determinations were fact-based and decided under the proper legal standards, we do not question the district court’s findings on these issues. In any event, we uphold the district court’s finding that absolved the United States of any tort liability. . Plaintiffs argue that during Mrs. Worsham's therapy Mr. Cole abused the "transference phenomenon,” which seeks to explore and project a patient’s emotional, psychological, and sexual subconscious. In St. Paul Fire & Marine Ins. Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126 (1982), the Georgia Court of Appeals decided the question whether an insurance company’s liability policy covered insured’s sexual misconduct, which allegedly occurred while he treated a patient using the "transference phenomenon.” In dicta the court stated as follows: "Whether the acts alleged, i.e., the mishandling of the transference phenomenon, amount to medical malpractice or intentional sexual assault requires the testimony of experts____ That issue raises questions of fact____” Id. at 219, 296 S.E.2d at 129 (emphasis added). Subsequently, in another alleged sexual misconduct case that did not involve the transference phenomenon, the court of appeals found against the plaintiff and in favor of the defendant-counselor: “plaintiff knew that the personal relationship which was fostered was beyond the scope of Muller’s duties as a job counselor, and yet she responded positively. She condoned whatever legal breaches were committed and participated____” Jacobsen v. Muller, 181 Ga.App. 382, 385, 352 S.E.2d 604, 607 (1986). See also id. at 386, 352 S.E.2d at 608-609 (Deen, P.J., concurring specially) (“even if a psychological therapist-patient relationship did exist, it appears that liability for malpractice could follow only if it were shown that this fiduciary relationship was exploited by (1) so gaining the trust and confidence of the patient as to deprive her of her free will ..., and (2) the sexual intimacy is connected with the plan of treatment.”) . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. DUNN et al. v. COMMODITY FUTURES TRADING COMMISSION et al. No. 95-1181. Argued November 13, 1996 Decided February 25, 1997 Gary D. Stumpp argued the cause for petitioners. With him on the briefs was Adam M. Bond. Jeffrey P. Minear argued the cause for respondents. With him on the brief for respondent Commodity Futures Trading Commission were Acting Solicitor General Dellin-ger, Deputy Solicitor General Kneedler, Pat G. Nicolette, Jay L. Within, and Gracemary Rizzo. Briefs of amici curiae urging reversal were filed for Credit Lyonnais et al. by John M. Quitmeyer, Danforth Newcomb, Kent T. Stauffer, and David M. Lindley; and for the Foreign Exchange Committee et al. by Kenneth M. Raisler, Edward J. Rosen, Peter Buscemi, and Maris M. Rodgon. the Board Briefs of amici curiae urging affirmance were filed for the Board of Trade of the City of Chicago by Kenneth W. Starr, Mark D. Young, and Richard A. Cordray; and for the Chicago Mercantile Exchange by Jerrold E. Salzman and James T. Malysiak. Justice Stevens delivered the opinion of the Court. The question presented is whether Congress has authorized the Commodity Futures Trading Commission (CFTC or Commission) to regulate “off-exchange” trading in options to buy or sell foreign currency. I The CFTC brought this action in 1994, alleging that, beginning in 1992, petitioners solicited investments in and operated a fraudulent scheme in violation of the Commodity-Exchange Act (CEA), 7 U. S. C. § 1 et seq., and CFTC regulations. App. 10. See 7 U. S. C. §6c(b); 17 CFR §32.9 (1996). The CFTC’s complaint, affidavits, and declarations submitted to the District Court indicate that customers were told their funds would be invested using complex strategies involving options to purchase or sell various foreign currencies. App. 8. Petitioners apparently did in fact engage in many such transactions. Ibid.; 58 F. 3d 50, 51 (CA2 1995). To do so, they contracted directly with international banks and others without making use of any regulated exchange or board of trade. In the parlance of the business, petitioners traded in the “off-exchange” or “over-the-counter” (OTC) market. Ibid. No options were ever sold directly to petitioners' customers. However, their positions were tracked through internal accounts, and investors were provided weekly reports showing the putative status of their holdings. Petitioners and their customers suffered heavy losses. Id., at 51-52. Subsequently, the CFTC commenced these proceedings. Rejecting petitioners’ defense that off-exchange transactions in foreign currency options are exempt from the CEA, the District Court appointed a temporary receiver to take control of their property for the benefit of their customers. App. to Pet. for Cert. 5b-6b. Relying on Circuit precedent, and acknowledging a conflict with another Circuit, the Court of Appeals affirmed. 58 F. 3d, at 54. We granted certiorari to resolve the conflict. 517 U. S. 1219 (1996). For the reasons that follow, we reverse and remand for further proceedings. II The outcome of this case is dictated by the so-called “Treasury Amendment” to the CEA. 88 Stat. 1395, 7 U. S. C. §2(ii). We have previously reviewed the history of the CEA and generally described how it authorizes the CFTC to regulate the “volatile and esoteric” market in futures contracts in fungible commodities. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 356, 357-367 (1982). As a part of the 1974 amendments that created the CFTC and dramatically expanded the coverage of the statute to include nonagricultural commodities “in which contracts for future delivery are presently or in the future dealt in,” see 88 Stat. 1395, 7 U. S. C. §2 (1970 ed., Supp. IV), Congress enacted the following exemption, which has come to be known as the “Treasury Amendment”: “Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency, security warrants, security rights, resales of installment loan contracts, repurchase options, government securities, or mortgages and mortgage purchase commitments, unless such transactions involve the sale thereof for future delivery conducted on a board of trade.” 7 U. S. C. §2(ii) (emphasis added). The narrow issue that we must decide is whether the italicized phrase (“transactions in foreign currency”) includes transactions in options to buy or sell foreign currency. An option, as the term is understood in the trade, is a transaction in which the buyer purchases from the seller for consideration the right, but not the obligation, to buy or sell an agreed amount of a commodity at a set rate at any time prior to the option’s expiration. We think it plain that foreign currency options are “transactions in foreign currency” within the meaning of the statute. We are not persuaded by any of the arguments advanced by the CFTC in support of a narrower reading that would exempt futures contracts (agreements to buy or sell a specified quantity of a commodity at a particular price for delivery at a set future date) without exempting options. III “[A]bsent any ‘indication that doing so would frustrate Congress’s clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.’ ” Hubbard v. United States, 514 U. S. 695, 703 (1995) (quoting BFP v. Resolution Trust Corporation, 511 U. S. 531, 570 (1994) (Souter, J., dissenting)). The CFTC argues, and the Court of Appeals held, that an option is not itself a transaction “in” foreign currency, but rather is just a contract right to engage in such a transaction at a future date. Brief for CFTC 30-31; 58 F. 3d, at 53. Hence, the Commission submits that the term “transactions in foreign currency” includes only the “actual exercise of an option (i. e., the actual purchase or sale of foreign currency)” but not the purchase or sale of an option itself. Brief for CFTC 31. That reading of the text seems quite unnatural to us, and we decline to adopt it. The more normal reading of the key phrase encompasses all transactions in which foreign currency is the fungible good whose fluctuating market price provides the motive for trading. The CFTC’s interpretation violates the ordinary meaning of the key word “in,” which is usually thought to be “synonymous with [the] expressions ‘in regard to,’ ‘respecting,’ [and] ‘with respect to.’” Black’s Law Dictionary 758 (6th ed. 1990); see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 697-698 (1995). There can be no question that the purchase or sale of a foreign currency option is a transaction “respecting” foreign currency. We think it equally plain as a matter of ordinary meaning that such an option is a transaction “in” foreign currency for purposes of the Treasury Amendment. Indeed, adopting the Commission’s reading would deprive the exemption of the principal effect Congress intended. The CFTC acknowledges that futures contracts fall squarely within the Treasury Amendment’s exemption, Brief for CFTC 30, and there is no question that the exemption of off-exchange foreign currency futures from CFTC regulation was one of Congress’ primary goals. Yet on the CFTC’s reasoning the exemption’s application to futures contracts could not be sustained. A futures contract is no more a transaction “in” foreign currency as the Commission understands the term than an option. The Commission argues that because a futures contract creates a legal obligation to purchase or sell currency on a particular date, it is somehow more clearly a transaction “in” the underlying currencies than an option, which generates only the right to engage in a transaction. Id., at 30-32. This reasoning is wholly unpersuasive. No currency changes hands at the time a futures contract is made. And, the existence of a futures contract does not guarantee that currency will actually be exchanged. Indeed, the Commission concedes that, in most cases, futures contracts are “extinguished before delivery by entry into an offsetting futures contract.” Id., at 30 (citing 1 T. Snider, Regulation of the Commodities Futures and Options Markets §2.05 (2d ed. 1995) (hereinafter Snider)); see also Munn & Garcia 414. Adopting the CFTC’s reading would therefore place both futures and options outside the exemption, in clear contravention of Congress' intent. the Treas- Furthermore, this interpretation would leave the Treasury Amendment’s exemption for “transactions in foreign currency” without any significant effect at all, because it would limit the scope of the exemption to “forward contracts” (agreements that anticipate the actual delivery of a commodity on a specified future date) and “spot transactions” (agreements for purchase and sale of commodities that anticipate near-term delivery). Both are transactions “in” a commodity as the CFTC would have us understand the term. But neither type of transaction for any commodity was subject to intensive regulation under the CEA at the time of the Treasury Amendment’s passage. See 7 U. S. C. § 2 (1970 ed., Supp. IV) (“term ‘future delivery,’ as used in this chapter, shall not include any sale of any cash commodity for deferred shipment or delivery”); Snider § 9.01; J. Markham, The History of Commodity Futures Trading and Its Regulation 201-203 (1987). Our reading of the exemption is therefore also consonant with the doctrine that legislative enactments should not be construed to render their provisions mere sur-plusage. See Babbitt, 515 U. S., at 698 (noting “reluctance to treat statutory terms as surplusage”); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U. S. 237, 249 (1985). Finally, including options in the exemption is consistent with Congress’ purpose in enacting the Treasury Amendment. Although at the time the Treasury Amendment was drafted a thriving off-exchange market in foreign currency futures was in place, the closely related options market at issue here had not yet developed. See City of New York Bar Association Committee on Futures Regulation, The Evolving Regulatory Framework for Foreign Currency Trading 18, 23 (1986). The CFTC therefore suggests that Congress could not have intended to exempt foreign currency options from the CE A’s coverage. Brief for CFTC 41-42. The legislative history strongly suggests to the contrary that Congress’ broad purpose in enacting the Treasury Amendment was to provide a general exemption from CFTC regulation for sophisticated off-exchange foreign currency trading, which had previously developed entirely free from supervision under the commodities laws. In explaining the Treasury Amendment, the Senate Committee Report notes in broad terms that the amendment “provides that inter-bank trading of foreign currencies and specified financial instruments is not subject to Commission regulation.” S. Rep. No. 93-1131, p. 6 (1974). Elsewhere, the Report again explains in general terms — without making reference to any distinction between options and futures— that the legislation “included an amendment to clarify that the provisions of the bill are not applicable to trading in foreign currencies and certain enumerated financial instruments unless such trading is conducted on a formally organized futures exchange. A great deal of the trading in foreign currency in the United States is carried out through an informal network of banks and tellers. The Committee believes that this market is more properly supervised by the bank regulatory agencies and that, therefore, regulation under this legislation is unnecessary.” Id., at 23. Similarly, the Treasury Department submitted to the Chairman of the relevant Senate Committee a letter that was the original source of the Treasury Amendment. While focusing on the need to exempt the foreign currency futures market from CFTC regulation, the letter points out that the “participants in this market are sophisticated and informed institutions,” and “the [CFTC] would clearly not have the expertise to regulate a complex banking function and would confuse an already highly regulated business sector.” Id., at 50 (letter of Donald Ritger, Acting General Counsel). The Department further explained that “new regulatory limitations and restrictions could have an adverse impact on the usefulness and efficiency of foreign exchange markets for traders and investors.” Ibid. Although the OTC market for foreign currency options had not yet developed in 1974, the reasons underlying the Treasury Department’s express desire at that time to exempt off-exchange commodity futures trading from CFTC regulation apply with equal force to options today. Foreign currency options and futures are now traded in the same off-exchange markets, by the same entities, for quite similar purposes. See Brief for Foreign Exchange Committee et al. as Amici Curiae 19. Contrary to the Commission’s suggestion, we therefore think the purposes underlying the Treasury Amendment are most properly fulfilled by giving effect to the plain meaning of the language as Congress enacted it. should The CFTC rejoins that the Treasury Amendment should be construed in the light of Congress’ history of regulating options more strictly than futures. See Snider §§7.03-7.04; Brief for CFTC 38-39. The Commission submits that this distinction was motivated by the view that options lend themselves more readily to fraudulent schemes than futures contracts. Hence, the CFTC argues that Congress would have acted reasonably and consistently with prior practice had it regulated commodities differently from options. While that may be true, we give only slight credence to these general historical considerations, which are unsupported by statutory language, or any evidence evocative of the particular concerns focused on by the legislators who enacted the Treasury Amendment. We think the history of the Treasury Amendment suggests — contrary to the CFTC’s view— that it was intended to take all transactions relating to foreign currency not conducted on a board of trade outside of the CEA’s ambit. This interpretation is consistent with the fact that, prior to the enactment of the CEA in 1974, foreign currency trading had been entirely unregulated under the commodities laws. Our interpretation is also consonant with the history of evolving congressional regulation in this area. That history has been one of successively broadening the coverage of regulation by the addition of more and more commodities to the applicable legislation. It seems quite natural in this context to read the Treasury Amendment’s exemption of transactions in foreign currencies as a complete exclusion of that commodity from the regulatory scheme, except, of course, to the extent that the proviso for transactions “conducted on a board of trade” qualifies that exclusion. See 7 U. S. C. § 2(ii). IV To buttress its reading of the statute, the CFTC argues that elsewhere in the CEA Congress referred to transactions “involving” a particular commodity to describe options or used other “more encompassing terminology,” rather than what we are told is the narrower term transactions “in” the commodity, which was reserved for futures, spot transactions, and forward contracts. Brief for CFTC 30-33. Not only do we think it unlikely that Congress would adopt such a subtle method of drawing important distinctions, there is little to suggest that it did so. consistent. Congress’ use of these terms has been far from consistent. Most strikingly, the use of the word “involving” in the Treasury Amendment itself completely eviscerates the force of the Commission’s argument. After setting forth exemptions for, inter alia, “transactions in foreign currency,” the amendment contains a proviso sweeping back into the statute’s coverage “such transactions involvfing] the sale thereof for future delivery conducted on a board of trade.” 7 U. S. C. §2(ii) (emphasis added). As we have already noted, the CFTC agrees that futures contracts are a subset of “transactions in foreign currency.” The Commission further submits that the proviso uses the word “involve” to make the exemption inapplicable to those futures contracts that are conducted on a board of trade. This contradicts the “in” versus “involving” distinction. We would expect on the Commission’s reasoning that this provision would refer to “transactions in futures.” The use of the term “involving” instead, within the very amendment that the CFTC claims embraces this distinction, weighs heavily against the view that any such distinction was intended by Congress. The CFTC argues further that the proviso properly understood aids its cause. The proviso sweeps back into the CFTC’s jurisdiction otherwise exempt “transactions in foreign currency” that “involve the sale thereof for future delivery” and are “conducted on a board of trade.” Since the proviso refers to futures without mentioning options, the Commission submits that the exemption itself should be read only to cover futures because Congress cannot reasonably have intended to regulate exchange trading in foreign currency futures without also regulating exchange trading in such options. We agree that Congress intended no such anomaly. But we are satisfied that the anomaly is best avoided by reading the proviso broadly rather than reading the exemption narrowly. The proviso’s language fairly accommodates inclusion of both options and futures. To fall within the proviso, a transaction must “involve the sale [of foreign currency] for future delivery.” §2(ii) (emphasis added). Because options convey the right to buy or sell foreign currency at some future time prior to their expiration, they are transactions “involv[ing]” or related to the sale of foreign currency for future delivery. Thus, both futures and options are covered by both the exemption and the proviso. While that may not be the only possible reading of the literal text, and we do not intend to suggest that a similar construction would be required with respect to other provisions of the CEA, our interpretation is faithful to the “contemporary legal context” in which the Treasury Amendment was drafted. Cannon v. University of Chicago, 441 U. S. 677, 699 (1979); see also Massachusetts v. Morash, 490 U. S. 107, 115 (1989) (noting that “ fin expounding a statute, we [are] not. .. guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy’ ”) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987)). Finally, the CFTC calls our attention to statements in the 'legislative history of a 1982 amendment to the CEA, indicating that the drafters of that amendment believed that the CFTC had the authority to regulate foreign currency options “when they are traded other than on a national securities exchange.” See S. Rep. No. 97-384, p. 22 (1982). Those statements, at best, might be described as “legislative dicta” because the 1982 amendment itself merely resolved a conflict between the Securities Exchange Commission and the CFTC concerning their respective authority to regulate transactions on an exchange. See Snider § 10.24. The amendment made no change in the law applicable to off-exchange trading. Although these “dicta” are consistent with the position that the CFTC advocates, they shed no light on the intent of the authors of the Treasury Amendment that had been adopted eight years earlier. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 839-840 (1988). V Underlying the statutory construction question before us, we recognize that there is an important public policy dispute — with substantial' arguments favoring each side. Petitioners, their amici, and the Treasury Department argue that if off-exchange foreign currency options are not treated as exempt from CEA regulation, the increased costs associated with unnecessary regulation of the highly sophisticated OTC foreign currency markets might well drive this business out of the United States. The Commission responds that to the extent limited exemptions from regulation are necessary, it will provide them, but argues that options are particularly susceptible to fraud and abuse if not carefully policed. Brief for CFTC 26, 49. As the Commission properly acknowledges, however, these are arguments best addressed to the Congress, not the courts. See United States v. Rutherford, 442 U. S. 544, 555 (1979). Lacking the expertise or authority to assess these important competing claims, we note only that “a literal construction of a statute” does not “yiel[dj results so manifestly unreasonable that they could not fairly be attributed to congressional design.” Ibid. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The complaint names as defendants William C. Dunn, Delta Consultants, Inc., Delta Options, Ltd., and Nopkine Co., Ltd. App. 6-7. Only Dunn and Delta Consultants are petitioners here. The statute provides: “No person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is of the character of, or is commonly known to the trade as, an ‘option’... contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe.” 7 U. S. C. § 6e(b). The regulations at issue here further make it unlawful “for any person directly or indirectly ... [t]o cheat or defraud or attempt to cheat or defraud any other person;... [t]o make or cause to be made to any other person any false report or statement thereof or cause to be entered for any person any false record thereof;. . . [or] [t]o deceive or attempt to deceive any other person by any means whatsoever . . . in or in connection with an offer to enter into, the entry into, or the confirmation of the execution of, any commodity option transaction.” 17 CFR §32.9 (1996). We are informed by amici that participants in the “highly evolved, sophisticated” OTC foreign currency markets include “commercial and investment banks, . . . foreign exchange dealers and brokerage companies, corporations, money managers (including pension, mutual fund and commodity pool managers), commodity trading advisors, insurance companies, governments and central banks.” Brief for Foreign Exchange Committee et al. as Amici Curiae 8. These markets serve a variety of functions, including providing ready access to foreign currency for international transactions, and allowing businesses to hedge against the risk of exchange rate movements. Id., at 8-9. 58 F. 3d 50, 53 (CA2 1995) (citing Commodity Futures Trading Comm’n v. American Bd. of Trade, 803 F. 2d 1242 (CA2 1986)). 58 F. 3d, at 54 (citing Salomon Forex, Inc. v. Tauber, 8 F. 3d 966 (CA4 1993), cert. denied, 511 U. S. 1031 (1994)). See G. Munn & F. Garcia, Encyclopedia of Banking and Finance 736 (8th ed. 1983) (hereinafter Munn & Garcia); C. Luca, Trading in the Global Currency Markets 243 (1995) (hereinafter Luca). Participants in these markets refer to an option that provides the right to sell currency as a “put,” and one that provides the right to buy as a “call.” Munn & Garcia 737; Luca 270,272. Options can themselves be traded, at values that vary depending upon the exchange rate of the underlying currencies prior to the option’s expiration. Brief for Foreign Exchange Committee et al. as Amici Curiae 5, n. 5. See Munn & Garcia 414; City of New York Bar Association Committee on Futures Regulation, The Evolving Regulatory Framework for Foreign Currency Trading 9 (1986). The amendment was enacted on the suggestion of the Treasury Department at the time of a dramatic expansion in the scope of federal commodities regulation. The Department expressed concerns in a letter to the relevant congressional committee that this development might lead, inter alia, to the unintended regulation of the off-exchange market in foreign currency futures. See S. Rep. No. 93-1131, pp. 49-50 (1974) (“The Department feels strongly that foreign currency futures trading, other than on organized exchanges, should not be regulated by the new agency”) (letter of Donald Ritger, Acting General Counsel). The Treasury Amendment, which tracks almost verbatim the language proposed by the Department, cf. id., at 51, was included in the legislation to respond to these concerns. Id., at 23. The CFTC is therefore plainly correct to reject the suggestion of its amici that the Treasury Amendment’s exemption be construed not to include futures contracts within its coverage. See Brief for Chicago Mercantile Exchange as Amicus Curiae 17-18; Brief for Board of Trade of City of Chicago as Amicus Curiae 10. See Snider §9.01 (defining “spot transactions” and “forward contracts”). Similarly, the Conference Committee Report points out that the Treasury Amendment “provides that interbank trading of foreign currencies and specified financial instruments is not subject to Commission regulation.” H. R. Conf. Rep. No. 93-1383, p. 35 (1974). The Grain Futures Act, enacted by Congress in 1922 to authorize the Secretary of Agriculture to supervise trading in grain futures on “contract markets,” defined the regulated commodities to include “wheat, corn, oats, barley, rye, flax, and sorghum.” 42 Stat. 998. In 1936 Congress expanded the coverage of the legislation to add further agricultural commodities, including cotton, rice, butter, eggs, and Irish potatoes. Ch. 545, 49 Stat. 1491. (The contrast between the title of the 1936 Act — “Commodity Exchange Act” — and the title of its predecessor — “Grain Futures Act”— suggests that an easy way to describe the coverage of the legislation is to identify the commodities that it regulates.) In 1968 the coverage of the legislation was again expanded, this time to include livestock and livestock products. 82 Stat. 26. The 1974 amendment expanded the coverage of the statute to include nonagrieultural commodities and, appropriately, replaced regulation by the Secretary of Agriculture with regulation by a new commission whose title included the word “Commodity.” Similarly, the statute refers at one point to “[transactions in commodities involving the sale thereof for future delivery . . . and known as ‘futures.’ ” 7 U. S. C. § 5 (emphasis added). Had Congress meant to maintain the Commission’s distinction, we would not have expected the Legislature to use the words “in” and “involving” loosely in the same sentence to refer to futures, which the CFTC informs us are transactions “in” (but not “involving”) foreign currency. Similarly, the statute refers elsewhere to “transaction[s] in an option on foreign currency.” §6c(f) (emphasis added). If Congress had spoken in the manner the CFTC suggests, that provision would instead use the phrase “transactions involving an option.” The statute’s general jurisdictional provision also fails to maintain the distinction the Commission presses. The CEA provides that the CFTC “shall have exclusive jurisdiction... with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an ‘option’ . . .), and transactions involving contracts of sale of a commodity for future delivery.” § 2(i) (emphasis added). The Commission submits that this language gives the CFTC regulatory authority over options on futures contracts, see Snider § 10.11, and argues that the use of the word “involving” is therefore in keeping with its interpretation of the statutory scheme. See Brief for CFTC 32. But §2(i) provides the CFTC with exclusive jurisdiction over far more. Among other things, it explicitly grants jurisdiction over any “transactio[n] involving contracts of sale of a commodity for future delivery,” plainly meaning at a minimum ordinary futures contracts, which the Commission otherwise insists are transactions “in” commodities. Futures Trading Act of 1982, Tit. I, §102, 96 Stat. 2296, 7 U.S.C. §6c(f). Though the CFTC’s brief disclaims any need for it, Brief for CFTC 48, at oral argument the Commission requested for the first time that we give deference to its interpretation of the Treasury Amendment as the agency, “charged with administering” it. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 785, 739 (1996); Tr. of Oral Arg. 54; see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). If Chevron principles were applicable, we are unsure that the CFTC’s position would be the one owed deference. As the Commission concedes, Brief for CFTC 25, the Treasury Department has taken a quite different view of the statute — one consonant with the interpretation set forth here — to which petitioners argue deference is owed if Chevron is invoked. A reasonable argument could be made that Congress intended to charge Treasury, rather than the Commission, with administering the dimensions of the aptly named Treasury Amendment, which was specifically enacted at the behest of Treasury to confine the CFTC’s activities. Cf. Smiley, 517 U. S., at 740-741 (explaining that Chevron deference arises out of background presumptions of congressional intent); Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144,157-158 (1991) (allocating power “authoritatively to interpret . . . regulations” after assessing “available indicia of legislative intent”). We need not “resolve the difficult issues regarding deference which would be lurking in other circumstances.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992). Because “the statute, as a whole, clearly expresses Congress’ intention” to include foreign currency options within the Treasury Amendment’s exemption, administrative deference is improper. Dole v. Steelworkers, 494 U. S. 26, 42 (1990). Brief for Petitioners 23-25; Brief for Credit Lyonnais et al. as Amici Curiae 3; Brief for Foreign Exchange Committee et al. as Amici Curiae 6; Brief for CFTC 25. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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". MARTIN TYPEWRITER CO. v. WALLING, Adm’r of Wage and Hour Division, Dept. of Labor. No. 3878. Circuit Court of Appeals, First Circuit. May 21, 1943. Abraham Breitbard, of Portland, Me. (Wilfred A. Hay, of Portland, Me., of counsel), for ap'pellant. Morton Liftin, of Washington, D. C. (Bessie Margolin, of Washington, D. C., Vernon C. Stoneman, of Boston, Mass., and Irving J. Levy, Acting Sol., and Morton H. Rowen, Atty., United States Department of Labor, of Washington, D. C., of counsel), for appellee. Before MAHONEY and WOODBURY, Circuit Judges, and WYZANSKI, District Judge. PER CURIAM. The appellee, alleging on information and belief that the appellant was engaged “in the business of producing goods for interstate commerce, and engaged in interstate commerce”, applied to the court below for an order requiring the appellant to appear and show cause why an order should not issue requiring it to comply with subpoena duces tecum which the appellee had prepared and served on the appellant but which it had ignored. The court issued the order to shovy cause and the appellant answered and moved to dismiss alleging that it was a “retail and servicing establishment, the greater part of whose selling and servicing is in intrastate commerce”, and that therefore it was not subject to the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. It did not put in issue the scope of the subpoena or the relevancy of the data therein described. The court, after .hearing, ordered the appellant to comply with the subpoena and set the time and place for its appearance with the books and records described, saying in the course of its memorandum opinion (D.C., 48 F.Supp. 751, 752): “This is an application to enforce a subpoena in what appears on its face to be an authorized and orderly investigation, and I do not feel justified in turning it into a lawsuit to decide a question which must be decided by the administrator in the course of his investigation, and which, if decided wrong, can be corrected later in a proceeding to enforce the orders of the administrator.” We are of the opinion that the order of the district court must be sustained on the authority of Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. —. See, also, Walling v. Standard Dredging Corp., 2 Cir., 132 F.2d 322. The order of the District Court is affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
sc_issuearea	J	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. CALIFORNIA ex rel. STATE LANDS COMMISSION v. UNITED STATES No. 89, Orig. Argued March 29, 1982 Decided June 18, 1982 White, J., delivered the opinion of the Court, in which Burgee, C. J., and Brennan, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed an opinion concurring in the judgment, in which Stevens and O’Connor, JJ., joined, post, p. 288. Bruce S. Flushman, Deputy Attorney General of California, argued the cause for plaintiff. With him on the briefs were George Deukmejian, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Dennis M. Eagan and Patricia Sheehan Peterson, Deputy Attorneys General. Deputy Solicitor General Claiborne argued the cause for the United States. With him on the briefs were Solid-tor General Lee, Assistant Attorney General Dinkins, and Michael W. Reed. A brief of amici curiae was filed for the State of Washington et al. by Kenneth 0. Eikenberry, Attorney General of Washington, Malachy R. Murphy, Deputy Attorney General, and Robert C. Hargreaves, Assistant Attorney General; Charles A. Graddick, Attorney General of Alabama, and Sarah M. Spratling, Assistant Attorney General; Wilson L. Condon, Attorney General of Alaska, and G. Thomas Koester, Assistant Attorney General; Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General; Tany S. Hong, Attorney General of Hawaii, and Johnson H. Wong, Deputy Attorney General; Jeff Bingaman, Attorney General of New Mexico, and J. Scott Hall, Special Assistant Attorney General; and Dave Frohnmayer, Attorney General of Oregon, and Peter Herman, Senior Assistant Attorney General. Justice White delivered the opinion of the Court. The issue before the Court is the ownership of oceanfront land created through accretion to land owned by the United States on the coast of California. The decision turns on whether federal or state law governs the issue. M From the time of California s admission to the Union in 1850, the United States owned the upland on the north side of the entrance channel to Humboldt Bay, Cal. In 1859 and 1871, the Secretary of the Interior ordered that certain of these lands, which fronted on the Pacific Ocean, the channel, and Humboldt Bay be reserved from public sale. Since that time the land has been continuously possessed by the United States and used as a Coast Guard Reservation. The Pacific shoreline along the Coast Guard site remained substantially unchanged until near the turn of the century when the United States began construction of two jetties at the entrance to Humboldt Bay. The jetty constructed on the north side of the entrance resulted in fairly rapid accretion on the ocean side of the Coast Guard Reservation, so that formerly submerged lands became uplands. One hundred and eighty-four acres of upland were created by the seaward movement of the ordinary high-water mark. This land, which remains barren save for a watchtower, is the subject of the dispute in this case. The controversy arose in 1977 when the Coast Guard applied for permission from California to use this land to construct the watchtower. At this time it became evident that both California and the United States asserted ownership of the land. The United States eventually built the watchtower without obtaining California’s permission. Invoking our original jurisdiction, California then filed this suit to quiet title to the subject land. We granted leave for California to file a bill of complaint. 454 U. S. 809 (1981). California alleges that upon its admission to the Union on September 9, 1850, Act of Sept. 9, 1850, 9 Stat. 452, and by confirmation in the Submerged Lands Act, 67 Stat. 29, 43 U. S. C. §1301 et séq., California became vested with absolute title to the tidelands and the submerged lands upon which, after construction of the jetties, alluvion was deposited, resulting in formation of the subject land. Because the accretion formed on sovereign state land, California maintains that its law should govern ownership. Under California law, a distinction is drawn between accretive changes to a boundary caused by natural forces and boundary changes caused by the construction of artificial objects. For natural accretive changes, the upland boundary moves seaward as the alluvion is deposited, resulting in a benefit to the upland owner. Los Angeles v. Anderson, 206 Cal. 662, 667, 275 P. 789, 791 (1929). Whén accretion is caused by construction of artificial works, however, the boundary does not move but becomes fixed at the ordinary high-water mark at the time the artificial influence is introduced. Carpenter v. Santa Monica, 63 Cal. App. 2d 772, 794, 147 P. 2d 964, 975 (1944). It is not disputed that the newly formed land in controversy was created by the construction of the jetty. Therefore, if state law governs, California would prevail. By its answer, and supporting memoranda, the United States contends that the formerly submerged lands were never owned by California before passage of the Submerged Lands Act in 1953, and that the disputed land was not granted to California by the Act. The United States also submits that the case is governed by federal rather than state law and that under long-established federal law, accretion, whatever its cause, belongs to the upland owner. Jones v. Johnston, 18 How. 150, 156 (1856); County of St. Clair v. Lovingston, 23 Wall. 46, 66 (1874); Jefferis v. East Omaha Land Co., 134 U. S. 178, 189-193 (1890); Beaver v. United States, 350 F. 2d 4, 10-11 (CA9 1965). If such federal law controls, title to the deposited land vested in the United States as the accretions formed. Recognizing that the choice-of-law issue was clearly drawn, California moved for summary judgment and the United States moved for judgment on the pleadings. No essential facts being in dispute, a special master was not appointed and the case was briefed and argued. We conclude that federal law governs the decision in this case and that the land in dispute is owned by the United States. I — I HH In Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10 (1935), the city filed suit to quiet its title to land claimed to be tideland and to belong to the city by virtue of a grant from the State. The defendant claimed by virtue of a patent from the United States issued after California entered the Union. In an opinion by Chief Justice Hughes, and with a single dissent, the Court held that if the land in question was tideland, the title passed to California at the time of her admission to the Union in 1850; that it remained to be determined whether the land at issue was tideland; and that this issue was “necessarily a federal question” controlled by federal law. The Court said: “Petitioners claim under a federal patent which, according to the plat, purported to convey land bordering on the Pacific Ocean. There is no question that the United States was free to convey the upland, and the patent affords no ground for holding that it did not convey all the title that the United States had in the premises. The question as to the extent of this federal grant, that is, as to the limit of the land conveyed, or the boundary between the upland and the tideland, is necessarily a federal question. It is a question which concerns the validity and effect of an act done by the United States; it involves the ascertainment of the essential basis of a right asserted under federal law. Packer v. Bird, 137 U. S. 661, 669, 670; Brewer-Elliott Oil Co. v. United States, 260 U. S. 77, 87; United States v. Holt Bank, 270 U. S. 49, 55, 56; United States v. Utah, 283 U. S. 64, 75. Rights and interests in the tideland, which is subject to the sovereignty of the State, are matters of local law. Barney v. Keokuk, 94 U. S. 324, 338; Skively v. Bowlby, [152 U. S. 1,] 40; Hardin v. Jordan, 140 U. S. 371, 382; Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 56, 63.” Borax Consolidated, Ltd. v. Los Angeles, supra, at 22. The Court went on to hold that tidelands extend to the mean high-water line, which the Court then defined as a matter of federal law. There was no question of accretions to the shoreline of the property involved in Borax. But some 30 years later, Mrs. Stella Hughes, the successor in interest to the owner of oceanfront property patented by the United States prior to the entry of the State of Washington into the Union, sued the State seeking to quiet her title to accretions that had become attached to her land and that had caused a seaward movement of the shoreline. Under Washington law, the accretions belonged to the State, the owner of the tidelands, and Mrs. Hughes would no longer own property fronting on the ocean. Under federal law accretions are the property of the upland owner. The trial court found that federal law applied. The Washington Supreme Court reversed, holding that Washington law applied and that the State owned any land that accreted after statehood. Hughes v. State, 67 Wash. 2d. 799, 410 P. 2d 20 (1966). We in turn reversed, reaffirming the decision in Borax that federal law determined the boundary between state-owned tidelands and property granted under a federal patent and holding that the same law applied to determine the boundary between state-owned tidelands and oceanfront property where accretions had extended the shoreline seaward. Hughes v. Washington, 389 U. S. 290 (1967). The justification for employing federal law was the special nature of the coastal boundary question: “The' rule deals with waters that lap both the lands of the State and the boundaries of the international sea. This relationship, at this particular point of the marginal sea, is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the ‘supreme Law of the Land.’” Id., at 293. We went on to decide that under federal law, the federal grantee of the uplands had the right to the accumulated accretions. Except for the fact that in the present case the upland to which the accretions attached has always been owned by the United States, this case and Hughes are similarly situated. Unless Hughes is to be overruled, judgment must be entered for the United States. California urges that for all intents and purposes Hughes has already been eviscerated by Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363 (1977). Corvallis involved a dispute between the State of Oregon and an Oregon corporation over the ownership of land that became part of a riverbed because of avulsive changes in the river’s course. The Oregon Court of Appeals affirmed the trial court’s award of the land to the corporation because that was the result dictated by federal common law, which, under Bonelli Cattle Co. v. Arizona, 414 U. S. 313 (1973), was the proper source of law. A majority of this Court reversed, overruling Bonelli and holding that the disputed ownership of the riverbed should be decided solely as a matter of Oregon law. Bonelli's error was said to have been reliance on the equal-footing doctrine as a source of federal common law. Once the equal-footing doctrine had vested title to the riverbed in Arizona, “it did not operate after that date to determine what effect on titles the movement of the river might have.” 429 U. S., at 371. State, rather than federal law, should have been applied. California urges that in rejecting Bonelli and holding that disputes about the title to lands granted by the United States are to be settled by state law, the Court also rejected Hughes since that case involved land that had been patented by the United States to private owners. We do not agree. Corvallis itself recognized that federal law would continue to apply if “there were present some other principle of federal law requiring state law to be displaced. ” 429 U. S., at 371. For example, the effects of accretive and avulsive changes in the course of a navigable stream forming an interstate boundary is determined by federal law. Id., at 375. The Corvallis opinion also recognized that Bonelli did not rest upon Hughes and that the Hughes Court considered oceanfront property “sufficiently different... so as to justify a ‘federal common law’ rule of riparian proprietorship.” 429 U. S., at 377, n. 6. The Corvallis decision did not purport to disturb Hughes. Wilson v. Omaha Indian Tribe, 442 U. S. 653 (1979), made clear that Corvallis also does not apply “where the [United States] Government has never parted with title and its interest in the property continues.” 442 U. S., at 670. The dispute in Corvallis was between the State and a private owner of land previously in federal possession. In contrast, the riparian owner in Wilson was the United States, holding reservation land in trust for the Omaha Indian Tribe. The issue was the effect of accretive or avulsive changes in the course of a navigable stream. State boundaries were not involved. What we said in Wilson is at least equally applicable here where the United States has held title to, occupied, and utilized the littoral land for over 100 years: “[T]he general rule recognized by Corvallis does not oust federal law in this case. Here, we are not dealing with land titles merely derived from a federal grant, but with land with respect to which the United States has never yielded title or terminated its interest.” 442 U. S., at 670. We conclude, based on Hughes v. Washington and Wilson v. Omaha Indian Tribe, that a dispute over accretions to oceanfront land where title rests with or was derived from the Federal Government is to be determined by federal law. III Controversies governed by federal law do not inevitably require resort to uniform federal rules. Wilson v. Omaha Indian Tribe, supra, at 672. It may be determined as a matter of choice of law that, although federal law should govern a given question, state law should be borrowed and applied as the federal rule for deciding the substantive legal issue at hand. Board of Commissioners of Jackson County v. United States, 308 U. S. 343 (1939); Royal Indemnity Co. v. United States, 313 U. S. 289 (1941). This is not such a case. First, and dispositive in itself, is the fact that Congress has addressed the issue of accretions to federal land. The Submerged Lands Act, 43 U. S. C. § 1301 et seq., vested title in the States to the lands underlying the territorial sea, which, in California’s case, extended three miles seaward from the ordinary low-water line. The Act also confirmed the title of the States to the tidelands up to the line of mean high tide. Section 5(a) of the Act, however, withheld from the grant to the States all “accretions” to coastal lands acquired or reserved by the United States. 43 U. S. C. § 1313(a). In light of this provision, borrowing for federal-law purposes a state rule that would divest federal ownership is foreclosed. In Wilson, where we did adopt state law as the federal rule, no special federal concerns, let alone a statutory directive, required a federal common-law rule. Moreover, this is not a case in which federal common law must be created. For over 100 years it has been settled under federal law that the right to future accretions is an inherent and essential attribute of the littoral or riparian owner. New Orleans v. United States, 10 Pet. 662, 717 (1836); County of St. Clair v. Lovingston, 23 Wall., at 68. “‘Almost all jurists and legislators, . . . both ancient and modern, have agreed that the owner of the land thus bounded is entitled to these additions.’” Jefferis v. East Omaha Land Co., 134 U. S., at 189, quoting Banks v. Ogden, 2 Wall. 57, 67 (1865). We rejected the invitation to rely on state law in Hughes, which California readily admits is a case “in which the facts and issues are essentially identical,” Statement in Support of Motion for Leave to File Complaint 16, and we see no reason at this juncture to adopt California’s minority rule on artificial accretions, even if we were free to do so. Applying the federal rule that accretions, regardless of cause, accrue to the upland owner, we conclude that title to the entire disputed land in issue is vested in the United States. IV Despite Hughes and Wilson, California claims ownership of the disputed lands because all of the accretions were deposited on tidelands and submerged lands, title to which, California submits, was vested in the State by the equal-footing doctrine and confirmed by the Submerged Lands Act. But California’s, claim to the land underlying the territorial sea was firmly rejected in United States v. California, 332 U. S. 19 (1947), which held that only land underneath inland waters was included in the initial grant to the States under the equal-footing doctrine. Furthermore, the Submerged Lands Act was a constitutional exercise of Congress’ power to dispose of federal property, Alabama v. Texas, 347 U. S. 272, 273-274 (1954), and “did not impair the validity” of the California decision, United States v. Louisiana, 363 U. S. 1, 7, 20 (1960). In any event, whatever the ownership of the submerged lands, this approach, based as it is on the equal-footing doctrine and the federal statute, is not a claim that state law should govern but a claim that the historic rule that accretions belong to the upland owner is wrong and should be replaced with a rule awarding title to the owner of the land on which the accretions took place. To accept this submission, however, would require rejecting not only Hughes, but also the long-established federal rule that accretions belong to the upland owner — a doctrine consistent with the majority rule prevailing in the States. See Part III, supra. Indeed, the proposed rule is also inconsistent with California’s own law that accretions attributable to natural causes belong to the upland owner. For all these reasons, we refuse the invitation to depart from the long-settled rule. Independent of the above analysis, California claims that the United States expressly surrendered title to the disputed land through the Submerged Lands Act. California argues the subject land falls within the general grant to the States of “lands beneath navigable waters.” Section 2(a)(3) of the Act defines “lands beneath navigable waters” to include “all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters.” 43 U. S. C. § 1301(a)(3). Because the jetty construction caused fairly rapid accretion, and, but for the construction of the jetties, the subject land would have remained submerged, California submits the accretion-formed land is “made” land, whose title rests in California by virtue of the Submerged Lands Act. We do not read this provision of the Act as applying to the gradual process by which sand accumulated along the shore, although caused by a jetty affecting the action of the sea. Moreover, to the extent that the accretions are to be considered “made” land, they would fall within the reservation by the United States of “all lands filled in, built up, or otherwise reclaimed by the United States for its own use.” This follows from the congressional object to assure each sovereign the continuing benefit of landfill and like work performed by each. In any event, § 5(a) of the Act expressly withholds from the grant to the States all “accretions” to lands reserved by the United States, and both California and the United States agree that the exposure of the formerly submerged lands in dispute constitutes “accretion.” This reading of the Act adheres to the principle that federal grants are to be construed strictly in favor of the United States. United States v. Grand River Dam Authority, 363 U. S. 229, 235 (1960); United States v. Union Pacific R. Co., 353 U. S. 112, 116 (1957). Finally, California submits that the Act granted title to the State by confirming the title of persons who, on June 5,1950, were entitled to such lands “under the law of the respective States in which the land is located . . . 43 U. S. C. § 1311(a). This provision means nothing more than that state law determines the proper beneficiary of the grant of land under the Act; it is clear that federal law determines the scope of the grant under the Act in the first instance. V We reaffirm today that federal law determines the boundary of oceanfront lands owned or patented by the United States. Applying the federal rule that accretions of whatever cause belong to the upland owner, we find that title to the disputed parcel rests with the United States. Accordingly, California’s motion for summary judgment is denied, and the United States’ motion for judgment on the pleadings is granted. The parties, or either of them, may, before September 27,1982, submit a proposed decree to carry this opinion into effect, failing which the Court will prepare and enter an appropriate decree at the next Term of Court. It is so ordered. Secretarial Order, December 27, 1859; Secretarial Order, August 19, 1871. See Exhibit C to Exhibits in Support of California’s Motion for Leave to File Complaint. Construction of the jetties commenced on the South Spit in 1889 and on the North Spit in 1890. U. S. Army Corps of Engineers, San Francisco District, Survey Report on Humboldt Bay, California, App. I, Shoreline Changes 2-3, 8-9 (Feb. 10, 1950), Exhibit D (hereafter cited as Corps Report). The north jetty was a massive work, having a total length of 7,500 feet. The United States and California agree that the seaward shift of the shoreline was caused by the construction of the jetties. A study by the Army Corps of Engineers found: “With the inauguration of jetty construction in 1890, there began a series of interruptions in normal littoral transport [of sand]. With each increment in length of the jetties the [Humboldt] bar was pushed seaward. Consequent decrease in offshore depths caused the shore to advance on each side of the inlet.” Id., at 8, ¶21. After jetty construction, “. . . the Humboldt bar. . . shifted and reformed seaward of its 1870 position, and the ocean high-water shore line along the north spit. . . shifted seaward. The seaward advance of the north spit shore line was most pronounced upon reconstruction of the north jetty in 1917.” Id., at 9, ¶25. California does not contend that, having applied for a state permit, the United States is estopped from asserting its claim to ownership of the disputed land. Tr. of Oral Arg. 5-6. Such an argument is foreclosed by United States v. California, 332 U. S. 19, 39-40 (1947) (footnote omitted): “[0]fficers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act.” See also United States v. City and County of San Francisco, 310 U. S. 16, 31-32 (1940); Utah v. United States, 284 U. S. 534, 545-546 (1932). In May 1978, California transmitted a proposed permit to the United States to allow construction of the watchtower. See Corps Report, Exhibit F. A few days later, the Bureau of Land Management of the Department of the Interior formally advised the Coast Guard and the California Commission that the United States claimed the disputed acreage as accretion. Letter of June 5, 1978, attached to Corps Report, Exhibit G. The proposed permit was never executed. Disputes between a State and the United States over ownership of property are fully within our original jurisdiction over cases in “which a State shall be Party,” Art. Ill, §2, cl. 2. Although our jurisdiction over this matter is concurrent with that of the district courts, California v. Arizona, 440 U. S. 59, 65 (1979); 28 U. S. C. § 1251(b)(2), we have previously indicated that coastal boundary disputes are appropriately brought as original actions in this Court. United States v. Alaska, 422 U. S. 184, 186, n. 2 (1975). The United States has waived its immunity to suit in actions brought against it to quiet title to land. 28 U. S. C. § 1346(f). See California v. Arizona, supra, at 65-68. California’s claim that Wilson v. Omaha Indian Tribe, 442 U. S. 653, 672 (1979), determined that there was no “federal common law” of accretion and avulsion, is a misunderstanding of that decision. We said only that “[t]he federal law applied in boundary cases . . . does not necessarily furnish the appropriate rules to govern” a case not involving a boundary dispute. Too much is also read into dictum in Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 380-381, n. 8 (1977), taking issue with the dissent’s meaning of the term “federal common law.” All participating Justices joined except Justice Stewart, who concurred on grounds that the State’s claim to the property constituted a taking without compensation. He rejected the majority’s application of federal law to the question. Justice Marshall took no part in the case. The equal-footing principle holds that all States admitted to the Union possess the same rights and sovereignty as the original 13 States. Pollard’s Lessee v. Hagan, 3 How. 212, 229 (1845); Shively v. Bowlby, 152 U. S. 1, 26, 30 (1894). The majority opinion in Corvallis appears to recognize that its rule does not extend to land remaining in federal hands: “ ‘We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to these laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.’” 429 U. S., at 377 (quoting Wilcox v. Jackson, 13 Pet. 498, 517 (1839); emphasis added by Corvallis Court). In relevant part, § 5(a) of the Act, 62 Stat. 32, 43 U. S. C. § 1313(a), excepts from the grant to the States “all tracts or parcels of land together with all accretions thereto,. . . title to which has been lawfully and expressly acquired by the United States . . . and ... all lands expressly retained by or ceded to the United States when the State entered the Union . . . .” Although “accretions” are expressly mentioned only in connection with federal “acquired lands,” accretions to retained lands should be similarly excepted from the grant to the States. Former Solicitor General Cox, in an opinion approved by the Attorney General, explained: “There can be no doubt that Congress intended each of the various categories of lands excepted by section 5(a) to include accretions. The terms of section 5(a) make this clear. The customary rights of landowners are set forth in full in the first of the several exceptions listed in section 5(a). Thus, it speaks of ‘all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon . . . Each of the other exceptions speaks simply of ‘all lands.’ Obviously, the more comprehensive word ‘lands’ was used instead of Tracts or parcels of land’ and the explicit reference to accretions, resources and improvements was omitted in order to avoid repetition. There is no reasonable basis for any other conclusion. Congress would not have limited its exceptions of ‘all accretions thereto, resources therein, or improvements thereon’ to lands ‘lawfully and expressly acquired by the United States’ from any State or its grantees and then denied them where the lands were ‘expressly retained’ or ‘acquired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity. . . .’ ” 42 Op. Atty. Gen. 241, 264 (1963). In United States v. California, O. T. 1951, No. 6, Orig., California argued that the “Court should adopt the federal rule that accretions formed by gradual and imperceptible degrees even though induced by artificial structures accrue to the owner of the adjoining land.” Brief in Relation to Report of Special Master 90. California suggested “ample reasons why [the] exceptional California view should not be extended and applied in determining the boundaries of the marginal sea off California.” Id., at 91. Those reasons included the fact that the California rule is contrary to that adopted by courts of most other States, that the application of state law would lead to varying results in different States, and that the California rule was devised for wholly inapplicable reasons. See also Alabama v. Texas, 347 U. S., at 273-274; United States v. California, 381 U. S. 139, 145-148 (1965); United States v. Louisiana, 389 U. S. 155, 156-157 (1967); Texas Boundary Case, 394 U. S. 1, 2 (1969); United States v. Maine, 420 U. S. 515, 524-526 (1975); United States v. Louisiana, 446 U. S. 253, 256, 268 (1980). For the same reasons, we reject California’s alternative theory that the equal-footing doctrine vests title in the State to all lands that ever were tidelands. California argues that as deposition occurred on submerged land, these areas went to a tideland phase — vesting title in the State— before eventually emerging as uplands. Federal law governs the scope of title initially vested by the equal-footing doctrine; at most, this argument suggests a different federal rule should apply to former tidelands. The sugr gestión has little to recommend it. Even leaving aside the concerns expressed in text, we see no reason for an exceptional rule to apply to land that once was, but no longer is, tideland. Moreover, implementation of the rule would require plotting the high- and low-water lines at all intervening times between statehood and the present. The word “made” was inserted into the provision in a bill introduced by Congressman Walter. H. R. 8137, 81st Cong., 2d Sess., §2(a)(2) (1950). The Report on that measure describes it as “in substance, the same” as earlier proposals omitting the term. H. R. Rep. No. 2078, 81st Cong., 2d Sess., 3 (1950). Throughout Congress’ consideration of the bill there was no comment on the “made” land provision. No Member of either House ever suggested that § 1301(a)(3) covered accretions that were attributable to artificial works. Against this background, we find no significance in the two casual references by Robert Moses and Senator Daniel to naturally formed accretions as “made.” Hearings on S. J. Res. 13 et al. before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 158 (1953) (remarks of Robert Moses); id., at 193-194 (remarks of Sen. Daniel). The interpretive opinion rendered by former Solicitor General Cox, while including naturally formed islands within the “made” language of § 2(a)(3), rejects the suggestion that accretion to the mainland, whether or not directly attributable to artificial causes, is included in the Submerged Lands Act grant to the States. 42 Op. Atty. Gen., at 259-265, 266-267. We express no opinion on the Act’s treatment of naturally formed islands in the marginal sea. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_habeas	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. Francis C. PERKINS, Appellant, v. HENRY J. KAISER CONSTRUCTION CO., a corporation, Appellee. No. 9532. United States Court of Appeals Fourth Circuit. Argued Sept. 24, 1964 Decided Dec. 10, 1964. George A. Daugherty, Charleston, W. Ta. (Weaver & Daugherty, Charleston, W. Va., on brief), for appellant. Charles W. Yeager, Charleston, W. Va. (Stanley C. Morris and Steptoe & Johnson, Charleston, W. Va., on brief), for appellee. Before HAYNSWORTH and BRYAN, ■Circuit Judges, and SIMONS, District •Judge. PER CURIAM: For personal injuries suffered in a fall •while employed in the installation of furnaces during construction of an industrial plant in West Virginia, Francis G. Perkins was awarded damages by a jury in the District Court. On motion ■of the defendant, Henry J. Kaiser Construction Company, the verdict was set •aside and judgment rendered non ob-•stante for Construction. It had not failed in any duty to Perkins, the Court ■concluded, because the defective wooden guard rail of the defendant responsible for his misfortune was used by him at the time in an unforeseeable and plainly unintended manner. Perkins appeals; ye affirm. The evidence comprised an explanation •of the respective relationships, inter se, •of the parties and the contractors engaged in the building project, a description of the faulty timber and a retracing of the injured employee’s movements resulting in the accident. A close and graphic narrative of the facts was included by the District Judge in his letter-opinion, which we adopt for its clarity. However, we think the motion n. o. v. is to be upheld upon the contributory negligence of the plaintiff, necessarily applied with the strictness of the West Virginia doctrine, rather than upon a want of a duty resting on the defendant. Both grounds were asserted in the motion. While they are almost inextricably interwoven, the contributory negligence is the plainer premise, for the employee’s participation in his own injury is manifest from the evidence. Affirmed. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation Answer:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. UNITED STATES v. BANKS No. 02-473. Argued October 15, 2003 Decided December 2, 2003 SOUTER, J., delivered the opinion for a unanimous Court. David B. Salmons argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and John A. Drennan. Randall J. Roske, by appointment of the Court, 538 U. S. 943, argued the cause and filed a brief for respondent. Timothy A Baughman filed a brief for Wayne County, Michigan, as amicus curiae urging reversal. A brief of amici curiae was filed for Americans for Effective Law Enforcement, Inc., et al. by Richard Weintraub, Bernard J. Farber, Wayne W Schmidt, and James P. Manah. Justice Souter delivered the opinion of the Court. Officers executing a warrant to search for cocaine in respondent Banks’s apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U. S. C. §3109. We hold that it did. I With information that Banks was selling cocaine at home, North Las Vegas Police Department officers and Federal Bureau of Investigation agents got a warrant to search his two-bedroom apartment. As soon as they arrived there, about 2 o’clock on a Wednesday afternoon, officers posted in front called out “police search warrant” and rapped hard enough on the door to be heard by officers at the back door. Brief for United States 3 (internal quotation marks omitted). There was no indication whether anyone was home, and after waiting for 15 to 20 seconds with no answer, the officers broke open the front door with a battering ram. Banks was in the shower and testified that he heard nothing until the crash of the door, which brought him out dripping to confront the police. The search produced weapons, crack cocaine, and other evidence of drug dealing. In response to drug and firearms charges, Banks moved to suppress evidence, arguing that the officers executing the search warrant waited an unreasonably short time before forcing entry, and so violated both the Fourth Amendment and 18 U. S. C. § 3109. The District Court denied the motion, and Banks pleaded guilty, reserving his right to challenge the search on appeal. A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. 282 F. 3d 699 (2002). In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of “factors that an officer reasonably should consider” in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment: “(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect's guilt; (g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary.” Id., at 704. The majority also defined four categories of intrusion after knock and announcement, saying that the classification “aids in the resolution of the essential question whether the entry made herein was reasonable under the circumstances”: “(1) entries in which exigent circumstances exist and non-forcible entry is possible, permitting entry to be made simultaneously with or shortly after announcement; (2) entries in which exigent circumstances exist and forced entry by destruction of property is required, necessitating more specific inferences of exigency; (3) entries in which no exigent circumstances exist and non-forcible entry is possible, requiring an explicit refusal of admittance or a lapse of a significant amount of time; and (4) entries in which no exigent circumstances exist and forced entry by destruction of property is required, mandating an explicit refusal of admittance or a lapse of an even more substantial amount of time.” Ibid. The panel majority put the action of the officers here in the last category, on the understanding that they destroyed the door without hearing anything to suggest a refusal to admit even though sound traveled easily through the small apartment. The majority held the 15-to-20-second delay after knocking and announcing to be “[insufficient ... to satisfy the constitutional safeguards.” Id., at 705. Judge Fisher dissented, saying that the majority ought to come out the other way based on the very grounds it stressed: Banks’s small apartment, the loud knock and announcement, the suspected offense of dealing in cocaine, and the time of the day. Judge Fisher thought the lapse of 15 to 20 seconds was enough to support a reasonable inference that admittance had been constructively denied. Id., at 710. We granted certiorari to consider how to go about applying the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case. 537 U. S. 1187 (2003). We now reverse. II. There has never been a dispute that these officers were obliged to knock and announce their intentions when executing the search warrant, an obligation they concededly honored. Despite this agreement, we start with a word about standards for requiring or dispensing with a knock and announcement, since the same criteria bear on when the officers could legitimately enter after knocking. The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization, speaking to the manner of searching as well as to the legitimacy of searching at all simply in terms of the right to be “secure . . . against unreasonable searches and seizures.” Although the notion of reasonable execution must therefore be fleshed out, we have done that case by case, largely avoiding categories and protocols for searches. Instead, we have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones. See, e. g., Ohio v. Robinette, 519 U. S. 33, 39 (1996) (“[W]e have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry”); Ker v. California, 374 U. S. 23, 33 (1963) (reasonableness not susceptible to Procrustean application); Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 (1931) (no formula for determining reasonableness; each case on its own facts and circumstances). We have, however, pointed out factual considerations of unusual, albeit not dispositive, significance. In Wilson v. Arkansas, 514 U. S. 927 (1995), we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,” Richards v. Wisconsin, 520 U. S. 385, 394 (1997). When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a “no-knock” entry. And even when executing a warrant silent about that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in. Id,., at 394, 396, n. 7. Since most people keep their doors locked, entering without knocking will normally do some damage, a circumstance too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry. We have accordingly held that police in exigent circumstances may damage premises so far as necessary for a no-knock entrance without demonstrating the. suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch. United States v. Ramirez, 523 U. S. 65, 70-71 (1998). Either way, it is enough that the officers had a reasonable suspicion of exigent circumstances. Ill Like Ramirez, this case turns on the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay. Whereas the Ramirez Magistrate Judge found in advance that the customary warning would raise an immediate risk that a wanted felon would elude capture or pose a threat to the officers, see id., at 68, here the Government claims that a risk of losing. . evidence arose shortly after knocking and announcing. Although the police concededly arrived at Banks’s door without reasonable suspicion of facts justifying a no-knock entry, they argue that announcing their presence started the clock running toward the moment of apprehension that Banks would flush away the easily disposable cocaine, prompted by knowing the police would soon be coming in. While it was held reasonable for the police in Ramirez tó enter forcibly upon arrival, the Government argues it was equally reasonable for the officers to go in with force here as soon as the danger of disposal had ripened. Banks does not, of course, deny that exigency may develop in the period beginning when officers with a warrant knock to be admitted, and the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15 to 20 seconds the officers waited prior to forcing their way. Though we agree with Judge Fisher’s dissenting opinion that this call is a close one, 282 F. 3d, at 707, we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer. Courts of Appeals have, indeed, routinely held similar wait times to be reasonable in drug cases with similar facts including easily disposable evidence (and some courts have found even shorter ones to be reasonable enough). A look at Banks’s counterarguments shows why these courts reached sensible results, for each of his reasons for saying that 15 to 20 seconds was too brief rests on a mistake about the relevant enquiry: the fact that he was actually in the shower and did not hear the officers is not to the point, and the same is true of the claim that it might have taken him longer than 20 seconds if he had heard the knock and headed straight for the door. As for the shower, it is enough to say that the facts known to the police are what count in judging reasonable waiting time, cf., e. g., Graham v. Connor, 490 U. S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”), and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate. And the argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks’s failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant has had time to get to the door, a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine. Once thé exigency had matured, of course, the officers were not bound to learn anything more or wait any longer before going in, even though their entry entailed some harm to the building. Ramirez held that the exigent need of law enforcement trumps a resident’s interest in avoiding all property damage, see 523 U. S., at 70-71, and there is no reason to treat a post-knock exigency differently from the no-knock counterpart in Ramirez itself. IV Our emphasis on totality analysis necessarily rejects positions taken on each side of this case. Ramirez, for example, cannot be read with the breadth the Government espouses, as “reflectfing] a general principle that the need to damage property in order to effectuate an entry to execute a search warrant should not be part of the analysis of whether the entry itself was reasonable.” Brief for United States 18; Reply Brief for United States 4. At common law, the knock-and-announce rule was traditionally “justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue.’” Wilson, 514 U. S., at 935-936 (quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1603)). One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. It is hard to be more definite than that, without turning the notion of a reasonable time under all the . circumstances into a set of sub-rules as the Ninth Circuit has been inclined to do. Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram. On the other side, we disapprove of the Court of Appeals’s four-part scheme for vetting knock-and-announce entries. To begin with, the demand for enhanced evidence of exigency before a door can reasonably be damaged by a warranted no-knock intrusion was already bad law before the Court of Appeals decided this case. In Ramirez (a case from the Ninth Circuit), we rejected an attempt to subdivide felony-cases by accepting “mild exigency” for entry without property damage, but requiring “more specific inferences of exigency” before damage would be reasonable. 523 U. S., at 69-71 (internal quotation marks omitted). The Court of Appeals did not cite Ramirez. Nor did the appeals court cite United States v. Arvizu, 534 U. S. 266 (2002) (again, from the Ninth Circuit). There, we recently disapproved a framework for making reasonable suspicion determinations that attempted to reduce what the Circuit described as “troubling . . . uncertainty” in reasonableness analysis, by “describing] and clearly delimiting]” an officer’s consideration of certain factors. Id., at 272, 275 (internal quotation marks omitted). Here, as in Arvizu, the Court of Appeals’s overlay of a categorical scheme on the general reasonableness analysis threatens to distort the “totality of the circumstances” principle, by replacing a stress on revealing facts with resort to pigeonholes. Id., at 274 (internal quotation marks omitted). Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time. Instructions couched in terms like “significant amount of time,” and “an even more substantial amount of time,” 282 F. 3d, at 704, tell very little. V Last, there is Banks’s claim that the entry violated 18 U. S. C. § 3109. Ramirez held that the result should be the same under the Fourth Amendment and §3109, permitting an officer to enter by force “if, after notice of his authority and purpose, he is refused admittance.” We explained the statute’s “‘requirement of prior notice . . . before forcing entry . . . [as] codiffying] a tradition embedded in Anglo-American law,’ ” 523 U. S., at 72 (quoting Miller v. United States, 357 U. S. 301, 313 (1958)); see also Sabbath v. United States, 391 U. S. 585, 591, n. 8 (1968), and we held that § 3109 implicates the exceptions to the common law knock-and-announce requirement that inform the Fourth Amendment itself, 523 U. S., at 73. The upshot is that § 3109 is subject to an exigent circumstances exception, ibid., which qualifies the requirement of refusal after notice, just as it qualifies the obligation to announce in the first place. Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied § 3109 as well as the Fourth Amendment, even without refusal of admittance. The judgment of the Court of Appeals is reversed. So ordered. The statute provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” Some States give magistrate judges the authority to issue “no-knock” warrants, and some do not. See, e. g., Richards v. Wisconsin, 520 U. S. 385, 396, n. 7 (1997) (collecting state statutes and cases). The standard for a no-knock entry stated in Richards applies on reasonable suspicion of exigency or futility. Because the facts here go to exigency, not futility, we speak of that alone. Ramirez and Richards v. Wisconsin, 520 U.S. 385 (1997), our cases addressing the role of exigency in assessing the reasonableness' of a no-knock entry, involved searches by warrant for evidence of a felony, as does this case. In a different context governed by the Fourth Amendment, we have held that the risk of losing evidence of a minor offense is insufficient to make it reasonable to enter a dwelling to make a warrantless arrest. See Welsh v. Wisconsin, 466 U. S. 740 (1984). Courts of Appeals have applied Welsh to warrantless entries simply to search for evidence, considering the gravity of the offense in determining whether exigent circumstances exist. See, e. g., United States v. Aquino, 836 F. 2d 1268, 1271-1273 (CA10 1988); United States v. Clement, 854 F. 2d 1116, 1120 (CA8 1988) (per curiam). We intimate nothing here about such warrantless entry cases. Nor do we express a view on the significance of the existence of a warrant in evaluating whether exigency justifies action in knock-and-armounce cases when the reason for the search is a minor offense. Several Courts of Appeals have explicitly taken into account the risk of disposal of drug evidence as a factor in evaluating the reasonableness of waiting time. See, e. g., United States v. Goodson, 165 F. 3d 610, 612, 614 (CA8 1999) (holding a 20-second wait after a loud announcement at a one-story ranch reasonable); United States v. Spikes, 158 F. 3d 913, 925-927 (CA6 1998) (holding a 15-to-30-second wait in midmorning after a loud announcement reasonable); United States v. Spriggs, 996 F. 2d 320, 322-323 (CADC 1993) (holding a 15-second wait after a reasonably audible announcement at 7:45 a.m. on a weekday reasonable); United States v. Garcia, 983 F. 2d 1160, 1168 (CA1 1993) (holding a 10-second wait after a loud announcement reasonable); United States v. Jones, 133 F. 3d 358, 361-362 (CA5 1998) (per curiam,) (relying specifically on the concept of exigency, holding a 15-to-20-second wait reasonable). See also United States v. Chavez-Miranda, 306 F. 3d 973, 981-982, n. 7 (CA9 2002) (“Banks appears to be a departure from our prior decisions. . . . [W]e have found a 10 to 20 second wait to be reasonable in similar circumstances, albeit when the police heard sounds after the knock and announcement”); United States v. Jenkins, 175 F 3d 1208, 1215 (CA10 1999) (holding a 14-to-20-second wait at 10 am. reasonable); United States v. Markling, 7 F. 3d 1309, 1318-1319 (CA7 1993) (holding a 7-second wait at a small motel room reasonable when officers acted on a specific tip that the suspect was likely to dispose of the drugs). It is probably unrealistic even on its own terms. The apartment was “small,” 282 F. 3d 699, 704 (CA9 2002), and a man may walk the length of today’s small apartment in 15 seconds. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_counsel1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party HELVERING, Commissioner of Internal Revenue, v. BRUUN. No. 11429. Circuit Court of Appeals, Eighth Circuit. July 20, 1939. Oliver W. Hammonds, Sp. Asst, to Atty. Gen. (Sewall Key, J. Louis Monarch and Edward M. English, Sp. Assts. to Atty. Gen., on the brief), for petitioner. John H. McEvers, of Washington, D. C. (Reece A. Gardner and Ryland, Stinson, Mag & Thompson, all of Kansas City, Mo., on the brief), for respondent. Before GARDNER and THOMAS, Circuit Judges, and WYMAN, District Judge. THOMAS, Circuit Judge. The petition of the Commissioner of Internal Revenue for review of a decision of the United States Board of Tax Appeals involves an alleged deficiency of income tax of Charles A. Bruun for the year 1933 in the amount of $4,111.43. The facts were found by the Board as stipulated by the parties. The opinion is a memorandum opinion and not reported. The respondent Bruun is a resident of Kansas City, Missouri. At all times material to the question presented he owned a lot located in that city. On July 15, 1915, under a written indenture he leased the lot for a term of 99 years to'New Market Investment Company, a corporation. When the lease was executed a building stood upon the lot. It remained there until 1929. During that year the lessee removed the old building and constructed a new one upon the premises, which had a useful life of not more than fifty years. On July 1, 1933, the lessee defaulted in the payment of rent, the lease was cancelled and the lot, together with the building thereon, was turned over to the respondent taxpayer. On July 1, 1933, when- the lease was cancelled, the building erected on the premises by the lessee had a fair market value of $64,245.68 and the unamortized cost of the building removed by the lessee in 1929 was $12,811.43, leaving a net fair market value of the new building of $51,434.25 as of July 1, 1933, the date on which the lease was cancelled. The taxpayer in his income tax return for 1933 did not report any income resulting to him by reason of the cancellation of the lease. The Commissioner determined that as a result of the transaction he sustained a net gain of $51,434.25 and determined a. deficiency of $4,111.43. Had the lease not been cancelled it would have expired- by its terms in 2014. It provided for forfeiture for non-payment of rent, authorized the removal of the building on the premises at the date of its execution and permitted but did not require the construction of a new building by the lessee. The lease provided that upon conditions not now material the lessee could remove the building erected by it at any time until four and one-half years prior to the expiration of the lease. It also provided that in case of forfeiture of the lease or upon its termination the premises should be surrendered with all buildings and improvements thereon. The question presénted is whether the respondent derived any taxable income in the year 1933 by reason of the cancellation of the lease and the surrender of the demised premises by the lessee. The Commissioner contends that the net value of the building on July 1, 1933, erected by the lessee in the amount of $51,434.25 was taxable under section 22(a) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 178, 26 U.S.C.A. § 22(a). The pertinent part of the statute reads: “ ‘Gross income’ includes gains, profits, and income derived from * * * commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property * * * and income derived from any source whatever. * * ” It is the contention of the Commissioner that the net value of the building erected by the lessee was definitely realized when the lease was cancelled in 1933, and is taxable income to the lessor for that year. The taxpayer contends that only an increase in the value of the real estate resulted from the transaction, and that there could be no realized gain to the lessor prior to the sale of the premises. It is settled that the income tax laws are concerned only with realized gains. Lucas v. American Code Co., 280 U.S. 445, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010. The government seeks to distinguish this case from the decision of the Supreme Court in Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570, in which it was held that appreciation in the value of property is merely an addition to capital and not constitutionally taxable as income until severed. We are not here interested in whether or not the Commissioner correctly determined the fair market value of the building at the time the lease was cancelled in 1933, or the amount of the gain, if any. The parties stipulated at the hearing before the Board that the net fair market value of the building as at July 1, 1933, was $51,434.25; and that “If the Commissioner of Internal Revenue properly included in the gross income of the petitioner for 1933 the fair market value as of that time of the building constructed upon said premises by the lessee, the deficiency herein is $4,111.43. On the other hand, if his action in including the fair market value of said building in income of the petitioner was erroneous, there is no deficiency in tax.” The parties do not agree as to when the title to the building vested in the lessor. It is the general rule that whether the title to an improvement placed upon leased premises by the lessee vests in the lessor or remains in the lessee is a question of intent to be determined by the language used in the written- lease. Armstrong Cork Co. v. Merchants’ Refrigerating Co., 8 Cir., 184 F. 199, 209. The lease in the instant case clearly reserved the title in the lessee with right to remove the building upon certain conditions until the last 4 and one-half years of the term; but it further provided that “At the expiration of the term of this lease either by lapse of time or by forfeiture or otherwise the third party (lessee) will yield up to the first party (lessor) the lands hereby leased, with all buildings * * thereon.” The title to the building, therefore, vested in the taxpayer July 1, 1933, when the lease was cancelled and not before. In the case of Miller v. Gearin, 9 Cir., 258 F. 225, the essential facts were the same as the facts in the present case, except that the lease provided that the ownership of all buildings put upon the premises by the lessee was to vest in the lessor immediately upon the construction of the same. The court said that “Assuming that the building was income derived from the use of the property, we think it clear that the time when it was ‘derived’ was the time when the completed building was added to the real estate and enhanced its value.” In the case of Hewitt Realty Co. v. Commissioner, 2 Cir., 76 F.2d 880, 884, 98 A.L.R. 1201, the question presented was whether a part of the value added to the taxpayer’s premises by the construction of a building thereon by the tenant in 1931 was taxable income for that year. The majority of the court held that the added value was not taxable income in 1931 because it was not “something separately disposable” ; and that such added value would be income in the constitutional sense “only when the land is sold, and then only in so far as it increases the ‘amount realized’ at that time.” In the case of M. E. Blatt Co. v. United States, 305 U.S. 267, 279, 59 S.Ct. 186, 190, 83 L.Ed. 167, in which the Commissioner added to the income of a taxpayer on account of improvements made to its property by a lessee, the court said: “Granting that the improvements increased the value of the building, that enhancement is not realized income of lessor.” The court then stated the test to be applied thus: “So far as concerns taxable income, the value of the improvements is not distinguishable from excess, if any there may be, of value over cost of improvements made by lessor. Each was an addition to capital; not income within the meaning of the statute.” In this connection the Hewitt Realty Co. case was cited with implied approval. Under this rule the taxpayer in the present case is in the same position with respect to income that he would have been had he constructed a building upon his premises in 1933 worth $51,434.25 in excess of cost. Such a building would have added “enhanced” or “excess” value to the real estate in that year; but it would have been only “an addition to capital; not income.” While in the cited cases the title to the improvements placed upon the leased premises by the lessee vested in the lessor under the terms of the lease at the time the improvements were made, whereas in the instant case title did not vest until the lease was terminated in a subsequent year, the principle is the same in all of them. The rule stated by the Supreme Court in the Blatt case, supra, is controlling. No income was realized by the respondent in 1933 by reason of the- cancellation of the lease. Affirmed. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". ATLANTIC CORPORATION, Defendant, Appellant, v. UNITED STATES of America et al., Appellees. No. 6038. United States Court of Appeals First Circuit. Dec. 31, 1962. Roland E. Shaine, Boston, Mass., Henry Gesmer and Brown, Rudnick, Freed & Gesmer, Boston, Mass., on the brief, for appellant. Thomas A. Skornia, Attorney, Department of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Joseph Kovner, Attorneys, Department of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Daniel B. Bickford, Asst. U. S. Atty., on the brief, for appellee, United States of America. John W. Blakeney, Boston, Mass., Blakeney & Blakeney, Boston, Mass., on the brief, for appellee, Continental Casualty Company. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. This is a case in which we might be tempted to wonder whether appellant can ever make the full circuit home. However, the only question before us is whether it was properly called out before reaching first, and we will confine ourselves to that single issue. Appellant, Atlantic Corporation, a Massachusetts corporation, is one of a number of parties defendant named in a complaint filed in 1958 by the United States under 26 U.S.C. § 7403 to enforce liens totalling $102,000 for certain 1956 and 1957 taxes owed by defendant taxpayer, A. V. Taurasi Co., a Massachusetts contracting company. The liens were asserted against funds of half a million dollars or more held by defendant Commonwealth of Massachusetts. On the pleadings the funds consist of “retained percentages” (see Mass.G.L. c. 30, § 39) and possibly other amounts due taxpayer under three road construction contracts with the Commonwealth. The other defendants, in addition to taxpayer and its receiver in bankruptcy, are Continental Casualty Co. and Hartford Accident & Indemnity Co., its sureties on the first, and other two contracts, respectively, and a substantial number of its alleged suppliers of labor and materials, largely Massachusetts corporations or citizens. Appellant and all other defendants except the Commonwealth are alleged to have possible interests, by contract, lien, or otherwise, in the funds, but all such interests, according to the complaint, are inferior to the government’s tax liens. The defendant laborers and material-men answered that their interests were superior. The surety companies, Hartford in the form of a formal cross-claim, Continental as a separate “defense,” agreed that the funds should be first used to pay the defendant laborers and materialmen, and alleged that any balance should be paid to themselves under their contracts with taxpayer. Continental further alleged that by decree of the Massachusetts Superior Court, dated the day the complaint was filed, the Commonwealth had been ordered to disburse the retained percentages under the contract secured by Continental to the laborers and materialmen to the exclusion of Atlantic. Finally, Atlantic answered that its claim, in the amount of $106,000, came ahead of the government, or any other defendant, by virtue of assignments from taxpayer under all three contracts. It prayed that this be adjudged, and that said amount be ordered paid to it. Thereafter, on motion of the government, the Commonwealth was enjoined from distributing the funds until further order of court. On May 7, 1962, a so-called stipulation of dismissal with prejudice as against Continental, signed by the government and by Continental, was filed, and initialled by the court. On the same day the court allowed the government’s motion for a dissolution of the injunction. On May 29 the government moved “pursuant to Rule 41(b) of the Rules of Civil Procedure that the above entitled action be dismissed without prejudice.” This motion was heard on June 4, and on June 6 the court filed a memorandum stating that the government’s motion was allowed against all defendants except Atlantic, and that the “case is retained for the adjudication of the claim of Atlantic Corporation.” Thereafter the government renewed its full motion, and following a hearing the court handed down an opinion reciting that the government had “discharged the liens,” that the court had previously “allowed the motion as to all parties except the United States and the Atlantic Corporation * * * [and] the Court now allows the government’s motion in full as it no longer has jurisdiction of this cause.” Subsequently a formal order was entered dismissing the case. Atlantic duly appealed from all of these actions. This case involves a series of misconceptions, beginning with the government’s attempt to dismiss under the wrong section of the rule. In this court the government concedes that it was not entitled to a dismissal under Rule 41 (b), and that it was not entitled as of right to a dismissal as against Atlantic without prejudice under Rule 41(a) (2). It has stipulated that the dismissal may be made with prejudice so far as its claim to a prior lien on the funds is concerned. Atlantic is apprehensive nonetheless, and argues that there should be no dismissal on any basis because of the effect of a dismissal (as determined by the district court) upon the court’s jurisdiction to adjudicate Atlantic’s rights as against the other claimants. The presence or absence of the government had nothing to do with the court’s jurisdiction over the balance of the case. If Atlantic had a proper cross-claim against its co-defendants this gave the court ancillary jurisdiction even though all the parties to the cross-claim were citizens of the same state. City of Boston v. Boston Edison Co., 1 Cir., 1958, 260 F.2d 872; R. M. Smythe & Co. v. Chase National Bank of New York, 2 Cir., 1961, 291 F.2d 721; Childress v. Cook, 5 Cir., 1957, 245 F.2d 798. The termination of the original action would not affect this. This is but one illustration of the elementary principle that jurisdiction which has once attached is not lost by subsequent events. See discussion in Home Ins. Co. of New York v. Trotter, 8 Cir., 1942, 130 F.2d 800, at 804. The district court’s seeming view that it lost jurisdiction of an otherwise justiciable matter was erroneous. Rather, the question was whether it ever had such jurisdiction. While Atlantic’s pleading was not drawn with technical proficiency, in substance it was clearly an attempt to assert a cross-claim for a determination of preference, and payment, as against its co-defendants. Its propriety depends upon whether it was a claim “arising out of the transaction or occurrence that is the subject matter * * * of the original action * * * or relating to any property that is the subject matter of the original action,” so as to constitute a permissible cross-claim within F.R.Civ. P. 13(g). Plainly Atlantic’s claim did not arise out of the original transaction or occurrence. The question, accordingly, is how broadly we should read the “property" clause. There are two reasons why it may be proper to permit a defendant to proceed by way of cross-claim instead of by independent suit, which may be denominated necessity and convenience. Obviously the court must avoid granting relief which would work affirmative injustice as between parties defendant. This could occur both in cases which might be said to involve the original transaction or occurrence, see Rickey Land & Cattle Co. v. Miller & Lux, 1910, 218 U.S. 258, 263, 31 S.Ct. 11, 54 L.Ed. 1032, and in broader situations where, because the court had taken possession of property, it must correctly administer it. Morgan’s, etc., Co. v. Texas Central Ry„ 1890, 137 U.S. 171, 11 S.Ct. 61, 34 L.Ed. 625. In the event of necessity there could be no requirement of independent jurisdiction. Rickey Land & Cattle Co. v. Miller & Lux, supra. The second, and more common situation is where the court, having embarked upon an issue, might reasonably be asked, as a matter of convenience to the parties, to deal with the ramifications which readily lent themselves to contemporaneous solution, that is to say, to make a “complete determination of the matters already in litigation.” Morgan’s, etc., Co. v. Texas Central Ry., supra, 137 at 201, 11 S.Ct. at 70; City of Boston v. Boston Edison Co., supra. Although in these cases, too, the courts have not experienced jurisdictional doubts, we agree with the suggestion in Childress v. Cook, supra, that the very fact that cross-claims require no independent jurisdiction is reason for not allowing too broad a scope. In the case at bar, had the alleged fund been deposited in court it would be appropriate to determine all issues affecting its ultimate disposition. But since it was not we agree with the court in Pettyjohn v. Pettyjohn, 8 Cir., 1951, 192 F.2d 322, that not only does Atlantic’s claim clearly not arise out of the original transaction or occurrence, but the court’s possession of “property” is too slight of itself to justify its entertainment. There is an additional reason in the present case for refusing to entertain Atlantic’s cross-claim. Its co-defendants, taxpayer’s suppliers of labor and materials, possessed a special statutory status. Under then Mass.G.L. (Ter.Ed.) c. 30, § 39, the funds due from the Commonwealth, at least to the extent of the “retained percentages,” were to be sought in a special proceeding in the superior court from which general creditors were excluded. J. J. Struzziery Co. v. A. V. Taurasi Co., 1960, 340 Mass. 481, 165 N.E.2d 120, supra, n. 1. For the district court to entertain Atlantic’s cross-claim would work serious interference with this statutory scheme. Atlantic’s argument based on the fact that it was excluded from the state court does not suggest to us that it should be admitted here, but just the reverse. Judgment will be entered affirming the judgment of the District Court except that such judgment is modified to dismiss with prejudice the government’s complaint insofar as it sought to declare rights in the funds superior to rights, if any, of appellant. Costs to Continental Casualty Co., only. . See J. J. Struzziery Co. v. A. V. Taurasi Co., 1960, 340 Mass. 481, 165 N.E.2d 120, a case decided against appellant on the merits by the denial of its motion to intervene, 340 Mass, at 487, 165 N.E.2d at 123, and establishing a broad principle with respect to “retained percentages,” infra. For reasons not worth detailing we do not agree, however, with the claim of certain appellees that this appeal is moot. . This decree has since been affirmed. See n. 1, supra. . To some extent we have simplified the facts and telescoped various pleadings. . This did not dismiss Continental from the ease so far as any claims against it by Atlantic were concerned. Rudloff v. Johnson. 8 Cir., 1959. 267 F.2d 708. . In the light of this case it may be thought that the Advisory Committee’s reason for suggesting the addition of the “property” provision to Rule 13 in 1940, see 28 U.S.C.A., may have been fear that the rule, as previously expressed, failed to provide for as full jurisdiction as had been formerly recognized in federal equity cases. The rights of the junior encumbrancer that were asserted to be in. the Committee’s mind do not strictly arise out of the original transaction or occurrence. Dunham v. Smith, 1929, 97 Fla. 380, 120 So. 761. At the same time it is clear that nothing in the rule was intended to confer general jurisdiction upon the court where it had not previously existed. F.R.Civ.P. 82; see Pettyjohn v. Pettyjohn, infra. . Pettyjohn, v. Pettyjohn is not only on all fours with the facts at bar, but it is interesting to note that the writing judge was one particularly aware that appropriate affirmative relief to defendants does not require a separate jurisdictional basis. See Coastal Air Lines v. Dockery, 8 Cir., 1950, 180 F.2d 874; Home Ins. Co. of New York v. Trotter, 8 Cir., 130 F.2d 800, supra. 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_r_fiduc	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. J. C. PENNEY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. Retail Clerks International Association Local 253, AFL-CIO, Intervenor. No. 17730. United States Court of Appeals Sixth Circuit. April 15, 1968. John C. Egbert, Jr., Cincinnati, Ohio, James R. Adams, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel, for petitioner. Allen D. Eisenberg, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Marsha Swiss, Attorneys, N. L. R. B., Washington, D. C., on brief, for respondent. Before PHILLIPS, CELEBREZZE and PECK, Circuit Judges. ORDER. This case is before the Court upon the petition of J. C. Penney Co., Inc., to review an order of the National Labor Relations Board and upon the cross-petition of the Board to enforce the order. The decision and order of the Board are reported at 162 N.L.R.B. No. 144. The intervenor has filed a brief urging enforcement. The Court holds that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole. It is ordered that the order of the Board be and hereby is enforced. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Claude Anderson TAYLOR, Appellant v. UNITED STATES of America, Appellee. No. 16524. United States Court of Appeals District of Columbia Circuit. Argued Oct. 30, 1961. Decided Nov. 22, 1961. Mr. John W. Brennan, Washington, D. C. (appointed by the District Court) for appellant. Mr. Abbott A. Leban, Asst. U. S. Atty., with whom Messrs’. David C. Acheson, U. S. Atty., Nathan J. Paulson and Frederick G. Smithson, Asst. U. S. Attys., were on the brief, for appellee. Mr. Charles T. Duncan, Principal Asst. U. S. Atty., also entered an appearance for appellee. Before Fahy, Washington and Danaher, Circuit Judges. DANAHER, Circuit Judge. • A jury returned a guilty verdict against the appellant on all 52 counts of an indictment charging that appellant procured payment on 52 false pay vouchers for four persons who were not entitled to compensation. Sentenced to imprisonment for concurrent terms of one to three years, he has appealed alleging as error: (1) the receipt, oyer objection, of authenticated photostat copies of the false vouchers rather than the originals; and (2) the introduction of records and information obtained in the course of investigation by a special agent of the F.B.I. who examined pertinent material in possession of the House of Representatives. Appellant from January, 1955 to May, 1959 was Superintendent of the Folding Room of the House. The evidence disclosed that over 1956-1957, some 16 vouchers had been prepared for one Penner, 16 for one Day, a like number for one Fordham, with 4 vouchers for one Spotts, all ostensibly employed in or through the Folding Room. Many witnesses actually there employed over the period in question had never seen, known or heard of Penner, Day, Spotts or Fordham. No District of Columbia income tax records could be found as to any of them. Yet other evidence indicated that no such persons either were employed by the House or lived at addresses carried on the House records. Appellant’s secretary received from appellant various vouchers already bearing the purported signatures of Penner, Day, Spotts or Fordham. Against each voucher a salary check, drawn on the Treasurer of the United States, was issued. Then the secretary or one other employee in the Folding Room was instructed by the appellant to cash salary checks already endorsed in the name of the payee, at the office of the Sergeant-at-Arms. The cash was turned over to the appellant. 28 U.S.C. § 1731 (1958) provides that “The admitted or proved handwriting of any person shall be admissible, for purposes of comparison, to determine the genuineness of other handwriting attributed to such person.” As the Government’s case was developed, exhibits bearing appellant’s signature were received. Included were a deed, of trust on appellant’s property, a note, a signature card at a bank, and an affidavit of citizenship, all signed by the appellant. A handwriting expert examined such documents for the purpose of comparing appellant’s true signature appearing on such material with yet other documents. A witness from the Treasury Department produced thirty-nine original checks for which, after identification, photostat copies were substituted. In all, some fifty-two checks had been issued purportedly to Penner, Day, Spotts or Fordham against vouchers, certified photostat copies of which pursuant to subpoena had been prepared by the General Accounting Office. The Unit Head of the Records Information Unit of G.A.O. produced photostats of the vouchers and testified that he had control, custody and possession of such records. The various photostats were received in evidence over appellant’s objection that the original vouchers were the best evidence. The Government here relies upon 28 U.S.C. § 1733 (1958) which provides: “§ 1733. Government records and papers; copies “(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept. “(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.” The appellant’s secretary testified for the Government that the appellant had instructed her to prepare the vouchers, in the names of Penner, Day, Fordham and Spotts. When she received the vouchers from the appellant, they bore only the endorsements of the named payees. She filled in the number of hours of employment as calculated and supplied to her by the appellant. She saw him sign the vouchers thereafter. So signed, the vouchers went with the payroll to the Disbursing Clerk, whereupon checks were prepared in the names of the respective payees. The handwriting expert compared enlarged photographs of the appellant’s signature on the vouchers with the known specimens of his handwriting. In his opinion, based upon his studies of the many documents, the appellant had signed the vouchers. We would burden our discussion unduly were we to recount the mass of detailed evidence which, the jury quite evidently concluded, inextricably bound the appellant to the scheme by which the Government was mulcted. We do not doubt that the originals of the vouchers might more accurately satisfy the requirements of the “best evidence” rule. The overwhelming evidence of the pattern followed by the appellant clearly established his guilt even if the vouchers had in fact been destroyed. The jury had before it, however, not only the testimony of the many witnesses, but the direct evidence of the photostats which Congress has said “shall be admitted in evidence equally with the originals thereof.” There is no suggestion that appellant sought and was denied production of the originals. He made no showing as to particulars in which the photostats failed faithfully to reproduce aspects of appellant’s handwriting as it appeared in the photostats. The expert’s identification of the appellant’s signature was not controverted. There was no limitation upon cross examination. We have carefully examined the entire record and can find no slightest particular as to which the appellant can properly claim prejudicial error. Appellant’s next point is little short of frivolous. In the course of the Government’s investigation, special agents of the Federal Bureau of Investigation examined the files and records of the House of Representatives. It is argued that in so doing the Executive Department had conducted a “clandestine” search of the files of the Legislative Branch of the Government. Appellant points to 2 U.S.C.A. § 91 (1958) as placing upon the Committee on House Administration the duty to inquire from time to time “into the enforcement or violation of any of the provisions of sections 85-88, 89 and 90 of this title.” The agents were said to have inspected the records without procuring “authority from the Speaker of the House of Representatives.” For all that appears, the Committee on House Administration requested the investigation. Certainly the records were made available to the inspecting agents in the Superintendent’s office. Moreover, the House of Representatives by resolution authorized release of the House records for use in this very prosecution. There is no merit in the suggestion that any personal rights of this appellant were thus violated. The appellant was fairly tried and was convicted on evidence overwhelmingly establishing his guilt. We find no error. Affirmed. . Drawn pursuant to 18 U.S.C. § 287 (1958). . Received in evidence also were other certified photostat cópies of checks in the custody and control of the General Accounting Office. . Fed.R.Crim.P. 27, 18 U.S.C. provides: “An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.” As to the latter, see Fed.R.Civ.P. 44, 28 U.S.C. And see Annot., 70 A.L.R.2d 1227 (1960). . Moreover, on cross examination appellant brought out that the handwriting expert had studied the originals and had caused them to be photographed in the E.B.I. laboratory. Enlargements of the photographs were in part the subject of his explanatory testimony. The Doorkeeper and tbe Clerk of the House of Representatives also identified the appellant’s signature on various documents. . Trimble v. Johnston, 173 F.Supp. 651 (D.D.C.1959) relied upon by the appellant is not to the contrary. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America v. Francis X. SPINLEY. No. 11880. United States Court of Appeals Third Circuit. Submitted June 22, 1956. Decided Aug. 7, 1956. See, also, D.C., 138 F.Supp. 241. Francis X. Spinley, pro se. D. Malcolm Anderson, Jr., U. S. Atty., John R. Gavin, Asst. U. S. Atty., Pittsburgh, Pa., for appellee. Before BIGGS, Chief Judge, GOODRICH, Circuit Judge, and VAN DUSEN, District Judge. PER CURIAM. Careful consideration of the briefs and record on this appeal convinces us that the decision of the court below was correct. Accordingly, the judgment appealed from will be affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". BALLOU CONSTRUCTION COMPANY, INC., as Transferee of Salina Sand Company, Inc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 81-2155. United States Court of Appeals, Tenth Circuit. April 29, 1983. Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges. ORDER AND JUDGMENT In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal. The judgment of the United States District Court for the District of Kansas, 526 F.Supp. 403, is vacated and the matter remanded for further consideration in light of the Supreme Court’s decision in United States v. Bliss Dairy, Inc.,-U.S.--, 103 S.Ct. 1134, 75 L.Ed.2d 130 (1983). The mandate shall issue forthwith. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_direct2	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. David J. BULLOCK v. STERLING DRUG Inc., Appellant. No. 10350. United States Court of Appeals Third Circuit. Argued Feb. 8, 1951. Decided Feb. 23, 1951. C. Russel Phillips, Philadelphia, Pa. (Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., on the brief), for appellant. Henry T. Re'ath, Philadelphia, Pa. (John B. Martin, Duane, Morris & Heckscher, Philadelphia, Pa., on the brief), for ap-pellee. Before KALODNER, STALEY and HASTIE, Circuit Judges. PER CURIAM. The plaintiff instituted this action to recover a substantial amount of severance pay. The defendant denied that he was an employee within the meaning of its severance pay schedule, and asserted that no enforceable contract existed between them. We have examined the record and find nothing to convince us that the District Court erred in its findings or in the application of well-settled principles of contract law. Accordingly, the judgment of the District Court will be affirmed upon its opinion, 93 F.Supp. 371. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel1_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Raleigh W. ANDREWS, Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Appellant. No. 11890. United States Court of Appeals Fourth Circuit. Argued March. 6, 1968. Decided March 18, 1968. W. Laurier O’Farrell and Saunders M. Bridges, Florence, S. C., for appellant. D. Kenneth Baker and James P. Mozingo, III, Darlington, S. C. (Philip H. Arrowsmith, Florence, S. C., on brief), for appellee. Before BOREMAN, CRAVEN and BUTZNER, Circuit Judges. PER CURIAM. This is an appeal from a decision of the District Court for the District of South Carolina, Florence Division, in a trial without a jury. The court held the defendant insurance company liable for the payment of judgments obtained against its insured over and above the $10,000.00 limit of policy coverage because of the company’s negligence and bad faith in failing to accept repeated offers to settle tort claims against the named insured within the policy limit. We affirm on the opinion of the district court. Affirmed. . Andrews v. Central Surety Insurance Company, 271 F.Supp. 814 (D.S.C.1967). The action below was brought against the above-named company and Commercial Union Insurance Company. At time of trial Central had merged with Commercial Union, leaving only one company as the defendant. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Alvin Bernard FORD, Petitioner, v. Charles G. STRICKLAND, Jr., Warden, Florida State Prison; Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida; Jim Smith, Attorney General, State of Florida, Respondents. No. 81-6200. United States Court of Appeals, Eleventh Circuit. April 15, 1982. Rehearing Granted April 28, 1982. Richard H. Burr, III, Nashville, Tenn., Marvin E. Frankel, New York City, for petitioner. Joy B. Shearer, Asst. Atty. Gen., W. Palm Beach, Fla., for respondents. Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN, District Judge. Honorable Virgil Pittman, U. S. District Judge for the Southern District of Alabama, sitting by designation. Judge Hatchett is recused and did not participate in this decision. RONEY, Circuit Judge: Alvin Bernard Ford was charged with shooting a wounded policeman in the back of the head at close range while fleeing from an armed robbery. Convicted of murder, Ford was sentenced to death in Florida. He appeals the denial of a petition for writ of habeas corpus alleging essentially seven contentions: (1) improper admission of an oral confession; (2) failure of the Florida Supreme Court to require resentencing when it found three of the statutory aggravating circumstances unsupported by the evidence; (3) improper state trial court instructions on mitigating circumstances; (4) failure of the Florida death law to require a finding that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt; (5) failure of the Florida Supreme Court to apply a consistent standard of reviewing the aggravating and mitigating circumstances in the case; (6) ineffective assistance of counsel at sentencing; and (7) review by the Florida Supreme Court of nonrecord materials in death cases, the so-called Brown issue. After examining each of these contentions carefully, we affirm the denial of the writ of habeas corpus. Briefly, the facts giving rise to petitioner’s conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner’s accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant’s vault. Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him, ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Uyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape. Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury’s recommendation, the trial judge sentenced him to death. On direct appeal, both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford’s petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court’s practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court dismissed the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla. 1981). Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and we granted a stay of execution so that the issues raised could be reviewed on appeal. I. Admission of Ford's Oral Confession Ford was arrested in Gainesville, Florida on the day of the murder. He refused to talk with Gainesville police officers, indicating he first wanted to consult a lawyer. He was given an opportunity to talk to a public defender, but refused to accept that representation. He was Unable to reach his private attorney. Fort Lauderdale police officers came to return Ford to Fort Lauderdale. The Miranda warnings were given and petitioner “wanted” to talk but would not give a written statement until he had contacted his lawyer. Petitioner’s only statement at the time was “I didn’t shoot that cop.” On a small plane from Gainesville to Fort Lauderdale, another officer gave Ford Miranda warnings. Ford said he was willing to talk but would give no written statement until he had talked with his lawyer. After informing a Fort Lauderdale officer of his earlier unsuccessful effort to contact his attorney and his refusal of representation by the public defender, petitioner admitted participating in the Red Lobster robbery. Although denying participation in the killing, he admitted being left behind at the Red Lobster by his accomplices, seeing a police officer lying on the ground as he left the restaurant, and escaping in the police car which he abandoned for a green Volkswagen. Ford claims admission of the above statement in his trial violated the Fifth, Sixth and Fourteenth Amendments and was contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, including United States v. Priest, 409 F.2d 491 (5th Cir. 1969), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that having invoked without waiving his right to counsel, his responses to subsequent police-initiated custodial interrogation without an attorney should not have been admitted into evidence. Petitioner moved to suppress his confession, but failed to appeal the trial court’s denial of his motion on direct appeal to the Florida Supreme Court. Based on Wain wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the district court held Ford’s failure to raise the issue on direct state appeal forecloses its consideration in this habeas corpus proceeding. The Florida procedural law is clear. A criminal defendant’s failure to raise an issue which could be asserted on direct appeal precludes consideration of the issue on a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla. 1981). Accordingly, the state courts refused to consider this contention concerning the confession. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held a state prisoner who knowingly and deliberately bypasses state procedures intentionally relinquishes known rights and can be denied habeas corpus relief on that basis. Recognizing Fay left open the possibility of “sandbagging” by defense lawyers, the Supreme Court narrowed its sweeping rule in Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977). The Court held that absent a showing of both cause for noncompliance and actual prejudice, habeas corpus relief is barred where a state prisoner has failed to comply with a state contemporaneous objection rule. 433 U.S. at 87, 97 S.Ct. at 2506. While Sykes arose in the context of a procedural default at the trial level, we have applied its rationale in cases involving a procedural default during the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to strictly enforce procedural rules, thereby reducing the possibility the federal court will decide the constitutional issue without the benefit of the state’s views. Gibson v. Spalding, 665 F.2d at 866; Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508. Additionally, application of Sykes to the forfeiture of specific claims on appeal promotes the goals of comity and accuracy identified by the Sykes Court. Forman v. Smith, 633 F.2d at 639. Thus, in this Circuit a state prisoner can forego the opportunity to raise constitutional issues in habeas corpus proceedings by deliberately bypassing state appellate procedural rules or by merely failing to follow them without showing both cause for the default and prejudice resulting from it. Because this record does not reveal Ford’s procedural default was the result of an intentional bypass within the meaning of Fay, we turn to the cause and prejudice exception of Sykes. Cause and prejudice are sometimes interrelated. Huffman v. Wainwright, 651 F.2d at 351. While the Supreme Court has not explicitly defined cause and prejudice, our precedents have defined “cause” sufficient to excuse a procedural default in light of the determination to avoid “a miscarriage of justice.” Id. Prejudice means “actual prejudice” which in this case must result from the failure to appeal the trial court’s admission of petitioner’s statement. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir. 1978). A careful review of the record reveals the Sykes exception does not apply in this case. Ford’s argument that the procedural default is excused because of the position of Florida courts at the time on the issue must fail. The claim was perceived and asserted in the trial court, and therefore could have been asserted on appeal. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes. - U.S. at -, 102 S.Ct. at 1572 (footnotes omitted). Even addressed in terms of manifest injustice, see Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981), under the circumstances of this case, imposition of the Sykes forfeiture rule does not constitute a miscarriage of justice. Petitioner does not contest the accuracy of the statement made to the Fort Lauderdale police. The statement admitted only presence and participation in the robbery; it denied participation in the shooting. The Florida Supreme Court, in discussing effectiveness of counsel, concluded and we agree that “[tjhere was abundant evidence apart from the confession, some by eyewitnesses, to place him at the scene as a participant.” Ford v. State, 407 So.2d at 909. II. Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances After receiving instructions on the eight aggravating circumstances under Fla.Stat. § 921.141, Ford’s jury recommended the death penalty. Finding evidentiary support for all eight aggravating circumstances, the judge sentenced petitioner to death. On appeal, the Florida Supreme Court ruled three of the eight did not apply because two lacked evidentiary support and one was based on the same aspect of the crime as another circumstance. Ford v. State, 374 So.2d 496, 501-03 (Fla.1979). The court upheld the five other aggravating circumstances, specifically finding the killing “especially heinous, atrocious, or cruel.” Id. at 503. In the absence of any mitigating circumstances, death was presumed the appropriate penalty and the sentence was affirmed. Id. Petitioner argues that Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), and Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), reh. denied and modified, 648 F.2d 446 (5th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 90, 71 L.Ed.2d 82 (1981), require resentencing under the above circumstances. In Stephens the Georgia Supreme Court had held unconstitutional one of the statutory aggravating circumstances presented to the jury. We held that the death sentence must be set aside because it was impossible to tell from the record the extent to which the Georgia jury had relied on an unconstitutional statutory aggravating factor in imposing the death penalty. Stephens v. Zant, 631 F.2d at 406. In Henry, we held the trial court committed constitutional error in admitting into evidence and permitting the jury to consider evidence of nonstatutory aggravating circumstances. Henry v. Wainwright, 661 F.2d at 60. These two cases are inapposite to the case at bar. The instant case involves consideration of neither unconstitutional nor nonstatutory aggravating factors. That evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not compel the conclusion that the death sentence was unconstitutionally infected by consideration of extraneous evidence. The sentencing jury and judge considered only evidence of factors which could properly be considered by them. Where, as here, there were no statutory mitigating circumstances and the sentencer has considered only constitutional statutory aggravating circumstances, we perceive no reversible error where properly found statutory aggravating circumstances sufficiently support the sentence. The Florida Supreme Court’s review has achieved the goals of rationality, consistency and fairness required under Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 2969-70, 49 L.Ed.2d 913 (1976), and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Neither did the trial court commit constitutional error in instructing the jury as to all aggravating and mitigating circumstances permitted by the statute. To assure the jury understands the structure of the law as required by Proffitt, it seems appropriate that they be charged fully on the Florida statute, provided proper instructions on the burden of proof and the standard of evidence required to prove the factors are given. III. Instructions on Mitigating Circumstances Instructing the jury on aggravating circumstances, the trial judge stated, “you shall consider only the following...,” and read the statutory language. With regard to mitigating circumstances, he said, “you shall consider the following...,” again reading the appropriate statutory language. Ford neither objected to the instruction at trial nor raised it on direct appeal. Relying primarily on Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981), petitioner argues the above instructions improperly limited the jury’s consideration to statutory mitigating factors and precluded consideration of nonstatutory mitigating factors contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett held “the sentencer... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964. With reference to aggravating circumstances, the Mississippi trial court in Washington instructed the jury to “consider only the following elements.... ” As to mitigating circumstances, the judge stated, “consider the following elements.... ” Washington v. Watkins, 655 F.2d at 1367. The state court concluded: If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts.... Id. at 1368 (emphasis added). Reasoning that in determining whether aggravating outweighed mitigating factors jurors might have believed it was their sworn duty to consider only the two statutory mitigating circumstances enumerated in the charge, the Fifth Circuit reversed Washington’s death sentence. In evaluating the state court’s instructions, we must pay careful attention to the words actually spoken to the jury to determine the interpretation a reasonable juror might give the instruction in question. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The entire charge must be examined as a whole to discern whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409. Where some deficiency exists in the language of the charge taken as a whole, it must be shown that it so infected the entire trial process that a due process violation occurred. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Washington v. Watkins, 655 F.2d at 1369. Evaluating the jury charge in this case under the foregoing standard, we reject Ford’s contention. While the instructions in Washington and the instant case involve similar use of the term “only,” there are significant differences. Petitioner’s jury was read the entire list of statutory mitigating circumstances and was not confined to two “preceding elements of mitigation,” an important factor to the court’s decision in Washington. 655 F.2d at 1370. More importantly, the sentencing judge’s order which stated “[t]here are no mitigating circumstances existing — either statutory or otherwise — which outweigh any aggravating circumstances” reflects his consideration of the nonstatutory mitigating evidence offered by Ford. The Florida statute does not restrict a jury’s consideration of mitigating circumstances to those listed in the statute. It is reasonable to conclude the state trial judge’s perception that nonstatutory mitigating factors could be considered was conveyed to the advisory jury. The language about which petitioner complains did not so “infect” the entire sentencing process as to present a due process violation. IV. Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors Florida Statute § 921.141(3)(b) requires the sentencing court, in imposing the death penalty, to state in writing its finding “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Petitioner contends that because the statute, case law and jury instructions do not require the state to prove that aggravating factors outweigh mitigating factors “beyond a reasonable doubt,” Florida’s death penalty statute, on its face and as applied in this case, denies convicted capital defendants due process. Ford argues that the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances, and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment. Since the element is part of the crime, he asserts that the beyond a reasonable doubt standard is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny. We reject this argument for several reasons. First, that the aggravating must outweigh mitigating factors for imposition of the death penalty under the Florida statute is not an element of the crime of capital murder in Florida. Under the Florida bifurcated death penalty statute, the sentencing proceeding is entirely separate from trial on the capital offense. Indeed, in certain circumstances the state judge can summon different jurors for the latter phase. Fla.Stat. § 921.141(1). Guilt of the capital offense having already been decided, the sentencing jury’s sole function is to render an advisory sentence aiding the state judge in determining whether the defendant should be sentenced to death or life imprisonment. Id. Thus, that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072 (emphasis added), is irrelevant to deciding under the Florida statute whether there are insufficient mitigating circumstances to outweigh aggravating circumstances. The aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer’s discretion in a structured way after guilt has been fixed. As the Supreme Court explained: While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition. Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976). Second, the United States Supreme Court has declared constitutional on its face Florida’s capital sentencing procedure, including its weighing of aggravating and mitigating circumstances. The Supreme Court stated: Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. The statute, facially constitutional, was strictly applied according to its terms. The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed. Third, Ford’s argument under In re Winship seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d at 617, and State v. Woods, 648 P.2d 71 (1981) [Utah 1981], Ford’s alternate argument, raised for the first time in his reply brief, is that the Florida capital sentencing proceeding involves new findings of fact significantly affecting punishment to which the full panoply of due process rights should be extended, including the requirement that the state prove beyond a reasonable doubt that mitigating factors outweigh aggravating factors. Again petitioner confuses proof of facts with the weighing process undertaken by the sentencing jury and judge. Because the latter process is not a fact susceptible of proof under any standard, we reject this contention. V. Florida Supreme Court’s Standard of Review Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and nonstatutory mitigating circumstances. While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review, the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 1978). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605. The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Stephens v. Zant, 631 F.2d at 405-06. Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances. Moreover, examination of. the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with the constitutional principles relating to sentencing in capital cases. Under 28 U.S.C.A. § 2254(d), we presume correct facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71. L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny. VI. Assistance of Counsel at Sentencing Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he “failed to focus the trial judge’s and jury’s attention on the critical factors relevant to the sentence determination.” Careful review of the record and Ford’s specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel. On reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978); United States v. Beasley, 479 F.2d 1124, 1129 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). That an attorney’s strategy may appear wrong in retrospect does not automatically mandate constitutionally ineffective representation. Baty v. Balkcom, 661 F.2d 391, 395 n.8 (5th Cir. 1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981). That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). This is not a case in which counsel allegedly failed to adequately prepare and investigate. See Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982). Ford’s counsel was reasonably likely to render and did render reasonably effective assistance. Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). Because the record reveals counsel’s representation was constitutionally adequate and there resulted no prejudice to petitioner by any action or inaction of counsel, see Washington v. Watkins, 655 F.2d at 1362, Ford has not carried his burden of proving ineffective assistance of counsel. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981). VII. The Brown Issue: Nonrecord Material Before the Florida Supreme Court Petitioner alleges the Florida Supreme Court had a practice of receiving nonrecord materials concerning death row inmates during the pendency of the appeal of his death sentence. Ford specifically claims that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation and reliability and proportionality of capital sentencing. Additionally, he argues the court’s receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them. This issue first surfaced in a petition for writ of habeas corpus directed to the Florida Supreme Court brought on behalf of 122 Florida death row inmates, of which Ford was one. The Court denied the petition with a full opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981). We reject the contention both generally and specifically as made for Ford. The function of the Supreme Court of Florida in these cases is to review sentences for procedural regularity and proportionality. The court does not “impose” sentence, and for that reason there cannot exist a due process violation under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1980). As the Florida Supreme Court aptly stated: The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role. Indeed, our role is neither more nor less, but precisely the same as that employed by the United States Supreme Court in its review of capital punishment cases. Illustrative of the Court’s exercise of the review function is Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). ****** It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence “review.” That fact is obviously appreciated by the United States Supreme Court, for it very carefully differentiated the sentence “review” process of appellate courts from the sentence “imposition” function of trial judges in Proffitt and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Brown v. Wainwright, 392 So.2d at 1332-33. We view the court’s statement in Brown that such material would be irrelevant to its ultimate decision in these cases correct as a description of its function and as a state-' ment of law. Of course, review of the records in other cases is necessarily involved in achieving the United States Supreme Court’s requirement of consistency and proportionality. Specifically we reject the claim for three reasons. First, there is not an iota of evidence in this record to indicate the Florida Supreme Court viewed any extra-record materials in affirming petitioner’s conviction and sentence. The court’s reviewing such information in connection with death row inmates other than Ford would not render his death sentence unconstitutional. Thus, discovery on this issue, based solely on Ford’s bare, unsupported allegations, would be nothing more than a fishing expedition in which it would be necessary for him to show that in his case the court received, viewed and relied on the information. Since the latter could not be shown in the face of Brown v. Wainwright, we affirm the district court’s refusal to permit Ford to launch such a discovery expedition. Second, there is absolutely no indication what material could have been received by the court which was prejudicial. By the specific description of the information set forth in his habeas corpus petition, Ford presumably knows something of the nature of the materials allegedly viewed. He made no effort whatsoever to demonstrate those materials were harmful to his case. Third, in the face of petitioner’s unsupported allegations to the contrary, we accord a presumption of correctness to the Florida Supreme Court’s statement that its members properly perform their procedural appellate function in reviewing death sentences. See 28 U.S.C.A. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). In the context of a federal collateral attack on a state criminal conviction, comity and federalism demand no less. As the highest court in the state, the Florida Supreme Court’s interpretation of its procedural role is the law of the state and we do not question it. See Stephens v. Zant, 631 F.2d at 405-06. These conclusions do not reflect the view that any court, including an appellate court, should review material extraneous to the record. We do not condone such a practice. Conclusion The Court has discussed above the seven issues as framed by petitioner in his brief. Although not required to do so Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Appellee, v. Charles CORNISH, Defendant-Appellant. No. 73-1189. United States Court of Appeals, First Circuit. Argued Jan. 8, 1974. Decided Feb. 5, 1974. William P. Homans, Jr., Boston, Mass., with whom Featherston, Homans, Kluboek & Griffin, Boston, Mass., was on brief, for appellant. Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges. PER CURIAM. After a jury trial, appellant was convicted of conspiring to distribute a quantity of cocaine, a controlled substance, in violation of 21 U.S.C. §§ 841 (a)(1), 846 (1970). The sole issue presented by this appeal is whether there was sufficient evidence adduced at trial to establish beyond a reasonable doubt that a conspiratorial agreement existed between appellant and his codefendant, Barbara Murchison. The evidence, which for these purposes must be considered in the light most favorable to the government, indicated that on the afternoon of July 6, 1973, one Francis Dever, an undercover agent attached to the Federal Bureau of Narcotics and Dangerous Drugs, met with Murchison and a government informant in Boston in order to purchase cocaine. Murchison stated that she knew of a source of supply, described as a “good friend” of hers, but said that this “man would not meet with [agent Dever] with the cocaine.” Consequently, an arrangement was reached whereby the agent gave $1,000 to the informant who was to hold the money until the cocaine was delivered. Later the same day, agent Dever observed Murchison as a passenger in a car driven by appellant. After dropping her off near a bar on Columbus Avenue in Boston, appellant continued outbound on that road, with the agent in close pursuit. At the intersection of West Springfield Street and Columbus Avenue, both vehicles stopped and appellant left his car and walked over to the passenger side of the agent’s automobile. The agent then asked appellant where the cocaine was, to which appellant replied that “it was with Miss Murchison, back on Columbus Avenue.” After being thanked by the agent, appellant responded, “Any time.” At the conclusion of this meeting, which provides all the evidence in the record as to the appellant’s asserted participation in the conspiracy, Dever returned to the vicinity of the bar on Columbus Avenue where he had earlier seen Murchison depart from appellant’s car. After parking his vehicle, the agent joined Murchison who produced a brown paper bag containing the desired amount of cocaine. This was then given to the agent, thus completing the illicit transaction. On these facts, we cannot say that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that appellant knew of and participated in a conspiratorial agreement with Murchison whereby cocaine was ultimately distributed to the government agent. Admittedly the evidence is circumstantial, but that is frequently the nature of proof in a trial for conspiracy. And when we consider that Murchison had to contact her “connection” in order to acquire the cocaine; that appellant dropped Murchison off at the spot where the ultimate transfer took place; that, when followed, appellant stopped his car and deliberately went over to speak to agent Dever; and that when asked where the specific cocaine the agent wished to purchase was, appellant, who had never before seen Dever, promptly responded that “it” was back with Murchison, we do not believe that it can be fairly contended that the evidence against appellant was insufficient to sustain the jury’s verdict. The case of United States v. Hysohion, 448 F.2d 343 (2d Cir. 1971), upon which appellant primarily relies, is not dispositive of the issue before us. Even if we were to accept the dictum in the majority opinion of Hysohion, as distinguished from Judge Moore’s concurrence, the facts in that case, precluding a finding of a working relationship with the supplier, were far more favorable to the defendant. Affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
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. SCHWEGMANN BROTHERS et al. v. CALVERT DISTILLERS CORP. NO. 442. Argued April 9-10,1951.- Decided May 21, 1951. John Minor Wisdom and Saul Stone argued the cause and filed a brief for petitioners. Monte M. Lemann argued the cause for respondents. With him on the brief were Thomas Kiernan, Edgar E. Barton, J. Blanc Monroe and Walter J. Suthon, Jr. Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Charles H. Weston and J. Roger Wollenberg filed a brief for the United States, as amicus curiae, urging reversal. Briefs of amici curiae supporting respondents were filed by Robert E. Woodside, Attorney General, and Harry F. Stambaugh for the State of Pennsylvania; Samuel I. Rosenman, Godfrey Goldmark and Herman S. Waller for the National Assn, of Retail Druggists et al.; Herbert A. Bergson for Coty Incorporated et al.; and by Murray F. Cleveland for the Louisiana State Pharmaceutical Association. Mr. Justice Douglas delivered the opinion of the Court. Respondents, Maryland and Delaware corporations, are distributors of gin and whiskey. They sell their products to wholesalers in Louisiana, who in turn sell to retailers. Respondents have a price-fixing scheme whereby they try to maintain uniform retail prices for their products. They endeavor to make retailers sign price-fixing contracts under which the buyers promise to sell at not less than the prices stated in respondents’ schedules. They have indeed succeeded in getting over one hundred Louisiana retailers to sign these agreements. Petitioner, a retailer in New Orleans, refused to agree to the price-fixing scheme and sold respondents’ products at a cut-rate price. Respondents thereupon brought this suit in the District Court by reason of diversity of citizenship to enjoin petitioner from selling the products at less than the minimum prices fixed by their schedules. It is clear from our decisions under the Sherman Act (26 Stat. 209) that this interstate marketing arrangement would be illegal, that it would be enjoined, that it would draw civil and criminal penalties, and that no court would enforce it. Fixing minimum prices, like other types of price fixing, is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U. S. 150; Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211. Resale price maintenance was indeed struck down in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. The fact that a state authorizes the price fixing does not, of course, give immunity to the scheme, absent approval by Congress. Respondents, however, seek to find legality for this marketing arrangement in the Miller-Tydings Act enacted in 1937 as an amendment to § 1 of the Sherman Act. 50 Stat. 693, 15 U. S. C. § 1. That amendment provides in material part that “nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices for the resale” of specified commodities when “contracts or agreements of that description are lawful as applied to intrastate transactions” under local law. (Italics added.) Louisiana has such a law. La. Gen. Stat., §§ 9809.1 et seq. It permits a “contract” for the sale or resale of a commodity to provide that the buyer will not resell “except at the price stipulated by the vendor.” The Louisiana statute goes further. It not only allows a distributor and retailer to make a “contract” fixing the resale price; but once there is a price-fixing “contract,” known to a seller, with any retailer in the state, it also condemns as unfair competition a sale at less than the price stipulated even though the seller is not a party to the “contract.” In other words, the Louisiana statute enforces price fixing not only against parties to a “contract” but also against nonsigners. So far as Louisiana law is concerned, price fixing can be enforced against all retailers once any single retailer agrees with a distributor on the resale price. And the argument is that the Miller-Tydings Act permits the same range of price fixing. The argument is phrased as follows: the present action is outlawed by the Sherman Act — the Miller-Tydings Act apart — only if it is a contract, combination, or conspiracy in restraint of trade. But if a contract or agreement is the vice, then by the terms of the Miller-Tydings Act that contract or agreement is immunized, provided it is immunized by state law. The same is true if the vice is a conspiracy, since a conspiracy presupposes an agreement. That was in essence the view of the Court of Appeals, which affirmed by a divided vote a judgment of a district court enjoining petitioner from price cutting. 184 F. 2d 11. The argument at first blush has appeal. But we think it offends the statutory scheme. We note to begin with that there are critical differences between Louisiana’s law and the Miller-Tydings Act. The latter exempts only “contracts or agreements prescribing minimum prices for the resale.” On the other hand, the Louisiana law sanctions the fixing of maximum as well as minimum prices, for it exempts any provision that the buyer will not resell “except at the price stipulated by the vendor.” We start then with a federal act which does not, as respondents suggest, turn over to the states the handling of the whole problem of resale price maintenance on this type of commodity. What is granted is a limited immunity — a limitation that is further emphasized by the inclusion in the state law and the exclusion from the federal law of the nonsigner provision. The omission of the nonsigner provision from the federal law is fatal to respondents’ position unless we are to perform a distinct legislative function by reading into the Act a provision that was meticulously omitted from it. A refusal to read the nonsigner provision into the Miller-Tydings Act makes sense if we are to take the words of the statute in their normal and customary meaning. The Act sanctions only “contracts or agreements.” If a distributor and one or more retailers want to agree, combine, or conspire to fix a minimum price, they can do so if state law permits. Their contract, combination, or conspiracy — hitherto illegal — is made lawful. They can fix minimum prices pursuant to their contract or agreement with impunity. When they seek, however, to impose price fixing on persons who have not contracted or agreed to the scheme, the situation is vastly different. That is not price fixing by contract or agreement; that is price fixing by compulsion. That is not following the path of consensual agreement; that is resort to coercion. Much argument is made to import into the contracts which respondents make with retailers a provision that the parties may force nonsigners into line. It is said that state law attaches that condition to every such contract and that therefore the Miller-Tydings Act exempts it from the Sherman Act. Such a condition, if implied, creates an agreement respecting not sales made under the contract but other sales. Yet all that are exempted by the Miller-Tydings Act are “contracts or agreements prescribing minimum prices for the resale” of the articles purchased, not “contracts or agreements” respecting the practices of noncontracting competitors of the contracting retailers. It should be noted in this connection that the Miller-Tydings Act expressly continues the prohibitions of the Sherman Act against “horizontal” price fixing by those in competition with each other at the same functional level. Therefore, when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids. See Parker v. Brown, 317 U. S. 341, 350. Elimination of price competition at the retail level may, of course, lawfully result if a distributor successfully negotiates individual “vertical” agreements with all his retailers. But when retailers are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids “horizontal” price fixing. A real sanction can be given the prohibitions of the proviso only if the price maintenance power granted a distributor is limited to voluntary engagements. Otherwise, the exception swallows the proviso and destroys its practical effectiveness. The contrary conclusion would have a vast and devastating effect on Sherman Act policies. If it were adopted, once a distributor executed a contract with a single retailer setting the minimum resale price for a commodity in the state, all other retailers could be forced into line. Had Congress desired to eliminate the consensual element from the arrangement and to permit blanketing a state with resale price fixing if only one retailer wanted it, we feel that different measures would have been adopted — either a nonsigner provision would have been included or resale price fixing would have been authorized without more. Certainly the words used connote a voluntary scheme. Contracts or agreements convey the idea of a cooperative arrangement, not a program whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing. The history of the Act supports this construction. The efforts to override the rule of Dr. Miles Medical Co. v. Park & Sons Co., supra, were long and persistent. Many bills had been introduced on this subject before Senator Tydings introduced his. Thus in 1929, in the Seventy-First Congress, the Capper-Kelly fair trade bill was offered. It had no nonsigner provision. It merely permitted resale price maintenance as respects specified classes of commodities by declaring that no such “contract relating to the sale or resale” shall be unlawful. As stated in the House Report, that bill merely legalized an agreement “that the vendee will not resell the commodity specified in the contract except at a stipulated price.” That bill became the model for the California act passed in 1931 — the first state act permitting resale price maintenance. The California act contained no non-signer clause. Neither did the Capper-Kelly bill that was introduced in the Seventy-Second Congress. So far as material here it was identical with its predecessor. The Capper-Kelly bill did not pass. And by the time the next bill was introduced — three years later — the California act had been changed by the addition of the non-signer provision. That was in 1933. Yet when in 1936 Senator Tydings introduced his first bill in the Seventy-Fourth Congress he followed substantially the Capper-Kelly bills and wrote no nonsigner provision into it. His bill merely legalized “contracts or agreements prescribing minimum prices or other conditions for the resale” of a commodity. By this date several additional states had resale price maintenance laws with nonsigner provisions. Even though the state laws were the models for the federal bills, the nonsigner provision was never added. That was true of the bill introduced in the Seventy-Fifth Congress as well as the subsequent one. They all followed in this respect the pattern of the Capper-Kelly bill as it appeared before the first nonsigner provision was written into state law. The “contract” concept utilized by Cap-per-Kelly before there was a nonsigner provision in state law was thus continued even after the nonsigner provision appeared. The inference, therefore, is strong that there was continuity between the first Tydings bill and the preceding Capper-Kelly bills. The Tydings bills built on the same foundation; they were no more concerned with nonsigner provisions than were their predecessors. In view of this history we can only conclude that, if the draftsman intended that the nonsigning retailer was to be coerced, it was strange indeed that he omitted the one clear provision that would have accomplished that result. An argument is made from the reports and debates to the effect that “contracts or agreements” nevertheless includes the nonsigner provisions of state law. The Senate Report on the first Tydings bill, after stating that the California law authorized a distributor “to make a contract that the purchaser will not resell” except at the stipulated price, said that the proposed federal law “does no more than to remove Federal obstacles to the enforcement of contracts which the States themselves have declared lawful.” The Senate Report on the second Tydings bill, which was introduced in the Seventy-fifth Congress, did little more than reprint the earlier report. The House Report, heavily relied on here, gave a more extended analysis. The House Report referred to the state fair trade acts as authorizing the maintenance of resale prices by contract and as providing that “third parties with notice are bound by the terms of such a contract regardless of whether they are parties to it”; and the Report also stated that the objective of the Act was to permit the public policy of the states having such acts to operate with respect to interstate contracts for the sale of goods. This Report is the strongest statement for respondents’ position which is found in the legislative history. The bill which that Report endorsed, however, did not pass. The bill which became the law was attached by the Senate Committee on the District of Columbia as a rider to the District of Columbia revenue bill. In that form it was debated and passed. It is true that the House Report quoted above was referred to when the Senate amendment to the revenue measure was before the House. And one Congressman in the debate said that the nonsigner provision of state laws was validated by the federal law. But we do not take these remarks at face value. In the first place, the House Report, while referring to the non-signer provision when describing a typical state fair trade act, is so drafted that the voluntary contract is the core of the argument for the bill. Hence, the General Statement in the Report states that the sole objective of the Act was “to permit the public policy of States having ‘fair trade acts’ to operate with respect to interstate contracts for the resale of goods”; and the fair trade acts are referred to as legalizing “the maintenance, by contract, of resale prices of branded or trade-marked goods.” (Italics added.) In the second place, the remarks relied on were not only about a bill on which no vote was taken; they were about a bill which sanctioned “contracts or agreements” prescribing not only “minimum prices” but “other conditions” as well. The words “other conditions” were dropped from the amendment that was made to the revenue bill. Why they were deleted does not appear. It is said that they have no relevance to the present problem, since we are dealing here with “minimum prices” not with “other conditions.” But that answer does not quite hold. The question is the amount of state law embraced in the words “contracts or agreements.” It might well be argued that one of the “conditions” attaching to a contract fixing a minimum price would be the liability of a nonsigner. We do no more than stir the doubt, for the doubt alone is enough to make us skeptical of the full implications of the old report as applied to a new and different bill. We look for more definite clues; and we find the following statement made on the floor by Senator Tydings: “What does the amendment do? It permits a man who manufactures an article to state the minimum resale price of the article in a contract with the man who buys it for ultimate resale to the public . . . .” Not once did Senator Tydings refer to the nonsigner provisions of state law. Not once did he suggest that the amendment would affect anyone but the retailer who signs the contract. We search the words of the sponsors for a clear indication that coercive as well as voluntary schemes or arrangements are permissible. We find none. What we do find is the expression of fear in the minority report of the Senate Committee that the nonsigner provisions of the state laws would be made effective if the law passed. These fears were presented in the Senate debate by Senator King in opposition to the amendment. But the Senate Report emphasizes the “permissive” nature of the state laws, not once pointing to their coercive features. The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt. And when we read what the sponsors wrote and said about the amendment, we cannot find that the distributors were to have the right to use not only a contract to fix retail prices but a club as well. The words they used — “contracts or agreements” — suggest just the contrary. It should be remembered that it was the state laws that the federal law was designed to accommodate. Federal regulation was to give way to state regulation. When state regulation provided for resale price maintenance by both those who contracted and those who did not, and the federal regulation was relaxed only as respects “contracts or agreements,” the inference is strong that Congress left the noncontracting group to be governed by preexisting law. In other words, since Congress was writing a law to meet the specifications of state law, it would seem that if the nonsigner provision as well as the “contract” provision of state law were to be written into federal law, the pattern of the legislation would have been different. We could conclude that Congress carved out the vast exception from the Sherman Act now claimed only if we were willing to assume that it took a devious route and yet failed to make its purpose plain. Reversed. Resale price maintenance is allowed only as respects commodities which bear, or the label or container of which bear, the trade mark, brand, or name of the producer or distributor and which are in free and open competition with commodities of the same general class produced or distributed by others. Excluded are agreements between manufacturers, between producers, between wholesalers, between brokers, between factors, between retailers or between persons, firms or corporations in competition with each other. The nonsigner clause in the Louisiana Act reads as follows: “Wil-fully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section 1 [§ 9809.1] of this act, whether the person so advertising, offering jor sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.” “Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, ... or between retailers, or between persons, firms, or corporations in competition with each other.” 15 U. S. C. § 1. S. 240, 71st Cong., 1st Sess.; H. R. 11, 71st Cong., 1st Sess. See H. R. Rep. No. 536, 71st Cong., 2d Sess. H. R. Rep. No. 536,71st Cong., 2d Sess. 2. Cal. Stat., 1931, c. 278. The California Act was sometimes known as “the Junior Capper-Kelly.” See Grether, Price Control Under Fair Trade Legislation (1939), p. 54. S. 97, 72d Cong., 1st Sess.; H. R. 11, 72d Cong., 1st Sess. Cal. Stat., 1933, c. 260: The California law is now found in Business & Professions Code, Pt. 2, c. 3, § 16904. S. 3822, 74th Cong., 2d Sess., 80 Cong. Rec. 1007. See Ill. Laws 1935, p. 1436; Iowa Laws 1935, c. 106; Md. Laws 1935, c. 212, §2; N. J. Laws 1935, c. 58, §2; N. Y. Laws 1935, c. 976, §2; Ore. Laws 1935, c. 295, §2; Pa. Laws 1935, No. 115, §2; Wash. Laws 1935, c. 177, § 4; Wis. Laws 1935, e. 52. S. Rep. No. 2053,74th Cong., 2d Sess. 2. S. Rep. No. 257,75th Cong., 1st Sess. H. R. Rep. No. 382,75th Cong., 1st Sess. M, p. 2. Id. See, e. g., the statement of Rep. Dirksen, a House conferee, in 81 Cong. Rec. 8138. H. R. Rep. No. 382,75th Cong., 1st Sess. 2. 81 Cong. Ree. 7495. H. R. Rep. No. 1413, 75th Cong., 1st Sess. 10 (the Conference Report of the House) merely stated: “This amendment provides for an amendment to the antitrust laws under which contracts and agreements stipulating minimum resale prices of certain commodities, and which are similar to contracts and agreements which are lawful as applied to intrastate commerce, are not to be regarded as being illegal under the antitrust laws.” S. Rep. No. 879, 75th Cong., 1st Sess. 81 Cong. Rec. 7491. And see S. Rep. No. 879, Part 2, 75th Cong., 1st Sess. S. Rep. No. 879,75th Cong., 1st Sess. 6. 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_foreign	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule that domestic law (federal, state or local) should take precedence over foreign law in a case involving the conflict of laws (i.e., which laws or rules apply- foreign country vs federal, state, or local)?" 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". ILLINOIS COMMERCE COMMISSION and Patrick W. Simmons, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Rails to Trails Conservancy, and Iowa Trails Council, Intervenors. COMMISSIONER OF TRANSPORTATION OF the STATE OF NEW YORK, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. RAILS TO TRAILS CONSERVANCY, IOWA TRAILS COUNCIL, and Conservation Federation of Maryland, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Nos. 86-1687, 87-1015, 87-1278. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 25, 1988. Decided May 24, 1988. As Amended May 24, 1988. Gordon P. MacDougall, Washington, D.C., with whom James E. Weging, Sp. Asst. Atty. Gen., Chicago, Ill., were on the brief for petitioners Illinois Commerce Com’n and Patrick W. Simmons in No. 87-1687. William J. Dwyer, Albany, N.Y., for petitioner Com’r of Transp. of the State of N.Y. in No. 87-1015. Charles H. Montange, Washington, D.C., for petitioners Rail to Trails Conservancy, Iowa Trails Council, and Conservation Federation of Maryland in No. 87-1278. Louis Mackall, Atty., ICC, with whom Robert S. Burke, General Counsel, Ellen D. Hanson, Associate Gen. Counsel, Anne S. Almy, Asst. Chief, Land and Natural Resources Div., Dept, of Justice, and J. Carol Williams, Atty., Dept, of Justice, Washington, D.C., were on the joint brief for Respondents the ICC and the U.S. John T. Sullivan and J. Thomas Tidd, Washington, D.C., were on the brief for intervenor, Ass’n of American Railroads. Before MIKVA, STARR and SILBERMAN, Circuit Judges. Opinion for the Court PER CURIAM. Opinion concurring in part and dissenting in part filed by Circuit Judge MIKVA. PER CURIAM: This case is before us a second time following a remand to the Interstate Commerce Commission. The controversy relates to the ICC’s relaxation of regulatory strictures triggered by a railroad’s proposed abandonment of rail lines that have fallen into a state of rail-traffic desuetude. In our prior consideration, we concluded that the ICC’s order establishing a class exemption for abandonments was, in certain respects, deficient under the applicable standards of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982). Specifically, we concluded that in three particulars the Commission failed adequately either to address salient points adumbrated in comments submitted to the ICC or to marshall the requisite factual support for the conclusions undergirding the Commission’s final rule. The question now before us is whether the ICC complied on remand with both the APA’s strictures and the specific requirements previously articulated by this court. In addition, an entirely new set of questions arose during the course of the proceedings on remand, namely, whether the ICC’s actions comply with various federal environmental statutes. For the reasons that follow, we uphold the Commission’s decision. I The order in question involves an expedited method of effecting abandonment of “out of service” rail lines, which are defined as those carrying no local traffic for at least two years. The Commission promulgated the regulation, 49 C.F.R. § 1152.50 (1985), pursuant to the deregulatory mandate of the Staggers Rail Act of 1980, specifically section 10505. 49 U.S.C. § 10505 (1982). Section 10505 requires the ICC to exempt a transaction or class of transactions from regulation when the Commission finds that (1) regulation is not necessary to carry out the multi-faceted national rail transportation policy (RTP), as set forth in 49 U.S.C. § 10101a; and (2) either (a) the transaction is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. Id. § 10505(a). The statutory and procedural background of the rulemaking is thoroughly chronicled in our previous opinion, the upshot of which was to dispatch the rulemaking back to the Commission for further consideration and explanation. Illinois Commerce Comm’n v. ICC, 787 F.2d 616 (D.C.Cir.1986). In directing a remand, our colleagues faulted the Commission’s order in several respects. First, the ICC had failed adequately to consider whether the abandonment regulations from which it was exempting eligible rail lines were necessary to effectuate relevant goals of the RTP, specifically: (1) energy conservation, (2) maintenance of reasonable rates, (3) meeting the needs of the national defense, and (4) cooperation with States in respect of transportation matters. Id. at 629-32. Second, the Commission had neglected to assess the adequacy of its findings concerning the limited scope of the exemption and the potential for abuse of market power, in light of the expanded definition of “out of service” adopted in the final rule. Id. at 634r-35. The originally proposed definition of “out of service,” which encompassed only rail lines carrying no traffic at all for at least two years, had been expanded in the final rule to include lines carrying overhead traffic, i.e., traffic that neither originates nor terminates on a line and can be rerouted over other lines. Id. at 634. Finally, the original regulation had specified no clear procedure for challenging the sufficiency of employee protections automatically provided under the exemption. Id. at 636. On remand, the ICC readopted the class exemption for “out of service” lines, but elaborated on the points found wanting in our prior opinion. Exemption of Out of Service Rail Lines, 2 I.C.C.2d 146 (1986). Unenamored of this result, the Illinois Commerce Commission and Patrick Simmons (Illinois) filed a petition with the ICC requesting a stay of the decision’s effective date pending appeal. Expanding the already broad horizons of the proceeding, Rails to Trails Conservancy (RTC), joined by two other nonprofit organizations, entered the fray for the first time by petitioning the ICC for reconsideration and a stay of its decision. Ex Parte No. 274 (Sub-No. 8) Exemption of Out of Service Rail Lines, (not printed) decided June 15, 1987. RTC argued, first, that the rulemaking constituted a major federal action triggering the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982), with which the Commission had failed to comply; second, that the exemption requirements failed to assure compliance with a number of applicable environmental statutes, including NEPA and the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f (1982); and, finally, that the ICC failed adequately to consider the effect of the regulations on public use of abandoned lines under the National Trails System Act, 16 U.S.C. § 1247 (1982), and the public use provision of the Interstate Commerce Act, 49 U.S.C. § 10906 (1982). Id. The Commission denied all the petitions, and these petitions for review followed. II A In our earlier decision, the first area of concern articulated by our colleagues related to the ICC’s treatment of the RTP or, more specifically, the agency’s examination of the five RTP goals listed above. See 49 U.S.C. § 10505(a)(1). Now, after reviewing the agency’s analysis on remand of each of these five factors, we are persuaded that the Commission’s conclusion (that application of the abandonment regulations to “out of service” lines is not necessary to carry out the RTP) is neither arbitrary nor capricious; to the contrary, the Commission’s analysis is reasonable and adequately supported by the record. Cf. Illinois Commerce Comm’n v. ICC, 819 F.2d 311, 317 (D.C.Cir.1987) (applying “arbitrary and capricious” standard to trackage rights agreements); Brae Corp. v. ICC, 740 F.2d 1023, 1038 (D.C.Cir.1984), cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985) (“arbitrary and capricious” review of exemption of boxcar freight rates from regulation). In our prior consideration of this case, the court faulted the agency’s finding that exemption would promote energy conservation, 49 U.S.C. § 10101a(15), as being “utterly lacking in record support.” Illinois Commerce Comm’n, 787 F.2d at 629. On remand, the agency modified this particular determination, concluding “upon further reflection... that energy conservation is unlikely to be affected in any significant way.” Out of Service, 2 I.C.C. 2d at 148. In arriving at this latter, more modest conclusion, the Commission reasoned as follows: where a line has carried no traffic at all, abandonment will have no effect on energy consumption since there is no traffic to be cut off or diverted to other routes or modes of transportation. Although abandonment of a line that has carried overhead traffic may result in some increase (or decrease) in fuel consumption due to rerouting, any such change, the ICC reasoned, should be insignificant since it is in the carrier’s interest to maintain the most efficient routes and to aggregate traffic in order to minimize energy costs. Id. Illinois attempts to derail this line of reasoning by arguing that even if carriers operate efficiently, they will nonetheless reroute traffic in ways that save costs elsewhere in their operations, but not necessarily in a manner that conserves energy. Brief for Illinois at 13. Illinois further contends that rerouting traffic may involve much more than a minimal increase in fuel consumption. Id. Illinois cites nothing, however, in support of either of these speculative assertions. Nor do petitioners point to anything indicating that application of the abandonment regulations is, as the statute contemplates, necessary to the promotion and encouragement of energy conservation. In contrast to petitioners’ creative exercise in the realm of the hypothetical, the ICC’s analysis logically and persuasively explains why the agency believes the effect on energy matters will be de minimis; in the absence of an indication that the agency’s judgment is flawed, we are persuaded that the explanation is amply reasoned to pass muster under the APA. B The second RTP-related concern which had been inadequately addressed in the ICC’s earlier decision involved the effect of the class exemption on rate reasonableness. In the court’s view, the ICC had failed to consider whether abandonment of “out of service” lines will expose shippers to excessive rates in circumstances where there is a want of competition. Illinois Commerce Comm’n, 787 F.2d at 630. Upon reexamination of this point, the Commission concluded that the class exemption will not affect the agency’s ability to assure the reasonableness of rates. Out of Service, 2 I.C.C.2d at 148. In so concluding, the ICC observed that exemption will not in any way alter the Commission’s authority to regulate rates nor will it provide carriers with an opportunity to initiate previously forbidden rate actions. With or without an exemption for abandonments of “out of service” lines, the ICC emphasized, carriers are at liberty to set rates at levels of their choosing, subject to protest by shippers. Id. at 149. Nothing in the exemption works a change to this carefully crafted scheme. Illinois attacks the Commission’s finding as to rate reasonableness on several fronts, only two of which merit discussion. Illinois contends, first, that the exemption will have an adverse effect on rates because the abandoned lines would no longer be available for constructing more favorable rates in what is known as “short line rate-making.” Brief for Illinois at 15. But this argument, on reflection, largely ignores the process by which rates are established. “Short line ratemaking” is completely voluntary; carriers may terminate the use of a particular “short line” rate at any time, regardless of whether the line has been abandoned and, if it has been abandoned, regardless of whether abandonment was effected pursuant to the statutory or exemption abandonment procedures. Conversely, carriers may maintain a favorable rate, based on an abandoned line, simply by filing a tariff to that effect. Out of Service, 2 I.C.C.2d at 149. In short, the abbreviated abandonment procedures have little if anything to do with a carrier’s ability, obligation, or incentive to continue offering a particular rate. Next, Illinois questions the ICC’s reliance on its authority to regulate rates as sufficient to prevent carriers’ imposing unreasonable rates following on the heels of an abandonment, asserting that a rate can be “unreasonable” yet lawful and thus beyond the ICC’s rate-regulatory reach. Brief for Illinois at 17-19. Illinois cites no authority for this proposition, however. This should come as no surprise. The ICC is empowered to regulate any unreasonable rate charged by a carrier with market dominance. 49 U.S.C. § 10709. In the absence of such dominance, however, the statute assumes that competition in the marketplace will, as it were, “regulate” rates; all rates outside a market-dominant setting are presumed to be reasonable (and thus lawful). The ICC is without power, either with or without the exemption for “out of service” lines, to alter lawful rate increases. In sum, Illinois’ attempts to demonstrate that the statutory abandonment procedures are necessary to ensure rate reasonableness are unavailing. The Commission’s determination that the exemption does not affect the rate reasonableness policies of section 10101a, undergirded as it is by a reasoned explanation, readily withstands APA scrutiny. C In our previous decision, the court condemned the agency’s treatment of a third RTP goal, namely developing a sound rail transportation system to meet the needs of the national defense, 49 U.S.C. § 10101a(4), as inadequate by virtue of the Commission’s failure to respond to comments submitted by the Department of Defense. Illinois Commerce Comm’n, 787 F.2d at 630-31. Illinois asserts that the Commission on remand once again failed to do its job in this respect. Brief for Illinois at 29-30. The two main points flagged by DOD in its comments back in 1982 were, first, that advance notice of abandonments is essential to safeguard the national defense and, second, that the financial assist-anee procedures available in the statutory abandonment provisions (designed to provide for the rescue of about-to-be-abandoned lines) should be made available under the exemption. Illinois Commerce Comm’n, 787 F.2d at 630 n. 102. Both concerns, we are satisfied, received adequate consideration on remand. For one thing, the ICC effectively mooted DOD’s earlier comments on the financial assistance program since the agency promulgated rules specifically providing for application of those provisions in exemption cases. See Ex Parte No. 274 (Sub-No. 16) Exemption of Rail Line Abandonments or Discontinuance—Offers of Financial Assistance, decided Dec. 14, 1987. As to DOD’s concern over the adequacy of impending abandonments, the Commission observed that, in a separate proceeding, it had in fact extended the period for notice provided to the Defense Department. Out of Service, 2 I.C.C. at 151. Railroads invoking the class exemption are now required to notify DOD in writing at least ten days prior to the filing of a notice of exemption with the ICC, thereby according the Department at least sixty days’ notice before the abandonment’s effective date. 49 C.F.R. § 1152.50(d). The Commission determined that, although this provides less notice than DOD had originally requested, the sixty-day period should afford ample time to identify lines that should be preserved by virtue of national defense considerations. Illinois’ sole criticism of this analysis is that “[t]he System Diagram Map requirement... is the critical notice period.” Brief for Illinois at 30. The System Diagram Map, which is part of the statutory abandonment scheme, provides interested parties with four months’ notice of potential or proposed abandonments. See supra note 13. Illinois neglects to explain why this four-month period, while obviously helpful, is critical or why, if additional time is necessary to meet the Nation’s defense needs, DOD failed to reiterate its concern by petitioning for review. Although additional notice would presumably be helpful from DOD’s standpoint, Illinois provides us with nothing to indicate that additional time beyond the sixty-day period is in any way necessary to DOD’s evaluation of proposed abandonments. In the absence of evidence to the contrary, we are satisfied as to the reasonableness of the agency’s determination that sixty days’ notice is adequate. D A related issue which was remanded for further consideration involved the RTP goal of cooperation with the States in transportation matters, 49 U.S.C. § 10101a(9). Illinois Commerce Comm’n, 787 F.2d at 631. In our previous decision, the court faulted the ICC’s failure to consider comments submitted by States protesting the lack of notice of proposed abandonments under the class exemption. Id. Basically, the States contended that retention of the System Diagram Map, or its equivalent, is necessary both to the States’ rail planning efforts and to provide notice to rail users who might oppose the abandonment. Id. Illinois and New York continue to press that point before us. Brief for Illinois at 30-31; Brief for New York at 7-8. On remand, the Commission considered and rejected these contentions, providing a thorough and well-reasoned explanation for doing so. We turn, then, to the Commission’s explanation. Although rejecting the argument that the statutory abandonment procedures, specifically System Diagram Maps, are necessary to further the goals of the RTP, the Commission squarely responded to the position that notice should be afforded prior to consummation of an abandonment. Under the exemption procedures, States receive notice at least sixty days before the exemption is effective and an abandonment can occur. 49 C.F.R. § 1152.50(d). In justifying the adequacy of the sixty-day period, the Commission observed that the exemption, which by definition applies solely to lines that have generated no traffic for at least two years and carry only overhead traffic that can be rerouted (and thus readily accommodated), results in no loss of service to shippers. Out of Service, 2 I.C. C.2d at 154-55. Furthermore, the transactions encompassed by the exemption tend to be noncontroversial, as evidenced by the small number of abandonments generating opposition under the exemption (only 10 of the first 200 cases). See id. at 150. In light of this factual predicate, the Commission concluded that the benefits of the additional notice accruing to the small number of States and shippers affected by aban-donments of out-of-service lines are outweighed by the costs to railroads both in maintaining the Maps and in delaying desired abandonments for four months. Id. at 154. The ICC’s reliance on the sufficiency of the sixty-day notice period did not rest on this balancing alone, however. The Commission considered the situations of various parties who might potentially be affected or involved in rail planning and explained why the notice provided by the System Diagram Maps is unnecessary to protect the interests of such groups. For example, if, in spite of the absence of local traffic, a particular line is important to the State’s rail system, the State should monitor its activity, as lack of use will tend to herald eventual abandonment. Id. at 153-54. Similarly, a shipper dependent on a particular line but who (somehow) fails to use the line for two years can likewise be expected, in reason, to shoulder the burden of monitoring material developments under such rather unusual circumstances; a shipper of that sort cannot reasonably presume an indefinite continuation of service on a manifestly marginal line. Id. at 154. Finally, a new business that wishes to employ the affected line can reasonably be expected to inquire into the line’s future, with the railroad presumably having no reason to be less than forthright about any plans to abandon the track. Id. In the absence of indications that additional notice is necessary to promote cooperation with the States, the Commission’s classic line-drawing choice of sixty days’ notice appears reasonable. We are further persuaded that the Commission’s determination, predicated as it is on the agency’s experience, is entirely in keeping with the deregulatory thrust of the Staggers Act. Ill We turn to the next major area of concern articulated in our prior visitation to this case, namely the ICC’s treatment of section 10505’s second prerequisite to exemption. To recap, in order to qualify for an exemption, section 10505 requires either that the transaction be of limited scope, or that application of the statutory provision be unnecessary to protect shippers from the abuse of market power. 49 U.S.C. § 10505(a)(2) (emphasis added). In its original decision, the Commission failed to examine whether its findings on these points were valid in light of the expanded definition of “out of service” contained in the final rule. Illinois Commerce Comm’n, 787 F.2d at 634-35. On remand, the ICC reaffirmed its conclusions, finding that the exemption, as expanded, was limited in scope and that regulation was unnecessary to protect shippers from market power abuses. Out of Service, 2 I.C.C. at 156. Illinois challenges both determinations, arguing that the exemption, as expanded, is not limited in scope and that regulation is necessary to protect shippers. Brief for Illinois at 20-29; Brief for New York at 8. We need not plumb the depths of the first point, however, inasmuch as we are satisfied that the agency acted properly under the “abuse of market power” clause. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314 (requirements of section 10505(a)(2) are disjunctive; as long as the ICC properly determined that regulation is unnecessary to protect shippers from abuse of market power, it need not find the exempt transaction to be limited in scope). The Commission provides a reasonable explanation for its conclusion that regulation of abandonments is unnecessary to prevent the abuse of market power. Essentially, the ICC relies on the proposition that a carrier’s market power is unaffected by an abandonment. Out of Service, 2 I.C.C.2d at 156. The carrier’s market power is determined not by the presence or absence of particular lines, but by the existence (or lack) of transportation alternatives available to shippers. Obviously, a carrier does not compete with itself, with one routing option vying with another for the greater share of traffic. If a carrier lacks market power prior to abandonment, then the carrier’s decreasing the number of available routes on its own lines will do nothing to create power that did not otherwise exist. That is to say, after the abandonment, the carrier will be subject to the same competitive forces as previously. Conversely, if a carrier possess market power prior to an abandonment, reducing its routing options will neither augment nor diminish that power. Id. Although, as Illinois elaborately explains, abandonments may obviously alter a carrier’s operations, see Brief for Illinois at 21-24, such alterations do not bear on the extent of competition (either from other rail carriers or from other modes of transportation) to which the carrier is subject. Somewhat more specifically, the challengers emphasize the effect of abandon-ments on shippers located adjacent to the abandoned line. Illinois and New York hypothesize that railroads will employ the exemption as a device to sever important lines providing service to overhead shippers. Id. at 31-33; Brief for New York at 6-8. According to this gloomy view, when a line is severed, shippers located on the segments adjacent to the abandoned section will suffer from the exercise of the carrier’s increased market power. Id. Although Illinois cites a specific instance of abandonment within its borders as an example of this phenomenon, the State fails to explain how, if at all, the abandonment led to an abuse of market power. The sole evidence adduced by Illinois is a difference in rates charged to shippers on the two segments of line that were severed by the abandonment. Brief for Illinois at 33. For starters, however, Illinois does not explain how the rate differential constituted an abuse of market power. Nor does Illinois demonstrate how the abandonment enabled the carrier to charge the differential; presumably, for reasons previously set forth, the carrier could have increased the rate charged the shippers on both segments of the line prior to the abandonment. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314-15 (although the acquisition of trackage rights under a class exemption may enable carriers to alter routes or raise rates on old routes under threat of abandonment, such behavior is not an “abuse of market power,” but rather reflects the economics of the marketplace.) Thus, the rationale informing the Commission’s “market power” determination appears sound; indeed, on remand the agency has more than adequately covered its tracks. In the absence of concrete evidence to the contrary, we are satisfied that the ICC’s treatment of the “abuse of market power” factor was neither arbitrary nor capricious. IV The final issue remanded to the ICC involved the protection of railroad employee interests. Section 10505(g) prohibits the Commission from exercising its exemption authority to relieve a carrier of its obligation to protect employee interests. 49 U.S.C. § 10505(g). Pursuant to this mandate, the ICC ordered the standard labor protections, adopted by the agency in Oregon Short Line R.R. — Abandonment—Goshen (OSL), 360 I.C.C. 91 (1979), applicable to carriers seeking to abandon lines under the auspices of the Commission-fashioned exemption. Observing that the OSL protections constituted only the requisite minimum, the court faulted the ICC for failing to clarify the appropriate procedures for seeking enhanced labor protection conditions. Illinois Commerce Comm’n, 787 F.2d at 636. Responding to the court’s directive, the Commission on remand established that the appropriate procedure by which labor organizations may seek higher levels of employee protection is a petition for partial revocation. Out of Service, 2 I.C.C.2d at 157. In the wake of the Commission’s ameliorative action, the attack on this point is now waged all alone by Simmons, who claims (for the second time) that protective conditions in abandonment proceedings must be implemented prior to consummation. Simmons contends that OSL requires preservation of the status quo until the necessary labor protections are embodied in an agreement. Brief for Illinois at 34-35. Simmons claims that reconsideration rather than revocation should have been the procedural vehicle embraced by the ICC. Id. at 35 n. 35. Although the Commission’s discussion fails expressly to address Simmons’ point, we nevertheless find nothing arbitrary or capricious in its action. Undoubtedly, we would have been edified by the agency’s views as to the proper interpretation of OSL. But in view of our express rejection of Simmons’ argument the last time around, see supra note 19, we cannot fault the Commission for failing to set forth its views in this particular. See Illinois Commerce Comm’n, 787 F.2d at 636 n. 157. As the old saying goes, enough is enough. What is more (than enough), the ICC provided a sensible explanation for its determination that post-abandonment revocation constitutes an adequate procedure to safeguard employee interests. The Commission pointed to the extremely limited number of abandonment cases under the statutory procedures in which labor interests had established a case of protections going beyond the OSL conditions. Out of Service, 2 I.C.C.2d at 157. The ICC further predicted that the labor-related effects of abandonment of “out of service” lines would be minimal, since few employees would likely be serving lines that had generated no local traffic for over two years. Id. Moreover, to the extent that the OSL conditions may prove inadequate, the Commission’s procedures expressly permit, as we have just seen, those conditions to be augmented as circumstances warrant. Id. Simmons says nothing that undermines the agency’s reasoning, nor does he indicate how the legitimate interests of employees are prejudiced by consideration of protection issues post abandonment (again, in view of the panoply of remedies afforded by the standard OSL conditions). In light of (1) the small number of cases in which labor protection conditions would likely require augmentation, (2) the limited universe of railroad employees involved, and (3) the absence of any showing of prejudice to labor interests, it was reasonable for the Commission to conclude that pre-consum-mation consideration of labor protection issues beyond the OSL conditions is unnecessary to protect employees’ interests. V. Having determined that the Commission has adequately addressed the concerns expressed in our previous opinion, we proceed to consider the arguments raised by Rails to Trails Conservancy (“RTC”) in its appeal from the Commission’s denial of RTC’s petition for reconsideration. RTC argues, first, that inadequate consideration was given to environmental consequences during the rulemaking itself, in violation of section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982). In its order denying reconsideration, the ICC rejected this contention, in part because the rulemaking would not result in more or less abandonments being granted, but instead would simply reduce regulatory burdens on abandonments that would occur in any event, and hence could have no environmental impact. The ICC’s reasoning here is unsatisfactory, for it is not at all apparent that a change in procedure alone will not affect the environment — the new procedure may, for example, lessen the opportunity for environmental groups to influence the agency’s final decision. The procedural nature of a regulation does not, therefore, exempt an agency from complying with NEPA and preparing an environmental assessment (“EA”) or an environmental impact statement (“EIS”) where appropriate. Contrary to RTC’s suggestion, however, we do not believe the Commission did, in fact, ignore environmental factors when it promulgated this regulation. In its first rulemaking (prior to remand), the Commission noted that track removal and dispositions of rights-of-way could affect the environment and correctly stated that its exemption authority did not extend to exempting transactions from relevant environmental laws. Thus the Commission required parties seeking exemptions to submit evidence on environmental issues. 49 C.F.R. § 1152.50(d)(4) (1985). The Commission also cautioned that individual exemption authorizations “may at times be conditioned upon compliance with environmental conditions.” Exemption of Out of Service Rail Lines, 366 I.C.C. 885, 890 (1983); Illinois Commerce Comm’n, 787 F.2d at 629 n. 89. Furthermore, subsequent to the rulemaking, in response to concerns raised by its own staff, the Council on Environmental Quality (“CEQ”), and RTC, the Commission has engrafted onto the abandonment regulations additional procedures to ensure compliance with NEPA and other environmental statutes at the individual abandonment stage. It is true, nevertheless, that the Commission was obligated by its own regulations and those of CEQ to prepare at least an EA prior to promulgating this regulation. But because the Commission did not ignore environmental consequences during the rule-making, and subsequently has developed procedures to focus on those consequences when individual abandonments are authorized, we decline to remand. An order to the Commission to prepare an EA or an EIS and engage in rulemaking for a third time would be a meaningless gesture, not necessary to guarantee that the Commission will consider environmental concerns when it authorizes abandonments. See Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.1965) (Friendly, J.) (remand for procedural error not necessary where it would accomplish nothing “save further expense and delay”). We turn next to RTC’s contention that the actual procedures established by the regulation will result in the violation of NEPA each time the Commission authorizes an exemption. Under the regulation as promulgated, a carrier seeking an exemption must file a notice with the appropriate state Public Service Agency ten days prior to filing with the Commission. The carrier’s application to the Commission itself must address environmental issues, and must be submitted fifty days before the date of abandonment. Within twenty days after receiving the application, the Commission publishes notice of abandonment in the Federal Register, and the exemption is effective thirty days later without any further Commission action. Under the regulation as originally promulgated, petitions to stay the exemption had to be filed within ten days of publication of notice in the Federal Register, and petitions to reconsider within twenty days. Those deadlines have since been modified by the Commission, as will be discussed below. RTC attacks this regulation on grounds that it impermissibly shifts to private parties the burden of raising environmental concerns, that it allows the Commission to authorize an abandonment without considering the effect of that action on the environment, that it sets such a high burden on an applicant for a stay or reconsideration that abandonments will go forward despite submission of valid objections, and that the short notification period does not provide a reasonable opportunity for public participation. RTC raises several powerful points, and if the regulation had not been modified at all in response to environmental concerns, the appropriate disposition of RTC’s petition would be a remand to the Commission. Nevertheless, a remand is no longer necessary, for in several subsequent orders the Commission has addressed RTC’s concerns by adding additional procedures and clarifying the burden that intervenors must meet to stay an abandonment proceeding. These subsequent orders, in addition to representations by. counsel for the Commission at oral argument, persuade us that the current procedural regime for authorizing abandonments is not facially inconsistent with NEPA and other environmental statutes. Nothing we decide here, however, affects the rights of these petitioners or any others to challenge the adequacy of the Commission’s procedures as applied to a particular abandonment. We agree with RTC that, under the regulation as originally promulgated, the Commission’s reliance on private parties to raise environmental concerns was unlawful. The Commission may not delegate to parties and intervenors its own responsibility to independently investigate and assess the environmental impact of the proposal before it. Harlem Valley Transp. Ass’n v. Stafford, 500 F.2d 328, 336 (2d Cir.1974); see also Steamboaters v. FERC, 759 F.2d 1382, 1394 (9th Cir.1985); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1118-19 (D.C.Cir.1971). In December 1987, however, the Commission instructed its Section of Energy and Environment to complete and make available to the public an environmental assessment within five days of publication of the exemption notice in the Federal Register. At oral argument, counsel for the Commission represented that this EA would be the product of independent staff investigation and evaluation of the abandonment proposal — not a pro forma reworking of the applicant’s assertions regarding environmental impact. RTC questions whether an adequate EA can possibly be prepared in the time allotted. We review the Commission’s judgment that its procedure satisfy NEPA for abuse of discretion. See Vermont Yankee Nuclear Power Corp. v. Nat’l Resources Defense Council, 435 U.S. 519, 554, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978); Kleppe v. Sierra Club, 427 U.S. 390, 412-14, 96 S.Ct. 2718, 2731-32, 49 L.Ed.2d 576 (1976). While the time for preparation of an EA is abbreviated, particularly if the proposed abandonment is extensive, see Scientists’ Inst. for Pub. Information, Inc. v. Atomic Energy Comm’n., 481 F.2d 1079, 1092 (D.C.Cir.1973) (NEPA statements will vary in length and complexity in relation to size of project being considered), we cannot say, in the context of this facial challenge, that the Commission has acted arbitrarily. Furthermore, if an abandonment application does present complex environmental problems, the Commission may on it own motion stay the exemption to allow an adequate EA or EIS to be prepared by its staff. RTC also contends Question: Did the court rule that domestic law (federal, state or local) should take precedence over foreign law in a case involving the conflict of laws (i.e., which laws or rules apply- foreign country vs federal, state, or local)? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_7_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). ROBERTS v. COMMISSIONER OF INTERNAL REVENUE. No. 5597. Circuit Court of Appeals, Fifth Circuit. Oct. 11, 1930. Levi O’Steen and J. C. Murphy, both of Atlanta, Ga. (D. J. Gantt and Sam L. Olive, both of Atlanta, Ga., on the brief), for petitioner; C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Shelby S. Faulkner, Sp. Atty. Bureau of Internal Revenue, both of Washington, D. C., G. A. Youngquist, Asst. Atty. Gen., and Helen R. Carloss and Sewall Key, Sp. Assts. to Atty. Gen. (Állin H. Pierce, Sp. Atty. Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent. Before BRYAN and FOSTER, Circuit Judges, and SIBLEY, District Judge. PER CURIAM. This is a petition to review a- decision of the Board of Tax Appeals which held petitioner liable for income taxes, during the years 1920 and 1921, on commissions received by him as compensation for services in collecting delinquent state and county taxes. Those services were rendered under contracts which petitioner had with the state tax commissioner of Georgia and boards of commissioners of several counties of Georgia. The contract with the state tax commissioner was authorized by act of the Legislature, Georgia Laws of 1919, page 55; and it will be assumed that the contracts. with the counties were also authorized by that act. Employment under each contract was subject to be terminated on short notice. Petitioner claims that his income was exempt from federal taxation under the Revenue Act of 1926, § 1211 (26 USCA § 1065-b) on the ground that he was an officer or employee of the state and political subdivisions thereof; hut, under the decisions of the Supreme Court in Metcalf v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384, and Lucas v. Howard, 280 U. S. 526, 50 S. Ct. 87, 74 L. Ed. 593, he must be held to have been an independent contractor, and not entitled to- claim exemption because of the nature of his services. The petition for review is denied. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_app_stid	36	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. HOENIG, County Treasurer, v. HUNTINGTON NAT. BANK OF COLUMBUS et al. No. 6001. Circuit Court of Appeals, Sixth Circuit. June 29, 1932. TUTTLE, District Judge, dissenting. Clarence D. Laylin, of Columbus, Ohio (Donald J. Hoskins, Eugene Carlin, and Robert J. Odell, all of Columbus, Ohio, on the brief), for appellant. John Weld Peck, of Cincinnati, Ohio, and J. M. Hengst, of Columbus, Ohio (Peck, Shaffer & Williams, of Cincinnati, Ohio, and James M. Hengst, of Columbus, Ohio, on the brief), for appellees. Before HICKS and HICKENLOOPER, Circuit Judges, and TUTTLE, District Judge. HICKENLOOPER, Circuit Judge. This cause presents for determination the question whether Rev. St. § 5219- as amended (12 USCA § 548) has been violated in respect of the assessment of local taxes upon the shares of stoek of three national banks in the city of Columbus, Ohio, for the years 1926 and 192,7. Such banks are instrumentalities of the federal government, and neither their assets nor the shares of their capital stoek may be subjected to property taxes except by and with the consent of the fefleral government. The applicable condition upon which this consent is given is printed in the margin. The District Court held this condition to- have been breached and issued a permanent injunction. 45 F.(2d) 213. The defendant appeals. The restriction .imposed upon the power of the státe to tax the shares of stock of a national bank is concerned only with that part of moneyed capital in the hands of individual citizens of the state which comes “into competition with the business of national banks.” Its main purpose is to prevent “an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking.” First National Bank v. Hartford, 273 U. S. 548, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1; First National Bank v. Anderson, 269 U. S. 341, 347, 348, 46 S. Ct. 135, 138, 70 L. Ed. 295; Des Moines National Bank v. Fairweather, 263 U. S. 103, 116, 44 S. Ct. 23, 68 L. Ed. 191; Mercantile Nat. Bank v. New York, 121 U. S. 138, 155, 7 S. Ct. 826, 30 L. Ed. 895. Obviously this discrimination may be practiced as well by applying unequal and discriminatory rules for the valuation of property (Des Moines National Bank v. Fairweather, supra.; Whitbeck v. Mercantile National Bank, 127 U. S. 193, 198, 8 S. Ct. 1121, 32 L. Ed. 118; Now York v. Weaver, 100 U. S. 539, 545, 25 L. Ed. 705), as by taxing tho shares of stock of national banks at higher rates than are applied to oilier moneyed capital, as in Minnesota v. First National Bank, 273 U. S. 561, 47 S. Ct. 468, 71 L. Ed. 774; First National Bank v. Anderson, supra, and other eases where the discrimination was the indirect outgrowth of a. general change in the system of taxation of the state from that of ad valorem taxes to one of an income tax; but before the tax upon the shares of stock of a national bank inay be held invalid it must appear1 not only that oilier moneyed capita,!, within the definition uniformly adopted by the 8 up ¡eme Court, is favored by a lighter burden of taxation than that imposed upon bank stock, but also that the manner in which such other moneyed capital is employed brings it into direct and substantial competition with the business of national banks. A. similarity of investment use must be shown, for it is from the manner of use that competition arises, if at all, in the sense intended. First National Bank v. Hartford, supra, 273 U. S. 557, 558, 47 S. Ct. 462, 71 L. Ed. 767, 59 A. L. R. 1. In the instant case, it is claimed that competition with national banks exists in tho manner in which building and loan associations lend money on mortgage and on collateral security, and receive deposits payable on demand, constructing and equipping their offices or counting rooms in semblance to those of banks; and in ilie manner in which mortgage companies and finance companies, organized under the Ohio law, loan money on mortgage of real estate, chattel mortgage, or collateral security, and discount or deal in commercial paper and installment contracts. In respect of building arid loan associations, it is said that discrimination exists in that tho owners of the stock of these associations are permitted to deduct their debts from tho face value of tho stock in returning it for taxation; in that the stock is not taxed at the source, and thus much of it is not returned by the owners and wholly escapes taxation; in that, if returned at all, it is returned at the owner’s domicile, and such domicile may be in a low tax rato district; and in that the accumulated surplus and undivided profits are not taxed at all. In respect of finance and mortgage companies, tho claim of discrimination is founded upon the fact that these companies are permitted to select corporate domiciles at tho time of incorporation, and that these teeh-nieal domiciles need not be, and frequently are not, where the company actually does business, but in districts having a very much lower tax rate; and upon the fact that, in making return upon their assets for taxation purposes, such companies are permitted to deduct the value of any nonlaxable securities they may hold (principally shown to be Liberty bonds). As to Building Associations: The tax laws of Ohio, in practically the same form as those with which we are here concerned, were held not to be discriminatory as against the owners of shares in national banks in First National Bank v. Chapman, 173 U.S. 205, 213, 19 S.Ct. 407, 43 L.Ed. 669. This case recognizes and reaffirms so much of the doctrine of Mercantile Nat. Bank v. Now York, supra, as holds that savings banks do not come into competition with national banks, and justifies the exemption of the moneyed capital in the possession of savings banks, including de^posits, upon the ground of a sound public policy to promote an accumulation of savings by the industrious and thrifty. Tho fundamental distinction between tho generally noncommercial purpose of the savings bank and the distinctly commercial character of national banks was recognized. In People of State of New York v. Commissioners, 4 Wall. 244, 18 L. Ed. 344, the same principle was applied in regard to insurance companies, which admittedly employ moneyed capital in much the same way as national banks, in the purchase of investments, in the making of loans upon collateral security or that of the reserve value of the policies of insurance, and upon mortgage of real estate-, and the like; and in Mercantile National Bank v. Hubbard (C. C.) 98 F. 465, tho identical doctrine war, applied to Ohio building associations by Air. Chief Justice Ta.£t, then Circuit Judge. Judge Taft there says (page 471 of 98 F.): “It seems to me that building associations are certainly not to be differentiated in their purpose or object, or practical effect, from, savings banks, and that the capital invested in them, though subject to a somewhat different rule of taxation, cannot bo regarded as moneyed capital in competition with the moneyed capital in national banks, any more than is capital invested in savings banks;” nor, we might add, from that invested in or possessed by insurance companies. This conclusion seems implicit in the very nature of the building association. The case was later affirmed by tlio Supreme Court. Sub nomine Lander v. Mercantile Nat. Bank, 186 U. S. 458, 22 S. Ct. 998, 46 L. Ed. 1247. It is insisted, however, that the present day building’ association is a very different type of institution from the “small, neighborhood, mutual associations of Judge Taft’s time,” and emphasis is laid upon the construction of offices in similitude to those of banks, the competition for deposits, the payment of deposits on demand, and the making of loans izpon collateral security. We do not think that the general nature of the business of building associations has so far changed as to make the law established by the above-cited eases inapplicable. Compare United States v. Cambridge Loan & Bldg. Co., 278 U. S. 55, 49 S. Ct. 39, 73 L. Ed. 180. The chief purpose of these institutions is still “to encourage the building of small houses by poor people, and the saving from their earnings, week by week, of an amount sufficient to pay the mortgage debts incurred in the purchase of the land and the construction of the house.” Mercantile National Bank v. Hubbard, supra (C. C.) 98 F. 465, 471. Practically all loans axe of the amortized type in which payment is spread over a period of from ten to twelve years. National banks perhaps might, but as a matter of fact do not, and in the interest of good banking should not, invest their funds generally in this manner. The two types of institutions have essentially different characteristics; the one is purely commercial in character, in which the assets must be kept liquid; the other is sui generis, noncommercial, and without a comparable need for liquid assets. The one is founded and conducted upon banking principles; the other was created in answer to a need which the banks could not and did not satisfy, and in furtherance of a wholesome public policy to promote building, especially the building of homes, and to develop the habit of thrift. It is quite true that national banks, subject to certain restrictions, are now permitted to loan money upon the security of real estate mortgages, and that the plaintiffs below had taken advantage of this privilege. It is also true that building associations have invested some of their funds in Liberty bonds, and, to a very limited extent, may have made a few investments of idle capital in collateral loans or so-called “straight” mortgages. But we cannot concede that even as to these investments the building associations axe in substantial competition with national banks, or that, as claimed by plaintiffs below, the mere facts that money is loaned by building associations upon promissory notes, at interest and to be repaid in money, and that national banks take the ownership of real estate into consideration in passing upon the credit standing of borrowers, necessarily bring the two classes of institutions into competition. In the broad economic sense this may be so> but it was equally so when People of State of New York v. Commissioners, Mercantile Nat. Bank v. New York, First National Bank of Wellington v. Chapman, and Mercantile National Bank v. Hubbard (Lander v. Mercantile Nat. Bank) were decided. In those eases the fundamental and substantial differences between commercial institutions, such as national banks, and institutions of the insurance company, savings bank, and building association types, were the real bases of the finding of want of competition; and our decision of the present issue is founded upon a recognition of these same differences. Compare, also, Georgetown National Bank v. McFarland, 273 U. S. 568, 47 S. Ct. 467, 7 L. Ed. 779. The scheme of taxation as it existed in Ohio in 1926 and 1927 (it has now been supplanted by an entirely different system) was fair to national banks and did not discriminate, in any broad conception of its application, in favor of other moneyed capital coming into direct competition with the business of such banks; and we do not think that a possible specific exception or two, in obvious departure from the accepted and general rule governing the business of the building association, should be held to nullify the clear intent of Congress, that national banks should bear their fair proportion of the tax burden, or to effect a virtual exemption of all national banks from taxation. Compare Amoskeag Savings Bank v. Purdy, 231 U. S. 373, 34 S. Ct. 114, 58 L. Ed. 274. We do not feel that the authority of the earlier cases above cited has been weakened by those later decisions invalidating taxes levied upon national banks, at different and actually higher rates than those imposed upon all other moneyed capital admittedly in competition with the banks; or that different rules have been adopted by the Supreme Court for determining what . constitutes substantial competition by the eases of First National Bank v. Anderson, supra; First National Bank v. Hartford, supra; Minnesota v. First National Bank, supra; and Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 52 S. Ct. 133, 76 L. Ed. 265. As to the alleged “competition for deposits,” it is evident from the universal expressions of opinion by the Supreme Court that competition, in the sense intended, is limited to the employment of moneyed capital “substantially as in the loan and investment features of banking.” Deposits constitute moneyed capital, but national banks aro not taxed upon their deposits any moro Iban aro savings banks and building associations; and we aw here primarily concerned only with what is done with such moneyed capital after it is secured, not with competition to obtain it. There is clearly no distinction in law between the competition for deposits as between national banks and savings banks, and the same competition as between national banks and building associations. Thus Mercantile Nat. Bank v. New York, supra, seems directly in point on this issue. As to Finance and Mortgage Companies: What we have said as to building associations applies with equal force, wo think, to finance and mortgage companies. These institutions were the outgrowth of a need created largely by installment selling and low credit rating of purchasers in the mercantile world; a need which could not be satisfied by national banks. The premiums exacted, arid the tremendous, though legally permissible, interest charges, discounts, etc., but relied; the attending risks and the element of nuisance in collection. No one who had sufficient credit to borrow from a. national bank would submit to the exorbitant charges imposed. On the other hand, a. national bank would not purchase installment contracts or’ under!¡ike the collection of the weekly or monthly payments upon an automobile, refrigerator, or set of furniture. Neither would a national bank lend upon second.mortgage of real estate or chattel mortgage of these now so-called necessities, nor extend credit to the ordinary purchaser who must buy on the installment plan. A national bank may, and doubtless often does, extend credit to a mercantile corporation upon security, in part at least, of these installment contracts or “automobile paper”; or a national bank may, and doubtless often does, lend money to the stronger finance and mortgage companies upon like security. But these investments, whether exceptional or usual, are not in competition but, in the latter ease, at least, in co-operation with the finance and investment companies. Competition requires a similarity in the nature of the transaction, and this is here lacking. The evidence discloses the fact that some of the mortgage companies are engaged almost exclusively in procuring mortgages of the better type which are then sold to insurance companies or other financial institutions. Others do this to a greater’ or less extent. In so doing we regard these mortgage companies as in a very true sense the agencies of such other institutions in making the loans, and if such institutions are not in competition with national banks, and certainly insurance companies are not, we do not regard this established practice whereby they secure their loan investments as being in such competition. Premiums, discounts, and higher interest charges also enter into these transactions, else there would bo no profit for the mortgage company. The same radical differences in nature and business practice exist as regards these mortgage and finance companies as was noticed in respect of building associations, and it is only by holding that anything which is a “loan,” and which takes the question of credit anywise into consideration, whether due to an established business, net worth, or the value of the collateral pledged, is necessarily a transaction in competition with national banks, which also make loans or advance money upon credit, that we can find the existence of competition. But were the moneyed capital of finance and mortgage companies properly regarded as in competition with national banks, it would still seem that no discrimination in taxation exists as against them. The discrimination urged by appellees is: (1) That these mortgage and finance companies are permitted to deduct the value of their holdings of Liberty bonds or other nontaxables in making returns for taxation; and (2) that they truly and do select their corporate domiciles in low tax rate districts. The decision in Des Moines National Bank v. Fairweather, 263 U. S. 303, 117, 44 S. Ct. 23, 68 L. Ed. 391, is sufficient answer to the first' contention, although, had the same distinction been applied to state banks, the law could not be upheld. Montana Nat. Bank v. Yellowstone County of Montana, 276 U. S. 499, 48 S. Ct. 331, 72 L. Ed. 673. The second contention made is more novel, and deserves special consideration. The statutes of Ohio governing the granting of charters to corporations for profit require that the articles of incorporation shall state “the place where it is to be located, or its principal business transacted.” General Code, § 8625. Where the corporation owns real estate in Ohio, the valuation of personal property to be taxed “shall be apportioned by the [county] auditor to such cities, villages, townships, or taxing districts, pro rata, in proportion to the value of the real estate and fixed property included in the return.” General Code § 5405-. But when no such real estate is owned, the place designated in the articles of incorporation as its location or principal place of business is regarded as its corporate domicile, and tax returns are to be filed there, regardless of the fact that business may be transacted elsewhere. State ex rel. v. Zangerle, 117 Ohio St. 436, 159 N. E. 823. While the practical operation of the statutes of Ohio, as construed by the highest court of that state, permits any domestic corporation to acquire a legal domicile for taxation purposes in a taxing district other than that of the location of its principal office, this right has been existent from the very earliest time. It was recognized by the Supreme Court of Ohio at least as early as- 1882 (Pelton v. Transportation Co., 37 Ohio St. 456), and is but a variation of the right of every individual to select his own domicile, or the right of incorporators to incorporate under the laws of any state. Rev. St. § 5219, as amended and before, restricts taxation of the shares of stock of a national bank to “the taxing district where the association is located and not elsewhere,” and thus makes that place the un-variable situs for taxation of national bank shares. Otherwise expressed, it may be said that this provision also creates a legal domicile of the shareholder for the taxation of his shares under the doctrine of mobilia sequ-untur personam. It is a-recognition of the right of the sovereign to lawfully provide for the creation of such domicile, and we think that the fact that tax! rates differ in different localities within the state must also have been known to Congress. When the above facts are taken into consideration, we think that the restrictions upon the right, of the state to tax national bank stock at a rate not greater than is assessed upon other moneyed capital in the hands of individual citizens can only be taken to apply to the rates assessed against both when lawfully domeiled in the same taxing district. So fax as we know, the point has never been raised or decided before, and the fact that the individual has always been allowed to select his own domicile, and the many years during which this right has been accorded to Ohio corporations, make the lack of adjudication of the point strongly persuasive of its lack of merit in the opinion of the bench and bar. The situation is omnipresent, at least as to individuals, in every state of the Union. We do not regard it as a discrimination within the intent of section 5219, as amended. Por the reasons above stated, we are of the opinion that the injunction restraining the collection of the taxes was improvidently issued, and the decree of the District Court is accordingly reversed, and the cause is remanded for further -proceedings consistent with this opinion. ■ - “In the case of a tax on said shares the tax imposed shall not he at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizfens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.” Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. GENERAL WAREHOUSEMEN AND HELPERS LOCAL 767, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Plaintiff-Appellant, v. STANDARD BRANDS, INC., Defendant-Appellee. GENERAL WAREHOUSEMEN AND HELPERS, LOCAL 767, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Plaintiffs-Appellants-Cross Appellees, v. STANDARD BRANDS, INC., Defendant-Appellee-Cross Appellant. Nos. 75-3797, 76-1579. United States Court of Appeals, Fifth Circuit. Oct. 11, 1977. Rehearing En Banc Granted Dec. 15, 1977. James L. Hicks, Jr., Dallas, Tex., for General Warehousemen and Helpers Local 767. William L. Keller, Allen Butler, William F. Carroll, Dallas, Tex., for Standard Brands, Inc. Before TUTTLE, WISDOM and COLEMAN, Circuit Judges. TUTTLE, Circuit Judge: This case requires us to sound the treacherous waters in which judicial power and NLRB authority overlap and sometimes conflict. Appellant, a Teamsters local, seeks to enforce an arbitration award in its favor. Ordinarily, such awards are readily enforced. But the district court held that this award conflicted with a prior NLRB decision and hence could not be ordered into effect. The Teamsters have appealed; Standard Brands, the employer, has cross-appealed, asserting additional bases for refusing to enforce the award. I. THE HISTORY OF THE CASE Our perception of this case is inescapably — and properly — influenced by the facts. Certain background points are not controversial. On October 3, 1975, Standard Brands permanently closed its Dallas margarine plant, which it had operated since as early as 1943. In the early 1970s, Standard had begun looking for a new plant site in the Dallas vicinity, and in 1973 it selected a tract of land in Denison, Texas — some 75 miles from Dallas. According to the arbitrator, the new plant went into operation in late October 1974 and formally opened on November 1, 1974. On the day the plant opened, the Teamsters, who represented the employees of the Dallas plant, filed a grievance which asserted that the operation of the new plant would result in the closing of the old one, and sought to protect the contractual rights of the Dallas employees in that event. The arbitrator did not reach a decision in the case until shortly after the company announced the closing of the Dallas plant, an event which surely influenced his view of the case. He concluded that the Company had discriminated against the Dallas employees because of their Teamsters Union-membership and activities. ... It was undisputed that the Company intended to operate Denison non-union, and it especially tried to operate it without the Teamsters Union and its contract. This conduct violated a non-discrimination clause of the Contract (Part I, Section 14(e)). In the arbitrator’s judgment, the company’s conduct also violated the Dallas employees’ right to reasonable notice and an opportunity to fill jobs at the Denison plant when their work was transferred there (Part I, Section 13(e) of the Contract), and failed to comport with the contractual recognition of the Teamsters as the Dallas bargaining agent (Part VIII, Section 1). These findings convinced the arbitrator of the necessity for a thoroughgoing remedy. His award had several features: (1) Dallas employees were ensured a right to transfer to certain jobs in Denison; (2) the transferees to Denison were given “super-seniority,” based on the first day of Denison operations rather than the first day of their work in the new plant; (3) the former Dallas workers’ “compensation and other benefits” at Denison would conform to the Dallas contract. This third element, the introduction of the Dallas contract terms to govern Denison work, was not to be permanent. The arbitrator believed that “the addition of these several manufacturing lines and newly transferred employees will materially alter the bargaining unit at Den-ison and . . . eventually the NLRB will have to determine the resulting questions concerning representation.” The Dallas contract would apply only until that time. Standard Brands discerns a conflict between this award and an NLRB certification of a different union, the International Association of Machinists, as the exclusive bargaining agent of the Denison employees. The IAM’s organizing campaign had begun as soon as the new plant opened. Within a short time, on December 6, 1974, the IAM was able to file an election petition with the NLRB. The Teamsters were permitted a limited form of intervention in the proceedings on this petition, but the Dallas employees were not allowed to vote in the Denison election. The IAM won the election by a vote of 19 to-4, and, on appeal, the NLRB confirmed the resulting certification of the IAM. In short order, the IAM and Standard Brands reached agreement on a contract of which the arbitrator wrote, “The wage rates in that agreement appear to be significantly lower than comparable rates in the Dallas Teamster agreement, although I make no absolute finding to that effect.” Although the Teamsters later sought to reopen the representational proceedings on the basis of the arbitrator’s findings and award, the NLRB rejected this motion. The district court concluded that the award did conflict with the NLRB certification, and therefore could not be enforced. The court’s first action was to deny the union a preliminary injunction enforcing the award. At that time, it was the court s understanding that the company had agreed to comply with all portions of the award except the provision applying the Dallas contract at Denison. Similarly, the district court’s final conclusions of law discuss only the impropriety of the arbitrator’s attempt to specify wages and working conditions at the Denison plant. It had become clear, however, at the subsequent hearing on the union’s request for a permanent injunction, that the company was also resisting enforcement of the “superseniority” aspect of the award. Moreover, although the company did offer to let Dallas employees transfer to Denison, it did not offer to pay them according to the Dallas contract. Since the arbitrator’s award in effect required the latter, more generous offer, the transfer issue was unresolved as well. The district judge suggested at the permanent injunction hearing that the seniority and transfer issues would only become pressing if our Court reversed on the question of wages. We conclude that all of these elements of the award are still before us. II. THE COURTS AND THE NLRB: CONFLICT OR OVERLAP The district court refused to enforce the arbitrator’s award on the theory that it conflicted with an NLRB certification. The NLRB, however, had not and still has not declared enforcement of the award to be an unfair labor practice. Thus, the district court of necessity reached its own conclusion about the significance of the certification of the I AM. The principal constraint against such judicial interpretation of the Board’s actions is the well-established principle that the Board is the authority primarily responsible for the administration of the National Labor Relations Act. In its broadest terms, this requirement has been seen as precluding original judicial proceedings wherever the conduct under scrutiny is arguably prohibited or permitted by the NLRA. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). This principle, of course, does not mean that the NLRB defines the entire system of law regulating labor relations. Labor relations are commonly also governed by a contract or collective bargaining agreement, and enforcement of these agreements can be carried out by the federal courts under § 301 of the NLRA, 29 U.S.C.A. § 185(a). In particular, courts have the authority to enforce awards entered in contractual arbitration proceedings, even when the conduct under scrutiny could also be the subject of an unfair labor practice charge before the National Labor Relations Board. See Smith v. Evening News Association, 371 U.S. 195, 197-98, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95,101 n. 9, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). The Supreme Court has given its imprimatur to judicial action under section 301 even in the context of an inter-union “jurisdictional” dispute, which — like the present case — perhaps involved the issue of which union should represent a workforce, Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). So long as the courts exercise this broad power under section 301, they may be asked to enforce arbitration decisions, presumably justified as far as the parties’ contract is concerned, which violate the National Labor Relations Act. It is clear that a court will not enforce an arbitral decision that conflicts with an NLRB decision. See Carey, supra, at 272, 84 S.Ct. 401; New Orleans Typographical Union v. NLRB, 368 F.2d 755, 767 (5th Cir. 1966). Similarly, courts have declared that a conflict between the promises of a contract and the demands of a statute would preclude ordering arbitration under the contract or enforcement of an arbitration award. See United Steelworkers v. United States Gypsum Co., 492 F.2d 713, 734 (5th Cir. 1974) (claimed violation of 29 U.S.C. § 186(a)); Associated Milk Dealers, Inc. v. Milk Drivers Local 753, 422 F.2d 546, 553 (7th Cir. 1970) (arbitration would not be ordered if clause to be interpreted by arbitrator violated antitrust laws); Nursing Home Union Local 1115 v. Hialeah Convalescent Home, 348 F.Supp. 405, 411 (S.D.Fla.1972) (inescapable conflict with national wage-price control policy would be bar to arbitration). Cf. Todd Shipyards Corp. v. Marine Workers Local 39, 344 F.2d 107 (2d Cir. 1965) (finding § 301 jurisdiction over employer’s suit for declaratory judgment that contract clause violated NLRA, and for injunction against arbitration; injunction denied). In the case before us, however, there is no facial, indisputable conflict between the arbitrator’s award and NLRB action. The NLRB has certified the IAM as the representative of the Denison employees. The arbitrator’s award manifests his effort not to create a conflict with this certification. He commented that “The representational egg [at the Denison plant] has been scrambled . . . and it is not my province to unscramble it.” (R. 257). Moreover, his provision for compensation and other benefits in accordance with the Dallas contract expressly was to run only until the NLRB dealt with the representational issues generated by his award. Moreover, the arbitrator’s decision has passed one test before the NLRB. Standard Brands, in partial compliance with the award, permitted one Dallas employee to transfer to Denison with “superseniority.” On January 20, 1976, the IAM filed an unfair labor practice charge with the NLRB because one of the Denison employees had been “bumped” by this Dallas transferee. The Teamsters intervened. The Machinists, in part to avoid giving the Teamsters yet another opportunity to attack the Machinists’ certification, sought to withdraw the charge. The NLRB Division of Advice concluded that the Machinists should be permitted to withdraw the charge. One basis for the Division of Advice’s reaction was the Machinists’ desire to drop the matter. But the Division also commented that “the Employer’s actions in transferring a Dallas employee to Dennison [sic] and applying Dallas seniority to him were considered to have been in compliance with, and, therefore, privileged by the arbitration award. . [I]t cannot be said that this arbitral award, as modified, unlawfully interferes with the Section 9(a) rights of the Machinists in Den-nison.” Standard Brands, Inc., 1976-77 CCH NLRB 120,020 at p. 32,030. The same NLRB memorandum, however, appears to question the propriety of the award’s extension of Dallas contract terms to Denison. The memorandum only approved of the award “as modified” — an apparent reference to the decision by the district court not to enforce the application of the Teamster contract at Denison. Moreover, the Division commented that “If the Circuit Court is being asked by the Teamsters to apply other provisions of the Teamster contract to the Dennison employees so that the Machinists’ certification rights would be undermined, the Machinists may wish to seek Board intervention. Such a request would be forwarded to the Division of Litigation.” Id. at n. 8. Had the Board appeared in our case, its views would have received careful consideration. In Boire v. International Brotherhood of Teamsters, 479 F.2d 778 (5th Cir. 1973), we affirmed the grant of an NLRB request for a temporary injunction against any union efforts to secure compliance with an arbitrator’s award. We indicated there that such requests should be granted so long as the legal theories advanced to demonstrate the presence of unfair labor practices are not insubstantial or frivolous. Id. at 792. But in Boire the party seeking the injunction was the NLRB itself. Unfair labor practice charges (and a unit clarification proceedings dealing with the same dispute) were already before the Board, and its petition for an injunction was based on a statutory provision, 29 U.S.C. § 160(1), which enables the NLRB to seek preservation of the status quo while its evaluation of a case is in progress. Boire, supra, at 784. It is one thing for a court to refuse to enforce an arbitration award when the NLRB protests that enforcement would impair Board processes. It is another to “protect” the Board’s processes when no unfair labor practice charge is presently pending and no request for a stay of enforcement has been heard from the Board. In the posture of our case, we believe that we should not readily withhold enforcement of an arbitrator’s award. To do otherwise would require us to interpret the National Labor Relations Act, a task which ordinarily is best left to the NLRB. We might also further complicate the process by which this case may finally be resolved. If we enforce the award, its inconsistency with the Act can readily be tested in unfair labor practice proceedings. If we do not enforce it, however, the Teamsters cannot obtain relief by demonstrating to the Board that the company, by failing to comply with the award, is in violation of its contract— for violations of contracts are not necessarily unfair labor practices, and, if not, are not within the Board’s purview. United Steelworkers v. American Int’l Aluminum Corp., 334 F.2d 147, 152 (5th Cir. 1964), cert. denied, 379 U.S. 991, 85 S.Ct. 702, 13 L.Ed.2d 611 (1965). Most of the original actions for which the union sought relief in the arbitration could have been categorized as unfair labor practices — but the six month statute of limitations on unfair labor practice charges, 29 U.S.C. § 160(b) has presumably already run on them. III. THE PROPRIETY OF THE AWARD IN THIS CASE In light of our understanding of the limited judicial role in lawsuits of this sort, we turn to the award in this case. Two portions of this award are apparently most controversial. The first is the provision for transfer with superseniority; the second is the application of the Dallas compensation and other benefits to Denison work. It seems clear to'us, however, that we cannot refuse enforcement of the superseniority portion of the award. The Division of Advice, after all, has already indicated that the grant of superseniority may not be an unfair labor practice at all. Perhaps there is a critical distinction between the superseniority decision and the use of the Dallas contract to fix Denison compensation. But it can hardly be contended that the superseniority provision is altogether free of impact on the Denison workforce, and thus not at all in tension with the IAM certification. Unions bargain over seniority provisions; they seek, naturally, to maximize the job security and work privileges of those they represent. This goal is frustrated if another group of employees can obtain preferred status. See generally In re Arbitration Between UAW Local 259 and Kellogg Pontiac Sales Corp., 392 F.Supp. 1044 (S.D.N.Y.1975) (refusing to enforce arbitral award which would have granted substantial number of employees right to transfer to new work location pursuant to union’s contract, since award conflicted with NLRB decision that contract did not apply to new location, and with election in which union was defeated). Still, it is evident that the wages provision of the award is at least an additional interference with the exclusive role in bargaining over the terms of Denison employment which the IAM ordinarily would exercise. An influx of Dallas Teamsters, paid at higher rates than their Denison counterparts, surely would cause jealousy and conceivably could undermine the IAM’s support. The IAM also might encounter problems in the next round of negotiations, when the inequality in wages might have to be resolved one way or another. See generally McGuire v. Humble Oil & Refining Co., 355 F.2d 352, 357 (2d Cir. 1965). The district court suggested that the arbitrator could have validly ordered the company to pay damages to the Dallas employees. Such a remedy often would be a happy choice. A lump sum award could, for example, compensate the Dallas employees for the breach of their contract, while leaving intact the terms of the agreement governing Denison. We have approved the payment of damages, based on the breach of an expired contract and awarded in an arbitration conducted at the instance of a decertified union. United Steel Workers v. United States Gypsum Co., 492 F.2d 713 (5th Cir. 1974). See also United States Gypsum Co. v. United Steel Workers, 384 F.2d 38 (5th Cir. 1967), cert. denied, 389 U.S. 1042, 88 S.Ct. 783, 19 L.Ed.2d 832 (1968). The Second Circuit has also intimated that it could approve a damage award despite an NLRB decision precluding other relief. Luckenbach Overseas Corp. v. Curran, 398 F.2d 403, 405-06 (1968); see In re Arbitration Between UAW Local 259 and Kellogg Pontiac Sales Corp., 392 F.Supp. 1044,1050-51 (S.D.N.Y.1975) (enforcing damages portion of award. The Ninth Circuit reached a somewhat similar conclusion in IBEW Local 1547 v. Teamsters Local 959, 507 F.2d 872, 878-79 (9th Cir. 1974). Admittedly, the propriety of a damage award is not clearly established. Some doubt might be cast upon it by Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). Carey upheld the propriety of resort to arbitration to settle a work-assignment or jurisdictional dispute. But Justice Douglas, writing for the Court, observed in dictum that: “Should the Board disagree with the arbiter, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board’s ruling would, of course, take precedence; and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301.” Id. at 272, 84 S.Ct. at 409. Certain subsequent cases have followed the apparent implication of Carey, and refused to enforce damage awards where the NLRB had decided the underlying work-assignment dispute. See Ironworkers Local 395 v. Lake County, Indiana Council of the United Brotherhood of Carpenters, 347 F.Supp. 1377 (N.D.Ind.1972); Dock Loaders Local 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D.La.1968). These cases, however, dealt with situations where the employer could not comply with the arbitrator’s assignment of work without violating a specific construction of the National Labor Relations Act by the NLRB. Here, no such square conflict has been demonstrated. Thus, even if employers can escape damage liability when their contractual obligations conflict with statutory duties, a damage award in our case would still be enforceable. Here, to be sure, the arbitrator awarded wages and other benefits, rather than simply damages. But the distinction between the two in this case could be as much form as substance. At the time that the arbitrator issued his decision, the Dallas plant was still open. Thus, no damages had been suffered. The potential for damages would arise only if the Dallas employees were denied work in Denison, or were paid less for it than they would have received in Dallas. If their pay was less, the measure of damages for the period of their employment at Denison would be the difference in their wage scales. The arbitrator could have ordered the payment of a lump sum at some time in the future, or the payment at once of an estimate of what that lump sum would be. Instead, he attempted to avoid the need for a damage award by ordering the payment of Dallas wages and compensation. The precise effect of this order is to make the employees whole for any losses they would have suffered. We believe it can fairly be argued, therefore, that if transfer and superseniority are proper, and damages are appropriate as well, then the arbitrator’s order of wages and other benefits for the transferees in accordance with the Dallas contract also can be squared with the Board’s views. The arbitrator’s award, then, avoids a clear conflict with the NLRB if it is viewed as essentially a make-whole award. We therefore reject the district court’s conclusion that the possibility of interference with the NLRB certification precludes enforcement of the award. IV. REMAND We remand the case to the district court, however, for its consideration of the scope of the arbitrator’s award. Standard Brands has criticized the award for failing to define the “compensation and other benefits” which it accords to the transferring Dallas employees. While we feel that this phrase could readily be interpreted as encompassing wages and monetary fringe benefits, we believe this issue should be addressed first by the district court. If the arbitrator’s intent remains unclear, a remand to the arbitrator for clarification would then be proper. San Antonio Newspaper Guild Local 25 v. San Antonio Light Division, 481 F.2d 821, 825 (5th Cir. 1973). A more important ambiguity in the award is its failure to make clear how long the transferring employees are to be paid in accordance with Dallas standards. The award merely says that Dallas standards will apply until the NLRB, resolves the questions concerning representation posed by the award. Whether such representational questions would be created by enforcement of the award is not clear. Even if such questions arise, and are resolved in the IAM’s favor, the arbitrator’s authority to award a make-whole remedy might well be intact. Thus, the minimum and maximum periods of this awards effectiveness are not evident, at least at this stage of the proceedings. We remand to the district court for it to determine, if possible, the reach of this award, and to granting enforcement only that part of the award which falls within proper limits. While those limits are cloudy, we can observe that we would have difficulty enforcing an award which imposed foreign contract terms on another plant for an indefinite period. On the other hand, we would view an award which made whole the Dallas employees for losses suffered over the term of their contract as entirely proper. V. CONCLUSION In rejecting Standard Brand’s contention that the award by the arbitrator conflicts with the IAM certification, we, of course, do not mean to constrain the NLRB to reach the same conclusion. But it is our primary duty to provide contractual relief, and the contours of that relief, are normally shaped by arbitrators. This award is not, in our view, squarely in conflict with the IAM’s certification. It provides a remedy for a serious breach of contract, and our respect for the integrity of the IAM certification does not justify refusing enforcement. The case is remanded to the district court for further proceedings not inconsistent with this opinion. . The arbitrator’s award can be read to apply the Dallas contract terms even to Denison employees who never worked at Dallas, but who perform work once carried out there. If the arbitrator meant to order any such changes in the terms of non-Dallas employees’ work, the Teamsters have not sought to enforce this aspect of his award. . There is some suggestion in the arbitrator’s decision that he meant to order the company to begin production in the Denison plant of certain types of margarine, similar to margarine formerly máde in Dallas. The parties do not discuss the propriety of such an order, and we do not consider it. . The union appealed the denial of the preliminary injunction, in No. 75-3796, but concedes that this appeal is now moot. . Standard Brands contends that the arbitrator’s award is itself now moot. The arbitrator expressly indicated that his award of Dallas compensation and other benefits would be effective only until the NLRB dealt with the representational issues generated by his award, and, in Standard Brands’ view, the NLRB resolved these questions by adhering to its certification of the IAM even after the arbitrator’s opinion had been submitted for its consideration. But the Teamsters correctly point out that the arbitrator contemplated a resolution of representational questions which would arise after compliance with this award. Since compliance with the award has not yet been obtained, mootness is also absent. . Standard Brands contends that the dispute before us properly falls within the exclusive or primary jurisdiction of the NLRB. We reject this contention. While there may be section 301 cases where courts should refrain from taking jurisdiction, see Smith v. Evening News Association, supra 371 U.S. at 197-98, 83 S.Ct. 267; cf. United Steelworkers v. American Int’1 Aluminum Corp., 334 F.2d 147, 153 (5th Cir. 1964), cert. denied, 379 U.S. 991, 85 S.Ct. 702, 13 L.Ed.2d 611 (1965), we believe that respect for the NLRB’s primary responsibility compels, rather than precludes, decision of this case. . The NLRB has also obtained injunctions barring arbitration under 29 U.S.C. § 160(i), which directs the Board to seek injunctive relief where it has reasonable cause to believe there is a violation of, inter alia, the “hot cargo” provisions of the NLRA. See Danielson v. International Org. of Masters, Mates & Pilots, 521 F.2d 747 (2d Cir. 1975). As in Boire, as in Danielson, here the NLRB was directly involved in, and adjudicating the merits of a controversy. The Board also sometimes intervenes in lawsuits which originally were contested only by private parties. See, e. g., Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1, 6 (7th Cir. 1969); Teamsters Local 542 v. Ace Enterprises, Inc., 332 F.Supp. 36, 38-39 (S.D.Cal.1971). See also Central Motor Express, Inc. v. General Drivers Local 89, 407 F.Supp. 1217 (W.D.Ky. 1975) (postponing enforcement of arbitration award in case NLRB might intervene). In these cases, as in other instances of direct NLRB involvement, the courts are left in no doubt as to the degree and direction of the NLRB’s concerns. . In taking this stance, we recognize the apparent inconsistency between our approach and that of the Seventh Circuit in Local 7-210, Oil, Chemical & Atomic Workers v. Union Tank Car Co., 475 F.2d 194 (7th Cir. 1973), cert. denied, 414 U.S. 875, 94 S.Ct. 68, 38 L.Ed.2d 120 (1973). In that case, an arbitrator had ordered Union Tank Car Company to apply its agreement with the OCAW to certain operations once performed by the OCAW but subsequently transferred to a plant covered by a contract with another union, the Boilermakers. The court denied enforcement. The court felt, and the OCAW conceded, that an NLRB decision certifying the Boilermakers as exclusive bargaining representatives precluded application of the OCAW contract at the new plant. But the court also declined to enforce the arbitrator’s order that the company make the OCAW-represented employees whole for any lost wages or monetary fringe benefits. Apparently the only contract violation which the arbitrators sought to remedy was the failure to apply the OCAW contract to the new operations and the court viewed this violation as immunized by the NLRB decision. Whatever the philosophical differences between Local 7-210 and the view we have taken here, the results in that case and our own are not necessarily in conflict. The arbitrator in our case was careful not to seek to impose the entire Dallas contract at Denison, and found a range of contract violations by Standard Brands quite apart from the failure to apply the Dallas contract. Standard Brands contends that Sperry Systems Mgmt. Div. v. NLRB, 492 F.2d 63 (2d Cir. 1974), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1976), is also opposed to the result we reach here. In Sperry, a union representing a New York unit sought to apply its entire contract, with the exception of the provision for union recognition, to employees in California. The union won an arbitration decision to that effect, but the company asserted that efforts to enforce that decision constituted an unfair labor practice, and the Second Circuit agreed, vacating an NLRB dismissal of the employer’s charge. The union had already lost a representation election in California, and the Sperry court concluded that the union’s efforts to enforce the award amounted to a sub rosa attempt to gain the recognition as bargaining agent which the election defeat precluded. The court also declared that the union had no right to- bargain over the terms of employment in California. But it expressly recognized that the union could properly have bargained on this subject if the terms of California employment vitally affected employment in New York. In no respect is Sperry Systems inconsistent with the result we reach. The union here has foresworn any attack on the IAM’s certification. Moreover, the consequences of shifting operations from one plant to another obviously do vitally affect the employees of either plant, and bargaining over such a subject seems entirely proper. Indeed, the Teamsters have pointed out, without contradiction, that contractual provisions speaking to such reloca-tions have become very common in American labor relations. . Standard Brands directs a volley of other arguments against the validity of the arbitrator’s award. We simply cannot accept, however, Standard Brand’s contention that the award does not draw its essence from the collective bargaining agreement. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). As the Supreme Court observed in Enterprise, id., the arbitrator’s informed judgment is particularly important in the formulation of remedies. Nor does the award exceed the scope of the grievance submitted to the arbitrator, for the rather loosely worded grievance neither specified nor restricted the types of relief with which it was concerned. Moreover, this Court has suggested that such disputes over the scope of a submission are themselves to be resolved by the arbitrator. United Steel Workers v. United States Gypsum Co., 492 F.2d 713, 732 (5th Cir. 1974), citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 555-59, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). We reject as well the company’s assertion that the award is void for failure to join an indispensable party, the International Association of Machinists. Cf. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964) (ordering arbitration despite possible absence of one of the disputing unions). The arbitration took place under the Teamsters contract and adjudicated rights between the Teamsters and the company. If the IAM’s interests have been seriously damaged, the damage is not irreparable: it can seek relief before the National Labor Relations Board. . Though the award may be ambiguous, we emphasize that it is not by its own terms moot. See note 4 supra. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. James E. THRELKELD, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Nos. 87-1511, 87-1592. United States Court of Appeals, Sixth Circuit. Argued April 25, 1988. Decided June 1, 1988. Gary R. Allen and Michael Paup, Chief Appellate Section, Tax Div. Dept, of Justice, Bruce R. Ellisen (argued), Michael C. Durney, Ann Dumey, William F. Nelson, Chief Counsel, I.R.S., Washington, D.C., for respondent-appellant. G. Keith Rogers, Jr. (argued), James E. Threlkeld, Threlkeld, Howard, McPherson & Rogers and Walt, Dyer & James, Memphis, Tenn., for petitioner-appellee. Before MERRITT and KENNEDY, Circuit Judges, and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. The Commissioner of Internal Revenue (Commissioner) appeals from the February 25, 1987 and March 20, 1987 decisions of the United States Tax Court. For the following reasons, we affirm the Tax Court’s judgments. I. On May 10, 1979, taxpayer James Threl-keld filed a diversity action against J.B. Williams in the United States District Court for the Western District of Tennessee, alleging malicious prosecution. Williams had contracted to purchase some real estate from taxpayer and another, and then initiated and subsequently lost chancery court proceedings in an attempt to rescind the contract. In his complaint, Threlkeld alleged that Williams “instituted, continued, and prosecuted his claims” in the chancery suit “without probable cause and with malice.” Taxpayer also alleged that Williams’ actions in bringing the chancery court suit caused various injuries described as follows: Plaintiff was subjected to indignity, humiliation, inconvenience, and pain and distress of mind, was prevented from attending to his usual professional pursuits, incurred expenses and costs in defending defendant’s claims in and pertaining to the chancery suit, suffered injury to his professional reputation, and suffered injury to his credit reputation. Additionally, taxpayer filed two other suits against Williams and others which alleged that certain fraudulent conveyances of properly were made in an effort to insulate those properties from taxpayer’s original chancery court judgment. On December 8, 1980, Threlkeld settled his malicious prosecution suit. Taxpayer agreed to release all other pending claims and to assign the original chancery court judgment. In consideration of settlement of his claims, taxpayer received $300,000 allocated as follows: $75,000 For the release of taxpayer’s claims against J.B. Williams asserted in the malicious prosecution action for damage to his professional reputation. $75,000 For the release of taxpayer’s claims against J.B. Williams asserted in the malicious prosecution action for damage to his credit reputation. $74,980 For the release of taxpayer’s claims against J.B. Williams asserted in the malicious prosecution action for indignity, humiliation, inconvenience, and pain and distress of mind. $20 For the release of taxpayer’s claims against J.B. Williams and others asserted in the fraudulent conveyance actions. $75,000 For the assignment of the judgment by taxpayer. Threlkeld received $86,000 of the total settlement in 1980 and $214,000 in 1981. $21,500 of the amount received in 1980 and $53,500 of the amount received in 1981 represented settlement for damages to taxpayer’s professional reputation. Threlkeld excluded most of the settlement from gross income on his 1980 tax return. The Commissioner assessed a deficiency, and taxpayer petitioned the Tax Court seeking a redetermination of the deficiency. The Commissioner subsequently conceded that all of the amount at issue except the $21,500 attributable to damages for injury to taxpayer’s professional reputation was excludable under I.R.C. § 104(a)(2) which excludes from gross income “the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness.” Therefore, the only issue before the Tax Court was whether the $21,500 attributable to damages for injury to taxpayer's professional reputation was likewise excludable. Threlkeld followed the same procedure when filing his 1981 tax return. Again, the Commissioner assessed a deficiency, and taxpayer petitioned the Tax Court seeking a redetermination of the deficiency. The parties agreed to be bound by the Tax Court’s decision regarding taxpayer’s 1980 tax return. On December 8,1986, the Tax Court with one judge dissenting filed an opinion which held that there is no valid distinction between damages received for injury to personal reputation and those received for injury to professional or business reputation for the purposes of section 104(a)(2). The Tax Court further held that damages received in settlement of a claim for malicious prosecution of a civil proceeding under Tennessee law are damages received on account of personal injuries. Thereafter, on February 25, 1987, the Tax Court filed a decision which stated that pursuant to its opinion filed on December 8, 1986, there was a deficiency in income tax due from taxpayer for the 1980 taxable year in the amount of $2,032.39. Subsequently, on March 20, 1987, the Tax Court filed a decision which stated that pursuant to its opinion filed on December 8, 1986, there was no deficiency in income tax due from taxpayer for the 1981 taxable year. The Commissioner filed timely appeals from each of these decisions, and the cases were consolidated by this court. We must decide whether the Tax Court erred in holding that that portion of a settlement which was allocated to injury to taxpayer’s professional reputation constitutes damages received on account of personal injuries, and is, therefore, excludable from gross income under section 104(a)(2). ii. This ease involves an appeal from decisions of the United States Tax Court. The United States Courts of Appeals have exclusive jurisdiction to review the decisions of the Tax Court, except as provided in 28 U.S.C. § 1254, in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury. I.R.C. § 7482(a). Whether the Tax Court properly refused to draw a distinction between personal reputation and professional reputation for the purposes of I.R.C. § 104(a)(2) is a question of law subject to de novo review. Roemer v. Commissioner, 716 F.2d 693, 696 (9th Cir.1983). The Internal Revenue Code of 1954 is applicable to the instant case. Section 61(a) states that except as otherwise provided, gross income means all income from whatever source derived. I.R.C. § 61. Section 104(a)(2) provides an exception from gross income for “the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness.” The regulations specify that “[t]he term ‘damages received (whether by suit or agreement)' means an amount received (other than workmen’s compensation) through prosecution of a legal suit or action based upon a tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution.” 26 C.F.R. § 1.104-1(c). In reaching its holding that there is no valid distinction between damages received for injury to personal reputation and those received for injury to professional or business reputation for purposes of section 104(a)(2), the Tax Court relied primarily on the Ninth Circuit’s opinion in Roemer. In Roemer, the dispositive issue on appeal was whether the defamation of an individual constituted a personal injury for the purposes of section 104(a)(2). Roemer, 716 F.2d at 694. Since the defamation of an individual is a personal injury under California law, the compensatory damages received by Roemer in his defamation suit were excludable from gross income under section 104(a)(2) as would be the compensatory damages received on account of any personal injury. Id. at 700. The Ninth Circuit allowed the exclusion even though in his complaint for libel Roemer had alleged “that the defendant’s defamatory publication was done ‘with intent to damage his reputation, and to injure him in his business profession and occupation.’ ” Id. at 695. In reaching this conclusion, the court noted that the nonpersonal consequences of a personal injury, such as a loss of future income, are often the most persuasive means of proving the extent of the injury that was suffered, and that the personal nature of an injury should not be defined by its effect. Id. at 699. The Third Circuit has recently adopted the reasoning in Roemer in Bent v. Commissioner, 835 F.2d 67 (3d Cir.1987). In Bent, a former school teacher had sued his board of education following his discharge. The question was whether the amount received by Bent in settlement of his state law claim for damages for violation of his first amendment right of free speech constituted taxable income. Id. at 69. Relying on the Ninth Circuit's opinion in Roemer, the Third Circuit held that the Tax Court did not err in deciding that the whole of the damages received by the taxpayer was compensation for personal injuries and, as such, was excludable from gross income. Id. at 70. See also Metzger v. Commissioner, 845 F.2d 1013 (3d Cir. 1988), aff'g 88 T.C. 834 (1987) (affirming without opinion a Tax Court decision which followed the holding in Bent and extended it to cover the settlement of claims brought pursuant to 42 U.S.C. §§ 1981, 1982, 1985(3), 1986, 2000e-5, and state discrimination laws). This court’s order in Wolfson v. Commissioner, 651 F.2d 1228 (6th Cir.1981) is distinguishable. In Wolfson, we affirmed the Tax Court’s determination that the payment Wolfson received in settlement of a state court action was includable in gross income because it was intended to compensate him for lost earnings, and was not a nontaxable form of compensation for personal injury to his personal reputation. Wolfson had not argued in the Tax Court that damages for an injury to professional reputation are excludable from gross income, and that question was expressly left open by the Tax Court. Accordingly, we address this question for the first time today. We note that in Revenue Ruling 85-143 the Commissioner has announced that it will not follow the Ninth Circuit’s decision in Roemer. A Revenue Ruling, however, is not entitled to the deference accorded a statute or a Treasury Regulation. Brook, Inc. v. Commissioner, 799 F.2d 833, 836 n. 4 (2d Cir.1986). Courts may disregard a Revenue Ruling if it conflicts with the statute it supposedly interprets or with that statute’s legislative history or if it is otherwise unreasonable. Id. In our opinion, Revenue Ruling 85-143 makes an unreasonable distinction between injury to personal reputation and injury to professional reputation. Therefore, we refuse to follow it. Instead, we adopt the reasoning of the Third and the Ninth Circuits. Since malicious prosecution is a cause of action which allows recovery for both personal injuries and injuries to property interests, see 54 C.J.S. Malicious Prosecution § 1 (1948), we must look to the nature of the underlying injury to determine excludability under section 104(a)(2). In the instant case, the Commissioner has conceded that that portion of the taxpayer’s settlement which constitutes settlement for damage to his personal reputation is excludable from income under section 104(a)(2). The only issue before this court is whether that portion of the taxpayer’s settlement for damages to his professional reputation is likewise excludable. We agree with the Ninth and the Third Circuits that the nonpersonal consequences of a personal injury, such as a loss of future income are often the most persuasive means of proving the extent of the injury that was suffered, and that the personal nature of an injury should not be defined by its effect. Injury to a person’s hand or arm is a personal injury. This is so even though it may affect a person’s professional pursuits. All income in compensation of that injury is excludable under section 104(a)(2). Similarly, the' injury to taxpayer’s reputation in this case was a personal injury. This is so even though it affected his professional pursuits. All income in compensation of that injury is ex-cludable under section 104(a)(2). Accordingly, we AFFIRM the Tax Court’s judgments. . It is unclear how the Tax Court arrived at this deficiency since the Tax Court opinion is in favor of the taxpayer. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_state	23	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Harry B. HELMSLEY, Plantiff-Appellant, v. CITY OF DETROIT, MICHIGAN, a Municipal Corporation of the State of Michigan, Defendant-Appellee. No. 15134. United States Court of Appeals Sixth Circuit. July 25, 1963. Henry J. Freud, Detroit, Mich. (James P. Mattimoe, Detroit, Mich., on the brief), for appellant. Julius C. Pliskow, Detroit, Mich. (Robert Reese, Corp. Counsel, Vance G. In-galls, Irving S. Wolfe, Nick Sacorafas, Assts. Corp. Counsel, City of Detroit, Detroit, Mich., on the brief), for appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. CECIL, Chief Judge. This is an appeal from a judgment of the United States District Court for the Eastern District of Michigan, Southern Division, in an action brought by the plaintiff under the Declaratory Judgment Act (Section 2201, Title 28, U.S.C.) to declare the assessments for 1960 and 1961 ad valorem taxes, on certain industrial real estate in the city of Detroit owned by plaintiff, as being in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Harry B. Helmsley, plaintiff-appellant, and City of Detroit, defendant-appellee, will be referred to as plaintiff and defendant, respectively. The district judge acting sua sponte dismissed the complaint for lack of jurisdiction and the plaintiff appealed. The plaintiff claims jurisdiction by virtue of diversity of citizenship, the amount in controversy being in excess of $10,000, exclusive of interest and costs (Section 1332, Title 28, U.S.C.). He also claims jurisdiction by reason of the existence of a federal question under the Fourteenth Amendment to the Constitution of the United States. (Section 1331, Title 28, U.S.C.) The property in question as described :in the complaint was purchased by a partnership of which the plaintiff was a .member, for the sum of $500,000. At the time this action was commenced, the •plaintiff had succeeded to the sole ownership. We will refer to him as the owner and purchaser. The property was described as an obsolete manufacturing plant, consisting of eleven factory buildings, an office building and a power house. It had been abandoned as a manufacturing plant by Murray Corporation of America in 1954. It is alleged that the only possible present use for the property is division into small or light industrial tenancies, and that even for such purpose part of it is unusable. For the years in question, 1960 and 1961, the assessment for tax purposes was $3,532,350, of which amount $3,230,-180 was for buildings and $302,170 was for land. On the basis of this assessment, the tax burden for the year 1961 was approximately $180,000. At the current level of taxes, the plaintiff suffered a loss of $360,000 in carrying the property from April 1,1960, to July 1,1961. The plaintiff charges that the assessing officials of the city of Detroit are “wil-fully and deliberately following an intentional and systematic plan to assess the property in a wrongful manner and without any regard whatever to its true cash valuethat their method “is arbitrary, capricious and based on fundamentally unsound principles;” and that the result is “so totally unreasonable as to constitute fraud in law.” He further charges that while the assessors are wil-fully assessing his property at seven times its cash value, they are wilfully assessing most Detroit property at an average of one-third to one-half of cash value. Having exhausted all administrative remedies by timely and proper appeals to the Board of Review of the City of Detroit and to the State Tax Commission, the plaintiff sought relief in the United States District Court. The plaintiff claims that the action of the assessing officials deprives him of his property without compensation and without due process of law and denied him equal protection of the laws all in violation of the Fourteenth Amendment. The law of the state of Michigan and the city of Detroit provides that the assessment of all real and personal property for ad valorem taxes shall be uniform and at cash value. (Art. X, Secs. 3, 7, Mich.Const.; Title VI, Ch. II, Sec. 1, Charter, City of Detroit; Comp.L. Mich., 1948, Sec. 211.24, MSA Sec. 7,24) Cash value is defined as the price which could be obtained for the property at private sale and not at forced or auction sale. (Comp.L.Mich., 1948, Sec. 211.27, MSA Sec. 7.27) The plaintiff alleges that the property in question is assessed at over seven times its true cash value. The defendant filed an answer, in which it was alleged inter alia, that the plaintiff had not resorted to “the plain, available and adequate remedy at law provided” by the Michigan statutes. This question arose at a pretrial conference and since the defendant did not file a motion to dismiss the complaint the trial judge considered the question sua sponte. Section 1341, Title 28, U.S.C. (Johnson Act) provides, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Even though the plaintiff is not seeking to “enjoin, suspend or restrain the assessment, levy or collection of any tax under” the law of Michigan, it is the duty of a district judge to withhold relief by way of declaratory judgment where it appears that the taxpayer has an adequate remedy under state law. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407. In Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219-220, 76 L.Ed. 447, the court said: “The scrupulous regard for the rightful 'independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may! be preserved without it. Whenever the question has been presented, this Court, has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is. plain, adequate and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review' if any federal question be involved.” We turn now to the state remedies. In the first instance taxable prop-' erty is assessed at its estimated true cash value. (Comp.L.Mich.1948, Sec. 211.24, MSA Sec. 7.24) This assessment is subject to review by a board of review on complaints of individual taxpayers. A further review may be had before the State Tax Commission. (Comp.L.Mich. 1948, Sec. 211.152, MSA Sec. 7.210) There is no provision for a judicial review from a decision of the commission. Its action is final. (Comp.L.Mich.1948, Sec. 211.152, MSA Sec. 7.210) Plaintiff has exhausted this avenue of relief. We do not find that review of the action of the commission by certiorari to the Supreme Court of Michigan, as suggested by counsel for the defendant, offers any real practical remedy. The cases cited by counsel in their brief do not support this procedure as an available remedy. A taxpayer may obtain relief from illegal and discriminatory taxes by injunction in cases of fraud or where jrreparable injury would result from payment of the tax. This remedy is available notwithstanding Section 211.114, Comp.L.Mich., 1948 (MSA Sec. 7.168) which provides that “[n]o injunction 'shall issue to stay proceedings for the •assessment or collection of taxes.” Wyzlic v. City of Ironwood, 365 Mich. 87, 112 N.W.2d 94; United States Cold Storage Corp. v. Detroit Board of Assessors, 349 Mich. 81, 89, 84 N.W.2d 487; Haggerty v. City of Dearborn, 332 Mich. 304, 316, 51 N.W.2d 290; Sunday Lake Iron Company v. City of Wakefield, 323 Mich. 497, 506, 35 N.W.2d 470; Twenty-two Charlotte, Inc. v. City of Detroit, 294 Mich. 275, 282, 293 N.W. 647; Sloman-Polk Co. v. City of Detroit, 261 Mich. 689, 247 N.W. 95, 87 A.L.R. 1294; Copper Range Co. v. Adams Township, 208 Mich. 209, 175 N.W. 282. The plaintiff has alleged fraud but if he is not able to establish this claim or cannot show that irreparable injury would result from payment of tire tax there is a further remedy open to him. This remedy appears to be adequate and complete. Comp.L.Mich.1948, Sec. 211.53, as amended by Pub.Acts 1962, No. 133 (MSA Sec. 7.97), provides that a taxpayer may pay the tax under protest and bring suit for recovery of the tax paid. There are many cases in Michigan in which this remedy has been invoked. Davidson v. City of Lansing, 356 Mich. 697, 97 N.W.2d 592; Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 77 N.W.2d 255; Haggerty v. City of Dearborn, 332 Mich. 304, 51 N.W. 2d 290; Helin v. Grosse Pointe Township, 329 Mich. 396, 45 N.W.2d 338; Moran v. Grosse Pointe Township, 317 Mich. 248, 26 N.W.2d 763; Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 275 N.W. 770, 113 A.L.R. 1472; S. S. Kresge Co. v. City of Detroit, 276 Mich. 565, 268 N.W. 740, 107 A.L.R. 1258. The tenor of the opinions in these cases may be stated as follows: “Under the Constitution and laws of this State, the final arbiter of value for taxing purposes which, when it has jurisdiction, determines the same finally and conclusively, is the State tax commission.” Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 81, 275 N.W. 770, 775. In Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 20, 77 N.W.2d 255, 257, the Court, quoting from the syllabi of S. S. Kresge Company v. City of Detroit, 276 Mich. 565, 268 N.W. 740, stated the general rule: “ ‘Assessments of properties for purposes of taxation will not be disturbed by courts unless they are so at variance with undisputed facts as to be a fraud upon the taxpayer, notwithstanding courts might disagree with conclusions of assessing officers in the exercise of their discretionary power and adopt a different figure upon the same evidence. * * * “ ‘Courts cannot substitute their judgment as to the valuation of property for the judgment of duly constituted tax authorities unless assessments are shown clearly to transgress reasonable limits, mere overvaluation or error of judgment not amounting to fraud not being enough to warrant court interference.’ ” Taxation is a legislative function and not a judicial function. It is proper therefore that courts should not substitute their judgment for that of the taxing authorities and should not interfere with them except in cases of constructive fraud. The obj ections which the plaintiff makes to the assessment of the property in the case before us, if proven, would come within the definition of fraud as given in these cases. He can preserve his constitutional rights in an action to recover taxes paid under protest and secure a review of them by the Supreme Court of the United States. Great Lakes Dredge & Dock Co. v. Huffman, supra. Under a statute of Louisiana similar to the Michigan payment under protest statute (Comp.L.Mich.1948, Sec. 211.53, MSA Sec. 7.97) the Supreme Court held that the Louisiana law afforded an adequate remedy and that “in the appropriate exercise of the court’s discretion, relief by way of a declaratory judgment should have been denied * * Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301-302, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407. At page 298 of 319 U.S., at page 1073 of 63 S.Ct. the Court said: “It is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states.” And at pages 300-301 of 319 U. S., at page 1074 of 63 S.Ct.: “With due regard for these considerations, it is the court’s duty to withhold such relief (declaratory judgment) when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back. In such a suit he may assert his federal rights and secure a review of them by this Court. This affords an adequate remedy to the taxpayer, and at the same time leaves undisturbed the state’s administration of its taxes.” We hold that this case is controlling of the issues in the case before us. Matthews v. Rodgers, supra, involved a statute of Mississippi by which a taxpayer could pay a tax under protest and bring suit in the state court for its recovery. The court held that such a procedure saves to the taxpayer his federal right and defeats the jurisdiction of federal courts to enjoin collection of the tax. Judge Starr, Senior District Judge for the Western District of Michigan, in a recent well-reasoned opinion held that the Michigan statute in question afforded a taxpayer an adequate remedy and that the District Court did not have jurisdiction over the subject matter of an action to enjoin the collection of an alleged illegal tax. Carbonneau Industries, Inc. v. City of Grand Rapids, D.C., 198 F.Supp. 629. See also Kohn v. Central Distributing Co., 306 U.S. 531, 59 S.Ct. 689, 83 L.Ed. 965. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101, did not reverse Great Lakes Dredge & Dock Co. v. Huffman, as implied by counsel for plaintiff. In this case the court vacated the judgment of the Circuit Court of Appeals and remanded it to the District Court to be held until the state courts of Connecticut decided the questions of state law. The court indicated that the District Court had jurisdiction to entertain the complaint on its constitutional aspects for the reason that the adequacy of a remedy under the Connecticut law was uncertain. The remedy is not uncertain either in our case or the Great Lakes case. Township of Hillsborough Somerset County, N. J., v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358, cited by counsel for the plaintiff is not in point as distinguished by the Court. At page 629 of 326 U.S., at page 451 of 66 S.Ct. the Court said: “Thus, however the case may be viewed, the exceptional circumstances which we have noted take it out of the general rule of Great Lakes Dredge & Dock Co. v. Huffman, supra.” In this case a taxpayer who claimed that his taxes were too high as compared to other taxpayers of the district could not bring an action to reduce his taxes, but must sue to increase his neighbors’ taxes. The court held that this was not an adequate remedy. In the complaint the plaintiff asks the District Court to fix the assessment for real estate taxes at $500,000. Counsel argue in the brief that “a judgment for refund following payment under protest does not conclude the controversy, but simply relegates the taxpayer to ultimate re-determination of the tax assessment by an administrative tribunal from whose decisions, made within its broad statutory jurisdiction, there is no appeal to a court.” We do not think it is the function of any trial court, having jurisdiction to hear plaintiff’s complaint, to specifically fix the amount of the assessment on his property. The court could only find that the assessment was illegal and discriminatory and point out the reasons for its conclusion. The matter would then have to be remanded to the tax commission which has the final authority to make a reassessment consistent with the court’s decision. It would seem that administrative officers would be obligated by their oaths of office to act in accordance with judgments of the courts pointing out the illegality of their past actions. One of the claims made by plaintiff is that there is no adequate state remedy for the reason that the Michigan statute, which authorizes payment of tax under protest, does not provide for the allowance of interest in the event of a refund. This claim is not substantiated by the Michigan cases. Ready-Power Co. v. City of Dearborn, 336 Mich. 519, 58 N.W.2d 904; Standard Oil Co. v. State of Michigan, 283 Mich. 85, 276 N.W. 908; Corby v. City of Detroit, 191 Mich. 308, 158 N.W. 160; City of Grand Rapids v. Blakely, 40 Mich. 367. We conclude that the statutes of Michigan afforded the plaintiff an adequate and complete remedy for the adjudication of his claim that the assessment against his property is illegal and discriminatory. In pursuing this remedy he can assert his constitutional rights and have them finally determined in the Supreme Court of the United States. The conclusion reached by the trial judge in his opinion, reported at 205 F.Supp. 793, is correct and the judgment is accordingly affirmed. . Thomson v. City of Dearborn, 348 Mich. 300, 83 N.W.2d 329; In re Dearborn Clinic & Diagnostic Hospital, 342 Mich. 673, 71 N.W.2d 212; City of Negaunee v. State Tax Commission, 337 Mich. 169, 59 N.W.2d 136. . “Any person may pay the taxes or special assessments, or any one of the several taxes or special assessments, on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes or special assess-meats remaining unpaid. He may pay any tax or special assessment, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest.” . Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 79, 275 N.W. 770, 113 A.L.R. 1472. . La.Acts 1938, Act 330, LSA-R.S. 47:1575, 47:1576, 47:2110. This statute differs from the Michigan statute in that the money paid under protest is held in a separate fund until the case is decided. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_treat	F	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. OBER et al. v. WHITE (two cases). (Circuit Court of Appeals, Third Circuit. March 3, 1926. Rehearing Denied April 7, 1926.) Nos. 3394, 3395. 1. Corporations <@=560(4) — Receivers of mortgage company, creature of Ohio corporation, held not entitled to recover from receivers of Pennsylvania corporation, another creature of Ohio corporation, for stock of mortgage company sold hy Pennsylvania corporation, which had made full accounting to Ohio corporation. “Where, in pursuance of operations defrauding public in sale of stock, Ohio corporation had its creature, a Pennsylvania corporation, unload stock of mortgage company, another of its creatures, held, that receivers of mortgage company, after appointment of receivers for all companies, have no right to fund in hands of receivers of Pennsylvania corporation, with whom it had no contractual or trust relation, which cannot be traced to stock subscriptions, particularly since Pennsylvania corporation had more than fully accounted to Ohio corporation for all moneys received by it from sale of such stock. 2. Corporations <©=560(4) — Mortgage company’s receivers were entitled to return of fund forwarded to corporation selling its stock for purpose of paying dividends thereon; such fund having been deposited in special fund, and so remaining until receivership of both companies. Where fund for.warded to Pennsylvania corporation engaged in selling stock of mortgage company, for specific purpose of paying dividends on mortgage company’s stock was deposited in special fund, so remaining until receivership of both companies, mortgage company’s receivers were entitled to such fund. Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Separate suits by Franklin S. Zelly and others against the R. L. Dollings Company of Pennsylvania and others for the appointment of a receiver, wherein Thomas Raeburn “White was appointed receiver, and by the Crane Ice Cream Company against Thomas Raeburn White, receiver of the R. L. Dollings Company of Pennsylvania to reclaim moneys, wherein cross-bill was filed on behalf of the International Note & Mortgage Company also asserting a reclamation claim, for whom Thomas K. Ober, Jr., and another, were substituted as plaintiffs in cross-bill, on their appointment as ancillary receivers of the International Note & Mortgage Company. From decrees in each ease denying the claims of Thomas K. Ober, Jr., and another, ancillary receivers of the International Note & Mortgage Company, they appeal. Affirmed in part, and reversed in part. Ulric J. Mengert, William E. Mikell, Jr., Albert Smith Faught, and J. Hector MeNeal, all of Philadelphia, Pa., Henry A. Williams, of Columbus, Ohio, and Maurice B. Saul and Owen J. Roberts, both of Philadelphia, Pa., for appellants. Francis F. Burch, Percival H. Granger, and Thos. Raeburn White, all of Philadelphia, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. Certiorari denied 46 S. Ct. 630, 70 L. Ed. —. BUFFINGTON, Circuit Judge. This case involves the distribution of two different funds in the hands of the receivers of the R. L. Dollings Company, a corporation of Pennsylvania. The first fund, some $500,-000, is the proceeds of the assets of that company, and was in no way earmarked or connected with any trust. Without entering into a detailed description of the Dollings operations, it suffices to say that all the companies here involved were links in a chain of corporations whose purpose and successful sphere of operations was defrauding the public in the sale of stocks. In the course of these fraudulent operations, the Dollings Company of Ohio had its corporate creature, the Dollings Company of Pennsylvania, unload on the public the stock of the International Note & Mortgage Company of Ohio, another of its corporate creatures. The Pennsylvania Company so sold, and thereby became accountable to the Dollings Company of Ohio for some $500,000, when the receivership of all these companies came about. But it also appeared that during these transactions the Dollings Company of Ohio had received advances,, or otherwise become accountable to the Pennsylvania Dollings Company, to an amount largely in excess of this $500,000. The situation is summarized by the court below as follows: “The basis of the claim in either of its -aspects is a fact. The master disposes of the fact respecting the trust fund by finding that there is no fund earmarked or otherwise which can be traced to these stock subscriptions. He disposes of the debt claim by his finding that the Pennsylvania Dollings Company had no contractual or trust relations or relations of any kind with the International Company. The only dealings it had and the only relations it sustained were with the Dollings Company of Ohio. For the latter company the Pennsylvania Company, it is true, sold stock, but it had not only fully but had overaccounted for all moneys received, so that when the crash cama the state of accounts between them stood in favor of the Pennsylvania Company in a sum of approximately $1,000,000. It is likewise true that moneys which represented proceeds from the sale of the International Company stock were included in what the Pennsylvania Company received. These moneys, however, belonged, so far as concerned the Pennsylvania Company, to the Ohio Company, to which they were not only paid, but overpaid. There was in consequence no indebtedness of the Pennsylvania Company to the International Company, or to any one, for that matter, which arose. The transaction was that of an underwri.tr ing of an issue of stock of the International Company by the Ohio Company, the issue of the stock to the latter company for the purposes of the underwriting 'agreement, the sale of shares to investors, who thereby became stockholders of the International, the deposit with the Pennsylvania Company of some of the money from these sales to the credit and order of the Ohio Company, and the overpayment of the moneys to the Ohio Company.” Without entering into further details, we limit ourselves to saying that we agree with the findings of fact, concurred in by court and master, and with the conclusion drawn therefrom, that the International Note & Mortgage Company has -shown no right to the sum in question. We therefore dismiss its appeal, and affirm the decree below, in so far as it disallows the claim of the receivers of the International Note & Mortgage Company to $501,676, the balance alleged to be due on account of stock of the International Note & Mortgage Company sold by the Pennsylvania Dollings Company. We next consider the claim of the receivers of the International Note & Mortgage Company to a fund of $17,707, which the court below disallowed. In this we are of opinion the court erred, and its decree in that respect must be reversed, and the fund ordered paid to said receivers. Our reasons therefor are that the money was sent by the Dollings Company of Ohio to the Dollings Company of Pennsylvania, for the specific purpose of paying a dividend which it was intended to make on the stock of the International Note & Mortgage Company. When received by the Pennsylvania Company, it was not mingled with its funds, but was deposited in a special fund, and so remained until the receivership. Not having been applied to its designated purpose when the receivership came, we are unable to see by what means or in what manner any ownership of this trust fund accrued to the Pennsylvania Company. It came into the possession of the court, through its receiver, as an earmarked fund, which the court, on it being impossible to carry out the trust, should return to the source from which it came. Having been designated, when sent, as applicable to the affairs of the International Note & Mortgage Company, and there is no one else claiming or showing a title to it, we are of opinion that this court should carry out, as far as now possible, the trust under which it was received, by now ordering it paid to the receivers of the International Note & Mortgage Company. The decree below will therefore be modified, by the approval of the claim of the International Note & Mortgage Company to this $17,707-, and directing the receivers of the Pennsylvania Company to transfer and pay the same to the receivers of the International Note & Mortgage Company. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Paul JENSEN and Ruby Jensen, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 79-2181. United States Court of Appeals, Tenth Circuit. Submitted May 15, 1981. Decided Oct. 23, 1981. Vance H. ■ Fried of Wheatley & Fried, Stillwater, Okl., for plaintiffs-appellants. Larry D. Patton, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., for defendant-appellee. Before McWILLIAMS, BARRETT, and SEYMOUR, Circuit Judges. SEYMOUR, Circuit Judge. Plaintiffs Paul and Ruby Jensen brought this action against the United States (“the Government”) alleging that it improperly denied their claim for homeowner relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4601 et seq. (“URA” or “the Act”). The Government, after acquiring plaintiffs’ property for use in a major public works project, awarded plaintiffs only the limited tenant relocation benefits available under URA section 204, 42 U.S.C. § 4624. Plaintiffs had sought the more comprehensive homeowner relocation benefits authorized hy URA section 208, 42 U.S.C. § 4623. Both parties moved for summary judgment in the trial court. The court granted the Government’s motion, and plaintiffs have appealed that decision. Plaintiffs challenge the trial court’s judgment on two alternative grounds. First, plaintiffs assert that section 203 applies in their situation and entitles them to homeowner relocation benefits as a matter of law. Second, plaintiffs contend that equity demands they be awarded the homeowner relocation benefits available under section 203 even if that section is held inapplicable to their situation. This latter argument is primarily bottomed upon representations allegedly made by the Government to the plaintiffs indicating that plaintiffs would receive such benefits. We hold that section 203 is inapplicable to plaintiffs’ case. However, because material questions of fact are in dispute with respect to the Government’s contrary representations and plaintiffs’ reliance upon those representations, we reverse the trial court’s ruling insofar as it grants summary judgment. I. FACTUAL BACKGROUND The facts underlying this litigation may be easily summarized. The Government, acting through the United States Army Corps of Engineers (“the Corps”), condemned portions of north central Oklahoma to allow for the creation of the Kaw Reservoir. Plaintiffs’ home was located in a condemned area and title to their home was acquired by the Government on November 17, 1969. The Corps permitted plaintiffs to occupy their former home as tenants or “priority lessees” until April 17, 1974. At that time, actual construction on the reservoir began and plaintiffs moved from the property. Plaintiffs learned that they would be paid relocation benefits from the Government as a result of its activities. This lawsuit ensued because of the parties’ disagreement over the type of relocation benefits due the plaintiffs. The Government ultimately awarded plaintiffs only the tenant relocation benefits described in section 204, rather than the more substantial homeowner relocation benefits authorized by section 203 of the Act. The above-described disagreement developed as a result of the temporal sequence of various events relevant to this case. The URA became effective on January 2,. 1971, subsequent to the Government’s acquisition of title to plaintiffs’ home but prior to plaintiffs’ actual move from the property. Consequently, it was necessary for the Government to decide whether section 203 authorized the payment of homeowner relocation benefits to an owner whose property was acquired before the Act when the owner continued in possession of that property as a tenant after the Act became effective. The Corps initially determined that such individuals were entitled to the homeowner relocation benefits. The Government has conceded that it adopted this position after the Act became operative and that in early June 1972, it informed the plaintiffs they would receive homeowner relocation benefits. Significantly, plaintiff Paul Jensen stated in an affidavit that “prior to April 28, 1971, he became familiar with the position of the Corps of Engineers that a ‘priority lessee’ still in possession of his property on January 2, 1971, was to be treated as an owner under Section 203.” Rec., vol. I, at 31. Further, in that same affidavit Jensen alleged “that the purchase of the lots in Kildare and the entering into of the contract to move his Uncas home were made in reliance upon .. . the Corps of Engineers’ policy regarding treatment of priority lessees.” Id. Sometime after these events, the Government reversed its stand on the availability of section 203 homeowner relocation benefits to individuals in plaintiffs’ position. This change in policy was formalized in a 1972 ruling of the Comptroller General of the United States. Decision of the Comptroller General of the United States, B— 148044, 52 Comp.Gen. 300 (1972). However, the Government concedes that “the Corps has paid Section 203 benefits to other priority lessees and that it has adopted a policy of granting Section 203 [benefits] in cases where financial obligations have [been] incurred as a result of reliance upon oral or written Corps commitments for payment of relocation benefits . . . . ” Appellee’s Brief, at 10.. Nonetheless, the Government paid only section 204 tenant relocation benefits to plaintiffs. II. ISSUES A. Construction of the Act We must first determine whether section 203 authorizes the payment of homeowner relocation benefits where an owner whose property was acquired before the Act continued in possession as a tenant after the Act became effective. We conclude that section 203 does not authorize the payment of homeowner benefits under such circumstances. Our decision is based upon a reading of the relevant provisions of the Act, an application of traditional principles of statutory construction, and a review of the legislative history of the URA. Section 203 provides for the payment of homeowner relocation benefits to “any displaced person[] who is displaced from a dwelling actually owned or occupied by such displaced person for not less than one hundred and eighty days prior to the initiation of negotiations for the acquisition of the property.” 42 U.S.C. § 4623(a)(1). The parties construe this language in radically different ways. The Government asserts that the plaintiffs are not entitled to homeowner relocation beiiefits because they were not owners when the Act authorizing those entitlements was passed. The Government’s position is set forth in Decision of the Comptroller General of the United States, B-148044, 52 Comp.Gen. 300 (1972), as well as in a regulation of the Corps issued on May 23, 1973. The Corps’ regulation states that “[n]o benefits shall be paid under section 203 to any person whose property was acquired prior to January 2, 1971.” U. S. Army Corps of Engineers Regulation of May 23, 1973, § 641.9. Plaintiffs, on the other hand, contend that ownership as of the Act’s effective date is not a prerequisite to the receipt of homeowner relocation benefits. They argue that section 203 benefits are to be provided to all individuals (i) who are displaced persons and (ii) who owned and occupied their dwelling for more than one hundred and eighty days prior to the initiation of negotiations for its acquisition. Plaintiffs urge that when these two requirements are met, moving after the effective date of the Act generates homeowner relocation benefits. While neither parties’ reading of section 203 appears facially unreasonable, we hold that the Government’s view is controlling. Two general principles of statutory construction buttress our conclusion. First, the Comptroller General’s and the Corps’ interpretation of section 203 is entitled to “great deference” because those agencies are charged with the administration of the Act. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102-03, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973). Second, plaintiffs’ interpretation should be avoided because it creates the specter of unwarranted retroactive application of the Act. Persons whose property was acquired prior to the URA’s enactment cannot be considered owners under section 203 since the Act was nonexistent at the time their property was sold. When such individuals remain in temporary possession of their former homes, it is only as priority lessees or tenants. Consequently, payment of section 203 homeowner relocation benefits to persons whose temporary possession continues beyond the date of the URA’s enactment arguably constitutes retroactive application of the Act. Normally, retroactive application of legislative acts is impermissible absent a clear indication of congressional intent. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 564, 82 L.Ed. 858 (1938). Our review of the legislative history of the URA reveals that no retroactive application of the Act was contemplated by Congress. The legislative history of the URA indicates that section 203 is inapplicable to plaintiffs’ situation for an additional reason. Congressional comments state that the Act builds upon the Federal-Aid Highway Act of 1968, 23 U.S.C. § 506 et seq. (“Highway Act”). See H.R.Rep.No. 1656, 91st Cong., 2d Sess. 8, reprinted in [1970] U.S.Code Cong. & Ad.News 5850, 5857. Significantly, in Taliaferro v. Stafseth, 455 F.2d 207 (6th Cir. 1972), the court held that under a Highway Act provision similar to section 203, a person whose property was acquired prior to the effective date of the Highway Act but who did not vacate until after that date was not entitled to the benefits afforded displaced owners. Plaintiffs assert that the legislative history of URA section 219, 84 Stat. 1903 (1971), demonstrates that homeowner relocation benefits can properly be paid to individuals whose homes were acquired before the Act’s effective date. Plaintiffs seize upon the eloquent pleas of an able New York congressman as support for this claim. However, section 219 provides only the limited tenant relocation benefits to a geographically restricted group of individuals whose property was acquired before the date of the Act and who moved no later than ninety days after the Act. This provision was clearly the result of effective lobbying on the part of the congressman and is “not to be considered as a precedent of any nature.” H.R.Rep.No. 1656, 91st Cong., 2d Sess. 3, reprinted in [1970] U.S.Code Cong. & Ad.News 5850, 5870. Plaintiffs reliance on section 219 is misplaced. In sum, the administrative interpretation of section 203 to preclude coverage under the circumstances of this case is neither arbitrary, capricious, nor plainly inconsistent with the URA. See Lowell v. Secretary of HUD, 446 F.Supp. 859, 863-65 (N.D.Cal. 1977). B. Grant of Summary Judgment While the prerequisites for section 203 homeowner relocation benefits are not met in plaintiffs’ case, we hold that material questions of fact remain in dispute with respect to the Government’s contrary representations and plaintiffs’ reliance thereon. Accordingly, the decision of the trial court granting summary judgment must be reversed. In reviewing a motion for summary judgment, this court must consider the evidence in the light most favorable to the party opposing the motion, in this case the plaintiffs. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1309 (10th Cir. 1980); Madison v. Deseret Livestock Co., 574 F.2d 1027, 1036 (10th Cir. 1978). Particularly, the party opposing the motion is entitled to have his affidavits generously construed. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2738 at 708 (1973). Plaintiffs contend that it is the current policy of the Government to pay section 203 benefits where financial obligations have been incurred in reliance upon the Government’s representations. The Government does not dispute that contention on appeal but argues instead that plaintiffs have not demonstrated such reliance. We believe, however, that plaintiffs raised an issue of fact on this question sufficient to preclude summary judgment. Thus, plaintiff’s affidavit states that he learned of the Government’s policy authorizing section 203 homeowner relocation benefits to individuals in plaintiffs’ position and relied on that policy by buying lots and contracting to have his home moved. That affidavit indicates that this representation and reliance occurred prior to the Government’s ultimate determination that such benefits would not be available to plaintiffs. We, of course, express no opinion on whether the facts, if true, entitle plaintiffs to relief. It is for the district court on remand to determine whether plaintiffs are entitled to any recovery on the representation-reliance dispute. Reversed and remanded for further proceedings in accordance with this opinion. . Prior to January 2, 1971, reimbursement of relocation expenses was provided by the Resettlement Act, 10 U.S.C. § 2680 (repealed 1971). . This is a case of first impression at the circuit court level. Moreover, the URA is of such recent vintage that it appears only one district court has considered this particular issue. See Bourne v. Schlesinger, 426 F.Supp. 1025 (E.D. Pa. 1977). . “Displaced person” is defined in section 101, 42 U.S.C. § 4601. Neither party has disputed that plaintiffs fall within the purview of that term. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. UNITED STATES of America, Appellee, v. PS HOTEL CORPORATION et al., Appellants. No. 75-1342. United States Court of Appeals, Eighth Circuit. Submitted Dec. 8, 1975. Decided Dec. 31, 1975. Rehearing Denied Jan. 28, 1976. Henry F. Luepke, Jr., St. Louis, Mo., for appellant. Edwin E. Huddleson, III, Civ. Div., Appellate Section, U. S. Dept, of Justice, Washington, D. C., for appellee. Before MATTHES, Senior Circuit Judge, STEPHENSON and HENLEY, Circuit Judges. PER CURIAM. The central issue raised in this appeal requires a determination of lien priority pursuant to either the Missouri Uniform Commercial Code or applicable principles of federal common law. Former owners and managers of the Parkway House Airport Motor Hotel appeal from the district court’s judgment enforcing a security interest of the Small Business Administration (SBA) in various assets of the motel. Essentially, the instant case is a dispute over rights to accounts receivable, valued at $24,707.28, and food and liquor inventory, valued at $3,000.00, of the Parkway Motel. The claimants are the SBA, the assignee of a security interest in the motel’s '“accounts and inventory” under a security agreement executed on October 28, 1971, and Parkway Associates, the motel’s former owner, lessor and assignee of the motel’s “rents, issues, income and profits” under an amended lease agreement executed on September 11, 1971. The trial court entered judgment for $27,707.28 in favor of the United States and found that appellants had converted the motel’s assets that were subject to the SBA’s security interest. First, the court held that the SBA’s perfected security interest in the motel’s accounts receivable and food and liquor inventory was entitled to prevail over Parkway Associates’ claim of ownership because the lease agreement did not encompass those types of property. Secondly, the district court found that the SBA’s perfected security agreement in the accounts receivable was entitled to priority over the amended lease agreement of Parkway Associates since the latter was not effectively filed under the provisions of the Uniform Commercial Code. We affirm on the basis of the well-reasoned opinion of the district court. United States v. PS Hotel Corporation, et al., 404 F.Supp. 1188 (E.D.Mo.1975). We are satisfied that the findings of the district court are amply supported by the record and no error of law is apparent. See Rule 14. Our resolution of this matter on the. basis of the district court’s opinion renders it unnecessary to consider appellee’s additional contention that it is entitled to priority under federal common law. Affirmed. . The Honorable John K. Regan, United States District Judge for the Eastern District of Missouri. 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_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. LAZY D GRAZING ASSOCIATION, a Colorado Corporation, Appellant and Cross-Appellee, v. TERRY LAND AND LIVESTOCK COMPANY, a Wyoming Corporation, Appellee and Cross-Appellant. Nos. 79-1528, 79-1529. United States Court of Appeals, Tenth Circuit. Argued Nov. 19, 1980. Decided Feb. 13, 1981. Henry A. Burgess, Sheridan, Wyo. (Rodger I. Houtchens, Greeley, Colo., with him on brief), for appellant and cross-appellee. Byron Hirst and Glenn Parker, Cheyenne, Wyo., for appellee and cross-appellant. Before McWILLIAMS and SEYMOUR, Circuit Judges, and CHRISTENSEN, Senior District Judge. Of the United States District Court for the District of Utah sitting by designation. CHRISTENSEN, District Judge. Lazy D Grazing Association (hereinafter Lazy D) appeals and Terry Land and Livestock Company, Inc. (hereinafter Terry) cross-appeals from a district court judgment that declared the respective interests of the parties in the mineral estate underlying land conveyed by Terry to Lazy D. The validity of that judgment depends upon a proper interpretation of a mineral interest reservation in the context of the following circumstances. The conveyance to Lazy D, executed in 1965 and consisting of 21,920 acres of land, was part of a larger transaction between Terry and five other grazing associations. The purpose of the conveyances was to provide summer grazing for livestock owned by individual members of the six grazing associations. Each grazing association participated in the negotiations for the sale, which resulted in six separate, but identical deeds. Each deed contained a clause reserving “all gas, casinghead gas, oil, and other minerals valuable as a source of petroleum in and under said lands....” This action was initially brought by Lazy D to determine the rights of the parties to coal under the reservation clause. However, during the course of the proceedings, Lazy D expanded its complaint to seek a declaration of the meaning of the reservation clause as to all minerals underlying the land and asked that it be named owner of all minerals except gas, casinghead gas, oil and other minerals valuable as a source of petroleum. After the trial Terry amended its answer and counterclaim to conform to its view of the evidence, asking that it be declared the owner of all minerals except surface sand and gravel. In a pretrial proceeding, the trial judge ruled that the reservation clause was ambiguous, a ruling to which neither party objected. Both parties presented extrinsic evidence bearing on the actual intent behind the reservation language. After considering the evidence, the trial judge entered judgment, declaring that Terry was the owner of all gas, casinghead gas, oil and other minerals — including coal and oil shale — which were valuable as a source of petroleum in 1965 or which had a prospective value as a source of petroleum on that date. Lazy D was declared the owner of all other minerals. Undergirding this holding are a number of findings of fact and conclusions of law, which one or the other of the parties disputes on this appeal. The trial judge clarified his earlier ruling that the reservation clause was ambiguous by concluding that as to minerals valuable as a source of petroleum the reservation clause was ambiguous, but as to other minerals not valuable as a source of petroleum the clause was not ambiguous; the latter class of minerals was clearly not reserved by the reservation clause and passed to Lazy D under the deed. He found that the parties intended to reserve to the seller all minerals having present or prospective value as a source of petroleum. He further found that oil shale and coal were prospectively valuable as sources of petroleum on the date of the deeds and were intended to be reserved. Lazy D’s Appeal Lazy D contends that the trial court erred in concluding that coal was reserved by the reservation clause. It argues that it was error to rule that the reservation clause was ambiguous as to coal and contends that the court should have held that the clause, as a matter of law, did not reserve coal. It asserts that the coal underlying its land can be removed only by strip mining, a method of extraction that would destroy the value of the surface for the grazing and agricultural purposes for which the land was purchased. A number of courts have ruled that a broad grant or reservation of mineral interests does not include a mineral which is not specified in the grant or reservation when the only means of extracting the mineral would destroy the surface. E. g., Cumberland Mineral Co. v. United States, 513 F.2d 1399 (Ct.Cl.1975); Wulf v. Shultz, 211 Kan. 724, 508 P.2d 896 (1973); Acker v. Guinn, 464 S.W.2d 348 (Tex.1971); Farrell v. Sayre, 129 Colo. 368, 270 P.2d 190 (1954); and Carson v. Missouri Pacific Railroad, 212 Ark. 963, 209 S.W.2d 97 (1948). Contra, Christman v. Emineth, 212 N.W.2d 543 (N.D.1973). If such a reservation were interpreted to include minerals that could be extracted only by destroying the surface, the reservation might engulf the grant leaving the surface estate owner with an empty property right. See Carson v. Missouri Pacific Railroad, 212 Ark. 963, 209 5. W.2d 97, 99 (Ark.1948). It has been reasoned that if the parties had intended such a result, they would have explicitly said so by specifying the mineral in the reservation clause. Lazy D contends that the trial court should have applied this reasoning and concluded that coal was not reserved under the reservation clause without considering extrinsic evidence of the parties’ intent. A difficulty with this contention is that Lazy D failed to present evidence that the coal must be removed by a method that would destroy the surface. Two witnesses suggested that there were outcroppings of coal on the land, but neither specified how extensive these outcroppings were. Other witnesses testified that there were deep veins of coal under the land and that previous coal mining on the land had been undertaken by an underground method. There was no evidence of what percentage of the surface would be affected if strip mining were required to remove the surface coal. Such a record does not invoke a doctrine designed to protect against an uncontemplated “utter destruction” of the surface owner’s estate. Holloway Gravel Co. v. McKowen, 200 La. 917, 9 So.2d 228 (1942). Here there is no showing that substantial destruction of the surface will result from strip mining operations. Properly rejecting Lazy D’s contention regarding strip mining, the trial court went on to conclude that the reservation clause was ambiguous. In assessing whether this conclusion was correct, we may look to the Wyoming Supreme Court’s definition of an ambiguous contract: An “ambiguous contract is one capable of being understood in more ways than one. It is an agreement which is obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.” Bulis v. Wells, 565 P.2d 487, 490 (Wyo.1977). Here, the focus is on the ambiguity of the word “valuable.” Lazy D argues that the term has the meaning attributed to it under the Federal Mineral Land Statutes — that of present marketability, i. e., can the coal presently be extracted from the ground, converted into petroleum and marketed at a price competitive with petroleum from other sources. On the other hand, Terry contends that the term is not limited to present marketability, but rather includes minerals that will in the future become marketable as a source of petroleum. Given this dispute as to the meaning of the word, the trial court properly determined that the clause was ambiguous. Lazy D next contends that the trial court erred in finding that the parties intended to reserve coal. It disputes two particular findings: 1) that the parties intended to reserve minerals having prospective value as a source of petroleum and 2) that the testimony of the witnesses established that the parties intended to reserve coal. Such findings of fact must be sustained unless they are not supported by substantial evidence. Evensen v. Pubco Petroleum Corp., 274 F.2d 866 (10th Cir. 1960). Expert witnesses for both parties testified that coal was not in 1965, nor is it now, presently valuable as a source of petroleum in the United States, since it is not competitive with other sources. But all agreed that, given the current oil shortage, it will become valuable as a source of petroleum in the future. The dispute is then whether the parties intended to reserve only minerals that are presently valuable as a source of petroleum or to include minerals that have prospective value as such a source. Pointing to the “prudent man” and “present marketability” definition of “valuable” under the Federal Mineral Land Statute, Lazy D argues that the trial court erred in concluding that the parties intended to reserve minerals with only prospective value as a source of petroleum. The federal law permits citizens to locate “valuable” mineral deposits on federal land. 30 U.S.C. § 22. The courts have developed standards for determining whether a mineral deposit is valuable. The prudent man and marketability tests require a claimant to show that “a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine,” and that, at the time of discovery, the mineral could be marketed at a profit. U. S. v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 1330, 20 L.Ed.2d 170 (1968). Lazy D asserts that this meaning of “valuable” should be applied in the present case, reasoning that the long-standing definition of the term indicates that it is the most reasonable interpretation of the word and might well have influenced the parties when they were drafting the reservation. In interpreting rights under the federal statute, the courts have developed the present marketability test to implement the intent of Congress. As the United States Supreme Court has explained, Under the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits and not for other purposes. .. . The marketability test ... has the advantage of throwing light on a claimant’s intention, a matter which is inextricably bound together with valuableness. For evidence that a mineral deposit is not of economic value and cannot in all likelihood be operated at a profit may well suggest that the claimant seeks the land for other purposes. U. S. v. Coleman, 390 U.S. 599, 602-03, 88 S.Ct. 1327, 1330 (1968). The interpretation of “valuable” under these statutes casts little light upon what the private parties in this context intended when they used the term. There is no indication in the record that the parties or their attorneys gave thought to the interpretation of the word “valuable” under the federal statute. Michael Fur-bush, attorney for Terry and drafter of the reservation clause, testified that in drafting the clause he intended to include coal and “anything else you could squeeze a drop of oil out of.” Three other witnesses, each of whom participated in negotiating the terms of the sale, testified that the parties intended to reserve all minerals except surface sand and gravel. Significantly, two of these witnesses were representatives of grazing associations that purchased land in the same transaction and under deeds identical to Lazy D’s. The only witness whose testimony rebutted this assertion was Robert Ruyle, the attorney representing the grazing. associations in the negotiations. He testified that the parties did not intend to reserve coal and that early on in the negotiations the word coal was deleted from a preliminary draft of the deed at his objection. Furbush, the attorney for Terry, admitted that the original draft did contain the word coal and that Ruyle objected to that language. However, he denied that the substitution of the final version for the language containing specific reference to coal was made with the intent of deleting coal from the reservation. Rather, he testified that Terry’s response to Ruyle’s objection was that coal would be reserved. He explained that the substitution was an attempt to cover all minerals that might be sources of petroleum, rather than running the risk of omitting such a mineral in a list of specific minerals. The trial judge found that Ruyle’s testimony was not credible, a judgment with which we cannot quarrel. Ruyle’s testimony suggested that he had very little independent recollection of the negotiations, and four other witnesses contradicted his testimony. The trial court’s findings on this phase of the case, involving as they did issues of fact, were not clearly erroneous and must be sustained. Terry’s Cross Appeal Terry contends the trial court should have ruled that the reservation clause was ambiguous as to its inclusion of all minerals, not just as to minerals valuable as a source of petroleum. Terry further argues that the court should then have given determinative weight to the testimony that the parties intended to reserve all minerals except sand and gravel. We believe the trial court correctly ruled that in this respect the reservation clause was not ambiguous and that by its express terms it did not reserve all minerals except sand and gravel. Terry attacks the lower court’s assumption that only minerals that can be converted into petroleum are sources of petroleum. It reasons that a mineral can be a “source” of petroleum in two ways: 1) It can be converted into petroleum and 2) it can be a depository for petroleum in the ground. It argues that this double meaning renders the entire clause ambiguous. Terry thus asks for an interpretation of the language “source of petroleum,” without consideration of the context in which the language was used. Here our task is not to determine what the phrase means in the abstract, but rather what these parties intended the phrase to mean to the extent this may be seen from an examination of the writing and the context in which it was used. To do this, we must examine the language of the entire reservation clause, the nature of the subject matter and the circumstances of the parties. See Bulis v. Wells, 565 P.2d 487, 490 (Wyo.1977), and Dawson v. Meike, 508 P.2d 15 (Wyo.1973). The parties’ enumeration of the specific minerals, “gas, casinghead gas, [and] oil,” qualifies the more general language, “and other minerals valuable as a source of petroleum.” Under the ejusdem generis rule of construction, general terms in a reservation clause are construed to include only minerals that are similar in nature to minerals that are specified. Sloan v. Peabody Coal Co., 547 F.2d 115 (10th Cir. 1977). Underlying this rule is the commonsense rationale that the parties, by enumerating specific minerals, have indicated they are primarily interested in reserving minerals that are similar in character to those specified. Here the enumeration of petroleum-like minerals indicates the parties intended to include within the more general language, “and other minerals valuable as a source of petroleum,” only minerals that are similar in character to petroleum or that may be converted into petroleum. Thus we reject Terry’s contention that the phrase “source of petroleum” necessarily includes all minerals serving as depositories for petroleum, since such minerals may or may not be similar in nature to petroleum. The interpretation urged by Terry encounters other difficulties when examined in light of the nature of the subject matter and the circumstances of the parties. Testimony elicited at trial suggests that when the parties entered into the mineral reservation they were uncertain of the geologic and mineral formations underlying the land. Under Terry’s interpretation the parties could not know what kinds of minerals were reserved until extensive geologic exploration was completed. It would be an unlikely situation for them intentionally to bargain for a reservation the scope and application of which could be determined only by an unknown geologic formation of the land. We agree with the trial court’s implicit determination that the language, “other minerals valuable as a source of petroleum” is limited in application under the circumstances of this case to minerals that can be converted into petroleum, and with its decision that the clause excluded from the reservation minerals that are not valuable as a source of petroleum. AFFIRMED. . The reservation clause reads in its entirety: EXCEPTING and RESERVING therefrom however, unto TERRY LAND AND LIVESTOCK COMPANY, INC., party of the first part, its successors and assigns, all gas, casinghead gas, oil, and other minerals valuable as a source of petroleum in and under said lands and appurtenances thereto, together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for gas, casinghead gas, oil and other minerals valuable as a source of petroleum in and under said lands, and storing, handling, transporting and marketing same therefrom with the right to remove all property and improvements placed thereon by party of the first part, its successors and assigns. . In the trial court Lazy D asked for a declaration as to the ownership of all minerals underlying the land; however, it has restricted its appeal to the trial court’s determination that coal was reserved to Terry. . Lazy D makes this contention for the first time in this appeal. It did not object below to the trial court’s ruling that the clause was ambiguous as to the reservation of coal nor to the introduction of extrinsic evidence. Because we agree with the trial court’s ultimate holding, we are not constrained to insist upon any technical preclusion of Lazy D’s argument here. But see Stephens Industries, Inc. v. Haskins and Sells, 438 F.2d 357 (10th Cir. 1971). Cf. Bulis v. Weils, 565 P.2d 487 (Wyo.1977). . The Wyoming court apparently has not addressed this question. . See Rocky Mountain Mineral Law Foundation, American Law of Mining § 15.16, at 167 (1979). Professor Kuntz in a well-reasoned article argues that the rule is an arbitrary one, resulting in a bonus for the surface owner. He suggests that the better approach is to determine what minerals the parties intended to reserve without the aid of an artificial presumption, and then determine whether the parties intended to allow strip mining. Under this approach the possible destruction of the surface would be relevant to a determination of whether the parties intended to allow strip mining. The latter approach has the advantage of protecting against an unintended destruction of the surface estate, without awarding the surface owner the equally unintended bonus of mineral ownership. Kuntz, Law Relating to Oil and Gas in Wyoming, 3 Wyo.L.J. 107, 116 (1948). For a discussion of another criticism of the rule dealing with title examination problems, see Prendergast, The Texas Enigma— When is a Mineral Not a Mineral?, 23 Rocky Mtn.Min.L.Inst. 865 (1977). . Initially, we note that while some courts apply this rule as a matter of law, others view it as a means to determine the parties’ intent. Under the latter approach the fact that the mineral will be removed by open pit or strip mining is only one factor in determining whether the parties intended to include a mineral in the reservation. See e. g.. Southern Title Co. v. Oller, 595 S.W.2d 681 (Ark. 1980). Contra, Reed v. Wylie, 554 S.W.2d 169 (Tex. 1977). Since Lazy D has not established a factual basis for applying either standard, we here need not choose between the two approaches. . In Texas it has been ruled that if a surface owner establishes that any of the disputed mineral lies at or near the surface, the surface owner retains title to all of the mineral. Reed v. Wylie, 554 S.W.2d 169 (Tex. 1977). No Wyoming case suggests such a result, and we will accept the implication from the ruling of the experienced Wyoming trial judge that local law does not follow the Texas rule. See, Sloan v. Peabody Coal Co., 547 F.2d 115 (10th Cir. 1977). Moreover, we note that any such rule would carry itself beyond its rationale. If only a small portion of the mineral lies at the surface, the removal process might not unreasonably interfere with the use of the surface. Whenever a mineral estate is severed from the surface, the surface owner must expect that even underground mining could affect his use of the surface to some degree. In the absence of evidence that removal of the surface minerals will result in an unreasonable destruction of the surface, it cannot be presumed under the circumstances of this case that the parties intended to leave the minerals with the surface estate so as to preserve the surface. . 30 U.S.C. §§ 22, et seq. . As will be discussed below, the definition of valuable under the federal statute is not conclusive of what the parties meant when they used the term. . Furthermore, there have been exceptions to the present marketability rule on the issue of discovery under the federal statute, suggesting that the word can reasonably be construed to include minerals having prospective value. In Andrus v. Shell Oil Co., 446 U.S. 657, 100 S.Ct. 1932, 64 L.Ed.2d 593 (1980), the Supreme Court was called upon to determine whether locations of oil shale made prior to the 1920 Mineral Leasing Act, which withdrew oil shale from discovery under the 1872 general mining law, were valid even though oil shale at that time had no present marketability. The Supreme Court ruled that the locations were valid, noting the long-standing administrative interpretation that had included oil shale within the Act even though there had never been a profitable market for it. The Court quoted from a 1927 Department of Interior decision, which indicated that oil shale, the value of which is tied to its capacity to be converted into petroleum, should be treated differently than other minerals: While at the present time there has been no considerable production of oil shales, due to the fact that abundant quantities of oil have been produced more cheaply from wells, there is no possible doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people. 48 U.S.L.W. at 4604 (quoting Freeman v. Summers, 52 L.D. 201 (1927)). In Shell Oil the court recited a long history of administrative interpretation indicating that when considering whether a mineral is valuable as a source of petroleum both its present and prospective value may be considered. Thus, the present marketability test is not the only reasonable interpretation of the word “valuable.” This interpretation further suggests that when determining whether a mineral is valuable as a source of petroleum, prospective value should be considered. . The view of the trial court that a reservation clause may be ambiguous as to whether one class of minerals is reserved but unambiguous as to the reservation of other minerals finds support in Wyoming law. In Dawson v. Meike, 508 P.2d 15 (Wyo.1973), the Wyoming Supreme Court ruled as a matter of law that a clause reserving a one-half undivided interest “of all of the oil, gas and kindred minerals” did not reserve uranium, but that it could not be determined as a matter of law whether the clause reserved coal. . While evidence of a party’s intent is admissible to ascertain the meaning of an ambiguous contract, it may not be used to alter plain and unequivocal language, which must be applied as a matter of law. See Bowen v. Korell, 587 P.2d 653, 656 (Wyo.1978) and Bulis v. Wells, 565 P.2d 487 (Wyo.1977). 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_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". ZELLER MARINE CORPORATION v. NESSA CORPORATION. No. 103, Docket 20786. Circuit Court of Appeals, Second Circuit. Feb. 11, 1948. L. HAND, Circuit Judge, dissenting. Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges. Purdy & Lamb, of New York City (Edmund F. Lamb, of New York City, of counsel), for Zeller 'Marine Corporation, libellant-appellant. • Bigham, Englar, Jones & Houston, of New York City (Andrew J. McElhinney, of New York City, of counsel), for Nessa Corporation, respondent-appellee. AUGUSTUS N. HAND, Circuit Judge. The libellant, Zeller Marine Corporation, as • managing owner of the scow “Zeller No. 12,” brought this suit in admiralty to recover damages sustained by the scow on November 20, 1941, through the negligence of the respondent, Nessa Corporation, a stevedoring company, in allowing a, draft of steel girders, that was being unloaded from the scow by a sling, to fall from the sling, penetrate the deck of the scow and strike against the top of one of the fore and aft keelsons in the bottom of the hold. The keelson was made of long leaf yellow pine lumber about 39 feet in length and 12 inches square. The damage caused by the striking of the end of the girder against the top of the keelson consisted of a V-shaped depression on the top of the keelson, the legs of which were about 3 inches long. The fibres of the wood within the area of this V-shaped depression were crushed to a depth varying — according to the estimates of different witnesses — between % inch and li/£ inches at the point of maximum depth. A split was found on the top of the keel-son about 2 inches from the port edge which ran forward toward the bow of the scow for a distance of about 28 or 29 inches. At its forward end this split was about 3 inches in from the port edge of the keelson. A second split was found on the side of the keelson beginning at a point about 2 inches down from the top of the keelson and running forward a distance of about 20 inches where it ended about 4 inches down from the top of the keelson. According to libellant’s witness, Swenson, although there were two separate splits showing, one on the top and one on the side of the keelson, they were in fact a single split starting at the top and finishing at the side of the keelson. There was a very slight bulge at the side of the keel-son at the point of the split which was not more than Via of an inch out of line. The width of the split was so fine that the edge of a screw driver only %2 of an inch wide at its edge and Via of an inch at its thickest part could not be inserted in the split. Li-bellant’s witness, Swenson, evidently using a thinner probe, said that at one point he reached a depth of 6 inches. The greatest length of either split was the 28 or 29 inch length of the top split which was only about 6 per cent of the entire 39 foot length of the keelson. The total extent of the damaged area was less than 168 cubic inches out of 61,400 cubic inches, representing the cubic area of the entire keel-son. A libel and answer were filed and on February 3, 1943, an interlocutory decree was entered on consent in favor of the libellant for 90 per cent of libellant’s provable damages without interest or costs up to the date of the interlocutory decree. Hearings were thereafter had before a Commissioner who reported that the libel-lant was entitled to have the damaged keel-son removed and replaced at an estimated cost of $6,550 and, because of the stipulation limiting recovery to 90 per cent of the latter sum, found that the recovery should be thus computed. Judge Rifkind, before whom exceptions to the Commissioner’s report were argued, found that the scow could be restored to as good a condition as it was in before the accident by renewing three damaged deck planks at an expense of $138, and repairing the damaged keelson at a cost of $580. He accordingly gave a decree to the libellant for 90 per cent of this amount, or $646.20, plus an additional sum representing interest and costs making a total of $793.46. Upon a motion by the respondent to eliminate costs of the libellant the decree was resettled so as to award the sum of $782.46 to the latter. From the decree as thus resettled the libellant has appealed. In our opinion this decree was right and should be affirmed. It was stipulated by the parties on April 14, 1944 that no repairs had been made to the keelson since the time of the accident and that for a period of about two and one-half years the vessel had continued to engage in the same type of diversified lighterage as before.' This in itself is persuasive evidence that the injury to the scow was not such as to justify replacement of the keelson and the attendant expense of renewing at least 37 out of 96 bottom planks at the cost for which the Commissioner allowed recovery. As Judge Addison Brown held — when dealing with a somewhat parallel situation — in the J. T. Easton, D.C., 24 F. 95, 96: “An owner whose boat is damaged by the negligence of another is entitled to have his boat repaired in a way which will not leave her essentially depreciated in her market value, or inferior for practical use. But where an injury can be perfectly repaired for all practical uses at slight expense, but, as in this case, cannot be placed in exactly the same condition as new, except by taking out and replacing much other good work at a very considerable expense, the court must hesitate in allowing damages on the basis of the latter mode of repair, especially where, as in this case, though a long time has elapsed, no such repair has been made. The court could only be warranted in allowing for new beams upon very plain and certain proof that the market value of the boat will otherwise be materially and certainly lessened.” This opinion of Judge Brown, as might well be expected, states the proper rule of law for the recovery of damages by an owner whose vessel has been injured, and we find nothing in The Baltimore, 75 U.S. 377, 19 L.Ed. 463, which should be interpreted to the contrary. Any award must be calculated with recognition of the customary obligation of the injured party to minimize damages. In other words, he is only entitled to an award that would give him a boat as seaworthy and practically serviceable as before and not to an award, often much larger, sufficient to restore her to the identical condition she was in before the injury. The general effect of the authorities has been a denial of damages based upon replacement of an injured portion of a vessel in cases where repairs made at a substantially lower cost would render her as serviceable as before. Streckfus Steamboat Line v. United States, 5 Cir., 27 F.2d 251, 252; The Loch Trool, D.C.N.D.Cal., 150 F. 429, 431; Socony No. 21, D.C.S.D.N.Y., 1934 A.M.C. 136. The cases relied upon by the libellant for allowing the cost of replacement of the damaged portion of a vessel hold that the repair method rejected by the courts was only “temporary,” or did not put the vessel in “as good” a condition as before. Such authorities were satisfactorily distinguished by the trial judge. In his opinion he made the following observations as to the issues raised by the libellant and respondent at the hearing before the Commissioner: “During the hearing the libellant took the position, which was sustained by the special commissioner, that under the rule of restitutio in' integrum, the libellant was entitled to have the scow put back to its original condition, irrespective of the cost of removing and renewing the damaged keelson. It was the contention of the respondent that, where the cost of renewal was disproportionate to the cost of repairing the damage and putting the scow into as good a condition as it was before the injury, libellant was only entitled to the reasonable cost of such repair, together with the depreciation, if any, of the scow which had been damaged and repaired. Upon these two different theories each of the parties to the controversy proceeded in the presentation of evidence.” As a result of his analysis he held that libellant was only entitled to recover the estimated cost of repairs sufficient to render the vessel as seaworthy and serviceable as before the damage occurred and sustained exceptions to the Commissioner’s report upon the theory that the latter had adopted libellant’s contention that it was “entitled to have the scow put back to its original condition, irrespective of the cost of removing and renewing the damaged keelson.” In other words, he did not disregard Admiralty Rule 43%, 28 U.S.C.A. following section' 723, requiring him to treat the report of the Commissioner as correct unless he was satisfied that error of law had been committed. He reversed the Commissioner only because the latter had made his report upon the theory that the libellant was entitled to recover the cost of restoring the damaged scow to the identical condition she was in before the accident, irrespective of other methods of repair that would make her equally serviceable. He allowed only the cost of replacing three deck planks and repairs to the keelson which he found sufficient to render the vessel Seaworthy and serviceable and upon the testimony which he credited properly denied any allowance for depreciation upon the authority of Sawyer v. Oakman, C.C., 7 Blatch. 290, and Loch Trool, D.C.N.D.Cal., 150 Fed. 429, 433. In estimating the damages upon the basis of the cost of repairing the keelson without replacing it, the district judge followed the testimony of the respondent’s witness Horn who furnished the only evidence as to such cost. This was justified if the Commissioner, as the judge thought, had made no finding that only replacement of the keelson would render the boat as seaworthy and serviceable. The question is whether the Commissioner found that replacement was necessary to accomplish that result. We think that the Commissioner’s report, taken in connection with what transpired at the hearing before him, shows that he made no such finding but instead adopted the erroneous theory that the libellant was entitled to have its boat restored to the condition she was in before the accident irrespective of whether a far less expensive mode of repair would render her as useful for all practical purposes. This was the theory advanced by the libellant at the hearing in questioning its witnesses Swenson, Sandos, and Bagger. When the respondent attempted to introduce evidence as to methods of repair other than replacement the libellant objected on the ground that the owner was “entitled to have his property restored to the condition it was in prior to the accident.” In connection with the discussion of the admissibility of that type of evidence, the Commissioner said (folio 92) : “He is entitled to have it put in its original condition; there is no question about that * * * Restitutio in integrum * * Testimony as to other types of repair seems only to have been allowed because the Commissioner did not wish to exclude anything which the court might later think should have been admitted. (Folios 93, 236.) He made no allusion in his report to methods of repair other than replacement and merely said that respondent’s experts stated “that in their opinion the driving of a few nails would cure the trouble. I do not agree with this.” But the respondent had shown by its witness Horn that repairs of the keelson would render the boat completely serviceable at a cost which Judge Rifkind adopted. On cross examination, libellant’s witness Swen-son admitted that other methods of repair would restore the boat to a seaworthy condition (folio 96) while libellant’s witness Bagger not only advocated removal of the keelson but stated on' cross examination that it was the only proper way to repair this damage (folio 429). Though this vital question was raised by the respondent the Commissioner failed to make any finding that replacement of the keelson was necessary in order to restore the boat to as seaworthy a condition as before. Instead he adopted libellant’s erroneous theory of damages, as presented by its witnesses. In further support of our view, it may be added that libellant contended, at least until the filing of its reply brief, that if there were any damage requiring any repair of the keelson it was entitled to a replacement without consideration of any other method. The Commissioner having made no findings upon a proper rule of damages, we are not precluded by Admiralty Rule 43}/¿ from affirming the findings of fact and conclusions of law of the district judge, supported as they were by substantial evidence. Decree affirmed. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_applfrom	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). William C. FORBIS, Appellant, v. EDUCATORS AUTOMOBILE INSURANCE COMPANY, Appellee. No. 8283. United States Court of Appeals Tenth Circuit. April 12, 1966. A1 Pugh, Oklahoma City, Okl. (Frantz C. Conrad and Paul Pugh, Oklahoma City, Okl., on brief), for appellant. Charles W. Stubbs, Oklahoma City, Okl. (Burton J. Johnson, Oklahoma City, Okl., on brief), for appellee. Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges. PER CURIAM. The judgment is affirmed for reasons stated in the opinion of the trial court. Forbis v. Educators Automobile Insurance Company, D.C., 239 F.Supp. 667. 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_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. LABORERS’ DISTRICT COUNCIL OF GEORGIA AND SOUTH CAROLINA, affiliated with Laborers’ International Union of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Southern Frozen Foods, Inc., Intervenor. No. 73-1341. United States Court of Appeals, District of Columbia Circuit. Argued March 5, 1974. Decided July 19, 1974. Jules Bernstein, Washington, D. C., with whom Robert J. Connerton and Arthur M. Schiller, Washington, D. C., were on the brief, for petitioner. Vivian A. Miller, Atty., N.L.R.B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliot Moore, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., N.L.R.B., were on the brief, for respondent. Walter O. Lambeth, Jr., Atlanta, Ga., for intervenor. Warner S. Currie, Atlanta, Ga., also entered an appearance for intervenor. Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges. TAMM, Circuit Judge: This is an action under § 10(f) of the National Labor Relations Act (hereafter “the Act”) to review a Decision and Order of the National Labor Relations Board (“the Board”). The Board’s Order of March 28, 1973 held that the conduct of Intervenor Southern Frozen Foods, Inc. (“the Company”) during an organization campaign conducted by Petitioner Laborers’ District Council of Georgia and South Carolina, Affiliated With Laborers’ International Union of North America, AFL-CIO (“the Union”) did not violate § 8(a)(1) of the Act. For the reasons stated below we affirm the decision of the Board and deny the Petition to Review. The Company operates two frozen food vegetable processing plants in Montezuma, Georgia, which average 650 employees. In October, 1971, the Union filed a petition with the Board seeking to represent the Company’s production and maintenance employees. An election, held in December, 1971, resulted in 310 votes for the Union, 20 votes for an intervening union, and 304 votes for “no union.” No one choice on the ballot having received a majority, the Board directed that a runoff election be conducted. Prior to the runoff election the Union filed an unfair labor practice charge with the Board, alleging that the Company had violated § 8(a)(1). In the runoff election, held January 22, 1973, the Union again failed to gain a majority of votes cast. The Union filed objections to the election, however, the representation case was severed and remanded to the Board’s Regional Director before the instant unfair labor practice case was sent to the Board for decision and there are no representation issues before us for review. A hearing was held May 3-4, 1972, and the Administrative Law Judge found, inter alia, that the Company had violated § 8(a)(1) by distributing certain campaign literature to its employees between November 3, 1971 and January 27, 1972. The A.L.J. also found that a certain speech from the management supervisor to several employees violated the Act. Lastly, he found that one employee was threatened with discharge because of her union activities. The Board on review, found: 1) that with one exception the Company’s literature was a permissable exercise of free speech and not violative of the Act; 2) that the supervisor’s remarks did not violate the Act; and 3) that the employee was not unlawfully threatened. The Union now petitions for review asserting that the Board committed error in finding that the Company had not violated § 8(a)(1) of the Act in the various ways enumerated above. We will treat each alleged violation separately. A. Campaign Literature The organization campaign was characterized by the Board as “a heated campaign typified by sharp conflicts of interests.” 202 NLRB No. 92 at 9. Both sides actively campaigned, distributing much printed material in the form of leaflets, letters, posters, and crudely drawn pictorial appeals which for want of a better name may be called “cartoons.” Of all the material circulated by the Company, four items are of particular importance: a letter from the Company president to all employees dated January 5, 1972 ; a similar letter dated January 14, 1972 ; a third letter dated January 24, 1972 ; and a cartoon distributed January 21, 1972. The Administrative Law Judge found specifically that these individual items . were not predictions “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” Rather they directly conveyed that Respondent would “take action solely on [its] own initiative for reasons unrelated to economic necessities and known only to [it]” to resist demands for changes that Respondent might make in the absence of a union and leave the Union with a strike as its only alternative carrying with it the probable result of loss of jobs or a plant shutdown. The conclusion follows that Respondent intended “to threaten to throw employees out of work regardless of the economic realities,” if the Union won the election. I find that Respondent’s written communications to its employees during the pre-election period violated Section 8(a)(1) of the Act as alleged in the complaint. J.A. I. at 28 (citations omitted). As to the bulk of other items distributed by the Company, the Administrative Law Judge found that “the express content of [the above enumerated letters] was not repeated in [the Company’s] other literature, but the campaign literature otherwise served only to reinforce them.” Id. at 27. The Board, in its review of the whole campaign, focused on the aforementioned four communications upon which the A.L.J. had relied to find specific unlawful Company threats of reprisal. The Board stated: In our view, a reading of the entire record does not support the Administrative Law Judge’s conclusion that the above-mentioned pieces of literature distributed on January 14, 21, and 24, along with others, constituted a threat that Respondent would throw its employees out of work regardless of the economic realities if the Union won the election. Respondent’s communications at most represent one side of a heated campaign typified by sharp conflicts of interests. We note that from time to time the Union replied in an equally vigorous, partisan, and aggressive manner. Accordingly, we find on the basis of the totality of the campaign that with the exception of the January 5, 1972 letter Respondent’s literature did not contain unlawful threats of retaliation if the Union were selected to represent the employees but rather were recitals of Respondent’s beliefs regarding demonstrable economic consequences which could possibly flow from unionization. As such, the statements are protected by Section 8(c) of the Act. Accordingly, we shall dismiss the complaint except as it relates to the January 5 letter. 202 NLRB No. 92 at 9-10. Section 8(c), the provision relied upon by the Board reads as follows: (c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. The Union here argues simply that the A.L.J.’s findings were correct and that the “Board erred grievously in reversing [the A.L.J.’s] conclusions.,”. The Union states that in its communications, the Company “repeatedly stressed the likelihood of the plant closing in the event of unionization, although it did absolutely nothing to demonstrate any objective basis for this prediction.” The Union does not, however, direct us to any specific language from company letters, leaflets, or cartoons by which to illustrate threats or coercion on the part of the Company. We therefore take it that the Union here reasserts the views of the A.L.J. as to which specific company communications were unlawful, and shall review the findings of the Board as to those specific items. It is well established that an employer has a right to express his opinions and to predict unfavorable eonse-v quences which he believes may result from union representation. Such predictions or opinions will not violate the Act if they have some reasonable basis in fact and are in fact predictions or opinions and not veiled threats of employer retaliation. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) the Court enumerated the standards to be used in evaluating an employer’s pre-election statements. But we do note that an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expression of “any views, argument, or opinion” shall not be “evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of § 8(a)(1). Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.... If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. [A]n employer is free only to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control,” and not “threats of economic reprisal to be taken solely on his own volition.” 395 U.S. at 617-619, 89 S.Ct. at 1941 (citations omitted). See also Amalgamated Clothing Workers of America v. NLRB, 137 U.S.App.D.C. 330, 424 F.2d 818 (1970); NLRB v. Lenkurt Electric Company, 438 F.2d 1102 (9th Cir. 1971); Automation & Measurement Division, Bendix Corp. v. NLRB, 400 F.2d 141, 144-145 (6th Cir. 1968); Truck Drivers and Helpers Local No. 728 v. NLRB, 124 U.S.App.D.C. 289, 364 F.2d 682 (1966). Turning first to the letter of January 24, 1972, there is substantial evidence to support the Board’s finding that it carries no threats or coercive language. It begins by encouraging all employees to vote. It mentions the honor and honesty of the author, “the importance of keeping his word” to his employees. The letter makes an appeal to loyalty, stressing that the employees and the Company will share equally in both the good and the bad which may come in the future. It continues to the effect that the Company has helped its employees in the past and will, pledges the author, continue to do its very best for them in the future. The only slightly aggressive language is the request “don’t let an outsider change all of that.” We must ascertain whether this letter has an apparent tendency to coerce when viewed in the context of a labor relations setting. In our view, there is substantial evidence to support the finding of the Board that the letter indicates the Company. intended to continue its past policy of caring about its employees and that by so doing, it would try to give employees more than would the Union. The Board reasonably concluded that the letter contains no express or implied threats of retaliation. The letter of January 14, 1972, states that the Union would require dues; that the Company did not have to agree to any Union proposal; that the Union may have to strike; that strikers could be replaced; that the Company had already granted all wage increases permitted under the wage price guidelines then in effect. The letter then stated that other Union plants had experienced strikes and that “we know of some customers we would lose if the Union caused us to up our prices.” Finally the letter referred to “what has happened at Seabrook,” a reference to a reduction in work force at another Sea-brook-owned plant in New Jersey following the imposition of union work restrictions concerning the simultaneous handling of fresh and frozen foods. These Union rules resulted in a work reduction in New Jersey and a transfer of work to Southern’s Georgia plant. We believe that the Board was correct when it found that the letter of January 14, 1972 was not a threat that the Company would remove employees from the job regardless of economic realities should the Union prevail. The letter contained statements which the Board could find not coercive and which the employer had a right to state. The reference to the possibility of a strike was a reference to possible union action, not Company action, and thus is protected by 8(c) since it had a reasonable basis in fact. The reference to “some customers” who would be lost if prices were increased was not a prediction of business disaster as it did not identify those customers as significant to the Company. Indeed the Company had consistently predicted full production. The letter’s reference to the “Seabrook” incident was a factually accurate statement. In sum, we believe the record amply supports the finding that these employer statements were based on objective facts and conveyed the Company’s reasonable belief as to possible economic consequences of unionization beyond the Company’s control. See Gissel, supra, 395 U.S. at 618, 89 S.Ct. 1918; NLRB v. Lenkurt Electric Company, 438 F.2d 1102 (9th Cir. 1971); NLRB v. River Togs, Inc., 382 F.2d 198 (2d Cir. 1967). Turning finally to the cartoon of January 21, 1972, we believe that there exists substantial evidence to support the Board’s finding that the “closed” sign on the plant depicted in one of the six drawings does not constitute a serious threat that the Company would close in retaliation for a union vote. This is especially true since the Company specifically stated its desire to “use [the plant] to the fullest” regardless of the election’s outcome. At the most, the “closed” sign could be read as the result of the “fight” (i. e. strike) which unionization might precipitate; it does not represent a threat to close the plant. B. Speech by Mr. Kato Harvey Mr. Kato Harvey was assistant manager of the Company’s poly-repack department. Several times during the several pre-election periods he spoke to the workers in his department. Both the complaint and evidence received focus upon the last of Mr. Harvey’s speeches, the exact date of which is unknown. The testimony concerning the contents of the speech was confused and conflicting, and the A.L.J. chose to credit Mr. Harvey’s recollection of the speech while discrediting the testimony of other witnesses. The A.L.J. found and the Board accepted the following: Mr. Harvey told the employees that he worked as a supervisor and therefore that he “had to be for the Company.” He expressed his wish that they would feel the same. He stated his belief that Company employees generally did “all right” and thay they would continue to do so without a union. He also spoke about the possibility of the loss of the poly-repack turnip packaging operation. Previously, this packaging had been done at the parent company’s New Jersey plant but a union contract concerning the handling of mixed fresh and frozen produce caused the work to moved to this Company’s plant. Mr. Harvey testified concerning his remarks as follows: Q. All right. So was there anything else? A. Anything else I told them? Q. Right. At that time. A. Well I told them about the — together were putting up about seventy-eight million pounds of turnips with roots and so that that handline was doing about seventy-five percent of them. And also I thought if they cut that out, that was sort of hurt their jobs. Q. What do you mean “if they cut that out,” Mr. Harvey? A. If they cutting out putting up turnips with roots in the poly repack, they wouldn’t have much to do, wouldn’t stay in business. Q. Had anything happened that made you think they might cut out the roots? A. Well I was told that they were putting up turnips with roots up at Seabrook Farms and also — and also if the Union come in, they may cut that out at Southern Frozen Foods. J.A. I. at 104-05. A. So I told the people that worked in my department they had enough turnip roots for three weeks, I mean they behind. And if they cut that out, they was cutting their job and so that mean that why they not putting the turnip roots at Seabrook the time the Union come in. And I figure if the Union come in here, that’ll come out with your work. That’s what I meant. Trial Examiner: That’s what you said to the people? The Witness: That’s right. That’s what I said. Q. (By Mr. Currie) Did you give any explanation of how or why the union cut out the turnip roots at Sea-brook? A. Well they said they didn’t allow them to mix together like we was doing down here. Q. Didn’t allow them to mix them together. A. Yes, sir, like we was doing. J.A. I. at 109. Q. (By Trial Examiner) Well did you say anything about why the turnips would be cut off or when the turnips would be cut off? A. I didn’t say' they was gonna be cut off, I say if they be cut off. I didn’t say that they was, I say they had been cut off in Seabrook. We was putting up Seabrook’s turnips for them. J.A. I. at 123. The record further revealed, and the Board found, that on January 10, 1972, the Company mailed a letter to all employees which contained a reference to the job reductions at Seabrook, New Jersey. It read in pertinent part: At the New Jersey plant the company is restricted from running frozen and fresh vegetables together. They don’t run turnips and greens as we do. If we were restricted like this, we would not run the 7,500,000 pounds of turnips and greens we ran in 1971. Think how many hours of work and jobs would be lost. Also, if the union by unreasonable demands caused us to stop running any particular products, we would have to permanently lay off people. What would this do to you? We know the men could probably travel to other towns for jobs, but what jobs could the women get? J.A. II. at 38. On the basis of this evidence, the A.L. J. concluded that Mr. Harvey’s remarks “conveyed a threat of reprisal and violated Section [8] (a)(1) of the Act.” The Judge stated his reasons for this finding to be that Mr. Harvey’s remarks were “not a reasoned and factual statement of what had happened in New Jersey” and that the remarks implied that if the Union were to prevail, the poly-repack operation might be lost “for reasons unrelated to the economic necessities or any contract the Union might negotiate.” The A.L.J. did not accept the proposition that the January 10 letter dispelled or nullified any possible threat contained in Mr. Harvey’s speech because the letter did not mention Mr. Harvey’s remarks and did not fully explain the work restrictions. The Board found that: In our view, Harvey’s remarks are ambiguous and do not clearly imply a threat that a union victory would automatically be followed by a loss of employment. Harvey’s statements especially when taken together with Respondent’s January 10, 1972, letter, do nothing more than raise the possibility that if the Union came in it could conceivably restrict Respondent the way it had restricted the parent company in New Jersey, with the result that the turnips would be packed elsewhere. Considering the totality of statements concerning the turnip operation, we are not prepared to say that Respondent’s communications threatened employees with loss of employment. Accordingly, we find such remarks permissible and not violative of the Act. 202 NLRB No. 92 at 7. We believe that the decision of the Board was a permissible one, supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In so holding, we again recognize that the Board’s findings must be accorded great weight because they carry the “authority of an expertness.” Id. at 488, 71 S.Ct. 456. We recognize that it is the Board’s duty “in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” Gissel, supra, 395 U.S. at 620, 89 S.Ct. at 1943. We believe the Board could correctly find that Mr. Harvey's remarks when considered with the Company’s January 10th letter did no more than suggest the possibility that a Union victory could result in work restrictions leading to the loss of employment. This is what occurred in the New Jersey plant after unionization. Therefore we find that these predictions were “carefully phrased on the basis of objective fact to convey [a Company] belief as to demonstrably probable consequences beyond [its] control...” and are thus lawful under Gissel, supra, 395 U.S. at 618, 89 S.Ct. 1942. The Company is permitted to inform its employees of the possible adverse economic consequences of their vote which might arise from demonstrable Union demands or policies. See, e. g., NLRB v. Lenkurt Electric Co., 438 F.2d 102, 105-108 (9th Cir. 1971); NLRB v. River Togs, Inc., 382 F.2d 198, 201-202 (2d Cir. 1967). C. Mr. Studdard’s Remarks to Ms. Butler Ms. Mollie Butler was an employee in the poly-repack department. About a week prior to the first election, Ms. Butler was summoned to the office of the department supervisor, Mr. Kato Harvey. There, with Mr. Harvey present, Mr. Studdard, Company Personnel Director, informed Ms. Butler that there had been complaints about her “running her mouth on the line about the Union.” Mr. Studdard told Ms. Butler that he did not care how she felt about the Union, that she could talk about it on her break time or her lunch time, but not on the line during working periods. Mr. Studdard informed her that if her behavior occasioned similar complaints in the future, she would be dismissed. The A.L.J., after making these findings of fact, found that Ms. Butler “was warned only against talking about the Union during working time and threatened with discharge should she again do that.” In so doing, he rejected Ms. Butler’s contention that the warning was against any pro-union conversation anywhere within the plant at any time. The A.L.J. found a violation of § 8(a)(1) of the Act because Ms. Butler was threatened with discharge not for the purpose of prohibiting her talking in general during working time, but to stop her from talking about the Union in particular. The Board disagreed with the legal consequences of the facts as found by the A.L.J. The Board stated in this regard : The evidence shows, and the Administrative Law Judge found, that Stud-dard’s warning to Butler followed a conversation Studdard had with Trice on the previous day wherein Trice informed him that Butler’s talking about the Union while working was disturbing another employee who had complained and did not want to hear about the Union. While there is no evidence that any other employees who were regularly told to stop talking were threatened with discharge for failure to comply, there is no evidence that their talking had interfered with the work of others. Since Butler’s talking prompted a complaint from a fellow worker, Respondent could for legitimate business reasons have required that she stop talking during worktime. Studdard’s warning referred only to worktime and made it clear that at other times Butler was free to talk about the Union. As there is no evidence that would otherwise indicate discriminatory enforcement of Respondent’s prohibition against talking while at work, we shall dismiss this allegation of the complaint. 202 NLRB No. 92 at 3. We think that the Board’s findings are reasonable and supported by substantial evidence. Ms. Butler was clearly assured that she could speak out for the Union at all times and in all places other than the production line. We agree with the Board that an employer can make and enforce “reasonable rules covering the conduct of employees on company time. Working time is for work.” The Company has such a rule against talking on the job and absent proof of discriminatory anti-union application, it is a lawful rule. The Company had a legitimate interest in stopping Ms. Butler’s pro-union comments on the line when other employees had made complaints. For the reasons stated above we find that the Petition to Review was properly denied. The order here under review is therefore Affirmed. . 29 U.S.C. § 160(f) (1970). . Board Case No. 10-CA-9374, reported at 202 NLRB No. 92 (1973), 82 LRRM 1642 (1973). . “Sec. 8. (a) It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7....” . 213 votes pro-union; 344 votes “no union”. Br. of Petitioner at 3. . 202 NLRB No. 92 at 1 n. 1. . Although the briefs were silent on the reason for the severance, it is clear that there is no judicial review of the Board’s § 9 certification decisions, unless they are “incidental to review of an order restraining an unfair labor practice under § 10.” A. F. of L. v. NLRB, 308 U.S. 401, 410, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). The Board has been entrusted with complete control of election proceedings. Excelsior Laundry v. NLRB, 409 F.2d 70 (10th Cir. 1968). The Board conducted a second runoff election August 29, 1973, and counsel informed this court during oral argument that again the Union failed to receive a majority, gaining but 123 votes out of 379 cast. . The decision of the Administrative Law Judge is found at Joint Appendix, Volume I at 3-38. (Hereafter J.A. I.) . The Board found that a letter from the Company President to all employees, dated January 5, 1972 (see note 10 infra), contained a threat that the Company would be less responsive to tlie employees should they elioose the Union. 202 NLRB No. 92 at 8, 10; J.A. II. at 11. The Board concluded that this letter violated the Act and ordered the Company to cease and desist therefrom and to place an appropriate notice to all employees. 202 NLRB No. 92 at 10-11. The Company has voluntarily complied with this order and therefore the Board has not petitioned for enforcement. . 202 NLRB No. 92 at 3, 5, 9-10. . January 5, 1972 Dear Fellow Employee: We have been advised that our next union election is scheduled for January 27, 1972. The polling places will be the same as before. The time has come for us to talk turkey. We know we need to make some changes, and we will once we get this union mess out of the way. The plain facts are the union can not do anything for you to make this a better place to work or get you more money. Put yourself in our position: If you have a friend who is appreciative of what you try to do for him and another who makes demands — which one of them are you going to help the most? The answer is obvious — we are human the same as you are. If we are going to continue to grow and maintain our operation providing jobs in Montezuma, we must have your help. You probably have not looked at the company’s side of the situation — but you should. Believe me, what is good for the company is good for you. Having a union would not be good for the company — so it can not be good for you. The best thing you can do — if your future is here in Montezuma and you plan on making a career working for Southern Frozen Foods — is to vote this union out of here once and for all. When that is done all of us can get back to the business at hand — trying to make a profit which is where whatever benefits you and I enjoy come from. If you have any question about what has been said above or anything else pertaining to this company or your situation, ask me, your supervisor, or your department head. Sincerely, /s/ Preston Preston Williams President J.A. II. at 11. The Board held that this letter constituted a violation of § 8(a) (1). See note 8 supra. . January 14, 1972 Dear Fellow Employee: Some of you have asked why the Company people don’t visit you at your homes as the Union has been doing. The rules keep us from visiting your home. We can only write you or talk to you at the plant. You do not now pay union dues. You are now receiving yearly wage reviews and including your fringe benefits. The Union wants you to pay $6.50 a month in dues. What will they guarantee you for your money? If they give you a promise or guarantee, how can they carry it out? Your Company doesn’t have to agree to anything the Union proposes. We won’t agree to anything we feel is bad for you or the Company. The only thing the Union can do about it is try to force us by a strike. If you strike we have the right to replace you. Strikes only happen in Union plants. The Union would have to get you an extra $6.50 a month for you to even break even. Your Company has given all the raise Phase 2 of the wage freeze allows. No one knows when the freeze will end. We appreciate your help in making the Company what it is. We feel that we would never do more for Mr. Bartlett than we would do for you voluntarily. Several people have asked why we are against the Union. We are against the Union because we know they can wreck the Company and reduce the number of jobs. We have all seen what has happened at Seabrook. We don’t want that here. We don’t know of a single plant where more jobs have been created by a union. We don’t know a single customer that the Union can get us. We do know of some customers we would lose if the Union caused us to up our prices. Mr. Bartlett doesn’t care about layoffs. Union dues are only paid by the people working. Mr. Bartlett can’t create any jobs. His union has lost so many elections in Georgia this year they are desperate for new members. Don’t be misled by false promises. We are going to continue to manage this business — Protect Your Future-Vote “NO.” Sincerely, /%/ Preston Williams Preston Williams President J.A. II. at 12. . January 24, 1972 Dear Fellow Employee: Because of our short work schedule at this time it is going to be impossible for me to see some of you before the election on Thursday, January 27, at 3:00 P.M. Let me encourage you to make every effort to come and to vote — do not leave this decision to someone else to make for you. We have been told that the Laborer’s have people going house to house. We cannot do this — if we could — we would be sending you people you could trust with facts, not wild promises. What I have told you in the past — I have done and nobody is going to change my attitude about the importance of keeping my word. We are bound together by such ties that whatever happens to any one of us should affect every other one of us. Any good fortunes and successes the Company has should cause you to experience a new sense of joy since you will share in that success through our being in position to do more for you. At the same time our disappointments and failures can only bring regret to the Company and to you. Each of us has a responsibility to be concerned — I am — and I hope you are. We all have our faults and certainly we have all experienced many failures. No one is kidding me and I don’t want someone else to try to kid you into believing that what the union is offering is better than my intents — which have been proven. We need each other — the way our system is today my help is always available — don’t let an outsider change all of that. Those of you who are wise, and I honestly feel most of you are, will gratefully accept the concerned efforts of those who really care about you. This is a day when we cannot make it alone. We should be grateful for the unselfish concern of those around us who are not looking to profit at our expense but help solely because they care and are concerned. Concern, however, is not enough unless we intend to give ourselves in a real and positive program seeking solution to these problems. I am that concerned and if given the opportunity through your vote on January 27 — I will continue to try to prove to you that all that has been said by me is true. Sincerely, /s/ Preston Williams Preston Williams President J.A. II. at 15. . This cartoon depicts three characters: “Preston,” the Company president; “You,” the employee; and “Big Daddy” Bartlett, the Union organizer. The dialogue reads as follows : Once there were two people who worked together to build a successful business They were pretty happy until a stranger (who didn’t work to build anything) said to one... “You poor exploited so and so! You’re not getting enough from the business! ” “Just sign this card and I’ll help you make him give you more.” “Then lets you fight him” he said happily “If it doesn’t work out I haven’t lost anything.” YOU stand to loose, not “BIG DADDY” There is a picture of a building, presumably representing the plant with a sign on it reading “Closed”. J.A. II. at 1. . Br. of Petitioner at 20. . Id. at 21. . We note in this regard that the Board here merely disagreed with the A.L.J. as to the inferences and legal conclusions to be drawn from the facts found. In such cases, where a disagreement between the Board and the A.L.J. does not turn on questions of fact or on credibility of witnesses, no special weight need be given to the conclusions of the A.L.J. See, e. g., Sign and Pictorial Union Local 1175, etc. v. NLRB, 136 U.S.App.D.C. 144, 419 F.2d 726, 733-734 (1969) ; Oil, Chemical and Atomic Workers Int. U., Local 4-243 v. NLRB, 124 U.S.App.D.C. 113, 362 F.2d 943, 945-946 (1966) ; NLRB v. Lenkurt Electric Company, 438 F.2d 1102, 1105 n. 3 (9th Cir. 1971). . See note 12 supra. . See, e. g., Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9 n. 24 (3rd Cir. 1969) ; NLRB v. Standard Container Co., 428 F.2d 793, 794 (5th Cir. 1970). . NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). . 202 N Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_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. WARDMAN REAL ESTATE INV. CORPORATION v. DISTRICT OF COLUMBIA. No. 8950. United States Court of Appeals District of Columbia. Argued Oct. 24, 1945. Decided Nov. 13, 1945. Mr. Joseph FitzGerald, Jr., of Washington, D. C., for petitioner. Mr. Harry L. Walker, Assistant Corporation Counsel, District of Columbia, of Washington, D. C., with whom Mr. Vernon E. West, Corporation Counsel, District of Columbia, of Washington, D. C., was on the brief, for respondent. Mr. Richmond B. Keech, Corporation Counsel at the time the brief for the District was filed, of Washington, D. G, also appears thereon. Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices. GRONER, G J. This is a petition to review a decision of the District of Columbia Board of Tax Appeals. Petitioner is a Virginia corporation, with its principal place of business in the District of Columbia. Its appeal to us is from the assessment of additional income tax by the Assessor of the District in holding the profits of the sale of certain real estate to be ordinary income and therefore taxable. The applicable statute is § 6(b) of Title II, of the District of Columbia Revenue Act of 1939, 53 Stat. 1091, § 47— 1506(b), D.C.Code 1940, and provides that: “Gains and losses from the sale or exchange of property other than a capital asset shall be treated in the same manner as other income or deductible losses, and the basis for computing such gain or loss shall be the cost of such property or, if acquired by some means other than purchase, the fair market value thereof at the date of acquisition.” Substantially all of petitioner’s income for many years prior to 1942 (the taxable year in question) accrued from the purchase and sale of real estate mortgage notes and from interest collected thereon. During the period 1929 through 1937 petitioner acquired thirty-three pieces of improved real estate as the result of default in the payment of indebtedness, represented by mortgage notes. During the tax year 1942 petitioner realized gross profits of $12,227.44 in the sales of nine of the parcels of property, previously so acquired in foreclosure, and reported these gains as accruing through the sale of capital assets (nontaxable under the statute). The Board held that the gains from the real estate sold in 1942 in the District of Columbia, and acquired as above described, constituted income to the petitioner received in the ordinary course of its business, and concluded as a matter of law that the profits from such sales were taxable. We are of opinion, for reasons more fully stated in Henry J. Robb, Inc., v. District of Columbia,-App.D.C.-, 152 F.2d 283, decided simultaneously herewith, and where the facts are admittedly similar, that the Board’s findings of fact and conclusions are clearly correct and should be affirmed. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. TED HICKS AND ASSOCIATES, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. No. 77-3084 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 8, 1978. G. Michael Pharis, Baton Rouge, La., for petitioner. Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Peter M. Bernstein, Ruah D. Lahey, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, N.L. R.B., Washington, D. C., for respondent. Before BROWN, Chief Judge, and COLEMAN and VANCE, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: Ted Hicks & Associates, Inc. (Hicks), a building contractor, petitions to set aside an order of the National Labor Relations Board (NLRB). The crux of the controversy concerns the interpretation of a prehire memorandum agreement between Hicks and Carpenters Local 1098 (Union). We agree with the NLRB’s interpretation and enforce its order. In 1969, the Union executed an areawide collective bargaining contract with the Baton Rouge Chapter of the Associated General Contractors of America, Inc. (AGC), a multiemployer bargaining group. In May 1974, a new two-year contract went into effect between the Union and the AGC. It was negotiated pursuant to a provision in the 1969 contract that provided: This agreement . . . shall remain in full force and effect through March 31, 1972, the anniversary date hereof and from year to year thereafter unless either party, at least ninety (90) days prior to any anniversary date, notify the other party of its desire to modify or terminate same. Hicks, which was not a member of the AGC, signed a memorandum agreement with the Union on October 11, 1974, stating that both parties would be bound by all provisions of the 1969 collective bargaining contract between the Union and the AGC. The memorandum, moreover, explained that Hicks would abide by “any modifications, extensions, or renewals” of that contract. From October 11, 1974 to May 21, 1976, Hicks adhered to the terms of the 1974 agreement, which was then in effect, and contributed to the Union’s welfare, education, and pension funds. In 1976, the Union notified the AGC that it wanted to terminate the expiring 1974 contract and negotiate a new agreement. In May 1976, the Union and AGC executed another collective bargaining contract covering a subsequent two-year period. Hicks refused to comply with this agreement, and as a result, the NLRB held the company in violation of the National Labor Relations Act, § 8(a)(1), (a)(5), 29 U.S.C.A. § 158(a)(1), (a)(5). Hicks argues that the memorandum agreement does not bind the company to all future agreements between the Union and the AGC. It contends, moreover, that the 1969 contract is irrelevant, and it is bound only by the 1974 agreement in effect at the time the memorandum was signed. The NLRB argues that the 1969 contract, which Hicks specifically agreed to follow, was the base contract, and the 1974 and 1976 agreements were only modifications. See NLRB v. R. J. Smith Construction Co., Inc., 1976, 178 U.S.App.D.C. 109, 545 F.2d 187. The Board’s interpretation of a collective bargaining agreement will stand if it is supported by the record and has a reasonable basis in law. Newspaper Production Co. v. NLRB, 5 Cir., 1974, 503 F.2d 821, 830. We believe that the NLRB’s interpretation in this case meets this standard. Cf. NLRB v. Beckham, Inc., 5 Cir., 1977, 564 F.2d 190 (substantial evidence supported NLRB’s finding that employer was bound by multiemployer bargaining agreement). Hicks offers no explanation, indeed it never attempts an explanation, why it would sign a memorandum agreement in October 1974, stating that it adhered to a 1969 contract, if the 1969 contract had no bearing on the 1974 agreement. Examination, furthermore, of the three Union-AGC contracts — 1969, 1974, and 1976 — reveals that they are nearly identical, except for changes in certain economic terms. It was reasonable, therefore, for the NLRB to conclude that the 1969 agreement was the base contract, and the 1974 and the 1976 agreements were modifications of that base. Thus, the Union’s notice to the AGC in 1974 merely signaled an end to the terms in the 1974 contract and not an end to the Union’s relation with Hicks. In the alternative, Hicks contends that the 1974 contract is still in effect because it received no notice that the Union wanted to renegotiate this contract. Although Hicks did not receive notice, the Union complied with the requirements of the 1974 contract in notifying the AGC. More importantly, the memorandum agreement does not stipulate that the Union must notify Hicks if it seeks to alter the 1969 contract. Cf. NLRB v. R. J. Smith Construction Co., supra, 545 F.2d at 192 (employer did not comply with termination provisions of prehire memorandum agreements). The memorandum in this case requires only that the Union and Hicks adhere to modifications of the 1969 agreement, which is what the Union did in notifying the AGC. ENFORCED. . The full text of the October 11, 1974 memorandum agreement is as follows: This Agreement is made by and among the undersigned, hereinafter called “EMPLOYER”, “UNION”, or “TRUST(S)”, as the case may be 1. EMPLOYER and UNION agree to comply with, abide by, and be bound by all of the provisions of the collective-bargaining agreement heretofore entered into between the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1098 and the BATON ROUGE CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., dated March 28, 1969, and any modifications, extensions, or renewals thereof with the same force and effect as though the said collective bargaining agreement was set forth here in full. 2. EMPLOYER agrees to become a party to and be bound by all the terms and provisions of the agreements establishing: a. CARPENTERS LOCAL NO. 1098 WELFARE FUND, being that Agreement and Declaration of Trust dated August 1, 1969, b. CARPENTERS LOCAL 1098 PENSION TRUST, being that Agreement and Declaration of Trust dated March 31, 1970, c. LOCAL 1098 EDUCATIONAL AND TRAINING PROGRAM TRUST, being that Agreement and Declaration of Trust dated April 30, 1970, with the same force and effect as though the agreements were set forth here in full. Without in anywise limiting the generality of the foregoing, EMPLOYER does irrevocably designate and appoint the employers mentioned in the various Trust Agreements as its attorneys in fact for the selection, removal, and substitution of Trustees as provided in said agreement(s) and does hereby agree to make payments covering all of his employees as required by the collective bargaining agreement and the agreements establishing said trusts and does hereby ratify, approve and consent to all matters heretofore done in connection with the creation and administration of such trusts. 3. TRUST(S) agree(s) that EMPLOYER is granted the right to participate in said agreement(s), subject to all the terms and conditions thereof, with the same effect as though he were originally a party thereto. . Although the memorandum agreement contains no expiration date, the Board’s decision explains how Hicks or the Union could end the agreement: Inasmuch as the memorandum agreement did not contain an expiration date or express provisions regarding its termination, it is necessary to determine how an end to that agreement could be achieved by the parties. We find that the memorandum agreement by its terms incorporates the provisions of the 1969 agreement, and successor agreements modifying it, including the 1974 agreement which then was effective. Hence, we further find that Respondent was obligated to give notice to the Union at least 90 days prior to the desired date for termination of the memorandum agreement, in accordance with the provisions of the incorporated 1974 contract. By the same token, had the Union desired to terminate the memorandum agreement with Respondent and negotiate a separate 1976 contract, it would have been obligated to give at least 90 days’ notice to Respondent of the proposed termination date. Note that in so finding we reject any construction of our holding that such notice of termination could be by termination of the AGC-Union bargaining agreements. 232 NLRB No. 113 at 7 n.5 (Sept. 30, 1977), R. at 83. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_appel1_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. TAISHO MARINE & FIRE INSURANCE CO., LTD., Plaintiff-Appellant, v. M/V SEA-LAND ENDURANCE; Sea-Land Service, Inc., Defendant-Appellee. No. 86-5747. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1987. Decided April 27, 1987. Erich P. Wise, Long Beach, Cal., for defendant-appellee. Gerald M. Fisher and Ronald D. Kent, Long Beach, Cal., for plaintiff-appellant. Before FERGUSON, BOOCHEVER and WIGGINS, Circuit Judges. BOOCHEVER, Circuit Judge: OVERVIEW Taisho Marine and Fire Insurance Company (Taisho) appeals the district court’s judgment in favor of Sea-Land Service Incorporated (Sea-Land). The court held that the peril of the sea defense under the Carriage of Goods by the Sea Act (COGSA), 46 U.S.C. app. § 1304(2)(c) (Supp. Ill 1985), prevented Taisho from recovering payments made to a shipper for cargo lost by Sea-Land. Taisho contends that the district court (1) reached a conclusion of law not supported by the facts, (2) improperly considered Taisho’s status as an insurer, and (3) incorrectly placed the burden of proof on Taisho. We affirm. FACTS In March 1984, a forty-foot aluminum cargo container packed with Sony stereo equipment was loaded aboard the M/V Sea-Land Endurance (Endurance) in Kobe, Japan. The container was stowed on the vessel’s deck on the starboard side near her stern. The owner of the vessel, Sea-Land, issued bills of lading which are contracts of carriage subject to COGSA, 46 U.S.C. § 1300-1315. Sony insured the cargo with Taisho. The vessel encountered adverse weather conditions enroute to Long Beach, California. Between midnight and 9:00 a.m. on March 16, 1984, the cargo and the storage container were destroyed. Taisho paid the assured’s claim for loss of cargo and brought this action as subrogee against the vessel Endurance and its owner, Sea-Land. The vessel was dismissed as Sea-Land agreed to be responsible for any liability imposed on the vessel. The district court found that there was “no evidence of unseaworthiness on the part of the vessel or incompetent management of the ship by its Master.” Further, the court concluded that Taisho did not fulfill its burden of proof to show that the loss of the cargo resulted from some fault of the crew or the vessel. The proof showed that the loss was caused by the weather alone. The court held that the peril of the sea defense, 46 U.S.C. § 1304(2)(c) was established by Sea-Land thereby exonerating Sea-Land from liability. The court wrote a Memorandum of Intended Decision and adopted Sea-Land’s findings of fact and conclusions of law. Taisho appeals. DISCUSSION 1) The Peril of the Sea Defense Taisho argues that the district court’s factual findings fail to meet the statutory requirements of the affirmative defense of peril of the sea provided by COGSA, 46 U.S.C. § 1304(2)(c). We review the court’s determination of whether the established facts fall within the parameters of the peril of the sea defense under the deferential, clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). COGSA, 46 U.S.C. § 1304(2)(c) provides in pertinent part that “[n]either the carrier nor the ship shall be responsible for loss or damage arising or resulting from— (c) Perils, dangers, and accidents of the sea.” While “perils of the sea” is a term of art not uniformly defined, the generally accepted definition is “a fortuitous action of the elements at sea, of such force as to overcome the strength of a well-found ship or the usual precautions of good seamanship.” G. Gilmore & C. Black, The Law of Admiralty, § 3-32 at 162 (2d ed. 1975); States S.S. Co. v. United States, 259 F.2d 458, 460-61 (9th Cir.1958), cert. denied, 358 U.S. 933, 79 S.Ct. 316, 3 L.Ed.2d 305 (1959); R.T. Jones Lumber Co. v. Roen S.S. Co., 213 F.2d 370, 373 (7th Cir.1954); Philippine Sugar Centrals Agency v. Kokusai Kisen Kabushiki Kaisha, 106 F.2d 32, 34-35 (2d Cir.1939). Case law fails to set out a bright line test to determine whether cargo was lost by a peril of the sea. Rather, the cases indicate that the validity of the statutory defense depends on the nature and cause of the loss under the particular facts of a case. Taisho cites J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580 (2d Cir.1971), for the proposition that a series of factors must be established in order to use the peril of the sea affirmative defense. Taisho contends that the peril of the sea defense only exists upon proof of several of the following factors: (1) the extent of structural damage to the vessel, (2) the extent of any speed reduction, (3) the extent of any cross-seas, (4) how far the vessel was blown off course, and (5) to what extent other vessels in the same storm experienced cargo-related damage. Taisho fails to note that these factors are not the cumulative total of all the indicia that can be used to determine the existence of a peril of the sea. In Gerber, the court stated that in deciding whether a case falls within the statutory purview of peril of the sea, the central inquiry is into the measure of the violence of the winds and tempestuousness of the sea. “These are matters of degree and not amenable to precise definition.” Id. at 596. Gerber was a shipper seeking recovery for damage caused by sea water to cargo transported by the S.S. Sabine Howaldt. The court held that the vessel was seaworthy, there was no negligence on the part of the carrier, and that the damage was caused by hurricane force winds and resulting cross-seas which forced up hatch covers admitting sea water to the holds. The loss was from a peril of the sea and the vessel owner was exonerated from any liability. Gerber states that a very important measure considered on the peril of the sea issue is the wind velocity on the Beaufort Scale because of a direct relationship between wind velocity and the size and shape of the waves. Id. at 596. No Beaufort Scale index exists which divides cases into those qualifying for the peril of the sea exception and those which do not. Nevertheless, courts have almost always found a peril of the sea where the force has been 11 or greater and very few cases are found to qualify where the winds are force 9 or less. Id. Wind velocity, however, is only a rough measure and must be considered with other indicia such as nature and extent of damage to the ship, cross-seas and other factors. While the seaworthiness of a ship presupposes that she is designed, built and equipped to stand up under reasonably expectable conditions this means no more than the usual bad weather which is normal for a particular sea area at a particular time. It does not, however, include an unusual combination of the destructive forces of wind and sea which a skilled and experienced ship’s master would not expect and which the ship encountered as a stroke of bad luck. Hurricane force winds and turbulent cross-seas generating unpredictable strains and pressures on a ship’s hull are an example. Id. (footnote omitted). The district court found that the vessel Endurance encountered at least four waves in excess of 60 feet which rolled the vessel more than 40 degrees. A substantial number of waves between 40 and 60 feet in height battered the vessel. During the storm, between 0200 and 0900 hours, the sustained winds remained between Beaufort Force 10 (Whole Gale, 48-55 knots) and 12 (Hurricane force, 64-71 knots) with gusts in excess of 95 knots. Throughout this period, the master maintained a reduced speed of 17 knots (normal operating speed is 21.5 knots) to minimize the risk of damage to the vessel, cargo, and personnel while maintaining rudder control. The court found that only a few vessels in the area between 1946 and 1984 reported seas of equal or greater height and that the sustained winds of 65 knots were the highest ever recorded in the area. On March 17, the crew noted that (1) the port gangway was washed overboard, (2) two firehoses and nozzles were missing, (3) the port lifeboat embarkation ladder was damaged, and (4) the starboard pilot ladder was damaged. In addition, containers at Hatch 10, portside and Hatch 11, starboard (the container in question) were lost overboard and eight other containers were found damaged,, four severely and four slightly. Neither the stacking frame cargo system nor the locking devices used to secure the container were damaged or failed during the storm. Taisho does not dispute the validity of these findings or the finding that the vessel was seaworthy and that Sea-Land exercised due diligence to render the Endurance seaworthy. Taisho’s cited cases fail to support the contention that unless the district court finds several factors existed out of the five previously enumerated, the court cannot conclude that the peril of the sea defense exonerated Sea-Land. Taisho’s cites the following cases in support of its proposition: Virgin Island Corp. v. Merwin Lighterage Co., 251 F.2d 872 (3d Cir.), cert. denied, 357 U.S. 929, 78 S.Ct. 1369, 2 L.Ed.2d 1372 (1958) (No Peril — Two barges next to each other, one with cargo lashed down — the other without its cargo lashed down, court said lashing could have saved cargo); States S.S. Co., 259 F.2d 458 (No Peril — Beaufort Force 9, mountainous seas, inherent condition of the hull rather than the sea caused the sinking); Ore S.S. Corp. v. D/S A/S Hassel, 137 F.2d 326 (2nd Cir.1943) (No Peril — Beaufort Force 9-10 for 3 days, two windows knocked in, lifeboat damaged, reduced speed, rivet missing, winds not extraordinary); Philippine Sugar, 106 F.2d 32 (Peril — 3 days at Beaufort Force 9-10, lifeboat crushed, steel superstructure broken or carried away, blown 160 miles off course); American Int’l Ins. Co. v. S.S. Fortaleza, 446 F.Supp. 221 (D.P.R.), aff'd, 585 F.2d 22 (1978) (Peril — Winds Beaufort Force 6-11 for 24 hours, vessel rolled 40 degrees and continued rolling 30-40 degrees, seas in excess of 40 feet, lost 30 trailers, foremast snapped off, railing and steel deck curbing destroyed); Freedman & Slater Inc. v. M/V Tofevo, 222 F.Supp. 964 (S.D.N.Y. 1963) (No Peril — Alteration in log book showing higher Beaufort Forces not supported by other evidence); Palmer Distrib. Corp. v. S.S. American Counselor, 158 F.Supp. 264 (S.D.N.Y.1957) (No Peril —Beaufort Force 9-10 for 3 days, not unusual weather for North Atlantic, no structural damage, other cargo not damaged). The district court’s findings of unusually high winds and seas, the rolling of the ship, the damage to the ship, the loss and damage of other containers, and Sea-Land’s due diligence in making the vessel and cargo system seaworthy support the conclusion that the cargo was lost because of a peril of the sea. 2) Status Issue The district court recognized that Taisho, having paid Sony for the lost cargo, was subrogated to all rights, claims and causes of action for the loss of that cargo. The district court later stated in the decision that [t]his case has been brought, not by the owner of the Cargo, but by its insurer who has paid the loss. Plaintiff is in the business of assuming risks. In this case it assumed the risk of insuring safe passage for a Cargo which it knew would transverse the North Pacific in the month of March when heavy seas are not unexpected. Plaintiff’s entire effort at attempting to show how the Master of the Endurance might have taken other measures to navigate this ship amount only to Monday morning quarterbacking. Taisho argues that the district court improperly considered Taisho’s status as an insurer in rendering the decision. Sea-Land argues that the district court was just making observations of fact and did not diminish Taisho’s right to recover. The question on appeal is whether the statement by the district court indicates a misapplication of the principles of subrogation warranting reversal. In other words, did the district court apply an incorrect legal standard to Taisho’s claim because it was an insurer. Under ordinary principles of subrogation, the subrogee (Taisho) “stands in the shoes” of the subrogor (Sony). Community Nat’l Bank v. Fidelity & Deposit Co., 563 F.2d 1319, 1323 n. 5 (9th Cir.1977). Thus, the validity of any affirmative defense must be evaluated as if Sony brought the action. Because the discussion by the district court of Taisho’s status as an insurer is superfluous to the decision, it does not indicate that Taisho was held to a different legal standard, especially in light of the court’s earlier recognition of Taisho’s status as a subrogee. 3) Burden of Proof Taisho argues that the court placed the burden of proof as to the issue of negligence on the wrong party as the peril of the sea affirmative defense requires the showing of an absence of negligence. Sea-Land contends that once they have proved that the loss was from the sea alone, the burden then shifts to Taisho to show a concurrent act to defeat Sea-Land’s peril of the sea affirmative defense. The selection of the appropriate burden of proof is a question of law reviewed de novo. See McConney, 728 F.2d at 1201-04. Generally, under COGSA, a shipper establishes a prima facie case against the carrier by showing that the cargo was delivered in good condition to the carrier but was discharged in a damaged condition. 46 U.S.C. §§ 1302, 1303; Gerber, 437 F.2d at 584; Gilmore & Black, supra, § 3-43 at 183. The burden of proof then shifts to the vessel owner to establish that the loss came under a statutory exception to COG-SA. 46 U.S.C. § 1304(2); Gerber, 437 F.2d at 584; States S.S. Co., 259 F.2d at 460; Gilmore & Black, supra, § 3-43 at 183. The burden then returns to the shipper to show, at a minimum, concurrent causes of loss in the fault and negligence of the carrier, unless it is a type of negligence excluded under COGS A. Gerber, 437 F.2d at 588; Gilmore & Black, supra, § 3-43 at 184. The carrier then has the burden of allocating the loss between (1) the loss caused by his fault and negligence and (2) the loss covered under the exception. Vana Trading Co. v. S.S. Mette Skou, 556 F.2d 100, 105 (2d Cir.), cert. denied, Flota Mercante Grancolombiana, S.A. v. Vana Trading Co., Inc., 434 U.S. 892, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977). Failure of the carrier to do so results in the carrier bearing the full loss. Gerber, 437 F.2d at 588. The burden of proof, however, alters when a carrier seeks exoneration under the peril of the sea exception. 46 U.S.C. § 1304(2)(c). [I]n a sense, the absence of negligence as a concurring cause may be said to enter into the very definition of a sea peril, so that, in order to establish an exception under this clause, the ship would have to establish freedom from negligence. Gilmore & Black, supra, § 3-32 at 162. Thus, under the peril of the sea exception, the carrier acquires the additional burden of showing freedom from negligence. A prima facie case against Sea-Land was established by the stipulated facts that the cargo was delivered in good condition to the Endurance and never returned. The burden then shifted to Sea-Land to prove the loss fell under one of the statutory exceptions of COGSA. In choosing the peril of the sea defense, Sea-Land acquired the additional burden of proving freedom from negligence. The district court concluded that “[t]he proof establishes that the loss was caused by the weather alone.” By finding that Sea-Land had established that the weather was the sole cause of the loss, the court inferredly found that Sea-Land had sustained its burden of proving that negligence was not a cause of the loss. At that point, the burden was placed on Taisho to show a concurrent cause of the loss. Taisho failed to meet this burden. We conclude that the district court correctly allocated the burdens of proof. CONCLUSION Taisho’s argument that without proof of several enumerated factors there can be no peril of the sea defense is without merit. Taisho’s second argument fails to show that the district court considered Taisho’s rights as an insurer differently from that of a subrogee. Finally, Sea-Land sustained its burden of proving that the loss was caused solely by the perils of the sea and Taisho failed to rebut that evidence. Accordingly, we affirm the judgment of the district court. AFFIRMED. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_usc2sect	4208	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Appellant, v. William T. SOMERS et al. No. 76-2009. United States Court of Appeals, Third Circuit. Argued Dec. 2, 1976. Decided Feb. 25, 1977. Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief. Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee. Before FORMAN, ROSENN and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. In this appeal we are called upon to review the question which we had previously —and, as now appears, erroneously — stated should need no review. In United States v. Salerno, (Appeal of William Silverman), (hereinafter “Silverman I”), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines, when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman’s sentencing judge was thwarted by the implementation of the guidelines, Silverman’s original sentence could be modified. In Silverman’s case the intent of the original sentencing judge (who was no longer a member of the district court when Silver-man sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance — unavailability of the original sentencing judge — would be a rare one, Judge Rosenn wrote: We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required, [emphasis supplied.] Silverman I, 538 F.2d at 1009. We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the “new” Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio’s sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II. I. On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act). On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years . [P]ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine. Judgment of sentence, May 21, 1973. His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time. Ponzio’s conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). As noted, the Supreme Court of the United States denied certiorari on October 15, 1974. On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment. Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I granted Ponzio’s motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court’s order, and sought to return Ponzio to custody. Both of the government’s motions were denied. This appeal followed. II. Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the “legislative history of section 4208(a)(2) and district court sentencing practice thereunder,” held that where the implementation of the guidelines frustrated the sentencing judge’s probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required. We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent. That problem, however, does not confront us here. In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio’s § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations. It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge’s intent was the imposition of sentence pursuant to § 4208(a)(2). However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board’s satisfaction with Ponzio’s institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F.Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, — and indeed, during the entire period between May 1973 and August 1976, — no other expression of intent or expectation was voiced by the sentencing judge. It was only at the August 6, 1976 hearing in connection with Ponzio’s § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent. As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge • for about one year at that time, and while Ponzio’s application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio’s motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio’s Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio’s family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged). As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment. It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26,1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976. It was then, for the first time, that what had been implicit in the district court’s sentence, became explicit. The district court said: [B]ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court’s sentence was that you be sentenced pursuant to the provisions of Section 4208 A2. [emphasis supplied.] I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole. X * * X X * Now, also, at the time that I originally imposed sentence upon you and at the time that that sentence was reduced, I was clearly under the impression that the factors to be considered by a Parole Board would be whether you've paid your debt to society, how you behaved while you were in your institution, what the chances were of returning you to society, whether you have been rehabilitated. Those were the old standards. Now they have the new standards and it could be that you would serve maybe four years by the time the Parole Board made up its mind what to do. X X * X x ' X As I’ve indicated further, I don’t see eye to eye with this computerized, statistical, and generalized consideration of parole. My sentencing expectations have been frustrated by the Board’s new guidelines and their procedures and their salient factors. And for those reasons, as well as for the more important reason that I am not without compassion, I think you’ve paid your debt to society. I think your family has been under a considerable strain, and I’m going to vacate the prior sentence that was imposed upon you and a new sentence will be imposed of the time you have already served, and I would sign an order to that effect, which I have before me. [emphasis supplied.] Transcript, August 6, 1976, pp. 12-13, 14, 18-19. In the final but unreported opinion which followed the August 6, 1976 hearing, but which incorporated the oral observations made at that hearing as they depicted his motivating factors, the district court judge wrote: [T]he legislative history of § 4208(a)(2) is comprehensively discussed in the Salerno opinion, and there is no need to repeat that history here. Prior to the adoption of the new guidelines which are now in effect, and which became effective in late 1973, the Parole Board based its decision primarily upon institutional behavior and the probability of recidivism. See C.F.R. § 2.4 (1973). Those were the criteria which were in effect at the time this defendant was sentenced, and with which this court was familiar when sentence was imposed. It was also this court’s understanding that a defendant sentenced under § 4208(a)(2) would become immediately eligible' for parole after sentence had been imposéd. This is in sharp contrast to the other sentencing options available to a federal judge. See 18 U.S.C. § 4202, and 18 U.S.C. § 4208(a)(1). * * * * * * It was the expectation of this court when the defendant was sentenced that he would receive early meaningful consideration for parole. The adoption of the new parole guidelines subsequent to the time of sentencing has frustrated that expectation. In fact, prior to the adoption of the new parole guidelines, this court was regularly inundated with requests from defendants and their counsel for sentences under § 4208(a)(2). Such requests are no longer made, largely, we think, because of the new guidelines. Not only does the Salerno opinion provide a jurisdictional basis upon which this court may act, the judicial conscience requires corrective action. Op. August 25, 1976, pp. 3-4, 7. III. As we read Silverman I and II, it is the intent and expectation of the district court judge who sentences under § 4208(a)(2) which are controlling and which must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255. In our judgment, there can be no better evidence of a sentencing judge’s expectations or intent than his own statement of those facts. We are aware that here the sentencing judge not only attributed the thwarting of his sentencing intent and expectations to the operation of the Guidelines, but he also relied upon an additional list of reasons to support his order reducing Ponzio’s sentence. Had the district court’s action resulted solely from these latter considerations (i. e., good conduct; time served; sufficient punishment; rehabilitation; family hardship; loss of pension; deterrence, etc.) we would have been obliged to reverse its order, for it is only in the case of frustration of the district court’s sentencing expectations that the Silverman doctrine affords grounds for relief (under the “collateral attack” provisions of § 2255 (see note 9, supra)). We recognize that sentencing courts are not vested with those functions belonging to the Parole Board, D'Allesandro v. United States, 517 F.2d 429 (2d Cir. 1975), or “with [the] powerfs] of a super parole board.” Silverman II, supra. Hence, we will not countenance Silverman relief where the district court’s basis for reducing sentence is predicated wholly upon considerations other than frustration of its original sentencing intent. Here, however, we are not faced with that situation. Although the district court’s opinion speaks of such extraneous matters, we cannot ignore the factor which we find to be at the core of the district court opinion — the frustration of its original sentencing expectations which were specifically so expressed by the original sentencing judge. We do no more here than apply the Silverman principle as it has previously been announced by this Court — but with the assurance of greater certainty insofar as knowledge of the district court judge’s intent is concerned. While reaffirming the viability of Silver-man, we nevertheless restate the admonition found in Silverman II that the Silver-man doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines. IV. We conclude this opinion with an observation, collateral to the decision itself but nevertheless required to be made because of the effect which counsel’s failure to supply necessary documents might have had upon our decision. As we have noted, the focal point for application of the Silverman doctrine is the district court judge’s intent and expectations at the time of imposition of sentence. We would have expected, therefore, that the documents and transcripts relevant, and indeed essential, to that issue would be furnished to us as part of the appendix on this appeal. Such was not the case. Had it not been for our independent inquiry and had we not obtained these documents through our own efforts, we would not have had available for examination: the relevant docket entries; the original judgment of sentence; the original sentencing transcript of May 21, 1973; the memoranda, motion and submissions in connection with the Rule 35 hearing; Ponzio’s § 2255 letter of petition; the absolutely essential August 6, 1976 transcript; the August 6, 1976 orders (vacating sentence and denying stay pending appeal) from which the government’s appeal was taken; the government’s Notice of Appeal; the district court’s August 25, 1976 written opinion. Not one of these documents, each of which was vital to our determination and to this opinion, appears in the appendix on appeal. This Court was required to make separate and independent inquiries to assemble the necessary record materials. Ponzio, the appellee apparently submitted no papers for inclusion in the appendix and did not even recite in his brief those portions of the district court’s comments and opinion which supported his contentions and which were instrumental to this Court’s application of the Silverman doctrine. The government’s appendix merely sets forth a number of legal opinions which taken together, constitute no more than a frontal assault on this Court’s Silverman decision. While we recognize the obligations imposed upon the appellant by the Federal Rules of Appellate Procedure (F.R.A.P. 30(a) and this Court’s Local Rules, we cannot countenance the appellee’s failure to comply with the applicable provisions of F.R.A.P. 30(b). Nor can we understand or justify his reliance upon this Court to discharge his functions in “piecing out” and supporting the essential elements of the position which he advocates. While we deplore counsels’ disregard of the requirements of our Rules, (F.R.A.P. 30, Third Cir.R. 21) we are even more dismayed by the level of appellate advocacy which has been exhibited on this appeal. Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels’ case and to supply counsels’ record deficiencies. Henceforth, our displeasure with counsels’ refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3). V. The August 6, 1976 order of the district court vacating Ponzio’s original sentence and resentencing him to “the time already spent in jail” will be affirmed. The August 6, 1976 order of the district court denying the United States a stay pending appeal will be dismissed as moot. (See note 5 supra). . Section 4208(a)(2) reads, in pertinent part: (a) Upon entering a judgment of conviction . requiring] that the defendant be sentenced to imprisonment for a term exceeding one year, (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine. The 1973 Parole Guidelines were published for the first time in the Federal Register on November 19, 1973. 28 C.F.R. § 2.52, 38 F.R. 31942 (Nov. 19, 1973). . United States v. Salerno (Silverman II) 542 F.2d 628 (3d Cir. 1976) (Sur Petition for Rehearing). . A more detailed history of the facts and trial leading to Ponzio’s conviction may be found in United States v. Somers, 496 F.2d 723 (3d Cir. 1974). . United States v. Salerno (Silverman I) 538 F.2d 1005 (3d Cir. 1976). Silverman I was filed on July 15, 1976. . In light of our disposition we have no occasion to comment upon the district court’s actions in denying a stay of its order and refusing to return Ponzio to custody pending action on the government’s appeal. . The order from which the government appealed was not entered in a criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). Accordingly, the action, being civil in nature, is governed by the rules, statutes and appellate practice, (United States v. Hayman, 342 U.S. 205, 209 n.4, 72 S.Ct. 263, 96 L.Ed. 232 (1951)) controlling civil actions. See Neely v. United States, 546 F.2d 1059 at 1064-1067 (3d Cir. 1976); Wright and Miller, Federal Practice and Procedure § 590 (1969). See also United States v. DiRusso, 548 F.2d 372, (1st Cir. 1976) (Di-Russo II). . 538 F.2d at 1008. . While we recognize that the Rule 35 hearing came well after the implementation of the new Parole Guidelines, and that Ponzio’s moving papers referred to, and included a copy of the Guidelines, we nevertheless are not persuaded that these circumstances require that relief be denied to this § 2255 application. While counsel undoubtedly had the “tools” (Guidelines) in his hands to fashion a remedy for Ponzio, he did not draw the district court judge’s attention to the issue of the impact which the Parole Guidelines had upon Ponzio’s initial sentence. Compare DiRusso II, note 6 supra. Even the government does not contend that any reliance (if such there was) upon the Guidelines in a Rule 35 hearing would thereby “exhaust” § 2255 jurisdiction under Silverman I. The most that can be argued, granting that the district court had jurisdiction (see n.9 infra), is that the court abused its discretion in affording § 2255 relief on the same grounds as had been urged in a Rule 35 hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) precludes any mechanistic application of the doctrine of res judicata in successive § 2255 proceedings. Sanders establishes those circumstances under which the district court may give weight to a prior denial of § 2255 relief. 373 U.S. at 15, 83 S.Ct. 1068. In emphasizing that the Sanders test is “the ends of justice”, Justice Brennan concluded, id. at 17, 83 S.Ct. at 1078, that No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, [Successive Motions on Grounds Previously Heard and Determined] cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. We believe that where the prior application for relief has been made under Rule 35, the Sanders res judicata criteria are the same. United States v. Jasper, 481 F.2d 976, 978-80 (3d Cir. 1973). We are satisfied (1) that the same ground that formed the basis for the § 2255 decision (new Parole Guidelines) was not relied upon by the district court when it reduced Ponzio’s sentence from six to five years; and that therefore (2) the district court did not abuse its discretion. We cannot help but observe that at no time during the Rule 35 proceedings, was any reference to the Guidelines made by the district court. Moreover, a one year reduction in sentence, from six to five years, had no practical impact whatsoever on Ponzio’s sentence, for the Parole Guidelines relative to Ponzio’s offense, as cited to the court by Ponzio’s attorney, indicated that, depending upon his parole prognosis, Ponzio would serve between 26 and 36 months. Supplemental Memorandum in Support of Motion for Reduction of Sentence, Cr. No. 323-72, at 3 (received at request of the Court). This latter circumstance, if no other, leads us to conclude that the Guidelines argument was never fairly presented to the district court at the Rule 35 hearing. . 28 U.S.C. § 2255 provides in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. In Silverman I, 538 F.2d at 1008 n.4, this Court, on the jurisdictional aspect, held: The district judge also concluded and we agree that 28 U.S.C. § 2255, which provides in relevant part that a district court has jurisdiction of a motion “to vacate, set aside, or correct” a sentence imposed without jurisdiction, “in excess of the maximum authorized by law, or . otherwise subject to collateral attack,” is an appropriate vehicle for making this claim. See Kortness v. United States, supra, 514 F.2d [167,] 170 [(8th Cir. 1975)]; United States v. Perchada, 407 F.2d 821, 823 (4th Cir. 1969). Cf. United States v. Hayman, 342 U.S. 205, 216-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). See also Jacobson v. United States, 542 F.2d 725 (8th Cir. 1976); United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976). On the surface it would appear that the First Circuit would disagree with our Silverman jurisdictional holding. See DiRusso II note 6 supra; United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976). However, a close reading of DiRusso II reveals that the question presented in Silverman and here has not yet been presented to that Court. See DiRusso II, at 375 n.2. A distinction is made in DiRusso II between those cases where “the sentences that were collaterally attacked had been imposed either prior to or contemporaneously with the promulgation and general awareness” of the new Guidelines. Both Silverman and Ponzio had been sentenced prior to the Guidelines; DiRusso had not. Nor are we convinced that the Rule 35 proceeding, see note 7 supra, under the peculiar factual circumstances present here, should yield a different result. Other circuits have apparently assumed that relief of the type afforded in Silverman is available only under 28 U.S.C. § 2241, thereby requiring the proceeding to be brought before a district court with jurisdiction over the prisoner or his custodian. See, e. g., Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975); Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974); see also the discussions in Jacobson and Clinkenbeard, supra. This jurisdictional issue need not detain us, for Silverman I resolved that issue for this Court, and its holding may not be modified except by this Court en banc. Third Circuit Internal Operating Procedures, M.2. As we have observed, the government’s petition for rehearing in Silverman I was denied by Silver-man II, supra. . We have not overlooked Ponzio’s motion to dismiss the government’s appeal. Ponzio had moved to dismiss the appeal and to strike certain correspondence which forwarded copies of two recent opinions. (Clinkenbeard and Jacobson, supra) bearing on the Silverman principle, on the ground that the form of the government’s submission did not comply with the rules of this Court concerning filing of reply briefs. The cases submitted had been decided after all briefs were filed, and were furnished for the information of the Court and Ponzio. Apart from any other consideration requiring the denial of Ponzio’s motion, we did not regard the government’s submission as a “reply brief” within the purview of F.R.A.P. 28(c). Of more importance here, however, is that the views which we have expressed in text above reflect our concerns not with form but rather with substance; in particular, the omission of papers from the appendix which papers are crucial to the resolution of the issues before us. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:
sc_certreason	D	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. HOLLOWAY aka ALI v. UNITED STATES No. 97-7164. Argued November 9, 1998 Decided March 2, 1999 Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., post, p. 12, and Thomas, J., post, p. 22, filed dissenting opinions. Kevin J. Keating, by appointment of the Court, 525 U. S. 806, argued the cause for petitioner. With him on the briefs were David G. Secular and Robert C. Nissen. Deputy Solicitor General Underwood argued the cause for the United States. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, Edward C. DuMont, and Deborah Watson. Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal. Justice Stevens delivered the opinion of the Court. Carjacking “with the intent to cause death or serious bodily harm” is a federal crime. The question presented in this case is whether that phrase requires the Government to prove that the defendant had an unconditional intent to kill or harm in all events, or whether it merely requires proof of an intent to kill or harm if necessary to effect a carjacking. Most of the judges who have considered the question have concluded, as do we, that Congress intended to criminalize the more typical carjacking carried out by means of a deliberate threat of violence, rather than just the rare case in which the defendant has an unconditional intent to use violence regardless of how the driver responds to his threat. W A jury found petitioner guilty on three counts of car-j'acking, as well as several other offenses related to stealing cars. In each of the carjackings, petitioner and an armed accomplice identified a car that they wanted and followed it until it was parked. The accomplice then approached the driver, produced a gun, and threatened to shoot unless the driver handed over the car keys. The accomplice testified that the plan was to steal the ears without harming the victims, but that he would have used his gun if any of the drivers had given him a “hard time.” App. 52. When one victim hesitated, petitioner punched him in the face, but there was no other actual violence. The District Judge instructed the jury that the Government was required to prove beyond a reasonable doubt that the taking of a motor vehicle was committed with the intent “to cause death or serious bodily harm to the person from whom the ear was taken.” Id., at 29. After explaining that merely using a gun to frighten a victim was not sufficient to prove such intent, he added the following statement over petitioner’s objection: “In some cases, intent is conditional. That is, a defendant may intend to engage in certain conduct only if a certain event occurs. “In this case, the government contends that the defendant intended to cause death or serious bodily harm if the alleged victims had refused to turn over their cars. If you find beyond a reasonable doubt that the defendant had such an intent, the government has satisfied this element of the offense...Id., at 30. In his postverdiet motion for a new trial, petitioner contended that this instruction was inconsistent with the text of the statute. The District Judge denied the motion, stating that there “is no question that the conduct at issue in this case is precisely what Congress and the general public would describe as carjacking, and that Congress intended to prohibit it in §2119.” 921 F. Supp. 155, 156 (EDNY 1996). He noted that the statute as originally enacted in 1992 contained no intent element but covered all carjackings committed by a person “possessing a firearm.” A 1994 amendment had omitted the firearm limitation, thus broadening the coverage of the statute to encompass the use of other weapons, and also had inserted the intent requirement at issue in this case. The judge thought that an “odd result” would flow from a construction of the amendment that “would no longer prohibit the very crime it was enacted to address except in those unusual circumstances when carjackers also intended to commit another crime — murder or a serious assault.” Id., at 159. Moreover, the judge determined that even though the issue of conditional intent has not been discussed very often, at least in the federal courts, it was a concept that scholars and state courts had long recognized. Over a dissent that accused the majority of “a clear judicial usurpation of congressional authority,” United States v. Arnold, 126 F. 3d 82, 92 (CA2 1997) (opinion of Miner, J.), the Court of Appeals affirmed. The majority was satisfied that “the inclusion of a conditional intent to harm within the definition of specific intent to harm” was not only “a well-established principle of criminal common law,” but also, and “most importantly,” comported “with a reasonable interpretation of the legislative purpose of the statute.” Id., at 88. The alternative interpretation, which would cover “only those carjackings in which the car j acker’s sole and unconditional purpose at the time he committed the carjacking was to kill or maim the victim,” the court concluded, was clearly at odds with the intent of the statute’s drafters. Ibid. To resolve an apparent conflict with a decision of the Ninth Circuit, United States v. Randolph, 93 F. 3d 656 (1996), we granted certiorari. 523 U. S. 1093 (1998). Writing for the Court in United States v. Turkette, 452 U. S. 576, 593 (1981), Justice White reminded us that the language of the statutes that Congress enacts provides “the most reliable evidence of its intent.” For that reason, we typically begin the task of statutory construction by focusing on the words that the drafters have chosen. In interpreting the statute at issue, “[w]e consider not only the bare meaning” of the critical word or phrase “but also its placement and purpose in the statutory scheme.” Bailey v. United States, 516 U. S. 137, 145 (1995). The specific issue in case Congress intended to describe when it used the words “with the intent to cause death or serious bodily harm” in the 1994 amendment to the carjacking statute. More precisely, the question is whether a person who points a gun at a driver, having decided to pull the trigger if the driver does not comply with a demand for the car keys, possesses the intent, at that moment, to seriously harm the driver. In our view, the answer to that question does not depend on whether the driver immediately hands over the keys or what the offender decides to do after he gains control over the ear. At the relevant moment, the offender plainly does have the forbidden intent. The opinions that have addressed this issue accurately point out that a carjacker’s intent to harm his victim may be either “conditional” or “unconditional.” The statutory phrase at issue theoretically might describe (1) the former, (2) the latter, or (3) both species of intent. Petitioner argues that the “plain text” of the statute “unequivocally” describes only the latter: that the defendant must possess a specific and unconditional intent to kill or harm in order to complete the proscribed offense. To that end, he insists that Congress would have had to insert the words “if necessary” into the disputed text in order to include the conditional species of intent within the scope of the statute. See Reply Brief for Petitioner 2. Because Congress did not include those words, petitioner contends that we must assume that Congress meant to provide a federal penalty for only those carjackings in which the offender actually attempted to harm or kill the driver (or at least intended to do so whether or not the driver resisted). We believe, however, that a commonsense reading of the carjacking statute counsels that Congress intended to criminalize a broader scope of conduct than attempts to assault or kill in the course of automobile robberies. As we have repeatedly stated, “ ‘the meaning of statutory language, plain or not, depends on context.’” Brown v. Gardner, 513 U. S. 115, 118 (1994) (quoting King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991)). When petitioner’s argument is considered in the context of the statute, it becomes apparent that his proffered construction of the intent element overlooks the significance of the placement of that element in the statute. The carjacking statute essentially is aimed at providing a federal penalty for a particular type of robbery. The statute’s mens rea component thus modifies the act of “tak[ing]” the motor vehicle. It directs the factfinder’s attention to the defendant’s state of mind at the precise moment he demanded or took control over the car “by force and violence or by intimidation.” If the defendant has the proscribed state of mind at that moment, the statute’s seienter element is satisfied. Petitioner’s reading of the intent element, in contrast, would improperly transform the mens rea element from a modifier into an additional actus reus component of the carjacking statute; it would alter the statute into one that focuses on attempting to harm or kill a person in the course of the robbery of a motor vehicle. Indeed, if we accepted petitioner’s view of the statute’s intent element, even Congress’ insertion of the qualifying words “if necessary,” by themselves, would not have solved the deficiency that he believes exists in the statute. The inclusion of those words after the intent phrase would have excluded the unconditional species of intent — the intent to harm or kill even if not necessary to complete a carjacking. Accordingly, if Congress had used words such as “if necessary” to describe the conditional species of intent, it would also have needed to add something like “or even if not necessary” in order to cover both species of intent to harm. Given the fact that the actual text does not mention either species separately— and thus does not expressly exclude either — that text is most naturally read to encompass the mens rea of both conditional and unconditional intent, and not to limit the statute’s reach to crimes involving the additional actus reus of an attempt to kill or harm. Two considerations strongly support the conclusion that a natural reading of the text is fully consistent with a congressional decision to cover both species of intent. First, the statute as a whole reflects an intent to authorize federal prosecutions as a significant deterrent to a type of criminal activity that was a matter of national concern. Because that purpose is better served by construing the statute to cover both the conditional and the unconditional species of wrongful intent, the entire statute is consistent with a normal interpretation of the specific language that Congress chose. See John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86, 94-95 (1993) (statutory language should be interpreted consonant with “the provisions of the whole law, and ... its object and policy” (internal quotation marks omitted)). Indeed, petitioner’s interpretation would exclude from the coverage of the statute most of the conduct that Congress obviously intended to prohibit. Second, it is reasonable to presume that Congress was familiar with the cases and the scholarly writing that have recognized that the “specific intent” to commit a wrongful act may be conditional. See Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979). The facts of the leading case on the point are strikingly similar to the facts of this case. In People v. Connors, 253 Ill. 266, 97 N. E. 643 (1912), the Illinois Supreme Court affirmed the conviction of a union organizer who had pointed a gun at a worker and threatened to kill him forthwith if he did not take off his overalls and quit work. The court held that the jury had been properly instructed that the “specific intent to kill” could be found even though that intent was “coupled with a condition” that the defendant would not fire if the victim complied with his demand. That holding has been repeatedly cited with approval by other courts and by scholars. Moreover, it reflects the views endorsed by the authors of the Model Criminal Code. The core principle that emerges from these sources is that a defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose; “[a]n intent to kill, in the alternative, is nevertheless an intent to kill.” This interpretation of the statute’s specific intent element does not, as petitioner suggests, render superfluous the statute’s “by force and violence or by intimidation” element. While an empty threat, or intimidating bluff, would be sufficient to satisfy the latter element, such conduct, standing on its own, is not enough to satisfy §2119’s specific intent element. In a carjacking case in which the driver surrendered or otherwise lost control over his car without the defendant attempting to inflict, or actually inflicting, serious bodily harm, Congress’ inclusion of the intent element requires the Government to prove beyond a reasonable doubt that the defendant would have at least attempted to seriously harm or kill the driver if that action had been necessary to complete the taking of the car. In short, we disagree with petitioner’s reading of the text of the Act and think it unreasonable to assume that Congress intended to enact such a truncated version of an important criminal statute. The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the ear (or, alternatively, if unnecessary to steal the car). Accordingly, we affirm the judgment of the Court of Appeals. It is so ordered. As amended by the Violent Crime Control and Law Enforcement Act of 1994, §60003(a)(14), 108 Stat. 1970, and by the Carjacking Correction Act of 1996, §2, 110 Stat. 3020, the statute provides: “Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall— “(1) be fined under this title or imprisoned not more than 15 years, or both, “(2) if serious bodily injury (as defined in section 1365 of this title, including any conduct that, if the conduct occurred in the 'special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and “(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.” 18 U. S. C. §2119 (1994 ed. and Supp. III) (emphasis added). He was also charged with conspiring to operate a “chop shop” in violation of 18 U. S. C. §371, operating a chop shop in violation of §2322, and using and carrying a firearm in violation of § 924(c). One victim testified that the accomplice gun ened, “ ‘Get out of the car or I’ll shoot.’ ” App. 51, Another testified that he said, “‘Give me your keys or I will shoot you right now.’” Id., at 52. The Ninth Circuit held that neither a person's mere threat to the driver that “‘she would be okay if she [did] what was told of her’” nor “the brandishing of a weapon, without more” constituted an intent to cause death or serious bodily harm under the amended version of §2119. 93 F. 3d, at 664-665. The court therefore reversed the defendant’s carjacking conviction on the ground of insufficient evidence. In the course of its opinion, the Ninth Circuit also stated more broadly that “[t]he mere conditional intent to harm a victim if she resists is simply not enough to satisfy §2119’s new specific intent requirement.” Id., at 665. It is this proposition with which other courts have disagreed. See United States v. Williams, 136 F. 3d 547, 550-551 (CA8 1998), cert. pending, No. 97-9553; United States v. Arnold, 126 F. 3d 82, 89, n. 4 (CA2 1997); United States v. Romero, 122 F. 3d 1334, 1338 (CA10 1997), cert. denied, 523 U. S. 1025 (1998); United States v. Anderson, 108 F. 3d 478, 481-483 (CA3), cert. denied, 522 U. S. 843 (1997). See, e. g., Williams, 136 F. 3d, at 550-551; Anderson, 108 F. 3d, at 481. Although subsections (2) and (8) of the carjacking statute envision harm or death resulting from the crime, subsection (1), under petitioner’s reading, would have to cover attempts to harm or kill when no serious bodily harm resulted. Although the legislative history relating to the carjacking amendment is sparse, those members of Congress who recorded comments made statements reflecting the statute’s broad deterrent purpose. See 139 Cong. Rec. 27867 (1993) (statement of Sen. Lieberman) (“Th[e 1994] amendment will broaden and strengthen th[e] [carjacking] law so our U. S. attorneys will have every possible tool available to them to attack the problem”); 140 Cong. Rec. E858 (May 5, 1994) (extension of remarks by Rep. Franks) (“We must send a message to [caijackers] that committing a violent crime will carry a severe penalty”). There is nothing in the 1994 amendment’s legislative history to suggest that Congress meant to create a federal crime for only the unique and unusual subset of caqackings in which the offender intends to harm or kill the driver regardless of whether the driver accedes to the offender’s threat of violence. The trial judge had given this instruction to the jury: ‘“The court instructs you as to the intent to kill alleged in the indictment that though you must find that there was a specific intent to kill the prosecuting witness, Morgan H. Bell, still, if you believe from the evidence beyond a reasonable doubt that the intention of the defendants was only in the alternative — that is, if the defendants, or any of them, acting for and with the others, then and there pointed a revolver at the said Bell with the intention of compelling him to take off his overalls and quit work, or to kill him if he did not — and if that specific intent was formed in the minds of the defendants and the shooting of the said Bell with intent to kill was only prevented by the happening of the alternative — that is, the compliance of the said Bell with the demand that he take off his overalls and quit work — then the requirement of the law as to the specific intent is met.' ” 253 Ill., at 272-273, 97 N. E., at 645. See People v. Vandelinder, 192 Mich. App. 447, 451, 481 N. W. 2d 787, 789 (1992) (endorsing holding of Connors); Eby v. State, 154 Ind. App. 509, 517, 290 N. E. 2d 89, 95 (1972) (same); Beall v. State, 203 Md. 380, 386, 101 A. 2d 233, 236 (1953) (same); Price v. State, 168 Tenn. 378, 381, 79 S. W. 2d 283, 284 (1935) (same). But see State v. Irwin, 55 N. C. App. 305, 285 S. E. 2d 345 (1982) (reaching opposite conclusion); State v. Kinnemore, 34 Ohio App. 2d 39, 295 N. E. 2d 680 (1972) (same). See 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.5(d), p. 312 (1986); R. Perkins & R. Boyce, Criminal Law 646-647, 835 (3d ed. 1982); 1 J. Bishop, Bishop on Criminal Law §287a (9th ed. 1923); 1 H. Brill, Cyclopedia of Criminal Law §409, p. 692 (1922); Alexander & Kessler, Mens Rea and Inchoate Crimes, 87 J. Crim. L. & C. 1138, 1140-1147 (1997). See also 2 C. Torcia, Wharton’s Criminal Law § 182 (15th ed. 1994) (supporting principle of conditional intent but not citing Connors). Section 2.02(6) of the Model Penal Code provides: “Requirement of Purpose Satisfied if Purpose is Conditional. “When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.” American Law Institute, Model Penal Code (1985). Of course, in this case the condition that the driver surrender the car was the precise evil that Congress wanted to prevent. Perkins & Boyce, Criminal Law, at 647. In somewhat different contexts, courts have held that a threat to harm does not in itself constitute intent to harm or kill. In Hairston v. State, 64 Miss. 689 (1877), for example, the defendant in an angry and profane manner threatened to shoot a person if that person stopped the defendant’s mules. The court afiSrmed the defendant’s conviction for assault, but reversed a conviction of assault with intent to commit murder, explaining that “we have found no case of a conviction of assault with intent to kill or murder, upon proof only of the levelling of a gun or pistol.” Id., at 694. See also Myers v. Clearman, 125 Iowa 461, 464, 101 N. W. 193, 194 (1904) (in determining whether defendant acted with intent to commit great bodily harm the issue for the jury was “whether the accused, in aiming his revolver at [the victim], intended to inflict great bodily harm, or some more serious offense, or did this merely with the purpose of frightening her”). We also reject petitioner’s argument that the rule of lenity should apply in this ease. We have repeatedly stated that “ ‘[t]he rule of lenity applies only if, after seizing everything from which aid can be derived,... we can make no more than a guess as to what Congress intended.’ ” Muscarello v. United States, 524 U. S. 125, 138 (1998) (quoting United States v. Wells, 519 U. S. 482, 499 (1997)) (additional quotations and citations omitted). Accord, Ladner v. United States, 358 U. S. 169, 178 (1958). The result of our preceding analysis requires us to make no such guess in this case. 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_adminrev	D	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". The BELL TELEPHONE COMPANY OF PENNSYLVANIA, et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone and Telegraph Company, Telesphere Network, Inc., U.S. Telephone, Inc., Intervenors. No. 84-1259. United States Court of Appeals, District of Columbia Circuit. Argued April 17, 1985. Decided May 14, 1985. Linda L. Oliver, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle and Carl D. Lawson, Counsel, F.C.C., Washington, D.C., were on brief, for respondents. William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox, Thomas R. Gibbon and Theodore D. Kramer, Washington, D.C., were on brief, for intervenor MCI Telecommunications Corp. Judith A. Maynes, New York City, Robert B. Stecher and Daniel Stark, Washington, D.C., were on brief, for intervenor American Tel. and Tel. Co. Leo I. George, Washington, D.C., entered an appearance, for intervenors Telesphere Network, Inc. and U.S. Telephone, Inc. William R. Weissman, Washington, D.C., with whom Charles A. Zielinski, A. Richard Metzger, Karen S. Byrne and Robert A. Levetown, .Washington, D.C., were on brief, for petitioner. Before MIKYA, GINSBURG and BORK, Circuit Judges. Opinion PER CURIAM. PER CURIAM. This petition for review concerns the fifth and final year of the interim agreement governing rates charged to “other common carriers” (OCCs) for exchange network facilities for interstate access (EN-FIA agreement). For background on EN-FIA and prior proceedings in this court regarding the agreement, see MCI Telecommunications Corp. v. FCC, 712 F.2d 517 (D.C.Cir.1983). The ENFIA agreement provided that American Telephone and Telegraph Company (AT & T), on behalf of the Bell System Operating Companies (BSOCs), would file annually with the Federal Communications Commission (Commission or FCC) a tariff containing the rates for the following billing year, subject to 15 days’ advance notice before the tariff became effective. For the fourth year of the ENFIA agreement scheduled to begin on May 2,1982, the FCC suspended the tariff filed by AT & T, imposed an interim billing and collection rate, and stated that the interim rate would be subject to adjustment in either direction after Commission determination of the rate properly set under the ENFIA contract. On September 29, 1982, the Commission prescribed the methodology for calculating rates under ENFIA, and ordered the OCCs to remit to the BSOCs the difference between the lower interim rate and the prescribed rate. Exchange Network Facilities for Interstate Access (ENFIA), 91 F.C.C.2d 1079, 1093-94 (1982). Using the prescribed methodology AT & T filed a new tariff which was in effect for the balance of the fourth year. Several parties petitioned the Commission for reconsideration of the September 29 order; AT & T requested expedition of the Commission’s reconsideration. The fifth year ENFIA rates were scheduled to begin April 16,1983. On March 28, 1983, while the petitions for reconsideration of the FCC’s September 29, 1982, order remained pending, AT & T filed fifth year rates based on the methodology prescribed by the September 29, 1982, order. AT & T stated in the March 28 tariff filing that the submission was made subject to later recalculation based on the Commission’s eventual — then still awaited — decision in the reconsideration proceeding. The Common Carrier Bureau permitted the fifth year rates to go into effect as scheduled. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 15, 1983). On April 5, 1983, the Commission at last issued its Reconsideration Order, and in it altered the prescribed methodology for calculation of the ENFIA rates. The revised methodology increased the fourth year rates, and the Commission approved as lawful retroactive application of the readjusted fourth year charges. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d 739, 763 (1983), aff'd mem. sub nom. GTE Sprint Communications Corp. v. FCC, 733 F.2d 966 (1984). AT & T filed tariff revisions to its fourth year rates, applicable retroactively to the beginning of the fourth year, and the tariff became effective the day after it was filed. On April 28, 1983, AT & T filed amended fifth year rates based on the methodology the Commission established as correct on April 5 in the Reconsideration Order. The tariff provided that the charges would be retroactive to the beginning of the fifth year, April 16, 1983. The Common Carrier Bureau observed that the proposed rate increase appeared to conform to the EN-FIA methodology approved in the Reconsideration Order. Nevertheless, the Bureau rejected the tariff as unlawful. According to the Bureau, the retroactive (then by less than one month) increase was prohibited by section 203(c) of the Communications Act, 47 U.S.C. § 203(c) (1982) (“[N]o carrier shall ... charge ... different compensation ... than the charges specified in the schedule then in effect.”). Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (May 16, 1983). The Commission affirmed the Bureau’s ruling. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 18, 1984). The BSOCs petition this court to review the Commission’s rejection of a retroactive increase in fifth year rates. We reverse. It is not controverted that the calculations AT & T made following the April 5, 1983, Reconsideration Order are accurate and in full conformity with the methodology ultimately prescribed by the Commission. The Bureau’s rejection of the April 28, 1983, AT & T tariff filing thus rested solely on the perception that the tariff’s retroactive component (dating the increase back to April 16 rather than forward from May 13) would violate section 203(c). However, the Commission itself had explained crisply, in its April 5 Reconsideration Order discussion of retroactive adjustment of fourth year rates, why such an adjustment is compatible with section 203(c): Because our investigation was aimed at finding the proper rate under the agreement, we see little difference between this case and City of Piqua v. FERC, 610 F.2d 950 (D.C.Cir.1979), where the enforcement of an agreed upon prior effective date for rate increases was not considered retroactive ratemaking. Furthermore, under circumstances where it is the terms of an agreement that are at issue and both sides have participated in the proceeding and have been given notice as to the actual effective date of the rate, and where any of the parties may be responsible for error, fairness dictates that a retroactive adjustment be applicable to either side. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d at 763 (1983); see also Hall v. FERC, 691 F.2d 1184, 1191-92 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983). We find this reasoning correct and fully applicable to the fifth year retroactive rate adjustment at issue here. The Commission attempts to distinguish the fourth year retroactive rate change from the fifth year tariff by noting that the fourth year adjustment was made initially to a Commission-imposed interim rate while the April 28, 1983, filing proposed a retroactive alteration in a previously filed tariff. This distinction is not altogether accurate and, in any event, has scant relevance to the policy or purposes of section 203(c) or the ENFIA agreement. Indeed, as petitioners point out, the FCC’s distinction would operate in a senseless manner. It would allow re-troactivity only to those who file conspicuously inappropriate rates: if the filed rates are sufficiently questionable to warrant suspension, the carrier can eventually obtain the full, fair rate retroactively; if the filing is sufficiently close to stand pending investigation, no retroactive adjustments will be made in the carrier’s favor. In sum, had the Commission corrected its September 29,1982, order in February 1983 rather than in April, AT & T would have been positioned to file a conforming tariff on March 28, 1983, the fifth year ENFIA rates would have fallen smoothly into place on April 16, and the interim agreement would have run its course without generating this parting federal court case. The Commission appropriately adjusted for the flaws in its September 29,1982, order when it ruled on retroactively effective fourth year rates. It should have followed suit in ruling on fifth year rates. Its failure to do so was capricious. Because (1) the tariff filed by AT & T on April 28, 1983, does not violate section 203(c), sensibly read; and (2) the Commission does not question the filing in any other respect, we discern no nonarbitrary reason to reject the tariff. For the reasons stated, we set aside as unlawful the order to which the petition is addressed and remand this matter to the Commission with directions to accord full retroactivity to the fifth year tariff revisions as presented in AT & T’s April 28, 1983, tariff filing. It is so ordered. . AT & T subsequently filed the same rates under protest with a prospective effective date. Those rates became effective on June 10, 1983. Thus, the sole matter at issue is whether the higher fifth year rates should have been applicable between April 16 and June 10, 1983. . We note, particularly, that the April 5, 1983, Reconsideration Order’s fourth year retroactive increase did in fact alter a tariff — the tariff that was prescribed by the September 29, 1982, order and applied to the balance of the fourth year. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
songer_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. Martin FINE, William Becker and Philip Becker, individually, and William Becker and Philip Becker d/b/a Becker & Becker, all doing business as 649 Broadway Equities Co., Plaintiffs-Appellees-Cross-Appellants, v. BELLEFONTE UNDERWRITERS INSURANCE CO., Defendant-Appellant-Cross-Appellee. Nos. 1547, 1548, Dockets 83-7188, 83-7198. United States Court of Appeals, Second Circuit. Argued June 7, 1983. Decided Jan. 3, 1984. Herbert P. Polk, New York City (Robert S. Newman, of Whitman & Ransom, New York City, of counsel), for defendant-appellant-cross-appellee. Andrew C. Jacobson, New York City (Frank A. Weg, Dennis T. D’Antonio, of Weg Meyers & Jacobson, New York City, of counsel), for plaintiffs-appellees-cross-ap-pellants. Before OAKES and MESKILL, Circuit Judges, and HILL, District Judge. Honorable Irving Hill, Senior United States District Judge for the Central District of California, sitting by designation. IRVING HILL, Senior District Judge: In June 1978, Plaintiff, Fine, purchased three contiguous parcels of land in New York City for a total price of $1,300,000. Each parcel had a building on it. Though the buildings had separate addresses (649, 653 and 657 Broadway), they were also contiguous and were operated as a single economic unit. The three buildings had a single heating system which employed a single boiler. Following the purchase, Fine, through a broker, obtained a policy of fire insurance covering the three buildings (and other properties) from defendant Bellefonte Underwriters Insurance Co. (hereinafter “Bel-lefonte”). The policy was in the standard New York form. At the time of Fine’s purchase, the buildings were occupied by commercial tenants, some artists, and others who conducted light manufacturing and warehousing businesses. Fine desired to convert the buildings to residential use. Toward that end, after buying the buildings, he did not renew most expiring leases and he engaged in a “freeze-out” policy designed to minimize expenses and discourage tenants from remaining. The heat timer which controlled operation of the boiler, based in part on outside temperature, was set so that it would not start up the heating system until a sub-freezing temperature was reached. Additionally, the superintendent was told to turn off the heating system entirely from 11 a.m. to 2 p.m. each day regardless of the outside temperature. By February 1979, when the fire occurred, only about one-third of the premises remained occupied. On February 14, 1979, a fire of unknown origin occurred which started in the 649 and 653 Broadway buildings and spread to 657 Broadway. The buildings at 649 and 653 Broadway were totally destroyed except for their facades and the building at 657 Broadway was substantially damaged. On the night of the fire the sprinkler system in the buildings, which was the main fire protection device, did not operate. The sprinkler system was of the so-called wet pipe constant pressure type. In this type of system, pipes within the building are filled with water which is under pressure from gravity tanks. In addition, there are fittings outside the buildings at street level to enable the Fire Department to pump water from city mains into the system. The trial judge found that on the night of the fire, none of the sprinkler heads in the system worked. The Fire Department was unable to pump water into the system due to blockage in the pipes which the trial court found was “presumably” caused by ice. The trial court found that had the sprinklers functioned normally, the fire could have been controlled. Fine submitted claims on the policy which Bellefonte, after investigation, denied. Bellefonte based its denial of liability on the assertion that three separate provisions of the policy had been breached, claiming that a breach of any one of the three would relieve it of liability. The three provisions were: 1. The so-called “Protective Maintenance Clause”, which is a warranty that “protective systems and warning devices” will be maintained in complete working order and will not be altered. 2. The so-called “Increased Hazard Clause”, which voids coverage if “the hazard is increased by any means within the knowledge of the insured.” 3. The so-called “False Swearing Clause”, which provides that coverage is voided if, before or after a loss, the insured has willfully concealed or misrepresented any material fact concerning the insurance or the insured property, or in the event of any “fraud or false swearing by the insured” relating to any such material fact. Fine filed the instant action against the insurer for payment of the loss. After a lengthy court trial, the trial court found in favor of Fine and against the insurance company and awarded a judgment of $1,214,221 for damage to the buildings plus additional sums of $150,000 for loss of rental and $170,446.60 for debris removal. Bellefonte appeals, asserting that the trial court’s failure to sustain each of its three separate defenses involved an error of law and was against the weight of the evidence. If, arguendo, Bellefonte is found liable, it also asserts that the trial court erred by adopting the wrong measure of damages. Fine cross-appeals from the trial court’s refusal to award interest from the date of the fire to sixty days after the date when proof of loss was submitted. We reverse on the ground that Fine violated the false swearing provision of the policy, thus voiding the coverage and the trial court’s conclusion to the contrary cannot stand. It is therefore unnecessary for us to reach the other issues raised in connection with the appeal or the cross-appeal. THE FALSE SWEARING ISSUE The fire occurred during an extended period of extremely cold weather. Outside temperatures averaged 10° Fahrenheit on the day of the fire. Bellefonte quickly learned, as reported by the Fire Department, that the sprinkler system in the buildings had failed to operate during the fire. The rapid spread of the fire and much of the loss was attributed to the non-operation of the sprinklers. Bellefonte also became aware, early on, of Fine’s decision to rid the buildings of the existing commercial tenants and of the tenants’ complaints that he had instituted a freeze-out policy. Bellefonte was naturally very interested, not only in what caused the fire, but also whether a freeze-out policy was in effect and, if so, whether Fine’s actions in pursuit of the freeze-out might have contributed to the failure of the sprinkler system. An obvious theory suggested itself, i.e., that there had been extremely low temperatures in the buildings before the fire which caused the pipes in the sprinkler system to freeze and that this was the result of conduct by the insured. The facts of which Bellefonte became quickly aware suggested the possibility that further investigation might establish a material breach of the protective maintenance clause or the increased hazard clause, or both. With this in mind, Bellefonte conducted extensive examinations under oath of Mr. Martin Fine (the one owner, among the group of owners, in charge of operating the buildings), and of Mr. George Peters, managing agent for the owners. The examination of both dealt to a large extent with the instructions given and the provisions made for inspection and maintenance of the boiler heater and the sprinkler system, and particularly with the temperature setting employed on the heat timer that controlled the operation of the boiler. The district court found that Fine and Peters each answered falsely during examination under oath. Both Fine and Peters stated in the examinations that they had charged the superintendent, a Mr. Aloisio, with the responsibility for inspecting and maintaining the sprinkler systems as he had been charged under the prior ownership. The trial court found such testimony to be false and that Aloisio had not been so charged or instructed. During his examination, Mr. Fine testified that the nighttime setting for the heat timer controlling the boiler was 40 degrees and Mr. Peters testified that he had instructed superintendent Aloisio to set the heat timer at 40 degrees for nighttime operation. The trial court found that the testimony of both men was false in this respect. The court found that Aloisio had been instructed by Peters personally to set the heat timer at 25 degrees for nighttime and that Aloisio had, despite such instruction, set it for 30 degrees. Despite the aforesaid findings of falsity, the trial court rendered judgment for Plaintiffs on the false swearing defense on the ground that the false statements were not material. Under the heading, “Conclusions of Law”, the trial court said: “Here the statements were not material to the investigation. Given the extreme temperatures during the period from February 5th to February 14 as noted above, whether the heat timer setting was 25 degrees, 30 degrees or 40 degrees would not have affected the operation of the heating system. Further there was no testimony that a 25 degree or 30 degree setting would have constituted a practice which would have reasonably been foreseen to result in a freezing condition, which, in turn would have made the sprinkler system inoperative.” “Similarly with respect to the sprinkler maintenance issue, whether Aloisio was instructed to perform maintenance on the sprinkler system or not, in fact he did take the action necessary to repair the system, and there is no indication in this record that any failure of record keeping or regular maintenance was in any way responsible for the freeze-up. Since the Fine policy of freeze-out has not been proved to be the cause of the freeze-up, the false statements, viewing them as such, were not material as contemplated under section 168 [of New York Insurance Law].” (App. p. A-388-89). The standard or test by which to measure the materiality of a statement is sometimes regarded as a pure question of law and sometimes regarded as a mixed question of law and fact. In this case, where the statements were admittedly-made and the finding of their falsity is not attacked on appeal, the question seems to be purely one of law which we may consider on appeal without reference to the “clearly erroneous” requirements of Fed.R.Civ.P. 52(a). We conclude that the standard or test of materiality adopted by the trial judge in the above quoted language was erroneous. The trial judge regarded the materiality of the false statements as being dependent upon the ultimate determination of the facts concerning the fire as they were finally revealed to the court after a trial lasting many weeks. As the trial judge analyzed it, if it turned out, after a trial, that the sprinkler system would have been inoperative anyway on the night of the fire for reasons unrelated to the subject of the false statements, false statements about the setting of the heat timer and about maintenance and inspection of the sprinkler system made during the company’s earlier investigation became immaterial. To make such statements material, the trial judge appears to reason, the insurer would have had to prove at the trial that the setting of the heat timer or a failure of maintenance of the sprinkler system caused the pipes to freeze and the sprinklers to be inoperative on the night of the fire. In our view, the trial judge’s definition of materiality was far too restrictive and not in accordance with long-established case law. The issue is: Is a false statement material only if it relates to a matter or subject which ultimately proves to be decisive or significant in the ultimate disposition of the claim, or is it sufficient that the false statement concerns a subject reasonably relevant to the insurance company’s investigation at the time? The law is clear that the materiality of false statements during an insurance company investigation is not to be judged by what the facts later turn out to have been. The purpose of a provision requiring an insured to submit to an examination under oath is to enable the insurance company to acquire knowledge or information that may aid it in its further investigation or that may otherwise be significant to the company in determining its liability under the policy and the position it should take with respect to a claim. Thus the materiality requirement is satisfied if the false statement concerns a subject relevant and germane to the insurer’s investigation as it was then proceeding. One hundred years ago, in the seminal case of Claflin v. Commonwealth Insurance Co., 110 U.S. 81, 3 S.Ct. 507, 28 L.Ed. 76 (1884), the Supreme Court stated: The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. A false answer as to any matter of fact material to the inquiry, knowingly and willfully made, with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be a fraud effected; if it failed, it would be a fraud attempted.... No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; ... their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them and to whom they are addressed. 110 U.S. at 94-95, 3 S.Ct. at 514-15 (emphasis supplied). As the Tenth Circuit said in a recent case: Regarding allegations of false swearing, a misrepresentation will be considered material if a reasonable insurance company, in determining its course of action, would attach importance to the fact misrepresented. Long v. Insurance Co. of North America, 670 F.2d 930, 934 (10th Cir.1982). In Chaachou v. American Central Insurance Co., 241 F.2d 889 (5th Cir.1957), the Fifth Circuit, in dealing with a fire policy in the standard New York policy form, confronted a materiality question much like the issue before us. That court marshalled the authorities and two authorities quoted with approval in Chaachou are particularly relevant. If the plaintiffs knowingly and wilfully, with intent to defraud the defendants, swore falsely in making the proofs of loss, such act amounted to a fraud upon the defendants which avoided the policies, irrespective of the ultimate effect upon the defendants. Meyer v. Home Insurance Co., 127 Wis. 293, 299-300, 106 N.W. 1087, 1089 (1906). The fatal effect, however, of a willful misstatement of fact is not disturbed because of the failure of the company to prove that prejudice was thereby occasioned .... 3 W. Freedman, Richards on Insurance § 510, at p. 1654 (5th ed. 1952). It thus appears that materiality of false statements is not determined by whether or not the false answers deal with a subject later determined to be unimportant because the fire and loss were caused by factors other than those with which the statements dealt. False sworn answers are material if they might have affected the attitude and action of the insurer. They are equally material if they may be said to have been calculated either to discourage, mislead or deflect the company’s investigation in any area that might seem to the company, at that time, a relevant or productive area to investigate. Therefore, when measured by the proper standard and definition, each of the instant false statements was clearly material. As noted above, Bellefonte was investigating a plausible theory reasonably derived from the available facts, one which would result in the voiding of its coverage. The questions were material to that investigation. It is irrelevant whether Bellefonte was ultimately able to muster sufficient evidence to prove its theory at trial. Bellefonte was entitled to prevail on its defense that false swearing by the insured voided the policy. The judgment of the district court is therefore Reversed. The case is remanded to the district court with instructions to enter judgment for the defendant. . The Plaintiffs in this action are Martin Fine, William Becker and Philip Becker, and William Becker and Philip Becker d/b/a as Becker and Becker. Plaintiffs collectively did business as 649 Broadway Equities Co. Plaintiffs collectively are herein referred to for convenience as “Fine”. . The language of this policy provision is as follows: Protective Maintenance. It is warranted that the insured shall maintain in complete working order such protective systems and warning devices as existed at time of attachment of this policy, or which the insured has agreed to install, insofar as it is under the insured’s control or supervision, and that no change shall be made in the said protective systems and warning devices without the consent in writing of this company. (App. p. A-260) . The language of this policy provision is as follows: Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured .... (App. p. A-262). . The language of this policy provision is as follows: Concealment, fraud. This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto. (App. p. A-262) . Four months after the fire the three properties were sold in their fire-damaged condition for $2 million with the sellers apparently retaining all rights to recovery under the policy. . Section 168(6) of the New York Insurance Law prescribes the exact language to be used in a standard fire insurance policy in New York state, including the exact language of the section on false swearing. The statutory language was followed in the instant policy. Insurance statutes in all or nearly all of the states prescribe a standard fire insurance policy including the exact language to be employed therein. R. Keeton, Basic Text on Insurance Law 70 (1971). Of those who do, almost all use the New York form, including its exact “False Swearing Clause”. Ins.L.Rep. Fire & Casualty Cas. (CCH) pp. 2002 (Dec. 6, 1972), 2003-04 (Nov. 1982), 2007-10 (Apr.1982). . But even if the question as posed in this case is regarded as a mixed question of law and fact, Fed.R.Civ.P. 52(a) would not preclude this Court from its own independent consideration. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Karavos Compania Naviera, S.A. v. Atlantica Export Corp., 588 F.2d 1 (2nd Cir.1978); First National Bank of Cincinnati v. Pepper, 547 F.2d 708 (2nd Cir.1976). . 241 F.2d at 894 n. 6. 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_appel2_1_4	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. FLOYD et al. v. GAGE et al. No. 6312. United States Court of Appeals Fourth Circuit. Argued Oct. 11, 1951. Decided Nov. 1, 1951. J. A. Weinberg, Manning, S. C., for appellants. James S. Verner, Asst. Atty. Gen. for South Carolina (T. C. Callison, Atty. Gen, for South Carolina, on brief), for appel-lees. Before PARKER, Chief Judge, SOPER, Circuit Judge, and WYCHE, District Judge. PER CURIAM. This is an appeal from an order dismissing a suit instituted against the five members of the South Carolina Board of Bank Control, the Chief Bank Examiner of the Board and the Secretary of State of South Carolina. The plaintiffs are persons who have subscribed to stock and have applied for a charter to operate a state bank at Manning, South Carolina, and who have been denied a charter 'by the Board because they have not complied with the conditions which it has .prescribed as prerequisite to the granting of a charter. These conditions, which certainly seem reasonable, and which are set forth in the order of Judge Lide in an action pending in a South Carolina state court and made a part of the record here, are as follows: “1. That a capital of not less than $75,000 and a surplus of $15,000 be paid in, together with a reserve in the amount of $10,000. (Changed to $90,000 capital and $10,000 surplus on request oif Petitioners). “2. That membership in the Federal Deposit Insurance Corporation be obtained. “3. That the stockholders elect a board of directors, consisting of not less than nine members, including the six proposed in the application. “4. That no part of the paid in capital be invested in real estate. “5. That a certificate be filed with the Board of Bank Control, signed by the entire board of directors, approving the selection of the President and other Executive Officers and Cashier. “6. That before opening for business a copy of the adopted articles of incorporation or by-laws 'be filed with the Board of Bank Control. “7. That before opening for business the proposed management submit to the Board of Bank Control an estimate of operating expenses for the first annual period. “8. That an able and experienced banker, acceptable to the Board of Bank Control and the Federal Deposit Insurance Corporation, be secured as Cashier. “9. That upon compliance with all conditions imposed, the Chief Examiner is authorized to certify the approval of the Board of Bank Control to the Secretary of State.” The complaint makes no reference specifically to any of these conditions but charges in general terms, without allegation of any facts, that defendants through “combination and conspiracy” among themselves and with the Federal Deposit Insurance Corporation, with intent to suppress and eliminate competition, denied to plaintiffs the charter to operate the bank at Manning for which they had applied. The relief asked is that the defendants be declared a body acting in restraint of trade, that the statute under which the Board was appointed be declared void as violative of the Constitution and anti-trust laws of the United States and that plaintiff recover damages olf defendants under the anti-trust laws. The contention that the statute under which the Board is appointed, S. C. Code of 1942 sec. 7829, is violative of the Constitution and the anti-trust laws is based upon the requirement of the statute that appointments be made by the Governor upon the recommendation of the State Bankers Association and the Association of Building and Loan Associations and the cash depositories associated with the State Bankers Association. This contention, however, is so manifestly lacking in merit as not to warrant discussion. Certainly the federal court should not entertain a suit for declaring such a statute unconstitutional when it appears, as it does here, that there is presently pending in the Supreme Court of the state a suit in which the statute can be interpreted and its validity passed upon by that court. Shipman v. Du Pre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877. So far as the demand for relief under the federal anti-trust laws is concerned, we do not think that any basis for such relief is afforded 'by the vague allegations of the complaint which sets forth no identifiable combination or conspiracy apart from the fact that defendants are acting together as a Board of Bank Control and no facts upon which a violation of the federal statute could be predicated. The defendants are officers of the State of South Carolina presumably discharging their official duty when acting upon matters properly coming within its scope. While their official status will not protect them from liability for violation of the federal statutes, something more is required to bring them in to answer for such violation than mere general charges oif conspiracy and combination and abuse of official duty without allegation of any facts showing that unlawful combination or conspiracy in fact existed or that official duty has been transcended or abused thereby. See Polhemus v. American Medical Ass’n, 10 Cir., 145 F.2d 357. For the reasons stated, we do not think that the complaint sets forth any cause of action of which the court should have taken jurisdiction, and the order of dismissal is accordingly affirmed. Affirmed. . The pertinent portion of the statute is as follows: “A state board of bank control is hereby created and established, which shall be composed of five members, one of whom shall be the state treasurer as an ex-officio member, who shall be chairman. The remaining four members shall be appointed by the Governor, two of whom shall be engaged in commercial banking and recommended by the state bankers’ association, one shall be engaged in building and loan association business and recommended by the said associations and one shall be in the cash depositories business and recommended by the representatives of the cash depositories affiliated with the state bankers’ association.” Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. BORDEN RANCH PARTNERSHIP et al. v. UNITED STATES ARMY CORPS OF ENGINEERS et al. No. 01-1243. Argued December 10, 2002 Decided December 16, 2002 Timothy S. Bishop argued the cause for petitioners. With him on the briefs were Arthur F. Coon, Kyriakos Tsakopoulos, and Edmund L. Regalia. Jeffrey P. Minear argued the cause for respondents. With him on the brief were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Wallace, David C. Shilton, and Sylvia Quast Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and Alyce S. Robertson, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard, P. Ieyoub of Louisiana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, D. Michael Fisher of Pennsylvania, John Cornyn of Texas, and Jerry W. Kilgore of Virginia; for the American Farm Bureau Federation et al. by John J. Rademacher; for the American Forest & Paper Association by Steven P. Quarles, J. Michael Klise, Ellen B. Steen, and William R. Murray; for the California Farm Bureau Federation et al. by Robin L. Rivett and M. Reed Hopper; for the National Association of Home Builders by Virginia S. Albrecht, Andrew J. Turner, Duane J. Desiderio, and Thomas Jon Ward; for the National Stone, Sand and Gravel Association et al. by Lawrence R. Liebesman; and for Save Our Shoreline by Nancie G. Marzulla, Roger J. Marzulla, Brenda D. Colella, and David L. Powers. Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by David Samson, Attorney General of New Jersey, and Patrick DeAlmeida and Rachel J. Horowitz, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Earl I. Anzai of Hawaii and Darrell V McGraw, Jr., of West Virginia; for the Association of State Wetlands Managers by Patrick A. Parenteau; for the National Wildlife Federation et al. by Howard I. Fox; and for Dr. Joy Zedler et al. by John D. Echeverría. Per Curiam. The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the consideration or decision of this case. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Joe LEITMAN, d/b/a J.L. Surplus Sales, Surplus Sales, Plaintiffs-Appellants, v. Lieutenant General C. McAUSLAND, U.S.A.F. Director, Defense Logistics Agency, Colonel Raymond Agnor, U.S.A.F. Commander, Defense Reutilization and Marketing Service, Bruce W. Baird, Counsel and Debarring Official Defense Logistics Agency Reutilization Marketing Service, Defendants-Appellees. No. 90-1823. United States Court of Appeals, Fourth Circuit. Argued Feb. 7, 1991. Decided May 21, 1991. As Amended June 3, 1991. Edward Leslie Cox, Cox and Cox, Virginia Beach, Va., for plaintiffs-appellants. Michael Anson Rhine, Office of U.S. Atty., Norfolk, Va., argued (Theodore R. Pixley, Jr., Chief Trial Atty., Defense Reu-tilization and Marketing Service, Battle Creek, Mich., on brief), for defendants-ap-pellees. Before SPROUSE and WILKINSON, Circuit Judges, and MULLEN, District Judge for the Western District of North Carolina, sitting by designation. MULLEN, District Judge: Appellants Joe Leitman and J.L. Surplus Sales filed a complaint on 27 April 1990, challenging an administrative decision dated 8 February 1990, debarring appellants for three years from purchasing surplus and foreign excess personal property from the federal government. The district court affirmed the agency findings and denied the requested injunction against the debarment. Appellants filed a timely appeal challenging the dismissal of the complaint by the district court. Having reviewed the issues raised by appellants, we affirm the judgment of the district court. I. Appellant Joe Leitman owns and operates J.L. Surplus Sales, whose business consists primarily of purchasing surplus property from the Department of Defense for later resale. Appellee Bruce W. Baird is counsel for the Defense Logistics Agency and the Defense Reutilization and Marketing Service. Appellee Baird served as the hearing officer at the debarment proceedings against appellants. Appellee Colonel Raymond Agnor commands the Defense Reutilization and Marketing Service, which is the primary field level operation for the Defense Logistics Agency and which conducts the surplus sales. Appellee Lieutenant General C. McAusland supervises the Defense Logistics Agency, under which the Defense Reutilization and Marketing Service operates. The Defense Logistics Agency is a subdivision of the Department of Defense. Appellant Baird’s notice of debarment of appellants dated 8 February 1990 based its decision on three incidents of anticompeti-tive collusive bidding. Appellee Baird first found that on 24 March 1987, Leitman entered into a collusive bidding agreement by obtaining an agreement from another bidder not to bid against him on Lot 133. Second, Baird found that on 10 August 1987, Leitman made an agreement with another potential bidder that he would not bid against the other bidder on certain lots and that the other bidder would not bid against Leitman on other lots. Finally, Baird found that on 24 September 1987, Leitman entered into a collusive bidding agreement with Alan Hyman under which Leitman would not bid against Hyman on certain items and in exchange would receive a portion of the profits from the resale. Appellee Baird reached his decision after a hearing on these matters. Appellants were present and represented by counsel. David Norris represented the government at the hearing, and Baird served as the hearing officer. The government presented two witnesses for testimony and introduced several written exhibits. Leitman testified on his own behalf. In a decision after the close of the hearing, Baird issued a notice of debarment on the three grounds set forth above. He concluded that this misconduct by Leitman provided a reason for debarment under Federal Acquisition Regulation 9.406-2(c). Baird found that appellant J.L. Surplus Sales was an affiliate of Leitman and also debarred J.L. Surplus Sales. Appellants requested reconsideration of the order of debarment, including a reduction of the three-year debarment period. Baird denied the request for reconsideration. II. This court reviews the decision of the administrative agency on the same standard applied by the district court. Pursuant to 5 U.S.C. § 706, a reviewing court shall set aside agency action that is found to be arbitrary, capricious, an abuse of discretion, contrary to law or unsupported by substantial evidence. The procedures for debarment are found in 48 C.F.R. §§ 9.04, et seq. They provide in pertinent part that a purchaser can- be debarred for, among other reasons, conviction of or civil judgment for a violation of a federal or state antitrust statute relating to the submission of offers or “any other cause of so serious or compelling a nature that it affects the present responsibility of a government contractor or subcontractor.” 48 C.F.R. § 9.406-2(a)(2) and 9.406-(2)(c). III. Appellants have raised five challenges to the order of debarment and affirmance by the district court. The court will discuss these grounds seriatim. A. Role of Baird as Hearing Officer Appellants argue that Baird violated provisions of the Administrative Procedure Act (APA) by acting as both prosecutor and debarring official at the hearing. Appellants base this argument on 5 U.S.C. § 554(d), which provides that an employee engaged in the investigative or prosecution functions for an agency in a ease may not participate in the decision on that or a factually related case. Appellants argue that Baird took over the role of prosecuting officer at the hearing and initiated an ex parte communication in violation of 5 U.S.C. § 554(d)(1). It is not clear from the record and briefs whether 5 U.S.C. § 554 applies to this case. The statute states that it applies in a case of an “adjudication required by statute to be determined on the record after opportunity for an agency hearing_” 5 U.S.C. § 554(a). The parties have shown no statute requiring the debarment hearing to be on the record; however, a judicial gloss has found that these provisions also apply to certain hearings required by the Constitution, rather than a statute. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950). In this case, the court can avoid the thorny issue of whether an adjudication on the record complying with 5 U.S.C. § 554 is constitutionally mandated by assuming, without deciding, that the statute applies to this case. Reviewing the transcript of the hearing, the court finds that Baird did participate in the questioning of witnesses; however, David Norris represented the government at the hearing and served as the prosecuting officer. Baird’s questioning was similar to that generally permitted a trial judge. Most of his questions were asked for clarification or to move the proceedings along. His questioning was not so extensive as to place him in the position of prosecuting officer, as claimed by appellants. Appellants also challenge the actions of Baird regarding the transcript of a telephone conversation, which was evidence of one of the collusive bidding agreements. At the hearing, counsel for appellants argued that the telephone conversation had been improperly recorded and was inadmissible because of a Virginia statute. Baird stated that he would check with officials to see whether the taping had been authorized and that he would let the parties know his findings. Baird satisfied himself that proper clearance had been obtained, but did not notify appellants as to his inquiry and the response prior to issuing a notice of debarment. Appellants claim that Baird should not have considered the transcript of the telephone conversation because Leitman was unaware that the conversation was being recorded. Therefore, according to appellants, the transcript could not be admitted into evidence pursuant to Va.Code § 8.01-420.2. A state evidentiary rule, such as that cited by appellants, does not control admissibility of evidence in federal proceedings. See, e.g., United States v. Horton, 601 F.2d 319 (7th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); United States v. Keen, 508 F.2d 986 (9th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). In a hearing before a federal agency, federal procedural law would apply. Under federal law, it was sufficient that one party to the conversation, in this case, the government’s informant, knew that the conversation was being taped. 18 U.S.C. § 2511(2)(c). Baird noted that he would check with officials regarding the clearance given for the taping, apparently unaware that the recording was permissible simply because the informant was aware that the conversation was being recorded. The clearance that Baird checked for and later failed to notify the parties of was immaterial in light of the federal statute on the matter. Therefore, any failure by Baird to notify the parties as promised, although regrettable, was harmless error. Therefore, the court finds no merit in this challenge. B. Lack of Sworn Testimony Appellants complain that there was a total lack of sworn testimony upon which Baird could base his decision. Appellants argue that the APA requires that an oath be administered to the witnesses. At the proceeding, Baird did not administer an oath, but warned all witnesses that any representations made in the proceedings were official statements subject to the penalties for false statements provided in 18 U.S.C. § 1001. Appellants made no objection to this procedure at the hearing. Again assuming for sake of argument that the statute applies to this proceeding, it provides only that the officer proceeding at the hearing “may” administer oaths and affirmations. 5 U.S.C. § 556(c)(1). The APA does not require that the testimony received be sworn under oath. Baird’s warnings of the penalties for a false statement were clearly sufficient to notify witnesses of the gravity of the hearings and the need for complete truth. Furthermore, appellants raised no objection to the proceeding and make no offer of evidence that would have been different had the testimony been sworn under oath. Therefore, the court finds no error in this portion of the proceeding. C. Lack of Conviction or Judgment on the Agreements Appellants’ third ground for reversal is that Baird could not base a debarment upon any collusive bidding agreement without a conviction or civil judgment on the agreement. This argument is without merit. 48 C.F.R. § 9.406-2 provides alternative causes for debarment. Section (a) allows debarment upon conviction of or civil judgment for various acts, including violation of certain federal or state antitrust statutes. Baird based his debarment of appellants upon 48 C.F.R. § 9.406-2(c), which permits debarment for “any other cause so serious or compelling a nature that it affects the present responsibility of a contractor....” The different causes for debarment are important and are divided under the regulation because conviction of or civil judgment for a charge listed in the regulation allows a debarment without any hearing. 48 C.F.R. § 9.406-3(b)(2). The regulations understandably allow a conviction or civil judgment to provide the basis for a debarment with no further proceedings. This is why section (a) of 48 C.F.R. § 9.406-2, dealing with convictions or judgments, is set apart from section (c), which was relied upon by Baird. This statutory structure and the language of the regulations clearly do not envision a requirement that a conviction or civil judgment be obtained before a debarment proceeding based on collusive bidding agreements be initiated. The appellants’ argument on this point warrants no further consideration. D. Lack of Overt Act Appellants have argued that Baird failed to find an overt act in furtherance of the collusive bidding agreements and that such a finding is necessary for the debarment. It does not appear from the record that appellants raised this point at the debarring proceedings. In any event, the court finds that no overt act is required under the regulations. The collusive bidding agreement itself is sufficient to satisfy the requirements of 48 C.F.R. § 9.406-2(c). Simply entering into a collusive bidding agreement is sufficient ground for debarment from participating in surplus sales. There is no criminal charge of a conspiracy here, which might raise a requirement for an overt act in furtherance of the conspiracy. E. Substantial Evidence to Support the Decision Finally, appellants argue that there was not substantial evidence for the findings by Baird of three collusive bidding agreements. Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Appellants argue that all the evidence before Baird was mere hearsay, which is insufficient to support the decision of the agency. It is undisputed that an adjudicative official at an administrative hearing can consider hearsay. Evosevich v. Consolidated Coal Co., 789 F.2d 1021 (3d Cir. 1986); Williams v. U.S. Dept. of Trans., 781 F.2d 1573 (11th Cir.1986). It is also clear that hearsay alone may not be sufficient as a substantial basis for a decision. Consolidated Edison Co. v. NLRB, 305 U.S. at 230, 59 S.Ct. at 217. The Supreme Court has explained that hearsay has not been rejected for consideration at administrative hearings, but only hearsay without a basis in evidence having rational probative value. Richardson v. Perales, 402 U.S. at 407, 91 S.Ct. at 1430. Upon review of the transcript and exhibits, it is clear that there is more than a substantial basis for each of the three determinations by Baird. First, Special Agent Christensen and informant Lusk gave testimony about the collusive bidding agreement on 24 March 1987. They reviewed their debriefing notes and stated that the notes were true and accurate. They were subject to cross-examination. Baird did not accept their testimony in toto, but found that as a result of the collusive agreement, Leitman purchased only one lot rather than the several lots detailed in the debriefing notes. On this charge, Baird based his opinion not only on the debriefing notes, but on the testimony of the witnesses and their identification and verification of the debriefing notes. The fact that he accepted only a portion of their testimony does not negate the use of other portions of their testimony. Thus, the portions accepted by Baird provide a sufficient basis for the decision. The evidence on the second charge of a collusive bidding agreement on 10 August 1987 was the testimony of informant Lusk, who identified the transcript of the telephone conversation in which the agreement was made. He stated that the transcript was true and accurate. Lusk also stated that he recognized the voice on the telephone as that of Leitman. Again, the evidence before Baird was more than hearsay. The transcript of the telephone conversation with the live testimony more than adequately provides a substantial basis for the decision that Leitman had entered into a collusive bidding agreement on this date. Finally, regarding the charge of collusive bidding on 24 September 1987, informant Lusk testified that he overheard Leitman reach an agreement with another bidder, Alan Hyman, not to bid on certain items. Lusk also testified that he spoke with Hy-man later to verify how the agreement was made. In addition, Lusk identified his debriefing notes and stated that they were true and accurate. The live testimony of Lusk before Baird in itself was substantial evidence supporting the decision. Baird could also have properly considered the debriefing notes identified and verified by Lusk at the hearing. As a result, there is no question but that substantial evidence existed for Baird’s conclusion on the third charge of collusive bidding. Appellants complain that, regarding the third charge, the government should have called Alan Hyman himself to testify. The record reflects that appellants made no objection to the absence of Hyman at the hearing, nor did they make an offer of what testimony he could present. Upon this record, the court finds no obligation by the government to call this potential witness. The court finds that there was substantial evidence to support the decision of ap-pellee Baird as to all three charges upon which his decision was based. IV. The court has reviewed all claims raised by appellants and finds no basis for overturning the decision of the agency in its debarment proceedings. Therefore, the decision of the district court affirming the agency determination is AFFIRMED. . The regulation is found in 48 C.F.R. § 9.406-2(c) and provides for a debarment for "[a]ny other cause of so serious or compelling a nature that it affects the present responsibility of a government contractor or subcontractor." . Appellants have not challenged the portions of the debarment decision finding that Leitman controls or has the power to control J.L. Surplus Sales and that, if Leitman was properly debarred, then J.L. Surplus Sales was also properly debarred. .The statute provides in part that the reviewing court shall hold unlawful and set aside agency action, findings and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 5 U.S.C. § 706(2). . In Wong Yang Sung, the Supreme Court concluded that the APA provisions applied to an administrative hearing regarding deportation. It found that the statute excepted only hearings of less than statutory authority and applied to hearings required by the Constitution. . Va.Code § 8.01-420.2 provides in part: "No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless all parties to the conversation were aware the conversation was being recorded." Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel1	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. The CHOCTAW AND the CHICKASAW NATIONS, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF LOVE COUNTY, OKLAHOMA, and Texaco, Inc., a corporation, Appellees. No. 8416. United States Court of Appeals Tenth Circuit. June 6, 1966. Submitted on brief by appellants (W. F. Semple, Tulsa, Okl., on brief). Kenneth D. Bacon, Midwest City, Okl., for appellees. Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges. MURRAH, Chief Judge. The Choctaw and Chickasaw nations sued the Board of County Commissioners of Love County, Oklahoma, to quiet their title to the mineral interests under a cemetery. This appeal is from a judgment holding that the nations have no right, title or interest in the lands and that the Board is the owner in fee simple. We affirm the judgment. The stipulated facts are that by patent deed executed in 1915 and approved by the Secretary of Interior, the Choctaw and Chickasaw nations “ * * * granted and conveyed * * * unto the * * * County Commissioners, their successors and assigns, forever, all right, title and interest of the Choctaw and Chickasaw nations in the described lands containing seven acres more or less * * * in trust for the use of the local community for cemetery purposes only * * The conveyance was pursuant to and reads upon an Act of Congress approved June 30, 1913, 38 Statutes 77-96, which provides in part that “ * * * where any cemetery now exists within the lands of the Five Civilized Tribes, said land within said cemetery * * * shall be transferred by the Secretary of Interior * * * for cemetery purposes only, under such terms, conditions, and regulations as he may prescribe.” Since the day of the conveyance, the record title to the tract in question has remained in the Commissioners and has been and is being used for cemetery purposes. The land became valuable for oil and gas and both the nations and the Board of County Commissioners have executed separate oil and gas leases covering the tract. Both leases are concededly owned by Texaco, Inc. The cemetery tract is a part of two producing oil and gas units operated by Texaco, and the oil and gas royalties attributable to this particular tract are being held in suspense pending the outcome of this suit to try the title. The natrons take the position that since the conveyance was pursuant to federal law, the nature and extent of the estate created by such conveyance depends upon the intendment of the enabling act in the light of Congressional policy considerations. “The construction of grants by the United States is a federal not a state question * * * and involves the consideration of state questions only in so far as it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances.” United States v. State of Oregon, 295 U.S. 1, 28, 55 S.Ct. 610, 621, 79 L.Ed. 1267. The nature of the disposition of Indian lands under the guardianship of the United States is a matter of the intention of the grantor and “ * * * if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the State in which the land lies.” State of Oklahoma v. State of Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771; see also United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 209, 63 S.Ct. 534, 87 L.Ed. 716. The nations do not contend that the deed was not in conformity with the enabling act nor that the federal act or the deed should be construed inconsistently with the apposite rules of property in Oklahoma. They do contend, however, that when the patent deed is construed in the light of the Congressional intendment and in accordance with applicable rules of property in Oklahoma, the Board never acquired any right, title or interest to the oil and gas and other minerals under the cemetery, thus the nations are the absolute owners of the minerals subject only to their oil and gas lease. The statutory law of Oklahoma provides that “Every estate in land which shall be granted, conveyed or demised by deed or will shall be deemed an estate in fee simple and of inheritance, unless limited by express words.” 16 O.S. § 29. Making application of this statutory canon of construction as applied in Oklahoma case law, the trial court was of the view that the mere recital in a deed that the land is “for cemetery purposes only” does not operate to reserve the mineral rights; that to reserve a right or limit the estate conveyed, appropriate language must be used to clearly show such an intent. Oklahoma undoubtedly follows the generally accepted rule of property that the mere expression of the purpose for which the property is to be used will not in and of itself suffice to limit the estate conveyed. The strong presumption against forfeiture or divestiture requires that limiting language be unequivocally clear. See Priddy v. School Dist. No. 78, 92 Okl. 254, 219 P. 141, 39 A.L.R. 1334; Stinson v. Oklahoma Ry. Co., 190 Okl. 624, 126 P.2d 260, quoting Thompson on Real Property, Vol. 4, §§ 2063, 2064; McClain et al. v. Oklahoma City et al., 192 Okl. 4, 133 P.2d 198; Langston City et al. v. Gustin et al., 191 Okl. 93, 127 P.2d 197; Midkiff v. Castle & Cooke, Inc., 368 P.2d 887; A.L.I. Restatement of Property §§ 44-45; 19 Am.Jur., Estates, §§ 36, 71, 73; 14 Am.Jur.2d, Cemeteries, §§ 24, 720. The rule has been specifically applied to grants for burial purposes only, i. e. see Sapper v. Mathers, 286 Pa. 364, 133 A. 565, 47 A.L.R. 1172; Board of Commissioners of Mahoning County v. Young, 6 Cir., 59 F. 96; Wright v. Morgan, 191 U.S. 55, 24 S.Ct. 6, 48 L.Ed. 89; and see Lindauer v. Hill, Okl., 262 P.2d 697, quoting 47 A.L.R. 1174. And, the taking of oil and gas from beneath property conveyed for public purposes has been deemed not inconsistent with the purposes recited in the deed. See Phillips Gas and Oil Company v. Lingenfelter, 262 Pa. 500, 105 A. 888, 5 A.L.R. 1495; McClain et al. v. Oklahoma City et al., supra. Without contending against this long established rule of property, appellants take the position that Congress authorized the Secretary of Interior to grant or convey the cemetery lands for cemetery purposes only and this being the extent of the estate authorized to be granted, the deed must be so construed. The nations distinguish their deed from the so-called “purpose clause” cases which merely recite the purposes for which the land is conveyed. They point to the deliberate use of the word “only” both in the Congressional Act and the statutory deed and argue that the word is intended to be used synonymously with “solely” and “exclusively”; that as thus used it operates to limit the estate granted and to prohibit the use of the cemetery lands for any purpose whatsoever save and except the one purpose stated in the Congressional Act and deed. They also cite and rely upon those railroad right-of-way cases which convey an estate “so long as” and “during the time that”, i. e. see Oklahoma, City v. Local Federal Savings and Loan Assn., 192 Okl. 188, 134 P.2d 565; St. Louis-San Francisco Railway Co. v. Walter, 10 Cir., 305 F.2d 90, and cases cited; Cf. United States v. Union Pacific Railroad Co., 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693. But, these cases turn on a determinable fee with automatic reversion upon abandonment or cessation of the purpose for which the right-of-way was granted. They do not support the nations’ theory that the mineral estate never passed with the deed. In further support of their theory the nations emphasize the distinction between the words of limitation in the granting clause and similar expressions in the habendum clause of a deed, i. e. see Marshall v. Standard Oil Co. of California, 17 Cal.App.2d 19, 61 P.2d 520. They cite and rely upon Hopkins v. Grimshaw, 165 U.S. 342, 17 S.Ct. 401, 41 L.Ed. 739, involving a deed in trust for burial purposes not unlike our deed. In that case the burial ground was abandoned, and the society-grantee had been dissolved. The court there held that upon the abandonment of the burial ground for the purpose for which it was conveyed, the grantor’s heirs were entitled to the land by way of a resulting trust. But, the court significantly held that the trustees took an estate in fee subject to the forfeiture upon abandonment of the purpose for which it was granted. See also Wright v. Morgan, supra, where the Congressional Act enabled the city to purchase public lands “to be held and used for a burial place for said city and vicinity”. The city conveyed a part of the land to the Bishop of a church with an habendum that the land was to be used for burial purposes. The Bishop of the church later conveyed a part of the land to another person who subdivided it as an addition to the City. The heirs of the grantor sued in ejectment. The legal title of the city was held to be absolute “in view of the extreme unwillingness of courts to admit the existence of a common-law condition even when the word ‘condition’ is used”. As we view the case, it comes to this. Congress was undoubtedly empowered to authorize the nations, with approval of the Secretary of Interior, to transfer these cemetery lands in fee simple, determinable fee, or to grant a mere easement. Congress did authorize the transfer of the existing cemetery lands for cemetery purposes only under regulations to be prescribed by the Secretary. The Secretary caused the nations to transfer the tract in question by patent deed granting and conveying to the County Commissioners of Love County, forever, all their right, title and interest in trust for cemetery purposes only. When the enabling act was passed and the deed executed, it was the general rule of property that a conveyance of all right, title and interest in and to designated property for a stated purpose was construed to convey a fee simple title. The purpose clause was generally regarded as directory only, not a limitation on the estate conveyed. It certainly cannot be said that at the time of this conveyance either Congress or the Secretary of Interior was unfamiliar with this prevailing rule. If Congress had intended to authorize the transfer of a limited fee only, we think it would have expressed itself by the use of appropriate language consistent with the prevailing rules of property then and now, as indeed it did in contemporary legislation. It is noteworthy that the Congress was dealing with cemetery lands and its concern was the perpetuation of the purpose for which the lands were being used at the time of the transfer. The most that can be said for the nations’ contentions is that this deed comes within the purview of the Grimshaw case under which the nations could assert appropriate equitable remedies upon abandonment of the cemetery or upon its being put to uses inconsistent with the purpose for which it was granted. Since there has been no abandonment of the purpose for which it was transferred and the taking of the oil and gas beneath the surface is not inconsistent with its use for cemetery purposes, the equitable principles of Grimshaw are presently inapplicable. In these circumstances we conclude that the nations transferred an estate in fee simple in trust for cemetery purposes only. The judgment is affirmed. . See the Act of February 19, 1912, 37 Statutes 67, to provide for the sale of the surface of segregated coal and asphalt lands of the Choctaw and Chickasaw Nations which reads in pertinent part that “The surface herein referred to shall include the entire estate save the coal and asphalt reserved.” 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_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). UNITED STATES of America, Appellee, v. UPPER POTOMAC PROPERTIES CORPORATION et al., Appellants. No. 15106. United States Court of Appeals, Fourth Circuit. Argued April 6, 1971. Decided Sept. 29, 1971. Philip O. Foard, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellants. Peter R. Steenland, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Anthony C. Liotta, Philip M. Zeidner, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee. Before BOREMAN, BRYAN and CRAVEN, Circuit Judges. CRAVEN, Circuit Judge: This is an appeal from a judgment entered on a jury verdict in the United States District Court for the District of Maryland, awarding the defendants $315,000.00 as compensation for the taking by the United States of over 2,060 acres of coal mining property. It was agreed before trial that the highest and best use of the land was for coal mining purposes, and at the trial the testimony of all witnesses was directed to the value of the property for such purposes. The questions presented us are these: (1) whether the property should be valued as of the date of the trial, as defendants contend, or as of the date of the filing of the Order for Delivery of Possession, as held by the district court; (2) whether the district judge erred in admitting into evidence testimony concerning the sale of a piece of coal mining property to the lessee of all the mineral rights to the property; and (3) whether it was error to charge the jury that if they found certain sales relied upon by the government’s expert witness to be comparable, they were the best evidence of value, but not the only evidence to be considered. For reasons set out below we conclude that the assignments of error are without merit and affirm the judgment below. This action was commenced on April 17, 1968, when the government filed a Complaint and a Notice of Condemnation according to 33 U.S.C. §§ 591, 594. On April 18, 1968, the district court entered ex parte an Order for Delivery of Possession. On May 14, 1968, a stipulation between the parties was filed. The defendants argue that since the government did not file a declaration of taking under 40 U.S.C. §§ 258a-258e, nor take physical possession at any time before the trial, the value of the land is to be ascertained as of the date of the trial. However, under 33 U.S.C. § 594 the United States is entitled to the right of immediate possession provided only that subsequent compensation is assured. When it proceeds under this title, as was done here, the United States is not required to file a Declaration of Taking under 40 U.S.C. §§ 258a-258e unless it elects to do so. United States v. Catlin, 142 F.2d 781 (7th Cir. 1944). We agree with the district court that the time of taking was on April 18, 1968, the date of the Order for Delivery of Possession. While it is true that the United States did not have actual physical possession of the land in question on that date, the stipulation of May 14, 1968, between the parties indicates that the rights of the defendants to the use of the land was limited in such a way as to be inconsistent with anything except a possessory right in the government with certain rights reserved to the defendants. Our conclusion on this issue is reinforced by paragraph 5 of the Stipulation, the proper interpretation of which we think is provided by the district court. “Only if the land had previously been taken by the United States [i. e., at the date of the Stipulation], but defendants were nevertheless permitted to use some of it, and remove coal, would it be necessary to provide specifically for reflecting, ‘the diminution in value * * by reason [of removal] of the coal or other materials.’ ” R. 88-93, App. at 19. We think the district judge did not abuse his discretion when he allowed the jury to consider the price paid for the coal mining operation immediately adjacent to the property in question on the theory that comparable sales- are the best evidence of value. The government appraisers testified that they took this price into consideration as a comparable sale in arriving at their figure of what the fair market value of the property in question would be. This sale, entered into in 1967 (hereinafter referred to as the Johnstown sale), was of about 5,000 acres by the Johnstown Coal Company to Douglas Coal Company for $250,000. Douglas Coal Company already had a lease on the property under which they could mine the coal on the property for 20 years, with an option to renew for ten years or until the coal was exhausted. As royalty under their lease, Douglas was to pay a per ton price which varied depending on the mining method used, but which was to be at least $625 per month. The defendants contend that since this lease existed, evidence of the subsequent sale should have been excluded because no one other than Douglas could have bought the land and used it for coal mining. Implicit in this argument is the supposition that since Douglas had the lease, it could not have rationally paid the same price for the freehold as it would have if the lease had not existed, and therefore the purchase price in the Johnstown sale could not have reflected the fair market value of the freehold. It is clear that the term fair market value, with reference to the land in question, is the complete freehold interest. However, it does not follow that the fair market value of the property involved in the Johnstown sale must be greater than the price paid for the land subject to the lease. This depends entirely on the terms of the lease. While it is true that only Douglas could have bought the land and used it for coal mining, whether or not it would pay more or less than the fair market value of the land would depend upon the terms of the lease. There was conflicting testimony when evidence of this sale was first introduced whether the government appraisers knew the terms of the lease when they arrived at their conclusions as to fair market value of the property in question. However, there was also evidence that the government appraisers considered the lease to be a “fair market” lease (App. 287) and that they had concluded from conversations with the principals to the Johnstown sale that the sale was for the fair market value of the land. If this testimony is taken as true, as it must be here, there is no reason to believe that Douglas would not have paid the value of the land as it would have been without the lease. If the royalty payments were more than the fair rental value of the land, Johnstown would have no reason to sell and the lease would actually enhance the value of the freehold. If the royalty payments had been less than the fair rental value, it is true that the freehold interest would be less valuable with the lease than without it. But if the royalty payments reflect the fair rental value in 1967, then it would seem that the lease neither added nor detracted from the value of the land. There is testimony which would support a conclusion that the lease in question provided for royalty payments below the fair rental value in 1967, in which ease the sale price could well have been less than the fair market value of the land, since the leasehold would have value. However, there is also adequate testimony to support the conclusion that the lease in question in the Johnstown sale properly reflected the fair rental value of the land in 1967, in which case the lease could properly be disregarded when arriving at a conclusion as to fair market value of the freehold, as one of the government appraisers testified he did. App. at 261. Allowing the jury to consider whether the sale price of the Johnstown property was a comparable sale was clearly within the sound discretion of the district judge; indeed, it would have been error to exclude it for federal courts favor “a broad rule of admissibility * * * of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. * * * ” United States v. Sowards, 370 F.2d 87, 90 (10th Cir. 1966). The defendant property owners next contend that it was error to instruct the jury, preliminarily and at the close of the case, that comparable sales are the best evidence of value. In addition, the property owners seem to argue that it was also error to allow the jury to consider the prior sales as evidence bearing on the value of the property in question because another method of valuation is generally used by members of the coal mining industry when they consider whether to buy a piece of coal bearing property. This method, termed the discounted royalty rate method, uses the product of the amount of recoverable coal in place times the price per ton of such coal, discounted over time. Defendants urge that because this method of valuation is almost universally used by people in the coal mining business any other method of valuation is inadmissible under exclusionary rules of evidence. We disagree. That it may be an acceptable method does not serve to exclude otherwise competent evidence relating to valuation. For a discussion of whether this method is an acceptable method of valuation or a deviation from the proper standard of value, see United States v. Sowards, 370 F.2d 87 (10th Cir. 1966), and cases cited. The main thrust of defendants’ appeal is that the district judge committed error by instructing the jury that comparable sales are the best evidence of value. The property owners claim that the effect of the trial judge’s instructions was to preclude the jury from even considering the method of valuation used in the industry, and that the jury thought that the only issue to be determined was whether or not there were comparable sales. A reading of the instructions given the jury by the trial judge, however, does not support the defendants’ contention. On numerous occasions the trial judge repeated his basic instructions that “ * * * if there are comparable sales, they are the best evidence, but they are not to be taken solely and exclusively, they are to be taken in connection with all of these other things.” App. 1147. See also App. 1148-1150. Throughout his instructions, the trial judge emphasized that comparable sales, if the jury found them in fact to be comparable, are not the only evidence of value which the jury was to consider. In addition, the trial judge specifically instructed the jury that they could also consider the price per ton of coal and the royalty rate in arriving at the amount to be paid defendants. App. 1150. We think it is clear that the trial judge’s instructions did not limit the jury in the manner that the defendants contend. The defendants further contend that the trial judge labored under the erroneous impression that he was compelled by decisions of this court to charge the jury that comparable sales are the best evidence of value in all condemnation cases and that but for his misapprehension he would not have so charged in this case. We perceive no such error. It is clear that the trial judge did not think such an instruction was mandatory under all circumstances, but rather concluded that under the facts of this case such an instruction was appropriate and therefore mandatory. Having correctly determined that there was an issue of fact for the jury as to whether several sales relied upon by the government witness were comparable, the trial judge was then obligated to give an instruction that if found to be comparable, such sales are the best evidence of value, but not the only evidence. The law was correctly stated by Judge Boreman in United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir. 1964), when he said, “[I]t is settled law that comparable sales are the best evidence of value.” See also United States v. Miller, 317 U.S. 369, 374-375, 63 S.Ct. 276, 87 L.Ed. 336 (1943), United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957). The judgment of the district court will be Affirmed. . The lands taken were to be used for the building of the Bloomington Dam and Reservoir on the North Branch of the Potomac River in Garrett County, Maryland. . Section 594 reads in relevant part as follows : Whenever the Secretary of the Army, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted. * * * . For example, the stipulation provides that: Defendants further agree that no strip mining, cast off of overburden or disturbance of the earth for any reason is permitted by them except as stated below. Defendants may conduct mining operations on the property subject to following conditions: After conditions relative to strip mining in certain areas were laid out, the stipulation continued: In the event that the District Engineer should determine that the continued use and occupancy of the areas designated herein constitutes an interference with protect purposes the Defendants hereby agree to cease its operations immediately upon notice by the United States Army District Engineer to said effect. . Defendants further agree that the diminution in the value of the land described in paragrapli 3 above by reason of removal of coal or other materials shall be reflected in the just compensation as determined by judicial process or by stipulated agreement between the plaintiff and defendants. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
sc_certreason	B	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. TAYLOR v. STURGELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 07-371. Argued April 16, 2008 Decided June 12, 2008 Adina H. Rosenbaum argued the cause for petitioner. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Michael John Pangia. Douglas Hallward-Driemeier argued the cause for the federal respondent. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Kneedler, Leonard Schaitman, and Robert D. Kamenshine. Catherine E. Stetson argued the cause for respondent Fairchild Corporation. With her on the brief were Christopher T Handman and N. Thomas Connolly. Briefs of amici curiae urging reversal were filed for the American Association for Justice by John Vail and Kathleen Flynn Peterson; for Civil Procedure and Complex Litigation Professors by David L. Shapiro and John Leubsdorf, both pro se; for the National Security Archive et al. by Meredith Fuchs; and for Lavonna Eddy et al. by James A. Feldman and Gerald S. Hartman. Mark L. Shurtleff, Attorney General of Utah, and Philip S. Lott and Peggy E. Stone, Assistant Attorneys General, filed a brief for the State of Utah as amicus curiae urging affirmance. Jack R. Bierig filed a brief for the American Dental Association as amicus curiae. Justice Ginsburg delivered the opinion of the Court. “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32,40 (1940). Several exceptions, recognized in this Court’s decisions, temper this basic rule. In a class action, for example, a person not named as a party may be bound by a judgment on the merits of the action, if she was adequately represented by a party who actively participated in the litigation. See id., at 41. In this case, we consider for the first time whether there is a “virtual representation” exception to the general rule against precluding nonparties. Adopted by a number of courts, including the courts below in the case now before us, the exception so styled is broader than any we have so far approved. The virtual representation question we examine in this opinion arises in the following context. Petitioner Brent Taylor filed a lawsuit under the Freedom of Information Act seeking certain documents from the Federal Aviation Administration. Greg Herrick, Taylor’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that Taylor controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held Taylor’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as Taylor’s “virtual representative.” We disapprove the doctrine of preclusion by “virtual representation,” and hold, based on the record as it now stands, that the judgment against Herrick does not bar Taylor from maintaining this suit. The Freedom of Information Act (FOIA or Act) accords “any person” a right to request any records held by a federal agency. 5 U. S. C. § 552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act’s enumerated exemptions, see § 552(a)(3)(E), (b), the agency must “make the records promptly available” to the requester, § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction “order[ing] the production of any agency records improperly withheld.” § 552(a)(4)(B). I The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts’ decisions turned on the connection between the two lawsuits, we begin with a full account of each action. A The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F-45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930’s. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F-45 contained in the agency’s records. To gain a certificate authorizing the manufacture and sale of the F-45, FEAC had submitted to the FAA’s predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA’s records. The FAA denied Herrick’s request, however, upon finding that the documents he sought are subject to FOIA’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” § 552(b)(4). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC’s corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision. Herrick then filed suit in the U. S. District Court for the District of Wyoming. Challenging the FAA’s invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public “for use in making repairs or replacement parts for aircraft produced by Fairchild.” Herrick v. Garvey, 298 F. 3d 1184,1193 (CA10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F-45 certification records held by the FAA could not be regarded as “secre[t]” or “confidential” within the meaning of § 552(b)(4). Rejecting Herrick’s argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328-1329 (Wyo. 2000). The 1955 letter, the court reasoned, did not deprive the F-45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter’s blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully “reversed” the waiver by objecting to the FAA’s release of the records to Herrick. Ibid. On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F. 3d, at 1194. But the Court of Appeals upheld the District Court’s alternative determination — i. e., that Fairchild had restored trade-secret status by objecting to Herrick’s FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA. In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court’s decision. First, the District Court assumed trade-secret status could be “restored” to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only “after Herrick had initiated his request” for the F-45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194-1195, n. 10. B The Tenth Circuit’s decision issued on July 24,2002. Less than a month later, on August 22, petitioner Brent Taylor— a friend of Herrick’s and an antique aircraft enthusiast in his own right — submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U. S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC’s 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit. After Fairchild intervened as a defendant, the District Court in D. C. concluded that Taylor’s suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick’s suit. Relying on the Eighth Circuit’s decision in Tyus v. Schoemehl, 93 F. 3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. App. to Pet. for Cert. 30a-31a. The Eighth Circuit’s seven-factor test for virtual representation, adopted by the District Court in Taylor’s case, requires an “identity of interests” between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F. 3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit’s test, but are not prerequisites: (1) a “close relationship” between the present party and a party to the judgment alleged to be preclusive; (2) “participation in the prior litigation” by the present party; (3) the present party’s “apparent acquiescence” to the preclusive effect of the judgment; (4) “deliberate] maneuvering]” to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a “public law” rather than a “private law” issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F. 3d, at 454-456). These factors, the D. C. District Court observed, “constitute a fluid test with imprecise boundaries” and call for “a broad, case-by-case inquiry.” App. to Pet. for Cert. 32a. The record before the District Court in Taylor’s suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are “close associate^],” App. 54; Herrick asked Taylor to help restore Herrick’s F-45, though they had no contract or agreement for Taylor’s participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit. Fairchild and the FAA conceded that Taylor had not participated in Herrick’s suit. App. to Pet. for Cert. 32a. The D. C. District Court determined, however, that Herrick ranked as Taylor’s virtual representative because the facts fit each of the other six indicators on the Eighth Circuit’s list. See id., at 32a-35a. Accordingly, the District Court held Taylor’s suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a. The D. C. Circuit affirmed. It observed, first, that other Circuits “vary widely” in their approaches to virtual representation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In this regard, the D. C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D. C. District Court with the Fourth Circuit’s narrower approach, which “treats a party as a virtual representative only if the party is ‘accountable to the nonparties who file a subsequent suit’ and has ‘the tacit approval of the court’ to act on the nonpart[ies’] behalf.” Ibid, (quoting Klugh v. United States, 818 F. 2d 294, 300 (CA4 1987)). Rejecting both of these approaches, the D. C. Circuit announced its own five-factor test. The first two factors— “identity of interests” and “adequate representation” — are necessary but not sufficient for virtual representation. 490 F. 3d, at 971-972. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” Id., at 972. Applying this test to the record in Taylor’s case, the D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result — release of the F-45 documents. Moreover, the D. C. Circuit observed, Herrick owned an F-45 airplane, and therefore had, “if anything, a stronger incentive to litigate” than Taylor, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Id., at 973 (internal quotation marks omitted). Turning to adequacy of representation, the D. C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973-974 (citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312 (CA1 2001), and Tice v. American Airlines, Inc., 162 F. 3d 966, 973 (CA7 1998)). Disagreeing with these courts, the D. C. Circuit deemed notice an “important” but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick’s suit. For this conclusion, the appeals court relied on Herrick’s “strong incentive to litigate” and Taylor’s later engagement of the same attorney, which indicated to the court Taylor’s satisfaction with that attorney’s performance in Herrick’s case. See 490 F. 3d, at 974-975. The D. C. Circuit also found its “close relationship” criterion met, for Herrick had “asked Taylor to assist him in restoring his F-45” and “provided information to Taylor that Herrick had obtained through discovery”; furthermore, Taylor “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’” Id., at 975. Because the three above-described factors sufficed-to establish virtual representation under the D. C. Circuit’s five-factor test, the appeals court left open the question whether Taylor had engaged in “tactical maneuvering.” See id., at 976 (calling the facts bearing on tactical maneuvering “ambigu[ous]”). We granted certiorari, 552 U. S. 1136 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on “virtual representation.” II The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 507-508 (2001). For judgments in federal-question cases — for example, Herrick’s FOIA suit — federal courts participate in developing “uniform federal rule[s]” of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508. The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U. S. 793, 797 (1996). Taylor’s case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of “virtual representation” adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation. A The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.” Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id., at 748-749. By “precluding] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U. S. 147, 153-154 (1979). A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Rickards, 517 U. S., at 798 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry, 311 U. S., at 40. See also, e. g., Richards, 517 U. S., at 798; Martin v. Wilks, 490 U. S. 755, 761 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969). B Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present purposes, the recognized exceptions can be grouped into six categories. First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” 1 Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter Restatement). For example, “if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant’s liability will be definitely determined, one way or the other, in a ‘test case.’” D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77-78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U. S. 1096, 1097 (1983) (dismissing certain defendants from a suit based on a stipulation “that each of said defendants... will be bound by a final judgment of this Court” on a specified issue). Second, nonparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U. S., at 798. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§43-44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.” 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, p. 329 (2d ed. 2002) (hereinafter Wright & Miller). Third, we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit. Richards, 517 U. S., at 798 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573,593 (1974). See also 1 Restatement §41. Fourth, a nonparty is bound by a judgment if she “assumed] control” over the litigation in which that judgment was rendered. Montana, 440 U. S., at 154. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260,262, n. 4 (1961); 1 Restatement § 39. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation. Id., Comment a, at 382. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 620, 623 (1926); 18A Wright & Miller §4454, at 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a non-party later brings suit as an agent for a party who is bound by a judgment. See id., §4449, at 335. Sixth, in certain circumstances a special statutory scheme may “expressly foreclos[e] successive litigation by non-litigants... if the scheme is otherwise consistent with due process.” Martin, 490 U. S., at 762, n. 2. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, “under [the governing] law, [may] be brought only on behalf of the public at large,” Richards, 517 U. S., at 804. Ill Reaching beyond these six established categories, some lower courts have recognized a “virtual representation” exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller § 4457, at 513 (virtual representation lacks a “clear or coherent theory”; decisions applying it have “an episodic quality”). Some Circuits use the label, but define “virtual representation” so that it is no broader than the recognized exception for adequate representation. See, e. g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F. 3d 415, 423,427 (CA6 1999) (en banc). But other courts, including the Eighth, Ninth, and D. C. Circuits, apply multifactor tests for virtual representation that permit non-party preclusion in cases that do not fit within any of the established exceptions. See supra, at 888-891, and n. 3. The D. C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive. A The D. C. Circuit purported to ground its virtual representation doctrine in this Court’s decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F. 3d, at 970-971. But the D. C. Circuit’s definition of “adequate representation” strayed from the meaning our decisions have attributed to that term. In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U. S., at 795-797. The plaintiffs in the first suit “did not sue on behalf of a class,” their complaint “did not purport to assert any claim against or on behalf of any nonparties,” and the judgment “did not purport to bind” non-parties. Id., at 801. There was no indication, we emphasized, that the court in the first suit “took care to protect the interests” of absent parties, or that the parties to that litigation “understood their suit to be on behalf of absent [parties].” Id., at 802. In these circumstances, we held, the application of claim preclusion was inconsistent with “the due process of law guaranteed by the Fourteenth Amendment.” Id., at 797. The D. C. Circuit stated, without elaboration, that it did not “read Richards to hold a nonparty... adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty.” 490 F. 3d, at 971. As the D. C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick’s lawyer, suggesting Taylor’s “satisfaction with the attorney’s performance in the prior case.” Id., at 975. The D. C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court’s application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties’ interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U. S., at 801-802. Richards thus established that representation is “adequate” for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present. We restated Richards’ core holding in South Central Bell Telephone Co. v. Alabama, 526 U. S. 160 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U. S., at 164-165. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167-168. Under the D. C. Circuit’s decision in Taylor’s case, these factors apparently would have sufficed to establish adequate representation. See 490 F. 3d, at 973-975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U. S., at 168. Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D. C. Circuit’s broad theory of virtual representation. B Fairchild and the FAA do not argue that the D. C. Circuit’s virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever “the relationship between a party and a non-party is ‘close enough’ to bring the second litigant within the judgment.” Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22-24. Courts should make the “close enough” determination, they urge, through a “heavily fact-driven” and “equitable” inquiry. Brief for Respondent Fair-child 20. See also Brief for Respondent FAA 22 (“there is no clear test” for nonparty preclusion; rather, an “equitable and fact-intensive” inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fair-child and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate. We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e. g., Richards, 517 U. S., at 798-799; Martin, 490 U. S., at 761-762. Accordingly, we have endeavored to delineate discrete exceptions that apply in “limited circumstances.” Id., at 762, n. 2. Respondents’ amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance. Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U. S. 406, 411 (1943), that privity “turns on the facts of particular cases.” See Brief for Respondent Fair-child 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test. Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of III. Foundation, 402 U. S. 313, 334 (1971), which stated that estoppel questions turn on “the trial courts’ sense of justice and equity.” See Brief for Respondent Fairchild 20. This passing statement, however, was not made with non-party preclusion in mind; it appeared in a discussion recognizing district courts’ discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U. S., at 334. The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (CA8 1897), an opinion we quoted with approval in Schendel, 270 U. S., at 619-620. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had “no interest in the land” and had “simply permitted [the landowner] to use its name as the nominal plaintiff.” 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: “[W]here the government lends its name as a plaintiff... to enable one private person to maintain a suit against another,” the government is “subject to the same defenses which exist... against the real party in interest.” Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31-33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See swpra, at 895-896. We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents. Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party’s representation of a nonparty is “adequate” for preclusion purposes only if, at a minimum: (1) The interests of the non-party and her representative are aligned, see Hansberry, 311 U. S., at 43; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U. S., at 801-802; supra, at 897-898. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U. S., at 801. In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23. An expansive doctrine of virtual representation, however, would “recogniz[e], in effect, a common-law kind of class action.” Tice, 162 F. 3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Rickards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to “create de facto class actions at will.” Tice, 162 F. 3d, at 973. Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F. 3d, at 455 (conceding that “there is no clear test for determining the applicability of” the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U. S., at 153-154. “In this area of the law,” we agree, “ ‘crisp rules with sharp corners’ are preferable to a round-about doctrine of opaque standards.” Bittinger v. Tecumseh Products Co., 123 F. 3d 877, 881 (CA6 1997). c Finally, relying on the Eighth Circuit’s decision in Tyus, 93 F. 3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in “public law” litigation than in “private law” controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation “because of the public nature of the right at issue.” Brief for Respondent FAA 28. When a taxpayer challenges “an alleged misuse of public funds” or “other public action,” we observed in Richards, the suit “has only an indirect impact on [the plaintiff’s] interests.” 517 U. S., at 803. In actions of this character, the Court said, “we may assume that the States have wide latitude to establish procedures... to limit the number of judicial proceedings that may be entertained.” Ibid. Taylor’s FOIA action falls within the category described in Richards, the FAA contends, because “the duty to disclose under FOIA is owed to the public generally.” Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies “shall make [information] available to the public.” 5 U. S. C. § 552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a “public” interest. E. g., National Archives and Records Admin, v. Favish, 541 U. S. 157, 172 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the “person” making the request. § 552(a)(3)(A). See also § 552(a)(3)(B) (“In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person....” (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (“Government agencies do not 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_appel1_7_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Rita A. TOTH, Plaintiff-Appellant, and Sondra J. Thornally, Esq., Claimant-Appellant, v. TRANS WORLD AIRLINES, INC., Defendant-Appellee. No. 87-2291. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 12, 1988. Memorandum Aug. 11, 1988. Decided Dec. 8, 1988. Marshall W. Krause, Larkspur, Cal., and Sondra J. Thornally, San Francisco, Cal., for plaintiff-appellant. Sara A. Simmons, San Francisco, Cal., for defendant-appellee. Before BROWNING, HUG, and TROTT, Circuit Judges. TROTT, Circuit Judge: Rita A. Toth and her attorney, Sondra J. Thornally, appeal from an order of the U.S. District Court for the Northern District of California, Samuel Conti, District Judge, dismissing their action with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(C), 41(b), and Local Rules 100-3 and 235-10, and holding appellants jointly liable to pay TWA $15,-288.25 in costs and attorney’s fees incurred as a result of their disobedience to the District Court’s orders, pursuant to Fed.R. Civ.P. 11, 37(b)(2), and Local Rules 100-3 and 235-2. Appellants raise several issues on appeal, only one of which has merit. I. FACTUAL BACKGROUND This action arose out of injuries appellant Toth allegedly sustained on May 29, 1982, while she was a passenger aboard a TWA airplane. During the flight, a bag apparently fell from an overhead luggage compartment when it was opened by a fellow passenger, and struck Toth while she was sitting in her seat. As the ensuing facts illustrate, however, more than luggage was to come down upon Toth’s head. On June 3, 1982, five days after the luggage incident, Toth resigned her job with the Bank of America. Prior to this resignation, she had not sought medical attention for the injuries allegedly sustained on the flight. Toth filed suit against TWA and Doe defendants on May 26, 1983, and sought damages for medical expenses and wage loss. Throughout the entire course of her action, Toth was represented by appellant Thornally. On June 1, 1983, Toth filed another suit, this time against the Bank of America, alleging constructive wrongful discharge and seeking damages for emotional distress and wage loss. She was similarly represented in that suit by Thor-nally. A. Action in the State Courts In October 1984, appellants served TWA with a set of interrogatories and document production requests. This was the only discovery made on Toth’s behalf in either the state or federal courts during the entire history of this case. Later in October 1984, TWA brought a motion to compel responses to its document production requests, which included Toth’s Bank of America employment records. The motion was granted. Appellants sought, but were denied, relief in the state court of appeal. TWA ultimately was required to renew the motion after appellants refused to produce the documents. The renewal motion was granted. B. First Removal In November 1985, TWA removed the suit on diversity grounds to the federal district court. Appellants moved to remand. The district court granted the remand, relying specifically on appellants’ representations that they needed to conduct additional discovery, including depositions of the TWA flight crew, in order to determine whether nondiverse parties existed. No such discovery of any type was ever undertaken. C. Second Removal In October 1986, after the state court had struck the Doe defendants from the complaint, TWA again removed the action to the district court. Interrogatories were served upon appellants. In late December 1986, after three extensions of time, TWA received incomplete responses to its interrogatories. TWA requested supplementation, but appellants refused to respond to the requests. The partial responses revealed that Toth was still claiming continuing, significant damages from the incident aboard the TWA flight. She alleged substantial wage loss, severe restrictions on physical activities, and dramatic emotional and psychological injuries. Given the severity of the claimed ongoing damages, together with the inadequate responses and appellants’ refusal to supplement them, TWA filed a motion to compel answers to interrogatories and for sanctions. Appellants filed no opposition and did not appear at the hearing on the motion. On February 23, 1987, the federal magistrate entered the following order: (1) interrogatories had to be fully answered by March 2, 1987; (2) all objections and claims of privilege be stricken from the initial responses; (3) appellants were precluded from raising any objections and claims of privilege in supplemental responses; and (4) imposed sanctions against appellants jointly for fees and costs incurred by TWA in bringing the motion. The federal magistrate also ordered the Bank of America to comply with TWA’s subpoena for the transcript of Toth’s deposition and answers to interrogatories arising from her wrongful discharge lawsuit against the bank. Prior to that order, appellants had threatened to sue the bank if it complied with TWA’s subpoena. Despite the informal objections and threats, appellants had filed no opposition to the bank’s motion for a compliance order. TWA moved for additional discovery as to Toth’s medical problems and wage loss. When appellants sought to block all discovery until after arbitration, TWA requested the district court issue a discovery plan. Appellants filed no opposition to TWA’s proposed plan. Subsequently, a discovery plan was approved by the court and it was ordered that all of TWA’s outstanding discovery go forward, including a physical and mental examination of Toth. By March 4, 1987, appellants had not fully complied with the magistrate’s discovery orders. Furthermore, appellants advised TWA that Toth would not be produced for a court-ordered deposition nor would any of the other discovery orders be complied with until after March 6, 1987. As a result, TWA filed a motion to dismiss and for sanctions. One week later, TWA agreed to reschedule some of its discovery. Five weeks later, by the date of the hearing on the motion to dismiss held on April 10, 1987, appellants had yet to comply with the magistrate’s discovery orders. Although appellants had not filed any opposition to the motion for dismissal and sanctions, Judge Conti heard their explanations and granted appellants two additional weeks to comply with the outstanding orders. Accordingly, Judge Conti was obliged to vacate both the arbitration and trial dates. As of the April 24, 1987 hearing on TWA’s motion to dismiss, appellants still had not filed any opposition. Nevertheless, Judge Conti again listened to appellants’ explanations and granted them a second extension of time within which to comply with the outstanding orders. By the time of the third hearing held on May 1, 1987, appellants still had not fully complied with the district court’s orders. This time, however, despite appellants’ further explanations, Judge Conti dismissed the case and imposed sanctions jointly against Thornally and Toth. II. DISCUSSION A. Dismissal and Sanctions Appellants allege that the district court erred in basing the dismissal and imposition of monetary sanctions on Local Rule violations and Fed.R.Civ.P. 11, 37, and 41(b). Because we find that the basis for the sanctions was appropriate pursuant to Fed.R.Civ.P. 37, we need not address the other alleged violations. 1. Dismissal Under Fed.R.Civ.P. 37(b)(2)(C) The district court’s dismissal of a case with prejudice is reviewed for abuse of discretion. Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir.1987). “[W]e will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions.” Id. The issue is “not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion.” Halaco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir.1988). A determination that court orders were disobeyed is entitled to considerable weight since a district judge is best equipped to assess the circumstances of the noncompliance. Id. Five factors must be considered before imposing the sanction of dismissal: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). When the district court does not explicitly consider the five factors, as was the case here, we must review the record independently to determine whether the dismissal was an abuse of discretion. Malone, 833 F.2d at 130. Dismissal of this action was based on appellants’ continued refusal to respond to requests to produce; they continued to refuse even after the court had ordered their responses. The record contains substantial evidence of long and unjustified delays in responding to discovery requests and noncompliance with judicial orders. We find this evidence relevant to the considerations of expeditious resolution of litigation, docket management, and prejudice, and support the district court’s order. The district court considered, and indeed instigated, less drastic sanctions, but to no avail. While the public policy favoring disposition on the merits weighs against dismissal, it is not enough to preclude a dismissal order when the other four factors weigh as heavily in favor of dismissal as they do in this case. See Malone, 833 F.2d at 133 n. 2. 2. Monetary Sanctions Appellants contend that the district court’s award of costs and attorney’s fees in the amount of $15,288.25 is an abuse of discretion. They challenge both the entitlement to, and the reasonableness of this award. Fed.R.Civ.P. 37(b)(2) provides for the award of reasonable expenses and attorney’s fees “caused by the failure” to obey a court order to provide or permit discovery. Expenses incurred outside of this particular context are not provided for in Rule 37(b)(2). Here, while the district court cited to Fed.R.Civ.P. 11, 37(b)(2), and Local Rules 100-3 and 235-2, it specifically alluded to the language of 37(b)(2) when it ordered “plaintiff and plaintiffs counsel, jointly and severally liable, to pay to TWA its reasonable expenses, including attorney’s fees, incurred as a result of plaintiffs and plaintiffs counsel’s disobedience of this Court’s orders.” Excerpts of Record (ER) 138 at 19 (emphasis added). Counsel for TWA submitted a declaration itemizing attorney’s fees and costs incurred in connection with this action. Clerk’s Record (CR) 126. The fees and costs included time traceable to “the preparation and filing of TWA’s Motion for Discovery Plan and (Proposed) Plan and Schedule of Discovery,” CR 126 at 4, as well as time traceable to efforts in opposing an Ex Parte Application for Protective Order filed by appellants on February 6, 1987. Id. at 6. The itemization of costs and fees also included numerous other expenditures incurred prior to the attainment of the first court order directed against appellants on February 23, 1987. See ER 86, 87. To the extent that such expenses were not “incurred as a result of plaintiff’s and plaintiff’s counsel’s disobedience of ... Court[] orders,” we find that the amount of the award was an abuse of the district court’s discretion. Furthermore, there is no evidence in the record to indicate that the rates claimed were reasonable or that they were comparable with prevailing rates in the community. The district court simply recited the total sanction award, stating that “[t]he amount of these sanctions ... [is] established by TWA to the satisfaction of this Court.” ER 138 at 19. As we explained in Southerland v. Intern. Longshoremen’s, Local 8, 834 F.2d 790 (9th Cir.1987): The district judge is in the best position to determine the reasonableness of a fee award, but in order for this appeal to be meaningful, the record must inform us of the basis for this conclusion ... Failure to provide evidence of prevailing legal rates in the community leaves a court with an insufficient basis from which to conclude that the rates requested are “reasonable.” Id. at 795 (citations and footnote omitted). Because the costs and fees awarded were not properly segregated to those expenses caused by the failure to obey court orders, as circumscribed by 37(b)(2) and the district court’s sanction order, we remand to the district court with directions to adjust the award of monetary sanctions accordingly. On remand, the district court is instructed to set forth facts explaining its ultimate award. B.Due Process Appellants contend that they were denied due process when the district court dismissed the action and imposed joint and several monetary sanctions. This contention lacks any semblance of merit. Appellants had actual notice that they would be faced with sanctions, including dismissal, for failing to abide by court orders. This notice derived not only from the hearings on April 10th and April 24th, but also from TWA’s dismissal and sanction motion filed on March 4, 1987. ER 91-93. That appellants were denied an opportunity to be heard is clearly contradicted by the record. Despite having had the opportunity for two months to oppose TWA’s motion of dismissal and sanctions, appellants never filed any opposition to that motion. The record clearly indicates that Judge Conti heard appellants’ explanations during the April 10, 1987 hearing, granting them two additional weeks to comply with the outstanding orders. Similarly, Judge Conti heard further explanations during the April 24, 1987 hearing, granting appellants a second extension of time within which to comply with the court’s orders. Finally, appellants offered the same inadequate explanations for failure to comply with the discovery orders during the hearing on May 1, 1987. Judge Conti had simply heard them all when he ultimately ordered the case dismissed and assessed sanctions. With respect to appellants’ claim that sanctions should have been imposed solely on counsel rather than the client, this argument would require us to ignore established law. In Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court expressly stated: There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequence of the acts or omissions of this freely selected agent. Id. at 633-34, 82 S.Ct. at 1390-91. See also Chism v. Nat’l Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir.1981). C. Post Judgment Motion On June 8, 1987, motions were filed requesting, inter alia, leave to file a late response to TWA’s motion to dismiss. A declaration of counsel accompanied the motion. Judge Conti denied the motion stating that “[a]t this late date, plaintiff cannot seriously contend she lacked an opportunity to respond to defendant’s motion.” ER 149 at 4. We review denials of motions under Fed.R.Civ.P. 60 for abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Appellants’ claim that Judge Conti abused his discretion is without merit. No aspect of appellants’ explanation for their neglect constitutes a valid reason or an adequate showing of excusable neglect for relief under Rule 60(b). Moreover, under Local Rule 220-1, the district court was under no obligation to hold a hearing on the motion. We find no abuse of discretion in the court’s denial of the 60(b) motion. D. Motion to Disqualify In addition to appellants’ motion for relief from judgment and for leave to file a late response, they also moved to disqualify Judge Conti pursuant to 28 U.S.C. §§ 144 and 455(b)(1). In accordance with § 144, an affidavit of prejudice was submitted asserting that Judge Conti had formed a “personal bias or prejudice” against plaintiff. ER 145. Judge Conti denied the motion for disqualification, finding that the motion lacked a legal basis in that the “alleged bias or prejudice did not arise from an extrajudicial source.” ER 149 at 3. Alternatively, the court found that “bias against plaintiff’s counsel may not qualify as prejudice against plaintiff for purposes of disqualification.” Id. Notwithstanding the alternative basis, we find that the district judge correctly rejected the motion and affidavit as legally insufficient. As with § 144, the provisions of § 455(a) & (b)(1) require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding. Hasbrouck v. Texaco, Inc., 830 F.2d 1513, 1524 (9th Cir.1987); United States v. Sibla, 624 F.2d 864, 869 (9th Cir.1980). Appellants point to no extrajudicial basis for the alleged bias or prejudice. In her affidavit, appellant Toth stated that [ajffiant’s counsel has informed her that on two occasions Judge Conti stated in open court that he does not believe one of my counsel’s explanations of the events in this case and that her credibility with the judge is “about zero.” I am also informed that Judge Conti stated this counsel has been violating every court order of the magistrate and his court orders. ER 145 at 2. The bias or prejudice alleged arose from conduct during the judicial proceeding, and the motion and affidavit, thus, were legally insufficient. Appellants’ argument that Judge Conti erred in failing to assign the motions to another judge for a hearing is equally unavailing. Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to “proceed no further” in the case. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). “Moreover, since the inquiry is addressed to the facial sufficiency of the affidavit — not to the truth or falsity of the facts stated therein, ... [a] ‘hearing’ is unnecessary.” Id. (citation omitted). E. Other Issues We have carefully considered appellants' other claims as to alleged errors and conclude that these arguments have no merit and do not, in this case, warrant further consideration. III. CONCLUSION Based on the foregoing, we affirm the district court’s order of dismissal and imposition of sanctions. The basis of these sanctions was clearly warranted by the record. However, with respect to the actual amount of monetary sanctions imposed, we remand to the district court with directions to conduct such additional fact-finding as may be required and to adjust the award of monetary sanctions accordingly. The parties shall bear their own costs of this appeal. AFFIRMED in part, and REMANDED to recalculate monetary sanction. . The standards governing dismissal for failure to obey court orders are the same under Fed.R. Civ.P. 37(b)(2)(C) or 41(b). Malone, 833 F.2d at 130. . Fed.R.Civ.P. 37(b)(2) “must be distinguished from Rule 37(a), which provides for the award of expenses resulting from efforts to secure an order compelling discovery.” Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir.1981). Thus, "attorney-time before and during” a hearing in which a court order is imposed is “not attorney-time incurred on account of [appellants’] failure to obey an order.” Id. See also Wm. T. Thompson Co. v. General Nutrition Corp., 104 F.R.D. 119, 121-22 n. 1 (C.D.Calif.1985) (Because the award of expenses pursuant to Rule 37(a) was neither sought nor relied upon in awarding sanctions, the party was not entitled to expenses for securing an order compelling discovery). . Local Rules 100-3 and 235-2 do not provide independent authority for the imposition of monetary sanctions. Furthermore, Fed.R.Civ.P. 26(g) and 37 "are sufficiently comprehensive to leave no room for a discovery abuse sanction based upon a local rule violation.” Matter of Yagman, 796 F.2d 1165, 1187 (9th Cir.), amended on other grounds, 803 F.2d 1085 (1986), cert. denied sub nom. Real v. Yagman, — U.S.-, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987). Similarly, Judge Conti apparently relied on appellants' failure to sign the April, 1987 supplemental responses to TWA’s Second Set of Interrogatories and Second Request for Production as the basis for his imposition of monetary sanctions under Fed.R.Civ.P. 11. While it is not clear in this circuit whether monetary sanctions pursuant to Rule 11 are appropriate in the case of a failure-to-sign violation, see Estate of Blas ex rel Chargualaf v. Winkler, 792 F.2d 858, 861 (9th Cir.1986), we decline to address this issue. These pretermissions occurred subsequent to the February 23, 1987 court order, thus they are not relevant for the limited purposes of our remand. . Appellants urge for the first time that disqualification was also required under 28 U.S.C. § 455(a). They are not foreclosed, however, from raising this provision on appeal. See Sibla, 624 F.2d at 868. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_r_stid	34	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. Albert COOPER, Appellant, v. STATE OF NORTH CAROLINA, Samuel P. Garrison, Warden, Central Prison, Appellees. No. 82-6293. United States Court of Appeals, Fourth Circuit. Argued Dec. 6, 1982. Decided March 10, 1983. Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., on brief), for appellant. Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., of North Carolina, Raleigh, N.C., on brief), for appellees. Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge. ERVIN, Circuit Judge: Albert Cooper challenges the constitutionality of his incarceration by the state of North Carolina after his felony conviction in state court. The district court denied his petition for a writ of habeas corpus and this court granted a certificate of probable cause. We now affirm. I. On December 2, 1971, Cooper was discovered by a policeman in a bowling alley in Goldsboro, North Carolina. He was behaving in a peculiar manner and was taken to a local hospital, where he told a nurse that he had “destroyed” his wife and children and made irrational statements to the nurse and to other hospital personnel. That same evening police entered Cooper’s apartment and found the bodies of his wife and four children, who had been brutally murdered. Cooper was admitted to a state mental hospital and charged with the murders of his family. After being shuttled between hospital and court for several months, he finally was found competent to stand trial, although it was considered necessary by his doctor to keep him under medication during the trial in order to keep his mental illness in remission. Cooper pled not guilty to five counts of first degree murder. His evidence at trial went toward showing his mental illness, and was largely corroborated by the state’s evidence. Indeed, the state has not contended at any point in Cooper’s odyssey that Cooper is not suffering from mental illness, but only that he was not legally insane when he committed the murders, and was legally competent to stand trial. The trial judge instructed the jury that it could return verdicts of guilty of first degree murder, guilty of second degree murder, not guilty by reason of insanity, or not guilty. He distinguished the two degrees of murder and described their respective elements in accord with North Carolina law at the time. The judge repeatedly informed the jury that the state had the burden of proving beyond a reasonable doubt all the elements of the crime, including (for first degree murder) specific intent to kill, premeditation, and deliberation. The judge further instructed the jury that Cooper had the burden of proving to the jury’s satisfaction that he was legally insane at the time of the murders. He did not tell the jurors specifically that evidence of Cooper’s mental illness could be considered with regard to the elements of specific intent, premeditation, and deliberation, although he did state generally that their decision as to the existence vel non of a reasonable doubt should be “based on reason and common sense arising out of some or all of the evidence.” The jury found Cooper guilty of first degree murder on all counts, and he was sentenced to life imprisonment. The North Carolina Supreme Court affirmed Cooper’s conviction over a strong dissent by Chief Justice Sharp, who argued that Cooper was entitled to a specific jury instruction that evidence of his paranoid schizophrenia was to be considered in determining whether the state had proven specific intent, premeditation, and deliberation. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305, 334-35 (N.C.1975) (Sharp, C.J., dissenting). II. Cooper maintains before this court only one ground for habeas relief: the claim of entitlement to a specific jury instruction that evidence of his mental illness be taken into account in determining the state’s success in proving specific intent, premeditation, and deliberation. A jury charge which compels or even invites reasonable jurors to accept an unconstitutional view of the law vitiates a defendant’s conviction and can never be harmless error. Sandstrom v. Montana, 442 U.S. 510,526, 99 S.Ct. 2450, 2460, 61 L.Ed.2d 39 (1979). However, when reviewing a charge for constitutional infirmity, the court is required to look at the charge “in its entirety,” not just at the challenged parts. Reeves v. Reed, 596 F.2d 628, 629 (4th Cir.1979). While a charge which is correct viewed in its entirety will be upheld ordinarily despite the existence of misstatements of law, internal self-contradiction may render it invalid. First instructing the jury in one way and then in another ... requires reversal for a new trial ... “If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudical, for the jury might have followed the erroneous instructions.” United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir. 1949). In collateral review of a jury charge, the court can grant relief only if a stringent standard is met by the petitioner: that of demonstrating that “the offending instruction is so oppressive as to render a trial fundamentally unfair.” Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va. 1981), aff’d, 674 F.2d 279 (4th Cir.1982). The Supreme Court recently stated, in a case in which the petitioner’s claim, like Cooper’s, was that an omission in the jury charge constituted error, that [t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [141] 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id. at 146 [94 S.Ct. at 400]. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). It is apparent that to afford Cooper relief this court must find that he has carried a very heavy burden of persuasion. III. Cooper’s primary objection to the trial judge’s jury instructions is the latter’s failure to instruct the jury to consider evidence about Cooper’s mental illness with regard to the elements of specific intent, premeditation, and deliberation of the crime of first degree murder. This, according to Cooper, in effect shifted to him the burden of disproving those elements of the crime. It is clear that a state may make insanity an affirmative defense to be proven by the defendant, see Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977), and may rely on a presumption of sanity in proving its case-in-chief in a criminal prosecution, see Mullaney v. Wilbur, 421 U.S. 684, 702 n. 31, 95 S.Ct. 1881,1891 n. 31, 44 L.Ed.2d 508 (1975). It is equally clear that the state must prove beyond a reasonable doubt every element of the crime with which a defendant is charged, see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and “may not shift the burden of proof to the defendant by presuming [an element of a crime] upon proof of the other elements of the crime.” Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. The labels attached by the state legislature or supreme court are not dispositive, see Patterson, id. at 210, 97 S.Ct. at 2327, and the federal courts are to employ a “functional analysis” aimed at determining whether the state has in effect incorporated the absence of the affirmative defense into the elements of the crime. See Holloway v. McElroy, 632 F.2d 605, 625, 628 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). Cooper claims that by failing specifically to instruct the jury that it should consider mental illness evidence in connection with the state’s proof of specific intent, premeditation, and deliberation, the state trial court put the burden on him of demonstrating, through the insanity defense, the absence of intent. Under North Carolina law, the existence of mental illness can negate the possibility of intent, deliberation, and premeditation, see State v. Cooper, 213 S.E.2d at 320, elements of first degree murder which the state had to prove to convict Cooper. Cooper argues that the judge’s specific instruction to consider the mental illness evidence with respect to his affirmative defense of insanity might have misled the jury into thinking that it could consider that evidence only in that regard. While there is a slight possibility that the jury could have misunderstood the trial judge’s somewhat imprecise instruction, Cooper has not made the showing that “the offending instruction [rendered the] trial fundamentally unfair,” Adkins,■ 517 F.Supp. at 379, necessary to support the grant of the writ of habeas corpus. The trial judge did tell the jury that they were to consider whether the state had excluded all reasonable doubts on the basis of “some or all of the evidence.” He repeatedly instructed the jury that the state had to prove all the elements of first degree murder beyond a reasonable doubt, and that this burden of persuasion included the elements of specific intent, premeditation, and deliberation. He stated that “with deliberation” meant “while in a cool state of mind.” Viewed “in its entirety,” we do not find that the charge was misleading, or “infected the entire trial.” Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. IV. Cooper has failed to shoulder with success the heavy burden on a habeas petitioner who challenges a jury charge because of a sin of omission. Therefore, the district court’s denial of the writ must be affirmed. AFFIRMED. . The judge’s instruction that proof of an intentional killing gave rise to a presumption of malice accorded with then current state law but violated the due process requirements of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). This claim was not raised on direct appeal to the state supreme court, and, therefore, federal habeas relief is precluded. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). . This narrow standard of review does not contradict the general principle that constitutional infirmity in a jury charge is never harmless error, but only requires a stricter standard of proof from a habeas petitioner seeking to show such infirmity than is imposed on a criminal defendant in a direct appeal from his or her conviction. . Cooper also contends that the North Carolina Supreme Court’s opinion on his direct appeal established an irrebuttable presumption of capacity to deliberate and premeditate arising upon his failure to prove his insanity defense, and that such a presumption violates due process. This argument misconceives our role in habeas corpus proceedings. This court does not exercise appellate jurisdiction over the state supreme court, and our concern in such proceedings is not to correct alleged errors in that court’s views of federal law, but solely to determine if the petitioner’s incarceration violates the federal Constitution. As we discuss below, the state trial court did not deny Cooper due process, and his incarceration is constitutional. Cooper’s final argument, that his conviction violated the equal protection clause because North Carolina law guarantees a defendant a jury instruction on the effect of voluntary intoxication on the intentional elements of first degree murder, but does not guarantee such an instruction on the effect of mental illness, was not presented to the state supreme court or to the federal district court below. Cooper, therefore, may not raise this contention here. See Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980). . Cooper’s reliance on Hughes v. Mathews, 576 F.2d 1250 (7th Cir.1978), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), is misplaced. The constitutional error in that case was that the state used a rebuttable presumption of intent to convict a defendant while forbidding him to introduce relevant psychiatric evidence tending to rebut the presumption. No evidence was excluded in this case. 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_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. STATE OF WISCONSIN, Plaintiff-Appellee, v. Kathleen SCHAFFER, Defendant-Appellee, Appellant. Nos. 76-2234 and 76-2235. United States Court of Appeals, Seventh Circuit. Argued May 2, 1977. Decided Nov. 3, 1977. Stephen M. Glynn, James M. Shellow, Milwaukee, Wis., for defendant-appellant. William J. Mulligan, U. S. Atty., John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee. Before FAIRCHILD, Chief Judge, DUFFY, Senior Circuit Judge, and SWYGERT, Circuit Judge. FAIRCHILD, Chief Judge. The appellant, Kathleen Schaffer, was charged with first degree murder of William Weber and was tried for this offense in the Circuit Court for Milwaukee County, Wisconsin. During the course of this trial Schaffer caused the circuit court to issue a subpoena duces tecum requiring William Mulligan, the United States Attorney for the Eastern District of Wisconsin, to produce certain documents, including the minutes of a federal grand jury relating to the Weber homicide. Having been served with the subpoena, the United States Attorney moved the circuit court to quash it as it related to the grand jury transcripts. The circuit court denied the motion and ordered the United States Attorney to produce the grand jury materials or show cause why he should not be held in contempt. Mulligan promptly filed a petition for removal in the United States District Court. Although the petition was captioned State of Wisconsin v. Kathleen Schaffer, it is clear from the text that no attempt was being made to remove the criminal case against Schaffer, but only the proceeding directed at the United States Attorney to compel him to produce the grand jury minutes or show cause why he should not be held in contempt. The petition cited 28 U.S.C. § 1442, and, echoing its language, characterized the action to be removed as one civil in nature commenced in a state court against an officer of the United States for an act under color of such office or on account of a right or authority claimed under an Act of Congress. The removal was to embrace only the issue of the subpoena requiring the United States Attorney to produce grand jury minutes, and the copies of pleadings attached related only to that matter. Hearings were had before the district court on November 26 and 30, 1976. On December 3, the district court entered an order, embodying the views announced by the court November 30. The court found that it had jurisdiction under 28 U.S.C. § 1442; that the removal related only to the issue of the circuit court order denying the motion to quash the subpoena and the order to show cause, and did not remove the state court murder trial. In its order the district court vacated the order for the production of grand jury minutes and order to show cause why the United States Attorney should not be held in contempt. Kathleen Schaffer appealed (No. 76-2234). During the course of the hearings on the removed contempt matter, and in response to the suggestion of the court as to the proper procedure, counsel for Ms. Schaffer filed a petition under Rule 6(e), Fed.R. Crim.P., for the release of testimony before grand juries “relating to the death of William Weber, the activities of William Weber prior to his death and the transactions between such witnesses and William Weber.” A further hearing was held December 1. On December 3, 1976, the district court denied the petition, finding that petitioner had failed to show particularized need sufficient to overbalance the strong policy in favor of the secrecy of grand jury proceedings. The court declined to assume the burden of an in-camera inspection of the minutes identified by the United States Attorney to determine the presence of exculpatory material, although the court did ascertain that none of the persons identified by petitioner in connection with the State proceedings appeared before the grand jury. Ms. Schaffer appealed (No. 76-2235). Her trial in state court proceeded, and resulted in her conviction and sentence to life imprisonment. I. The Vacation of the Subpoena — Contempt Order, Appeal No. 76-2234 Appellant does not argue the merits of the decision of the district court that the circuit court order requiring the United States Attorney to make disclosure or face contempt proceedings must be vacated. We think it clear that a court .may not compel such disclosure in violation of the obligation of secrecy imposed by Rule 6(e), and that if the merits be reached, the order of the district court was correct. Appellant challenges the jurisdiction of the district court to decide the merits for the reason that the removal petition was legally insufficient to bring the subpoena —contempt matter before the court. She contends that the state court’s order to show cause did not commence a removable “civil action” or “criminal prosecution” within the removal statute, that no independent action was initiated against the United States Attorney, and, therefore, no removable action existed. The appellant argues that the proceeding involving the United States Attorney was merely ancillary to the trial of the criminal case, and an exercise of the inherent power of a court to secure compliance with its subpoena. 28 U.S.C. § 1442(a) provides that “A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court . . .” Subparagraph (1) includes among these persons “Any officer of the United States, . . for any act under color of such office . . . .” None of the parties questions the fact that Mr. Mulligan qualified as an officer acting under color of his office. This case was removable, therefore, if the proceeding against him can be characterized as a civil action or criminal prosecution for the purpose of § 1442(a). The appellant argues that the order to show cause did not initiate an action against Mr. Mulligan. However, by statute a trial judge is empowered to commence contempt proceedings and use an order to show cause as the notice of process. Wis. Stat. §§ 295.01, 295.03(1) (1976). Although the court was not informed of the United States Attorney’s refusal to comply with the subpoena by verified petition, as required by § 295.03, the court was made aware of the non-compliance by Mr. Mulligan’s own motion to quash the subpoena. The subsequent denial of Mulligan’s motion and the issuing of an order to show cause sufficiently commenced the contempt proceeding against Mulligan. We think the language “civil action or criminal prosecution” should be broadly construed in the light of the purpose of the subsection, and find ourselves in agreement with the statements of the Fourth Circuit in State of North Carolina v. Carr, 386 F.2d 129, 131 (4th Cir. 1967): The issue is whether or not the contempt proceedings constituted a ‘civil action or criminal prosecution commenced in a State court’ within the meaning of 28 U.S.C. § 1442(a). The District Court classified the present proceeding as ‘criminal.’ The Government argues that it was ‘civil.’ The State urges that it was neither, but rather ‘sui generis.’ Accordingly, the State says, it was not either a ‘civil action’ or ‘criminal prosecution’ within the meaning of the removal statute. We think it unfruitful to quibble over the label affixed to this contempt action. Regardless of whether it is called civil, criminal, or sui generis, it clearly falls within the language and intent of the statute. To repeat, the central and grave concern of the statute is that a Federal officer or agent shall not be forced to answer for conduct assertedly within his duties in any but a Federal forum. Thus the statute looks to the substance rather than the form of the state proceeding; this is the reason for the breadth of its language. Accordingly, the applicability of the statute to the present case is perfectly apparent. By citing Carr for contempt, the State Court attempted to subject him to incarceration until such time as he complied with the Court’s order and thus disobeyed the directive of his superior officers. A statute designed to permit Federal officers to perform their duties without State interference clearly applies to such a situation, regardless of the label the State chooses to affix to its action. We conclude that the proceeding here, although ancillary to the murder trial, constituted a sufficient separate action against Mr. Mulligan for an act in his official capacity as United States Attorney. The resultant ease, whether deemed criminal or civil in nature, placed Mulligan in jeopardy for his refusal, based on his official duty, to comply with a state court order. He was required to defend his actions and face the consequences of his disobedience. Whatever the docketed title of this case, it represented a distinct action against Mulligan, commenced by the order to show cause. Clearly the petition did not seek removal of the entire state murder prosecution. The issue in the proceeding against Mulligan was, in our opinion, distinct and separable from the charge against Kathleen Schaffer, and, as such, validly removed without also removing the murder case. United States v. Penney, 320 F.Supp. 1396, 1397 (D.C. 1970). The purpose of the removal statute is to insure a federal forum for cases where federal officials must raise defenses arising out of their official duties. Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Mr. Mulligan’s refusal to comply with the subpoena was based on the proposition that he could not disclose the requested material without violating Rule 6(e) of the Federal Rules of Criminal Procedure. This rule prohibits his disclosure of grand jury transcripts unless done in the performance of his duties or unless directed by the district court. His defense to the charge of contempt thus was based on his duty under federal law. The removal statute is clearly broad enough “ . to cover all cases where federal officers can raise a colorable defense . . . ” arising out of their official duties. 395 U.S. at 405-407, 89 S.Ct. at 1816. Mr. Mulligan, having become a defendant in a contempt proceeding, was faced with such a case, and, therefore the exercise of removal jurisdiction by the district court was proper. The appellant suggests, however, that if Mr. Mulligan’s involvement in the contempt proceeding made removal proper, the entire murder prosecution was removed to the federal district court. Appellant points out that when an action is pending in a state court against a number of defendants, only one of whom is a federal officer, sued on account of an official act, removal at the instance of the federal officer removes the entire action with all defendants. See Iowa Public Service Co. v. Iowa State Commerce Commission, 407 F.2d 916, 918 n.3 (8th Cir. 1969), cert. denied, 396 U.S. 826, 90 S.Ct. 71, 24 L.Ed.2d 77 (1970); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962). As already stated, we think the proceeding against the federal officer here was distinct and separate for the purpose of the removal statute. Finally, the appellant refers us to a district court opinion, In Re Heisig, 178 F.Supp. 270 (N.D.Ill.1959), and suggests that its reasoning should control the removal issue. Heisig involved the removal of contempt proceedings by federal officials. The district court remanded the case to the state court holding that the contempt proceeding was not a civil action or criminal prosecution, and, therefore, not removable under the statute. 178 F.Supp. at 273. This finding was only one of the several grounds which the court thought justified a remand. To the extent that Heisig held that a contempt proceeding does not constitute a civil action or criminal prosecution within the meaning of § 1442, we deem it erroneous. II. The Denial of the Rule 6(e) Petition, Appeal No. 76-2285 The appellant also appeals from the order denying her petition for disclosure of the grand jury testimony. The district court found that the appellant had “ . . . failed to satisfy the particularized need requirement which has been en-grafted upon Rule 6(e) of the Federal Rules of Criminal Procedure.” After analyzing the appellant’s petition, the court characterized the request for disclosure as a “mere hope” that some unknown witnesses may have provided the grand jury with some kind of exculpatory evidence. Balanced against the need for secrecy of grand jury proceedings, the court held that the appellant’s claim did not warrant disclosure of the transcripts. Grand jury testimony has traditionally been treated as confidential communication and, therefore, the proceedings have been cloaked in secrecy. United States v. Socony Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Johnson, 319 U.S. 503, 513, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943). The scope and application of the rule of secrecy of grand jury proceedings has been codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Paragraph (e)(1) of this rule, which was recently amended, generally prohibits disclosure of the grand jury proceedings by a government attorney, a grand juror, or anyone who assists in the taking of testimony. Subparagraph (e)(2)(C)(i) provides an important exception to the rule by permitting disclosure “when so directed by the court preliminarily to or in connection with a judicial proceeding . . . .” The specific reasons for the maintenance of secrecy are varied. See, United States v. Rose, 215 F.2d 617, 628-29 (3rd Cir. 1954). They all support the important policy of encouraging and facilitating the exchange of information between witnesses and grand jurors, free from the fear of retaliation or tampering. United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). A trial judge must be circumspect in the exercise of his discretion in ordering the disclosure of grand jury minutes. He may only order such disclosure when the party seeking it has demonstrated that a “particularized need exists . . . which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). The “particularized need” standard was reaffirmed in Dennis v. United States, 384 U.S. 855, 868-75, 86 S.Ct. 1840, 16 L.Ed.2d 975 (1966) with a general suggestion by the Court favoring disclosure. Within the context of disclosure based on need, the trial judge is required to choose the path which best promotes the administration of criminal justice. 384 U.S. at 870, 86 S.Ct. 1840. The appellant argues that she has demonstrated particularized need for the transcripts. She contends that since the federal grand jury has finished its work the reasons for maintaining secrecy are substantially less compelling than the policies favoring disclosure. At stake, she adds, is her ability to prove her innocence. Finally, the appellant stresses that the disclosure would be monitored by the state trial judge, who has volunteered to screen the grand jury material for exculpatory evidence. Only if the judge finds such evidence would any grand jury material be disclosed to the appellant. Appellant was tried for the murder of William Weber, which occurred November 12, 1973. The principal witness against her was Earl Seymour, who has pled guilty to second degree murder after a mistrial for first degree murder, and testified that he shot Weber. The State’s theory was that appellant, said by Seymour to have been present at the shooting, had lured Weber to the place where Seymour shot him, and had procured the killing because Weber, her source of drugs, had threatened to cut off her supply. Some months after the homicide, June, 1974, and thereafter, the federal grand jury investigated illicit drug activities, and are thought to have inquired, incidentally, into the related killings not only of Weber, but one Mitchell, killed a few days later. Indictments were returned against Callen, Druml, and Gaertner. The federal DEA is known to have investigated these activities. At lest Callen and Druml have been convicted. Schaffer was first charged with the murder of Weber in August, 1975. Testimony at the Schaffer trial developed that Callen was associated with Weber in the sale of cocaine. Druml was their supplier, to whom Weber came to owe a substantial amount of money. Two days before the homicide, Callen and Druml visited Weber and Druml demanded payment. Weber’s girlfriend, Maloney, found her apartment ransacked the day of the murder, but found $10,000 which the intruders had missed. Callen later asked her about the money, and she turned it over to him. Seymour, who confessed to killing Weber, and testified against Schaffer, had dealings with Gaertner. He also testified to playing an intriguing role as a double agent, employed on a commission basis to assist the Republic of Mexico in problems arising from importing and exporting contraband. He claimed to be responsible for one to two dozen arrests for drug offenses by American authorities. Moreover, he had been tried for the Weber murder, but the trial ended in a mistrial, after which he plead guilty to second degree murder. He had been a witness in his own behalf at the first trial and acknowledged at the Schaffer trial numerous instances of perjury. Counsel for Schaffer represented that the defense position was that Schaffer was not present when Seymour killed Weber, although the record does not show whether she had testified or intended to testify. Counsel suggested that the grand jury minutes might reflect testimony that the homicide was motivated as a result of Weber's dealings in drugs with others, and particularly of his refusal to pay Druml. It does appear that testimony before the grand jury related at least incidentally to the killing of Weber. The Assistant United States Attorney tendered sealed packets of testimony to the district court. He represented that in one packet were the transcripts “which relate to the investigation that [counsel] is apparently concerned with.” A smaller packet was said to contain excerpts described as “those portions of testimony which may in some remote way relate to the subject which is included in the petition submitted on behalf of Kathleen Schaffer.” It also appears that the state authorities had conducted a John Doe proceeding, investigating the same matters as the federal grand jury. All the records of this proceeding, including the reporter’s notes and lists of witnesses have been lost. Although appellant’s petition sought “release” of the grand jury testimony without qualification, counsel orally, at the hearing, very drastically and significantly narrowed his request. He asked only that the minutes be turned over for in-camera inspection by the Honorable Max Raskin, who presided at the state trial, and was thus in a position to be aware whether any material would be helpful to appellant. This limitation has been repeated in the briefs on appeal, with testimony being made known to counsel only upon Judge Raskin’s determination that the testimony constituted exculpatory evidence. We are aware that demonstrating a particularized need is often a difficult task and applying this standard to a given set of facts is an inexact process. Courts have found that a particular need has been shown when disclosure is requested to impeach a witness. United States v. Proctor & Gamble, supra, 356 U.S. at 683, 78 S.Ct. 983, to attack deposition testimony, Atlantic City Electric Co. v. A.B. Chance Co., 313 F.2d 431 (2d Cir. 1963), or to refresh a witness’ recollection about matters he previously testified to before a grand jury, Baker v. United States Steel Corp., 492 F.2d 1074, 1079 (2d Cir. 1974). The district court declined to review the grand jury minutes for testimony which might appear to aid appellant’s ease, but he did ascertain from the list of witnesses that none of the individuals named by appellant had testified before the grand jury. Hence impeachment by use of prior inconsistent statements was ruled out. Appellant was not able to name a particular witness before the grand jury whose testimony she needed to see. Thus it must be acknowledged that appellant has not demonstrated the more traditional forms of need. We think, however, on balance, that it was an abuse of discretion not to authorize disclosure to Judge Raskin, with suitable directions for disclosure by him to appellant’s counsel only in the event and to the extent that testimony likely to be helpful to her case appeared. We think one consideration that should be given particular weight here is the fact that the state court judge issued a subpoena duces tecum requiring the production of the federal grand jury minutes. The subpoena was for the distinct purpose of furthering a full and fair trial in the state prosecution. It cannot be doubted that Judge Raskin ordered the production of the minutes in the interest of a proper administration of justice. Accordingly, principles of federalism and comity come into play and should be accommodated unless factors dictating secrecy are overriding. Once a grand jury has completed its work, indictments having been brought, the reasons for secrecy become less compelling. State of Illinois v. Sarbaugh, 552 F.2d 768, 775 (7th Cir. 1977). The grand jury in question sat between June and November of 1974, and even though the government asserts that some of the matters relating to that grand jury investigation have not been concluded, it has undoubtedly completed its primary task. “[Ajfter the grand jury’s functions are ended, disclosure is wholly proper where the ends of justice require it.” Socony-Vacuum Oil Co., supra, 310 U.S. at 234, 60 S.Ct. at 849. We recognize that at this juncture, the state trial having been completed, a review of the minutes would doubtless be carried on in the light of standards for newly discovered evidence. Naden v. Johnson, 61 Wis.2d 375, 212 N.W.2d 585 (1973). We assume that Judge Raskin is still willing to undertake the task. Because of the obvious questions concerning the credibility and criminal involvement of the State’s chief witness, the plausibility of the involvement of Weber’s drug traffic associates in his death, the probability that grand jury testimony concerning the transactions of his associates at about the time of the murder would disclose that fact, if true, the accessory type theory of Schaffer’s guilt, and the seriousness of the offense with which she was charged and convicted, and because disclosure will be made only to Judge Raskin until evidence helpful ttf appellant is found present, we think appellant’s need for disclosure thus limited outweighs the policy of secrecy. The judgment appealed from in Appeal No. 7&-2234 is AFFIRMED. The judgment appealed from in Appeal No. 76-2235 is REVERSED, and the cause remanded for further proceedings consistent with this opinion. . An order denying a petition, based on Rule 6(e), which “disposes of the contentions of all the parties, leaving nothing else to be decided, . ends the controversy before . . . ” the court, and therefore is appealable under 28 U.S.C. § 1291. United States v. Byoir, 147 F.2d 336, 337 (5th Cir. 1945). See also, State of Illinois v. Sarbaugh, 552 F.2d 768, 773 (7th Cir. 1977). The order before us fits this characterization and is therefore appealable. . Pub.L. 95-78. The Rule was amended on July 30, 1977, effective October 1, 1977. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. JOHNSON v. MISSISSIPPI No. 5485. Argued April 21, 1971 Decided June 7, 1971 Stephen W. Porter argued the' cause for petitioner. With him on the brief was Richard B. Ruge. G. Garland Lyell, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was A. F. Summer, Attorney General. Per Curiam. Petitioner, a defendant in a criminal proceeding in the Circuit Court of Grenada County, Mississippi, was summarily convicted of criminal contempt-by Judge Marshall Perry of that court. The alleged contempt occurred on January 23, 1967. It occurred after Judge ..Perry directed .the bailiffs and deputies to keep all people entering the courtroom from walking between the space reserved for jurors-and .county officers and the judge, while jurors were.being called, A deputy attempted to route petitioner around the área in question whereupon, according to the orders adjudging petitioner in contempt, he said: “What the Hell do you mean go around. “Said Johnson, defendant; then continued to stand and look around over the room, disrupting the court proceedings.” Judge Perry, however, did not take instant action ón the alleged contempt but only had petitioner removed from the courtroom. The nqxt day, January 24, he ordered that process issue against petitioner directing him to' appear February 1, 1967, an action he later rescinded. On January 27,. 1967, petitioner, an active civil rights worker, asked through his attorney that Judge Perry recuse himself, asserting: . “a. That Judge Perry is personally prejudiced against the defendant and against the civil rights organizations he represents. “b. That Judge Perry is personally prejudiced against the lawyers’ organization defending Mr. Johnson, namely the Lawyers’ Committee For Civil Rights .Under Law.” The motion was supported by two affidavits of lawyers that Judge Perry, through charges made to grand juries in his courtroom, revealed deep prejudice against civil rights workers and civil rights lawyers. No hearing was ever granted on that motion. When petitioner was removed from the courtroom on January 23, 1967, his lawyer, one Rowe, objected to Judge Perry’s action. Judge Perry ordered Rowe arrested and charged with criminal contempt. On January 31, 1967, a federal court in Mississippi issued a temporary restraining order enjoining trial of the contempt charge against Rowe; and we áre advised that that charge has never been further prosecuted. On February 1, 1967, petitioner filed a petition for removal of the contempt proceedings in his case to the federal court. On November 14, 1968, that court remanded the case to Judge Perry’s court. Thereupon Judge Perry ordered that , a $1,000 bond be posted guaranteeing petitioner’s -appearance on January 27, 1969, to answer the contempt charge. On January 22, 1969, petitioner and others filed suit in the federal court to enfoin trials of either Negroes or women in the Circuit Court of Grenada County until such time as Negroes and women were not systematically excluded from juries. Judge Perry was named as a defendant. The federal court held a hearing on January 24, 1969, and on January 25, 1969, temporarily enjoined Judge Perry from discrimination “by reason of race, color, or sex” in jury selections. ' Two days later, January 27,1969, Judge Perry adjudged petitioner in contempt and sentenced him to four months, and set bail at $2,000 pending appeal. He denied petitioner’s request for a hearing on the merits and for an opportunity to show why Judge Perry should recuse himself. On appeal the Supreme Court of Mississippi affirmed the contempt but reduced the sentence to one month. 233 So. 2d 116. The case is here on a petition for a writ of certiorari which we granted. 400 U. S. 991. Instant action may be necessary where the misbehavior is in the presence of the judge and is known to him, and' where immediate corrective steps áre needed to restore order and maintain the dignity and authority of the court. Cooke v. United States, 267 U. S. 517, 534; Harris v. United States, 382 U. S. 162, 165. The contempt power is within the judge’s “arsenal of authority”- which we recently described in Illinois v. Allen, 397 U. S. 337. But there was no iristant action here, a week expiring before removal of the case to the federal court was sought. Moreover, from this record we cannot be sure that Judge Perry was personally aware of the contemptuous action when it occurred. The State’s version of what happened is described as follows in its motion that petitioner show cause why he should not be punished for contempt: “[T]he Sheriff and Deputy Sheriff, Howard Hayward seized Robert Johnson and immediately carried him before the Circuit Judge, Marshall Perry, and related to the Judge what had transpired.” (Italics added.) As we said in In re Oliver, 333 U. S. 257, 275-276, “If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . . . that the accused be accorded notice and a fair hearing . . . .” And see In re Savin, 131 U. S. 267, 277. It would, therefore, seem that a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete. We mention this latter point because our remand will entail a hearing before another judge. In concluding that Judge Perry should have recused himself, we do not rely solely on the affidavits filed by the lawyers reciting intemperate remarks of Judge Perry, concerning civil rights litigants. Beyond all that was the fact that Judge Perry immediately prior to the adjudication of contempt was a defendant in one of petitioner’s civil rights suits and a losing party at that.' From that it is plain that he was so enmeshed in matters involving petitioner as to make it most appropriate for another judge to sit. Trial before “an- unbiased judge” is essential , to due process. Bloom v. Illinois, 391 U. S. 194, 205; Mayberry v. Pennsylvania, 400 U. S. 455, 465. We accordingly reverse the judgment below and remand the case for proceedings not inconsistent with this opinion. Reversed and remanded. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_respondent	160	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. No. 404. Jacobson, Administratrix, v. New York, New Haven & Hartford Railroad Co. Argued February 3, 1954. Decided February 8, 1954. George P. Lordan argued the cause for petitioner. With him on the brief was Herbert E. Tucker, Jr. Edward R. Brumley argued the cause for respondent. With him on the brief were R. M. Peet and N. W. Deering. Per Curiam: The judgment is affirmed. Patch v. Wabash R. Co., 207 U. S. 277; Memphis & Charleston R. Co. v. Alabama, 107 U. S. 581; Seavey v. Boston & Maine R. Co., 197 F. 2d 485. 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_state	44	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". John K. FORSYTHE, Plaintiff-Appellant, v. SAUDI ARABIAN AIRLINES CORP., Defendant-Appellee. No. 89-2356 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 10, 1989. Karen A. Lerner, Houston, Tex., for plaintiff-appellant. Farrell Bolz, Farrell Bolz & Associates, Houston, Tex., for defendant-appellee. Before REAVLEY, KING and JOHNSON, Circuit Judges. PER CURIAM: John Forsythe appeals the district court’s order denying his motion to alter or amend the court’s judgment that dismissed his case against Saudi Arabian Airlines Corporation. For the reasons set forth below, we VACATE and REMAND for further proceedings in conformance with this opinion. Appellant John K. Forsythe (Forsythe), an American citizen, entered into an employment agreement with appellee Saudi Arabian Airlines Corporation (Saudi) to provide services as a commercial airline pilot. The contract specified that all disputes would be resolved by the Labor and Settlement of Disputes Committee in Saudi Arabia and that the laws of Saudi Arabia would apply. Forsythe undertook his flying duties in Saudi Arabia and for the duration of his employment performed entirely outside of the United States. Unhappily, after less than a year with the airline Forsythe was discharged, purportedly for failing proficiency and evaluation checks. Forsythe did not contest his discharge in the Saudi Arabian forum contemplated in his employment agreement. Instead, he filed a petition in Texas state court, seeking damages for wrongful discharge. For-sythe alleged breach of contract, breach of the implied covenant of good faith and fair dealing, duress, and intentional infliction of emotional distress. Saudi petitioned for removal to federal district court based on its status as a “foreign state.” 28 U.S.C. § 1441(d). Promptly after the action was removed, Saudi filed a Rule 12(b) motion to dismiss, claiming failure to state a claim and lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. Saudi added an alternative ground of forum non conveniens in a supplemental motion. Curiously, Forsythe failed to contest Saudi’s FSIA immunity in his response to the motion to dismiss, or at any other time prior to his motion for a new trial. For-sythe did, however, file an amended complaint, in which he alleged that Saudi (1) solicited his services through an El Paso, Texas, newspaper advertisement, (2) initially contacted him in Texas, and (3) “made oral representations to [him] to induce him to enter into the contract the subject of this cause of action in El Paso, Texas, and in Kansas City, Missouri.” On December 8, 1988, the district court granted Saudi’s motion and entered a final judgment dismissing Forsythe’s case. The court found that Saudi was a “foreign state” and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia. Forsythe promptly filed a “Motion for New Trial,” which the district court denied. He now appeals the order denying his motion for new trial. Our first task is to identify the character of Forsythe’s postjudgment motion. This determination will then define our role in reviewing the district court’s denial of the motion. Forsythe styled his postjudgment motion a “Motion for New Trial,” without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court’s judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit prescribed in Rule 59(e). Consequently, his motion must be construed as a Rule 59(e) motion to alter or amend the order and concomitant judgment dismissing his case. We review the district court’s denial of a Rule 59(e) motion under an abuse of discretion standard. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986). The FSIA is the exclusive means by which a foreign state, as that term is defined in the Act, may be sued in a United States federal court. Under the FSIA, a foreign state is immune from suit — and the district court lacks jurisdiction — unless one of the specific exceptions contained in sections 1605-1607 is found to apply. 28 U.S.C. § 1604. Prior to the dismissal of his case, Forsythe did not attempt to persuade the court that any of the FSIA exceptions applied to divest Saudi of immunity in this case. He proffered neither legal arguments nor evidence outside the pleadings to bolster the jurisdictional facts that the court could consider in ruling on Saudi’s motion to dismiss. Moreover, he did not explain his failure to do so in his Rule 59(e) motion. In his motion, Forsythe argued for the first time that the “commercial activity” exception of section 1605(a)(2) should apply to Saudi’s job advertising and interviewing activities in the United States, thereby depriving Saudi of immunity. The order of December 8,1988, reflects that, on its own initiative, the district court specifically considered and rejected the merits of a section 1605(a)(2) exception. Forsythe appended an affidavit to his motion that contained factual assertions relevant to a nexus between Saudi’s commercial activities and the United States. However, this affidavit merely reiterated and expanded slightly on the claims contained in Forsythe’s First Amended Complaint. It presented no pertinent facts that were not already before the district judge when he entered judgment. See Natural Resources Defense Council, Inc. v. EPA, 705 F.Supp. 698, 701-02 (D.D.C.), vacated on other grounds, 707 F.Supp. 3 (D.D.C.1989) (district court properly exercises its discretion in declining to relitigate arguments and evidence already considered, or to consider new evidence that was available earlier, but not presented). Finally, Forsythe did not even address in his motion the district court’s alternative ground for ordering dismissal, forum non conveniens. Under these circumstances, we find that the district court acted well within its discretion in denying Forsythe’s Rule 59(e) motion. Our inquiry does not end there, however. Although Forsythe’s notice of appeal specifies that he is appealing the March 3, 1989 order, which denied his Rule 59(e) motion, it is apparent from his briefs that his actual intent is to appeal also from the judgment. We proceed on that basis. The faulty notice of appeal has not misled or prejudiced Saudi, since its appellee’s brief fully addresses the merits of both grounds for the district court’s order of dismissal. We turn, therefore, to a review of the district court's decision to dismiss For-sythe’s claims. Because we can dispose of this case on the basis of forum non conve-niens, we need not, and do not, review the district court’s determination that it lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act. A dismissal under the doctrine of forum non conveniens may be reversed only for a clear abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated and remanded on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, — U.S. -, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). Under the procedural framework announced in In re Air Crash Disaster, a district court considering a motion to dismiss for forum non conveniens is required first to determine if an adequate alternative forum exists to entertain the case, and then to weigh the private and public interest factors to determine whether the balance favors dismissal. In re Air Crash Disaster, 821 F.2d at 1165-66. The district judge is also required to set out his findings and conclusions supporting a forum non conveniens determination, because we will not perform a de novo review of this issue. In its order of dismissal, the district court determined that the Labor and Settlement of Disputes Committee in Saudi Arabia was an appropriate alternative forum for Forsythe to litigate his claim. Moreover, the parties had agreed in their contract to bring all disputes before this tribunal. There is no indication that a Saudi Arabian forum would treat Forsythe unfairly or deprive him of all remedies. Thus, the court’s conclusion that an adequate alternative forum existed was reasonable. In evaluating the private interests of the litigants, a court should be deferential to an American plaintiff’s choice of his home forum. Reyno, 454 U.S. at 255, 102 S.Ct. at 265. However, this factor cannot be given dispositive weight. Id. at 256 n. 23, 102 S.Ct. at 266 n. 23. The district court considered the other relevant private interest factors and concluded that Saudi Arabia would be the more convenient forum. The court noted Forsythe’s arguments that (1) it would be inconvenient for him to travel to Saudi Arabia, and (2) Saudi has significant contacts in Texas. However, the court concluded that Forsythe’s lawsuit centered around the alleged wrongful termination of his employment contract, which occurred in Saudi Arabia. Thus, the ease of access to witnesses and documents favors the Saudi Arabian forum. Even if the private conveniences of the litigants were nearly in balance, however, “a trial court has discretion to grant forum non conveniens dismissal upon finding that retention of jurisdiction would be unduly burdensome to the community, that there is little or no public interest in the dispute or that foreign law will predominate if jurisdiction is retained.” In re Air Crash Disaster, 821 at 1165-66. The court considered the uncontested fact that Saudi Arabian law would apply to this dispute, as provided in the parties’ choice-of-law provision. A district court’s avoidance of unnecessary problems involved in the application of foreign law is of “considerable signifi-canee.” See Feenerty v. Swiftdrill, Inc., 706 F.Supp. 519 (E.D.Tex.1989). The court also determined that the contract made the basis of this lawsuit was executed, and was allegedly breached, in Saudi Arabia. It contained choice-of-law and choice-of-forum provisions tying the dispute to that country. Furthermore, Saudi is a corporation wholly owned by the Saudi Arabian government. We acknowledge that our community has an interest in the hiring and firing of American citizens by foreign corporations; however, in this situation, Saudi Arabia appears to have a greater interest in resolving this dispute than does the United States. Reviewing all the factors considered by the district judge, we conclude that the court was neither unreasonable nor arbitrary in dismissing this case on the alternative basis of forum non conveniens. However, we believe that the court should have requested certain minimal stipulations from the defendant to protect Forsythe’s opportunity to seek relief in the Saudi Arabian forum. Therefore, we VACATE the judgment dismissing Forsythe’s lawsuit with prejudice and REMAND for entry of a judgment of dismissal without prejudice conditioned on Saudi’s agreement to submit to the jurisdiction of the courts of Saudi Arabia and to waive any defense of limitation. Costs shall be borne by Forsythe. VACATED and REMANDED. . For purposes of removal, § 1441(d) incorporates the definition of foreign state set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a): “A “foreign state” ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state....” Saudi is a corporation formed under the laws of Saudi Arabia and wholly owned by the government. The district court determined, and For-sythe does not dispute, that Saudi is an “agency or instrumentality" of Saudi Arabia, and thus a foreign state for jurisdictional purposes. . Forsythe apparently believed that Saudi based its claim of immunity solely on the forum selection clause contained in the parties’ contract, under which disputes would be submitted to the Labor and Settlement of Disputes Committee in Saudi Arabia. Forsythe argued in his response to Saudi’s motion to dismiss that ”[h]istorically, [forum selection clauses] have been found to be against public policy and have not been enforced.” The United States Supreme Court has explicitly rejected this view. In The Bremen v. Zapata Off-Shore Co., Chief Justice Burger established a strong presumption in favor of the validity of forum selection clauses. 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). ”[I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.” Id. at 15, 92 S.Ct. at 1916. See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629, 631, 105 S.Ct. 3346, 3355, 3356, 87 L.Ed.2d 444 (1985) ("concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes” required enforcement of contractual arbitration clause; the Court noted the strong federal policy in favor of arbitral dispute resolution, particularly when international commercial transactions are involved, as well as a judicial commitment to the enforcement of freely negotiated choice-of-forum clauses); In re Fireman’s Fund Ins. Companies, 588 F.2d 93, 95 (5th Cir.1979) ("Where the parties have by contract selected a forum, it is incumbent upon the party resisting to establish that the choice was unreasonable, unfair, or unjust.") Forsythe’s attempt to distinguish his contract based on Saudi's greater bargaining position was unpersuasive, as the cases cited in his brief were dissimilar to these facts and did not involve international relations. .As explained below, we construe this motion as a Rule 59(e) motion to alter or amend a judgment. . Forsythe also alleged in his amended complaint that his written contract with Saudi provided that he would serve as a commercial airline pilot in the United States. The employment contract contained in the record on appeal indicates to the contrary, as no mention is made as to where services would be performed. For-sythe has not pursued this assertion on appeal. . The service date of Forsythe’s motion was December 19, 1988. However, under the rules for computing time periods of less than eleven days, Saturdays and Sundays are excluded. His motion was therefore timely. Fed.R.Civ.P. 6(a). . Of course, a party cannot waive subject matter jurisdiction by its silence. A federal court must make its own determination of whether it is empowered to hear a case. In making this determination, however, a district court may rely not only on the pleadings; it may consider conflicting evidence — contained in affidavits, for example — and make its own resolution of disputed jurisdictional facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Under the FSIA, Saudi carried the burden of persuading the court that it was entitled to immunity. Once it made a prima facie showing of FSIA protection, however, Forsythe assumed a burden of going forward with some facts to show that an exception to immunity existed. The ultimate burden of persuasion remained at all times on Saudi. See H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6616; 7b Moore, Wax-ner, Fink, Epstein, & Grotheer, Moore’s Federal Practice § 1604 (2d ed. 1989). In applying FSIA law to the facts of the lawsuit, the district court had only the assertions contained in Forsythe’s amended complaint to show Forsythe’s version of the jurisdictional facts. . 28 U.S.C. § 1605(a)(2) provides: (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. .The Supreme Court has determined, and this circuit has subsequently held, that an appeal is not lost due to a mistake in designating the judgment being appealed. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n. 1 (5th Cir. 1980); Woodham v. American Cystoscope Co., 335 F.2d 551, 555-56 (5th Cir.1964). Forsythe’s appeal is not time barred because, as explained above, a Rule 59(e) motion tolls the time for appealing a judgment under Fed.R.App.P. 4(a). Forsythe filed his notice of appeal within the prescribed thirty-day time period, which began to run from the date of the district court’s order denying his motion to alter or amend. Fed.R.App.P. 4(a)(4). . For the reasons stated below, we are vacating the district court’s judgment and remanding the case to that court for entry of a revised judgment. In the event the conditions of that dismissal are not met, and Forsythe is compelled to return to this forum, the district court should at that time reconsider its holding regarding Saudi’s immunity under the FSIA. If the court is satisfied with its prior determination, it should reinstate its dismissal, although without prejudice, based on lack of subject matter jurisdiction. Forsythe can then file a new notice of appeal within the period provided in Fed.R. App.P. 4(a), which period will begin to run from the date of the district court’s reinstated judgment. . We note that Forsythe has offered no explanation, either to the district court or to us on appeal, as to why he did not seek relief in the Labor and Settlement of Disputes Committee in Saudi Arabia while he was still in that country and had the opportunity to do so. . In a reply brief, Forsythe argues that it is not clear from the court’s order whether forum non conveniens was intended to exist as an alternative grounds for dismissal. We find this argument meritless. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. SIOUX FALLS BROADCAST ASSOCIATION, Appellant, v. ASSOCIATED PRESS. No. 9904. Circuit Court of Appeals, Eighth Circuit. Dec. 12, 1933. Teigen & Davis, of Sioux Falls, S. D., for appellant. George J. Danforth and Holton Davenport, both of Sioux Falls, S. D., for appellee. PER CURIAM. Appeal docketed and dismissed pursuant . „ * t0 °f Partles; Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appel1_1_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 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". JOHN L. ROPER LUMBER CO. v. UNITED STATES. No. 5370. Circuit Court of Appeals, Fourth Circuit. July 11, 1945. Gerould M. Rumble, of Norfolk, Va., and R. E. Whitehurst, of New Bern, N. C. (L. I. Moore, of New Bern, N. C., on the brief), for appellant. R. Brookes Peters, Jr., Sp. Asst, to U. S. Atty., of Wilmington, N. C. (J. Edward Williams, Acting Head, Lands Division, Department of Justice, of Washington, D. G, J. O. Carr, U. S. Atty., of Wilmington, N. G, and Roger P. Marquis and Wilma C. Martin, Attys., Department of Justice, both of Washington, D. G, on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge. This case comes before us on appeal from a final judgment of the District Court in condemnation entered on a jury verdict December 14, 1944, awarding appellant $7,980 as just compensation for 266 acres of land. Several months prior to the institution of the instant proceedings, Congress, by the Act of March 23, 1941, 55 Stat. 47, 48, c. 25, authorized the Secretary of the Navy to establish a Marine Corps Training Area on the East coast. The site chosen for this Area, now known as Camp Lejeune, is in the vicinity of the New River in Onslow County, near the town of Jacksonville, North Carolina. The “main base,” or “Base area proper,” is located on the South side of North Carolina Highway 24. The lands of the appellant, John L. Roper Lumber Company (hereinafter called Roper) involved in this proceeding, consisting of 266 acres, are located on the North side of Highway 24, directly across from the Marine Corps Training Area. On September 11, 1941, the United States, at the request of the Administrator of the Federal Works Agency, instituted proceedings under the Lanham Act of October 14, 1940, 54 Stat. 1125, c. 862, as amended by the Act of April 29, 1941, 55 Stat. 147 c. 80, 42 U.S.C.A. § 1521 et seq., to condemn certain lands of which the 266 acres here involved were a part, for the purpose of housing persons engaged in national defense activities. On the same day a declaration of taking was filed and estimated compensation was deposited in court. Judgment on the declaration of taking and an order granting immediate possession to the United States were entered on September 31, 1941. Since that time the Government has platted and erected a large number of housing units on the lands taken. On May 3, 1943, Commissioners appointed to determine compensation filed their report awarding $20,000 for Roper’s land. Both the United States and Roper filed exceptions to the Commissioners’ report and demanded a jury trial. The jury trial resulted in a judgment of $5,000 in favor of Roper. On Roper’s motion, a new trial was granted, resulting in the verdict and judgment involved in this appeal. The District Judge gave the following instruction to the jury: “If you find from the evidence, and by its greater weight, that the lands formerly owned by the Respondent, John L. Roper Lumber Company, probably were within the scope of the Marine Base project from the time that the Government was committed to the acquisition of said project, then said respondent would not be entitled to receive any increase in' the value of Tract No. 1 herein arising from the fact that the same probably would be condemned or otherwise acquired by the Petitioner. In other words, if Tract No. 1 was within the area where it was likely to be taken for the project, the owners are not entitled to an increment of value occasioned solely by its proximity to the lands previously taken for the Marine Base project.” Two questions are raised on this appeal: (1) Was it error for the trial court thus to instruct the jury? And (2) was there sufficient evidence, in the light of this instruction, to support the verdict ? In the usual exercise of the power of eminent domain, the value of the land sought to be condemned is the value at the time of the taking, Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566; United States v. Chandler-Dunbar Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063, yet the ascertainment of a market value fairly determined demands some qualification of this broad principle when the value of the lands taken has been greatly enhanced by reason of the Government’s own activities. See Miller v. United States, 317 U.S. 369, 376-379, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55; Tigertail Quarries, Inc. v. United States, 5 Cir., 143 F.2d 110. The sound rule, and one by which we are bound, was clearly prescribed by Miller v. United States, 317 U.S. 369, 376-7, 63 S.Ct. 276, 281, 87 L.Ed. 336, 147 A.L.R. 55. The Supreme Court there said: “If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement. “The question then is whether the respondents’ lands zvere probably within the scope of the project from the time the Governmant was committed to it.” (Italics ours.) Landowners should not gain by speculating on a probable increase in value due to the Government’s commitment to a particular proiect. See Miller v. United States, supra, Cf. United States v. Lambert, 2 Cir., 146 F.2d 469, 472; Cameron Development Co. v. United States, 5 Cir., 145 F.2d 209; United States v. Foster, 8 Cir., 131 F.2d 3, 6. The instruction given to the jury by the trial court was, we think, entirely proper. It hewed quite closely to the rule prescribed by the Miller case. It is admitted by Roper that its claim for just compensation for the land taken includes the increment in value resulting from the establishment of the Marine Base. It is strenuously urged, however, that the taking, of its land was clearly not within the scope of the original project; that the taking of the land for a housing project was an entirely separate and distinct purpose, and was carried out by a different agenev of the Government. We find no merit in the second contention. We cannot believe that the rule set forth in the Miller case should be nullified by the mere chance that- an agency of the Government different from the one for whose use the land is taken, should, by reason of the fact that it holds available funds, be directed to institute condemnation proceedings. As to the first contention, the question of the scope of the original project was fairly submitted to the jury, cf. Scott v. United States, 5 Cir., 146 F.2d 131, and it is obvious from the verdict that a finding contrary to Roper’s contentions was made. Further, we are of the opinion that the evidence amply supports the jury’s verdict. The fact that the original plans for the Marine Corps Area contemplated a housing project is not disputed. The need, at such an extensive operation, and in such a remote area, for special housing of personnel is obvious. The testimony of witnesses for the Government, and two separate juries chose to believe them rather than witnesses for Roper, clearly supports the jury’s belief that the taking of Roper’s land was probably within the scope of the project m its preliminary stages. Lieutenant Commander E. D. Smith, assistant to the officer in charge of construction, and one familiar with all active planning, in answer to the question: “Commander, will you tell us what were the plans for housing facilities for the enlisted personnel ?” stated: “In the very early plans for the project housing for enlisted personnel was included within the main Base area proper. During the early stages there was some discussion as to whether it would be there or perhaps outside; and prior to any planning for housing — that is, the construction of houses for enlisted personnel — in the area, it was decided to go into the present location.” Further, in answer to the question: “Can you tell us when that was so considered, Commander Smith?” he stated: “I would say in the early part of July, 1941, the decision to go outside the Marine Base area proper was arrived at.” Brigadier General W. B. T. Hill, United States Marine Coi'ps (at the time of the incidents in question, a lieutenant colonel), testified in part as follows: “Q. Will you tell his Honor and the Jury your duties there? A. On the 17th of March, 1941, I was assigned as liaison .officer for new construction. It was within my duty and prerogative to approve all plans, locations, building plans, and utilities in connection with the building program. “Q. General, in connection with those duties, did the location of the housing project fall within your duties? A. It did. The location of every building on the Base fell within my duties. “Q. Now, sir, can you tell us the earliest time when the location of the housing project at the site where it is now located was considered? A. The 11th of April, 1941. “Q. Do you have a map showing the location? A. I do. “Q. Will you refer to it, please, sir, and tell us what took place? A. This is the map. This (indicating) is called Area O in the Land Acquisition Program.” On the eleventh of April, 1941, Mr. John W. Hyde, from the Federal Housing Authority, came to Jacksonville. I took him for a short ride. At that present time we were constructing a tent camp. I pointed out to him and invited his attention to the type of construction that usually accompanied a Govemment camp. I took Mr. Hyde in my car, showed him this location, and told him: ‘There is where I propose to put in a lowcost defense housing.’ “Q. Does that involve the Roper Lumber Company land? A. Yes, sir. “Q. I believe that area to which you are pointing your finger is indicated on the map by red pencil, is that correct? A. I put that mark on the map on the 11th of April, when I was talking with Mr. John W. Hyde.” Much reliance is placed by Roper on a map presented in evidence, in support of its contention that the final decision as to the location of the housing project was not within the contemplation of the original project. In regard to this map General Hill testified as follows: “Q. Is that a preliminary map that you have there? A. Yes sir. “Q. Is it? A. This is a very preliminary map. “Q. By a ‘preliminary map’ what do you mean? A. I mean that three officers came down to New River, and this was their idea of the way in which the Base should be developed. There were no engineering data supporting this map; it was purely an opinion, from official inspection, without any engineering data for utilities or anything else.” It is true that had the boundaries of the original project been definitely delineated, or fixed by the Act of Congress authorizing the project, then the lands might be considered merely adjacent to the Main Base Area and would be entitled to the unearned increment. Miller v. United States, supra. That, however, was not true here. The scope of the project was of a rather nebulous nature within the outer limits of some 600,000 or more acres. Further, a large amount of discretion was lodged in General Hill as to the particular needs and locations. In view of the proximity in time, of all the events that happened during the year 1941, the jury might well have considered the taking of Roper’s land to be an integral part of the whole project. In summary we find: in March, Congress had authorized the construction of a very large base for housing and training Marines in the vicinity of the New River. In April, condemnation proceedings were begun by the Navy to acquire part of the lands needed for that project and Roper’s land had been designated as a proposed site for housing. In July it was definitely selected for that purpose and appraisals made. In September, less than six months after the Marine Base project was begun, and while the base was under construction, proceedings were instituted by the Federal Works Agency to acquire Roper’s land. It is not without importance that Roper’s land was not the last of some fifteen areas against which condemnation proceedings were instituted. We find no merit in Roper’s contention that it was prejudiced adversely by the trial court’s instruction that the jury should weigh the fact, in considering his testimony, that Herritage was general manager of Roper. Such an instruction is clearly within the discretion of a federal judge and there was no abuse of this discretion. Nor do we consider it necessary to discuss other exceptions raised by Roper since they relate to the exclusion of evidence which becomes vital only in the event Roper’s other contentions are sustained. Such is not the case. The judgment of the District Court is affirmed. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_state	18	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". WILSON v. UNITED STATES. No. 10547. Circuit Court of Appeals, Sixth Circuit March 15, 1948. Writ of Certiorari Denied June 7, 1948. See 68 S.Ct. 1490. A. Scott Hamilton, of Louisville, Ky., for appellant. David C. Walls, of Louisville, Ky., for appellee. Before SIMONS, ALLEN, and MILLER, Circuit Judges. SIMONS, Circuit Judge. It appearing that the appellant was indicted, tried, convicted, and sentenced for violation of the so-called Mann Act, 18 U.S.C.A. § 398, that there was substantial evidence of interstate transportation of a woman for purposes of prostitution, debauchery, and other immoral purposes, and it being the view of the Court that the claim of the appellant, that he had contracted a common law marriage in Indiana with the Government’s principal witness and that common law marriages are recognized by Indiana law, has no bearing upon the issues involved, in view of evidence that the appellant had made engagements for her to engage in prostitution with others and had received the avails of such prostitution, and it also being the view of the Court that the trial was conducted in the court below without prejudicial error in respect to any material element involved, it is hereby ordered that the judgment below be, and it is hereby, affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_injunct	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". CELLULAR SALES, INC. and John Webb, Appellees, v. Rick MACKAY, d/b/a Cellular Sales North, Appellant. No. 90-2473. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1991. Decided Aug. 13, 1991. Steve Leben, argued (Thomas McGraw, III, on brief), Overland Park, Kan., for appellant. Gary Long, Kansas City, Kan., for appel-lees. Before WOLLMAN, Circuit Judge, and ROSS and HENLEY, Senior Circuit Judges. ROSS, Senior Circuit Judge. Plaintiffs Cellular Sales, Inc. and John Webb filed this action charging that defendant Rick Mackay, by doing business as Cellular Sales North, is misappropriating plaintiffs’ trade name. The district court agreed and issued a preliminary injunction enjoining Mackay from using the name “Cellular Sales” in the future. Because we conclude that the name “Cellular Sales” is generic in nature and therefore not entitled to trade name protection, we reverse the decision of the district court. I. In October 1986, plaintiff John Webb became an agent for a company named Cellular One, a regional cellular telephone company that is licensed by the Federal Communications Commission to provide cellular telephone services. In May 1987, Mackay agreed to work with Webb as a salesman and installer of cellular phones. Both Webb and Mackay had salesmen working for them and each earned commissions on sales. Mackay alleges that the two operated in a joint venture, while Webb alleges that he operated as a sole proprietorship until February 1989 when he formed the corporation Cellular Sales, Inc., in which he was the only shareholder and officer. Webb assigned right to the name “Cellular Sales” to the corporation. On July 23,1987, Webb filed a “Registration of Fictitious Name” with the Missouri Secretary of State for the name, “Cellular Sales.” Missouri law requires the registration of any fictitious name under which someone is doing business in Missouri, but the law does not provide for any trade name protection as a result of such filings. Mo.Rev.Stat. §§ 417.200-417.230. In mid-1989, Mackay decided that there was a potential for development of cellular phone sales in North Kansas City, but Webb was not interested in opening a north office. In August 1989, Mackay eventually leased a north office location on his own. He obtained a phone for that location and immediately began using the name, “Cellular Sales North.” On October 10, 1990, an advertisement was placed in the Kansas City Times under the name “Cellular Sales,” listing telephone numbers for both the north office and the original office. In November 1989, Mackay began making arrangements to obtain his own agent’s contract with Cellular One, the regional cellular air carrier. Mackay eventually obtained his own agents’s contract with Cellular One effective December 1, 1989. On December 2, 1989, Webb and Mackay agreed to end their business relationship. Thereafter, Webb filed suit against Mackay alleging trade name infringement. The district court found that the name, “Cellular Sales,” has a unique significance and that the use of the name “Cellular Sales North” would likely mislead some members of the public into believing that Mackay was operating a branch or franchised office affiliated with Webb. The district court found that Mackay had not proven his joint venture theory and concluded that “defendant has a likelihood of success of no more than 40% or 45% in establishing equal rights to the name ‘Cellular Sales.’ ” The court also found that there was a threat of irreparable harm because confusion of the name could cause lost business which would be extraordinarily difficult to ascertain and evaluate. The lower court entered a preliminary injunction against any future use by Mackay of the business name “Cellular Sales” and Mackay was instructed to begin use of a clarifying name, such as “Cellular North,” in response to incoming calls. II. Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) whether the threatened injury outweighs damage to the opposing party; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). In determining whether a trade name is entitled to protection, it must first be classified into one of four categories: (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful. Vision Center v. Opticks, Inc., 596 F.2d 111, 115 (5th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). A generic term is the name of a particular type, kind, genus or class of goods in which an individual article or service is but a member. Id. It is well established that generic terms are not entitled to trademark protection because such words are in “the public domain and available for all to use,” Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 634 F.Supp. 990, 997 (W.D.Mo.1986), and because such terms “describ[e] not only a particular product or service but also a type or kind of product or service.” First Fed. Sav. & Loan Ass’n of Council Bluffs v. First Fed. Sav. & Loan Ass’n of Lincoln, 929 F.2d 382, 383 (8th Cir.1991). The standard of proof that must be met by the plaintiff in seeking injunctive relief varies depending upon the type of mark at issue. If the mark is the strongest possible mark — an arbitrary or fanciful mark — it is “entitled to maximum legal protection and do[es] not require proof of secondary meaning.” Hallmark Cards, supra, 634 F.Supp. at 998. If the mark is the weakest protectable mark — a descriptive trademark or trade name — the plaintiff must prove that the mark has an accepted “secondary meaning.” Secondary meaning refers to a mark that “has become distinctive of the applicant’s goods in commerce, i.e., to a mark that consumers associate with a producer or distributor rather than with the product itself.” Best Buy Warehouse v. Best Buy Co., 920 F.2d 536, 537 (8th Cir. 1990) (citations omitted), cert. denied, — U.S.-, 111 S.Ct. 2893, 115 L.Ed.2d 1058 (1991). As evidence that a mark has acquired secondary meaning, courts will accept direct evidence of customer confusion, or, because direct evidence may be difficult to find, evidence from consumer surveys showing likelihood of confusion. Id. “Cellular Sales” falls within the definition of a generic trade name. The terms “cellular” and “sales” individually are generic in nature. Moreover, even when combined, “cellular sales” does not describe a particular product, but instead describes the sale of cellular telephone equipment, which is a genus or class of products, and in no way describes the particular cellular phones sold by Webb. In fact, the record shows that there are eight unrelated firms, in addition to Cellular Sales and Cellular Sales North, listed in the Kansas City phone book that use the term “cellular” in their names. Further, Webb himself has listed Cellular Installation, Cellular Rental, Cellular Repair and Cellular Service in the white pages of the phone book, all of which are answered at Webb’s phone number. In First Federal, supra, 929 F.2d at 384, this court concluded that “First Federal” is not a generic phrase, reasoning that “First Federal” is not the same as savings and loan institutions generally. The court found that “First Federal” does not refer generically to banks and savings and loans as a group, but instead describes a “first-rate (or first in time in the area), federally chartered savings and loan.” Id. In contrast, there are a number of companies that sell cellular telephone equipment and access to a cellular telephone network; these companies are accurately described generically as “cellular sales” companies. The term “cellular sales” defines this category of companies selling cellular telephone equipment. Even if we were to find that “Cellular Sales” was entitled to some trade name protection, Webb has failed to carry his burden of establishing evidence of a secondary meaning acquired by “Cellular Sales.” The record shows that the only evidence presented by Webb of the secondary meaning is his own testimony and that of his employees that the public has associated “Cellular Sales” exclusively with “John Webb.” However, no survey or any other evidence has been shown to establish this connection. This court has held that “[m]ore is needed to establish the necessary consumer association than merely the self-serving testimony of the plaintiff that some of his customers were confused.” Co-Rect Prods., Inc. v. Marvy! Adv. Photography, Inc., 780 F.2d 1324, 1333 (8th Cir.1985). The evidence presented herein is insufficient to carry the burden of proof necessary to sustain a preliminary injunction. Finally, Webb has failed to establish that he will suffer irreparable injury absent the issuance of the preliminary injunction. Webb concedes that there were no sales records that would indicate that Mackay had caused any loss of sales to plaintiffs business. One of Webb’s employees stated that although there had been occasions when customers had mistaken the two businesses, most of Webb’s customers had been loyal enough to stay with him. Another employee stated that he was aware of one customer whose business had been lost to Mackay; however, he admitted the reason was because Mackay offered a lower price, not because of any confusion. Webb’s testimony about confusion between his business and Mackay’s related to suppliers, not to customers. Webb said he knew of two other customers he had lost to Mackay, one of whom was Mackay’s mother. It cannot be said that Webb lost Mac-kay’s mother’s business as a result of trade name confusion. It is true that a plaintiff may elect to prove that his losses are incapable of calculation, though still significant and therefore irreparable. However, Webb has made no such showing here. Webb offered no evidence that his losses were not subject to calculation. Further, Webb admitted that his business is growing, although he contends that the growth is less than it might otherwise be. We conclude that the district court erred in issuing a preliminary injunction in the present case as the plaintiff has failed to establish that “Cellular Sales” is entitled to trade name protection or that he will suffer irreparable harm if the injunction is not rendered. Based on the foregoing, the judgment of the district court is reversed. Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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". Joe CONWAY, Plaintiff-Appellant, v. James WATT, Secretary of the Interior of the United States of America, Edward W. Stuebing, Bruce R. Harris and Anne Poindexter Lewis, Defendants-Appellees. No. 82-2025. United States Court of Appeals, Tenth Circuit. Sept. 21, 1983. R.R. Bostwick and Jo Sherman, Murane & Bostwick, Casper, Wyo., for plaintiff-appellant. Carol E. Dinkins, Asst. Atty. Gen., Richard A. Stacy, U.S. Atty., Toshiro Suyemat-su, Asst. U.S. Atty., Cheyenne, Wyo., and Robert L. Klarquist and Ellen J. Durkee, Attorneys, Dept, of Justice, Washington, D.C., for defendants-appellees. Before DOYLE, McKAY and SEYMOUR, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument. This is an appeal from a district court decision on the necessity of dating simultaneous oil and gas drawing entry cards. Under the provisions of 43 C.F.R. § 3112 (1978), Conway filed 147 simultaneous oil and gas drawing entry cards (DECs) with the Bureau of Land Management (BLM). Evidence produced by Conway, and not countered by the BLM, showed that Conway properly dated 146 of these DECs. Only one DEC, allegedly submitted at the same time as the other 146 DECs, was undated. This undated DEC was drawn with first priority for a lease parcel in Wyoming. Conway’s first-drawn DEC was signed and otherwise complete except for the omission of the date next to the signature box on the card. On the basis of this omission, the BLM rejected Conway’s lease offer because it was not dated as required by 43 C.F.R. § 3112.2-1(c) (1980), which provided: . .. The application shall be dated at the time of signing. The date shall reflect that the application was signed within the filing period. Conway timely appealed to the Interior Board of Land Appeals (IBLA). The IBLA affirmed the decision of the BLM. Joe Conway, 59 IBLA 314 (1981). Appeal was then had to the federal district court. That court affirmed the decision of the IBLA. Consequently, Conway has appealed to this court. We are called upon to consider one issue, namely, whether the absence of a date renders this DEC per se defective. It is well settled that courts must accord great deference to administrative regulations. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). But a regulation would not be valid if shown to bear no reasonable relation to congressional intentions (as expressed in the Act at issue or in legislative history), or if shown to be otherwise arbitrary. Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 69-70, 57 S.Ct. 364, 371, 81 L.Ed. 510 (1937); Busey v. Deshler Hotel Co., 130 F.2d 187, 190 (6th Cir.1942). See American Trucking Ass’ns. v. United States, 344 U.S. 298, 314, 73 S.Ct. 307, 316, 97 L.Ed. 337 (1953); Diefenthal v. C.A.B., 681 F.2d 1039, 1044 (5th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 732-33, 74 L.Ed.2d 956 (1983). The purpose behind enactment of the Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq. (1976), was the development of western portions of the country, and for that matter development of the nation as a whole. Cong.Rec., February 10, 1920, at 2711 (remarks of Rep. Taylor). Regulations promulgated by the Department of the Interior should be consistent with this ultimate objective. Conceivably, the Secretary of Interior’s decision to hinge entitlement to a lease upon something so insubstantial as the presence or absence of a date on one DEC card “would have a deleterious effect upon the program as a whole. Private individuals would doubt the fairness of the program, and they might become wary of seeking to take advantage of it.” Lowey v. Watt, 684 F.2d 957, 967 (D.C.Cir.1982). Congress has already expressed concern about unfair administration of the leasing program in a related context, namely, the reinstatement of cancelled leases. The legislative history of a recent amendment to the Mineral Leasing Act provides significant commentary: Prior to 1954, an oil and gas lease was not terminated automatically for failure to pay the full amount of rental timely. This resulted in situations where a lease could run for a year or more without payment of rental. Attempts by the Bureau of Land Management to collect back rentals were time consuming and frequently unsuccessful. A pattern seemed to evolve that if in the time between nonpayment and the time the next rental was due the lease suddenly became valuable the rental would be tendered promptly. If, however, during this time the lease appeared to be of little or no value, the rental would not be paid and the lessee would maintain that he had dropped the lease when he failed to make the rental payment .... In 1954, the Congress enacted Public Law 83-555, which amended the Mineral Leasing Act of 1920 to provide for the automatic termination of a Federal oil and gas lease in those instances where the lessee failed to pay the full amount of the rental on time. The law provided no discretion to the Secretary of the Interior to reinstate a lease. An underpayment of a few cents or a delay of 1 day resulted in the automatic cancellation of the lease.... Because Public Law 83-555 was harsh and inflexible, the Congress enacted Public Law 91-245 in 1970 to provide the Secretary with limited authority to reinstate an oil and gas lease. Under this law, the Secretary, at his discretion, could reinstate a lease if (1) the rental deficiency was nominal, and (2) the full amount of the rental due was tendered within 20 days of the due date. Thus, a grace period of 20 days was provided. * * * * * * For a variety of reasons, Public Law 91-245 is insufficient to cover all cases pertaining to late payment. Such payments are usually inadvertent mistakes. Sometimes, they are due solely to the fault of the lessee. In other cases, misinformation from the Federal Government, or a misunderstanding between the lessee and Federal employees are at fault. Federal Oil and Gas Royalty Act of 1982, H.R.Rep. No. 97-859, 97th Cong., 2d Sess., reprinted in [1982] U.S.Code Cong. & Ad. News, 4268, 4274. Accordingly, and in the words of the House Report on the somewhat ineffective 1970 amendments, the objective of Congress has been to “enable the Secretary to do equity.” H.R.Rep. No. 91-1005, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News, 3002. Therefore, from the standpoint of termination of existing leases, it is the intention of Congress that lessees must not suffer hardship on account of their trivial, inadvertent errors. Although we are dealing in this case with a slightly different area, we nonetheless are interpreting congressional intentions as to the same program. In light of the foregoing, it is doubtful that Congress would condone the Secretary’s decision not to award a lease simply because of Conway’s inadvertent omission of the one date in a group of 147. The Secretary has chosen to downplay the paramount congressional intention to promote western development and has focused, instead, on Congress’ requirement that leases only be awarded to “qualified” applicants. 30 U.S.C. § 226(c). The applicant is required, by the language of the Mineral Leasing Act, by the Secretary’s regulations, and by language on the DEC application, to certify under penalty of the criminal sanctions of 18 U.S.C. § 1001 that he is a qualified applicant. He must be a United States citizen, 30 U.S.C. § 181; he must not be a minor, 43 C.F.R. § 3102.1(c) (1980); he must disclose the identity of all other persons and entities with an interest in the potential lease and the nature of their interest, 43 C.F.R. § 3102.2-7 (1980); and he may not make multiple filings. 43 C.F.R. § 3112.6-1(c) (1980). The Secretary argues that since the truth of these representations can change over time, only a representation which is dated can have any meaning. The Secretary also asserts that criminal prosecution for the making of a fraudulent statement would be rendered more difficult if it were optional for an applicant to date his DEC. These assertions simply do not hold water. First, Conway’s DEC was not invalidated on grounds of changed circumstances or fraud. It was invalidated merely because it was undated. Therefore, the Secretary’s concerns as to fraud and applicant qualifications have no relevance here. The Secretary would have a much stronger case if there were some evidence of fraud or other disqualification. But the only substantive evidence introduced in this matter was offered by Conway. That evidence showed that Conway made the petty error of failing to date one DEC out of 147 DECs he submitted to the BLM. Given this un-controverted evidence, it is indeed difficult to discern an intent to defraud on the part of Conway. Since fraud and applicant qualifications are precisely what the Secretary is concerned about, he should be satisfied with Conway’s DEC. Conway’s position in this case is quite similar to that of the plaintiffs in Thompson v. Consolidated Gas Utilities Corp., supra. The plaintiffs in Thompson challenged the validity of a gas proration order issued by the Railroad Commission of Texas. That order limited the production of gas from the plaintiffs’ wells “to an amount below their market requirements under existing contracts, below their present production, and below the capacity of their transportation and marking facilities.” Thompson, supra, 300 U.S. at 58, 57 S.Ct. at 365. The defendants in Thompson asserted that the order assailed by the plaintiffs was a regulation duly promulgated for the prevention of waste, and that, therefore, it should be upheld. There was, however, no evidence of waste by the Thompson plaintiffs, although this was the very thing that the contested regulation was aimed at preventing. The lower court in Thompson found that “ ‘[n]o evidence was offered — indeed, it was not even seriously claimed — that anything [plaintiff] had done or contemplated doing has, in the slightest degree, contributed or will contribute to waste.’ ” 300 U.S. at 70, 57 S.Ct. at 371. In passing upon the validity of the regulation, the Thompson court assumed, for purposes of argument, that the Railroad Commission had every right to promulgate regulations to prevent waste. Nonetheless, the court concluded that the plaintiffs had sustained the heavy burden of showing that the regulation was arbitrary as applied to them. There simply was no evidence that the plaintiffs had threatened to waste resources in contravention of the regulation. 300 U.S. at 70, 57 S.Ct. at 371. Surely, the Thompson Court’s conclusion is applicable here. There was not the slightest evidence suggesting that Conway was an unqualified applicant or that he had committed a fraud on the BLM. The date regulation was palpably arbitrary as applied to Conway. There is yet a second reason why the Secretary’s position is unfounded. The overwhelming weight of judicial authority belies the Secretary’s assertion that a date is essential to his task of assessing the qualifications of lease applicants. The courts, on the few occasions they have addressed the question, have typically held that absence of a date is a trivial defect and that a date is not an essential term. See Ahrens v. Andrus, 690 F.2d 805, 808 (10th Cir.1982) (dicta) (“[a] signature date requirement serves no important purpose, the only material date is the one on which the DEC itself is filed with the Department”); United States v. Klaia, 127 F.2d 529, 530 (2d Cir.1942) (per curiam) (fact that date was inadvertently omitted from copy of search warrant was so trivial an error that no prejudice to defendant could have resulted); Pellerin Laundry Machinery Sales Co. v. Hogue, 219 F.Supp. 629, 639 (W.D.Ark.1963) (undated promissory note was valid and negotiable). But see Sorensen v. Andrus, 456 F.Supp. 499 (D.Wyo.1978). In Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884-889 (1936), the Kentucky Court of Appeals held that the failure of persons to date their signatures on an election petition, even though required by statute, was not fatal: [T]he provisions of the statute that the post office address and date of signature shall be stated are interpreted as being directory, although their qualification as voters of the territory involved is, of course, mandatory because jurisdictional. The provision ought to be observed in the interest of orderly procedure and to enable the county judge or any interested person to identify the petitioners conveniently. Accordingly, it cannot be said that the Secretary’s date regulation materially advances Congress’ intention that lease applicants be “qualified.” Finally, although offers to lease must strictly comply with the Secretary’s regulations, this court has consistently intimated that non-substantive errors are inappropriate grounds for finding DEC applications defective. Ahrens v. Andrus, supra, at 808; Winkler v. Andrus, 594 F.2d 775, 777-78 (10th Cir.1979). This is in accord with the principle de minimis non curat lex, the law does not concern itself about trifles. See Bates v. Provident Consumer Discount Co., 493 F.Supp. 605, 607-08 (E.D.Pa.1979), aff’d, 631 F.2d 725 (3rd Cir.1980) (although provisions of Truth in Lending Act are to be strictly construed, lender should not be held liable for de minimis error of placing a $7.50 charge on wrong line of lending form); Palmer v. United States Civil Service Comm’n., 191 F.Supp. 495, 537 (S.D.Ill.1961) (whereas “ ‘[t]he court is not bound to a strictness at once harsh and pedantic in the application of statutes,’ ” the Civil Service Commission erred in finding violation of Hatch Act where political activities of Illinois Director of Conservation were de minimis). Conceivably a situation could exist in which a date is of the essence. Needless to say this is not such a case. Inasmuch as the great weight of judicial authority places little or no emphasis on the absence of a date, Conway’s failure to date his DEC would indeed appear to be a de minimis, a non-substantive error. The Secretary has raised two additional rationales in support of the Interior Department’s practice of insisting on strict compliance with its regulations. First, according to the Secretary, strict enforcement of the requirement of properly completed DECs is made necessary by the magnitude of the leasing program. Oil and gas lease drawings, it is said, attract thousands of offers each month and over two million each year. Brick v. Andrus, 628 F.2d 213, 215 n. 6 (D.C.Cir.1980). Presumably, therefore, the BLM cannot trouble itself with ascertaining the qualifications of millions of applicants. This argument is fallacious for the simple reason that, no matter how many DECs are received, only three are drawn. 43 C.F.R. § 3112.3-1(a) (1980). Hence, the BLM need only verify the qualifications of, at most, three applicants per lease parcel. This is not an onerous task, particularly when the only defect in a DEC is the absence of a date. A second argument proffered by the Secretary is that strict enforcement preserves the integrity of the leasing program by eliminating any discretion on the part of BLM employees to decide which improperly completed DECs will be accepted, thereby limiting the possibility of fraud and collusion. This argument, that BLM employees must act as automatons in reading DECs, is severely undercut by 43 C.F.R. § 3102.3 (1980). The section provides that BLM staffers may request applicants to submit additional'information to the BLM to demonstrate their qualifications. Section 3102.3 bestows broad discretion upon BLM employees. As the BLM stated in the Federal Register, “wide discretion is needed in order to insure compliance with the regulations and the statute.” 45 Fed.Reg. 35156, 35158 (May 23, 1980). Surely, the BLM cannot have it both ways. The amount of collusion potentially forestalled by strict reading of DECs is no greater than the collusion which might be occasioned by BLM staffers who abuse their discretion under Section 3102.3. In any event, this drawing program is not to be a search for the slightest error so as to eliminate the first contestant and resurrect the second. In light of the foregoing, we hold that, although the Secretary can require a signature date, he cannot make its absence a per se disqualification. When a date inadvertently is omitted and if the Secretary is concerned • that that omission is fraudulent, he may require an applicant to produce proof that his or her signature was made on a qualifying date and that all other qualifications were satisfied as of that date. Such subsequent verification of qualifying status provides an adequate basis for the Secretary to proceed against an applicant on the basis of fraud. The Secretary’s contrary view lacks a rational basis in the law. See Hurley v. United States, 575 F.2d 792, 798 (10th Cir.1978). The district court’s grant of summary judgment must therefore be and it is hereby reversed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_usc1	42	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. The MEDICAL SOCIETY OF the STATE OF NEW YORK, a New York not-for-profit Corporation, Morton M. Koff, M.D., Milton Rosenberg, M.D., Jane Doe and Raymond Ortega, Plaintiffs-Appel-lees, v. Philip TOIA, as Commissioner of Social Services of the State of New York, and Robert P. Whalen, M.D., as Commissioner of Health of the State of New York, Defendants-Appellants. No. 1138, Docket 77-7097. United States Court of Appeals, Second Circuit. Argued April 25, 1977. Decided Aug. 8, 1977. David L. Birch, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellants. Charles P. Sifton, New York City (Le-Boeuf, Lamb, Leiby & MacRae, Richard C. Cole, New York City, of counsel), for plaintiffs-appellees. Before OAKES and VAN GRAAFEILAND, Circuit Judges, and NEAHER, District Judge. Of the Eastern District of New York, sitting by designation. VAN GRAAFEILAND, Circuit Judge: This is an appeal from an order of the United States District Court for the Eastern District of New York preliminarily enjoining the implementation of subdivision 5(a), (b), (c) and (e) of § 365-a of the New York Social Services Law (McKinney Supp. 1976-77), which became effective on July 27, 1976. Because the District Court made its determination solely on the basis of pleadings, affidavits and depositions, the scope of our review is not limited by the abuse of discretion test, applied generally where witness credibility is one of the determinative factors. Diversified Mortgage Investors v. U.S. Life Title Insurance Co., 544 F.2d 571,577 (2d Cir. 1976); San Filippo v. United Brotherhood of Carpenters & Joiners, 525 F.2d 508, 511 (2d Cir. 1975). Our examination of the record, unfettered by the abuse of discretion rule, convinces us that it does not warrant the interim relief which was granted. New York, as a participant in the Medicaid program of the Social Security Act, 42 U.S.C. § 1396 et seq., is required to assure that payments for medical services made thereunder are neither unnecessary nor excessive. National Union of Hospital & Health Care Employees v. Carey, 557 F.2d 278, 279 (2d Cir. 1977), Klein v. Nassau County Medical Center, 347 F.Supp. 496, 499 (E.D.N.Y.1972), vacated and remanded on other grounds, 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 152 (1973). Troubled by reports that over two million unnecessary surgeries were performed in the United States in 1974 and by statistics which indicated that Medicaid patients have two and one-half times more surgery than the general population, the State decided to formulate more restrictive guidelines and controls for authorized surgical procedures. Subdivision 5 of § 365-a resulted from this decision. By this subdivision, the State has attempted to limit authorized surgery to that which is urgently necessary or which, if delayed, might cause an increased medical risk, jeopardize life or essential function, or cause severe pain. The annual savings which the State hoped to effectuate thereby have been estimated as high as sixty-five million dollars. Not unexpectedly, litigation followed promptly upon the enactment of the statute. The plaintiffs, Jane Doe and Raymond Ortega, contended that it deprived them of the right to reimbursable surgery properly theirs under the Social Security laws. Plaintiff doctors asserted that they were prevented from furnishing proper medical services. The Medical Society made the same assertion on behalf of its twenty-eight thousand members. Appellants’ first counter to these arguments was that the District Court was without jurisdiction to hear them. The District Court rejected this contention, basing its decision on the possible invasion of the lay plaintiffs’ right of privacy resulting from the statutory requirement of a medical opinion from a second doctor. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), which reversed Roe v. Ingraham, 403 F.Supp. 931 (S.D.N.Y.1975), the case relied upon by the District Court, eliminates this 28 U.S.C. § 1343 basis for jurisdiction. However, because the complaint alleges that the amount in controversy herein exceeds ten thousand dollars and it does not “appear to a legal certainty” that this is not so, Weinberger v. Wiesen-feld, 420 U.S. 636, 642 n.10, 95 S.Ct. 1225,43 L.Ed.2d 514 (1975), we are not prepared to say that jurisdiction does not exist under 28 U.S.C. § 1331. See Moore v. Betit, 511 F.2d 1004 (2d Cir. 1975); Stanton v. Bond, 504 F.2d 1246, 1251 n.25 (7th Cir. 1974). The District Court, on remand, should make this determination. See Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666-67 (5th Cir. 1971). In doing so, the District Court will of course consider whether the claim of the plaintiff Doe has become moot as a result of surgery performed since the action was commenced. The District Court should also determine whether, as appellants contend, the plaintiff Ortega has no justiciable claim, because the New York statutes do not, in fact, deprive him of the surgical procedures to which he claims to be entitled but for which he has sought no state aid. Finally, the District Court will have an opportunity to fully develop a record on the issue of whether the Medical Society, a not for profit corporation, meets the requirements for standing laid down in Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Appellants argue that the close confidential relationship between physician and patient which existed in Singleton is lacking herein and that the statistical evidence of excessive surgery which it has offered indicates that the Society is not a proper proponent of the rights of Medicaid recipients, who are subjected to surgery at a much higher rate than the public in general. Although we express no opinion as to the merits of this argument, we are satisfied that it mandates a more complete development of the facts than was made on the motion below. Despite the fact that the District Judge may have been correct in assuming jurisdiction, he nonetheless erred when he granted plaintiffs’ motion for interim injunctive relief. This is an extraordinary and drastic remedy which should not be routinely granted. Pride v. Community School Board, 482 F.2d 257, 264 (2d Cir. 1973); Dopp v. Franklin National Bank, 461 F.2d 873, 878 (2d Cir. 1972). Moreover, where the grant of interim relief may adversely affect the public interest in a manner which cannot be compensated for by an injunction bond, plaintiffs undertake an even greater burden of persuasion. See Yakus v. United States, 321 U.S. 414, 440-41, 64 S.Ct. 660, 88 L.Ed. 834 (1944); New York Pathological and X-ray Laboratories, Inc. v. INS, 523 F.2d 79, 81 (2d Cir. 1975). Certainly it is not too much to ask that plaintiffs who seek such interim relief establish a probability of success on the merits. See Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973); Sierra Club v. Hickel, 433 F.2d 24, 33 (9th Cir. 1970), aff’d on other grounds sub nom. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). We are not satisfied that plaintiffs have made such a showing in this case. The State of New York is required to safeguard against unnecessary utilization of medical care and services and to assure that medical payments are not in excess of reasonable charges consistent with quality of care, 42 U.S.C. § 1396a(a)(30). It is permitted to place appropriate limits on medical services “based on such criteria as medical necessity. . . . ” 45 C.F.R. § 249.-10(a)(5)(i). Appellants argue that this is exactly what the State was attempting to do in this case, and it is not clear at this point that this argument is without substance. A more complete development of the facts through a trial on the merits, during which the views of HEW may be fully explored by the court, see Rosado v. Wyman, 397 U.S. 397, 406-07, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) will best protect the public interest. See Sampson v. Murray, 415 U.S. 61, 84 n.53, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Expediting of the trial by the District Judge will permit an early resolution of the issues. Reversed and remanded for further proceedings in accordance with this opinion. . 5. (a) Medical assistance shall include surgical benefits for emergency or urgent surgery for the alleviation of severe pain, for immediate diagnosis or treatment of conditions which threaten disability or death if not promptly diagnosed or treated. (b) Medical assistance shall include surgical benefits for certain surgical procedures which meet standards for surgical intervention, as established by the state commissioner of health on the basis of medically indicated risk factors, and medically necessary surgery where delay in surgical intervention would substantially increase the medical risk associated with such surgical intervention. (c) Medical assistance shall include surgical benefits for other deferrable surgical procedures specified by the state commissioner of health, based on the likelihood that deferral of such procedures for six months or more may jeopardize life or essential function, or cause severe pain; provided, however, such deferrable surgical procedures shall be included in the case of in-patient surgery only when a second written opinion is obtained from a physician, or as otherwise prescribed, in accordance with regulations established by the state commissioner of health, that such surgery should not be deferred. (e) Medical assistance shall not include any in-patient surgical procedures or any care, services or supplies related to such surgery other than those authorized by this subdivision. . The State’s action was also motivated in no small part by fiscal necessity. The legislative declaration included in the 1976 enactment stated that “the state and local governments are facing emergency fiscal crises of staggering proportions, and cannot continue to support the scope and level of assistance, care and services the cost of which has sharply escalated in recent years.” 1976 N.Y. Laws, ch. 76, § 1. . Although the record contains some letters to state authorities from HEW regional officials which comment on the proposed legislative changes, it is not clear whether the official position of HEW on the legislation as enacted will support plaintiffs’ claims herein. See, e. g., the following excerpt from the February 27, 1976 letter of HEW’s Acting Regional Commissioner of Social and Rehabilitation Service: The elimination of elective or deferrable surgery in all cases unless two doctors certify that a wait of six months or more will jeopardize life or essential function appears sound and we have no objection that would prohibit its implementation. Significantly, the Congressional Sub-committee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, recently released a study on unnecessary surgery. That report contended that 2.38 million surgical procedures were unnecessarily performed in 1974 at a cost to the American public of $3.92 billion. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_initiate	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. James TEWALT, Appellant, v. Solange Dejoux TEWALT, Appellee. No. 15328. United States Court of Appeals District of Columbia Circuit, Argued March 3, 1960. Decided March 10, 1960. Appeal from the United States District Court for the District of Colombia; John J. Sirica, District Judge. Mr. Samuel Intrater, Washington, D. C., with whom Mr. Albert Brick, Washington, D. C., was on the brief, for appellant. Mr. Robert H. Reiter, Washington, D. C., for appellee. Before Prettyman, Chief Judge, and Bastían and Burger, Circuit Jqdges. PER CURIAM. This is an appeal from a maintenance order issued by the District Court in favor of a wife and her children against the husband. We find no error. • Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. COMMISSIONER OF INTERNAL REVENUE et al. v. P. G. LAKE, INC., et al. No. 108. Argued March 11, 1958. Decided April 14, 1958. John N. Stull argued the cause for petitioners. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and MelvaM. Graney. Harry C. Weeks and J. Paul Jackson argued the cause for respondents. Mr. Weeks filed a brief for P. G. Lake, Inc., et al., and Mr. Jackson filed a brief, for O’Connor et al., respondents. Allen E. Pye filed a brief for Wrather et al., respondents. Peter B. Wells filed a brief for Weed, respondent. Mb. Justice Douglas delivered the opinion of the Court. We have here, consolidated for argument, five cases involving an identical question of law. Four are from the Tax Court whose rulings may be found in 24 T. C. 1016 (the Lake case); 24 T. C. 818 (the Fleming case); 24 T. C. 1025 (the Weed case). (Its findings and opinion in the Wrather case are not officially reported.) Those four cases involved income tax deficiencies. The fifth, the O’Connor case, is a suit for a refund originating in the District Court. 143 F. Supp. 240. All five are from the same Court of Appeáls, 241 F. 2d 71, 65, 78, 84, 69. The cases are here on writs of certiorari which we granted because of the public importance of the question presented. 353 U. S. 982. The facts of the Lake case are closely similar to those in the Wrather and O’Connor cases. Lake is a corporation engaged in the business of producing oil and gas. It has a seven-eighths working interest in two commercial oil and gas leases. In 1950 it was indebted to its president in the sum of $600,000 and in consideration of his cancellation of the debt assigned him an oil payment right in the amount of $600,000, plus an amount equal to interest at 3 percent a year on the unpaid balance remaining from month to month, payable out of 25 percent of the oil attributable to the taxpayer’s working interest in the two leases. At the time of the assignment it could have been estimated with reasonable accuracy that the assigned oil payment right would pay out in three or more years. It did in fact pay out in a little over three years. In its 1950 tax return Lake reported the oil payment assignment as a sale of property producing a profit of $600,000 and taxable as a long-term capital gain under § 117 of the Internal Revenue Code of 1939. The Commissioner determined a deficiency, ruling that the purchase price (less deductions not material here) was taxable as ordinary income, subject to depletion. The Wrather case has some variations in its facts. In the O’Connor case the assignors of the oil payments owned royalty interests rather than working interests. But these differences are not material to the question we have for decision. The Weed case is different only because it involves sulphur rights, rather than oil rights. The taxpayer was the owner of a pooled overriding royalty in a deposit known as Boling Dome. The royalty interest entitled the taxpayer to receive $0.00966133 per long ton of sulphur produced from Boling Dome, irrespective of the market price. Royalty payments were made each month, based on the previous month's production. In 1947, the taxpayer, in order to obtain a sure source of funds to pay his individual income taxes, agreed with one Munro, his tax advisor, on a sulphur payment assignment. The taxpayer assigned to Munro a sulphur payment totaling $50,000 and consisting of 86.254514 percent of his pooled royalty interest, which represented the royalty interest on 6,000,000 long tons of the estimated remaining 21,000,000 long tons still in place. The purchase price was paid in three installments over a three-year period. Most of the purchase price was borrowed by Munro from a bank with the sulphur payment assignment as security. The assigned sulphur payment right paid out within 28 months. The amounts received by the taxpayer in 1948 and 1949 were returned by him as capital gains. The Commissioner determined that these amounts were taxable as ordinary income, subject to depletion. The Fleming case is a bit more complicated and presents an additional question not in the other cases. Here oil payment assignments were made, not for cash but for real estate. Two transactions are involved. Fleming and others with whom he was associated made oil payment assignments, the rights and interests involved being held by them for productive use in their respective businesses of producing oil. Each oil payment was assigned for an interest in a ranch. Each was in an amount which represented the uncontested fair value of the undivided interest in the ranch received by the assignor, plus an amount equal to the interest per annum on the balance remaining unpaid from time to time. The other transaction consisted of an oil payment assignment by an owner of oil and gas leases, held for productive use in the assignor’s business, for the fee simple title to business real estate. This oil payment assignment, like the ones mentioned above, was in the amount of the uncontested fair market value of the real estate received, plus interest on the unpaid balance remaining from time to time. First, as to whether the proceeds were taxable as long-term capital gains under § 117 or as ordinary income subject to depletion. The Court of Appeals started from the premise, laid down in Texas decisions, see especially Tennant v. Dunn, 130 Tex. 285, 110 S. W. 2d 53, that oil payments are interests in land. We too proceed on that basis; and yet we conclude that the consideration received for these oil payment rights (and the sulphur payment right) was taxable as ordinary income, subject to depletion. “50 per centum if the capital asset has been held for more than 6 months.” 56 Stat. 843. The purpose of § 117 was “to relieve the taxpayer from . . . excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.” See Burnet v. Harmel, 287 U. S. 103, 106. And this exception has always been narrowly construed so as to protect the revenue against artful devices. See Corn Products Refining Co. v. Commissioner, 350 U. S. 46, 52. We do not see here any conversion of a capital investment. The lump sum consideration seems essentially a substitute for what would otherwise be received at a future time as ordinary income. The pay-out of these particular assigned oil payment rights could be ascertained with considerable accuracy. Such are the stipulations, findings, or clear inferences. In the O’Connor case, the pay-out of the assigned oil payment right was so assured that the purchaser obtained a $9,990,350 purchase money loan at 3% percent interest without any security other than a deed of trust of the $10,000,000 oil payment right, he receiving 4 percent from the taxpayer. Only a fraction of the oil or sulphur rights were transferred, the balance being retained. Except in the Fleming case, which we will discuss later, cash was received which was equal to the amount of the income to accrue during the term of the assignment, the assignee being compensated by interest on his advance. The substance of what was assigned was the right to receive future income. The substance of what was received was the present value of income which the recipient would otherwise obtain in the future. In short, consideration was paid for the right to receive future income, not for an increase in the value of the income-producing property. “After careful study and considerable experience with the application of G. C. M. 24849, supra, it is now concluded that there is no legal or practical basis for distinguishing between short-lived and long-lived in-oil payment rights. It is, therefore, the present position of the Bureau that the assignment of any in-oil payment right (not pledged for development), which extends over a period less than the life of the depletable property interest from which it is carved, is essentially the assignment of expected income from such property interest. Therefore, the assignment for a consideration of any such in-oil payment right results in the receipt of ordinary income by the assignor which is taxable to him when received or accrued, depending upon the method of accounting employed by him. Where the assignment of the in-oil payment right is donative, the transaction is considered as an assignment of future income which is taxable to the donor at such time as the income from the assigned payment right arises. “Notwithstanding the foregoing, G. C. M. 24849, supra, and I. T. 3935, supra, do not apply where the assigned in-oil payment right constitutes the entire depletable interest of the assignor in the property or a fraction extending over the entire life of the property.” The pre-2946 administrative practice was not reflected in any published ruling or regulation. It therefore will not be presumed to have been known to Congress and incorporated into the law by re-enactment. See Helvering v. N. Y. Trust Co., 292 U. S. 455, 467-468. Cf. United States v. Leslie Salt Co., 350 U. S. 383, 389-397. Moreover, prior administrative practice is always subject to change “through exercise by the administrative agency of its continuing rule-making power.” See Helvering v. Reynolds, 313 U. S. 428, 432. These arrangements seem to us transparent devices. Their forms do not control. Their essence is determined not by subtleties of draftsmanship but by their total effect. See Helvering v. Clifford, 309 U. S. 331; Harrison v. Schaffner, 312 U. S. 579. We have held that if one, entitled to receive at a future date interest on a bond or compensation for services, makes a grant of it by anticipatory assignment, he realizes taxable income as if he had collected the interest or received the salary and then paid it over. That is the teaching of Helvering v. Horst, 311 U. S. 112, and Harrison v. Schaffner, supra; and it is applicable here. As we stated in Helvering v. Horst, supra, at 117, “The taxpayer has equally enjoyed the fruits of his labor or investment and obtained the satisfaction of his desires whether he collects and uses the income to procure those satisfactions, or whether he disposes of his right to collect it as the means of procuring them.” There the taxpayer detached interest coupons from negotiable bonds and presented- them as a gift to his son. The interest when paid was held taxable to the father. Here, even more clearly than there, the taxpayer is converting future income into present income. Second, as to the Fleming case. The Court of Appeals in the Fleming case held that the transactions were tax-free under § 112 (b)(1) which provides: “No gain or loss shall be recognized if property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or-for investment.” 53 Stat. 37. In the alternative and as a second ground, it held that this case, too, was governed by § 117. We agree with the Tax Court, 24 T. C. 818, that this is not a tax-free exchange under § 112 (b) (1). Treasury Regulations 111, promulgated under the 1939 Act, provide in § 39.112 (b) (1)-1 as respects the words “like kind,” as used in § 112 (b) (1), that “One kind or class of property may not ... be exchanged for property of a different kind or class.” The exchange cannot satisfy that test where the effect under the tax laws is a transfer of future income from oil leases for real estate. As we have seen, these oil payment assignments were merely arrangements for delayed cash payment of the purchase price of real estate, plus interest. Moreover, § 39.112 (a)-l states that the “underlying assumption of these exceptions is that the new property is substantially a continuation of the old investment still unliquidated.” Yet the oil payment assignments were not conversions of capital investments, as we have seen. Reversed. An oil and gas lease ordinarily conveys the entire mineral interest less any royalty interest retained by the lessor. The owner of the lease is said to own the “working interest” because he has the right to develop and produce the minerals. In Anderson v. Helvering, 310 U. S. 404, we described an oil payment as “the right to a specified sum of money, payable out of a specified percentage of the oil, or the proceeds received from the sale of such oil, if, as and when produced.” Id., at 410. A royalty interest is “a right to receive a specified percentage of all oil and gas produced” but, unlike the oil payment, is not limited to a specified sum of money. The royalty interest lasts during the entire term of the lease. Id., at 409. See note 1, supra. Boling Dome is a tract composed of various parcels of land. The owners of the royalty interests in sulphur produced from the separate parcels entered into a pooling agreement by which royalties from sulphur produced anywhere in Boling Dome were distributed pro rata among all the royalty interest holders. In that sense was the interest of each “pooled.” Section 117 (a)(1) provides in relevant part: “The term ‘capital assets’ means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close' of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, or property, used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (1), or real property used in the trade or business of the taxpayer.” 53 Stat. 50, as amended, 56 Stat. 846. Section 117 (a) (4) provides: “The term ‘long-term capital gain’ means gain from the sale or exchange of a capital asset held for more than 6 months, if and to the extent such gain is taken into account in computing net income.” 53 Stat. 51, as amended, 56 Stat. 843. Section 117 (b) provides: “In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net capital gain, net capital loss, and net income: “100 per centum if the capital asset has been held for not more than 6 months; Until 1946 the Commissioner agreed with the contention of the taxpayers in these cases that the assignment of an oil payment right was productive of a long-term capital gain. In 1946 he changed his mind and ruled that “consideration (not pledged for development) received for the assignment of a short-lived in-oil payment right carved out of any type of depletable interest in oil and gas in place (including a larger in-oil payment right) is ordinary income subject to the depletion allowance in the assignor’s hands.” G. C. M. 24849, 1946-1 Cum. Bull. 66, 69. This ruling was made applicable “only to such assignments made on or after April 1, 1946,” I. T. 3895, 1948-1 Cum. Bull. 39. In 1950 a further ruling was made that represents the present view of the Commissioner. I. T. 4003, 1950-1 Cum. Bull. 10, 11, reads in relevant part as follows: Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. GORMAN et al. v. SHAFFER OIL & REFINING CO. et al. No. 1083. Circuit Court of Appeals, Tenth Circuit. Dec. 28, 1934. Glenn Alcorn and R. W. Raynolds, both of Tulsa, Okl. (A. S. Wells, of Wewoka, Okl., Bob Howe, and Chai Wheeler, on the brief), for appellants. Hubert. Ambrister, of Tulsa, Okl. (W. H. Francis and A. S. Hardwicke, both of Dallas, Tex., and B. B. Blakeney and W. R. Wallace, both of Oklahoma City, Okl., on the brief), for appellee Magnolia Petroleum Co. Alger Melton, of Chickasha, Old., for appellees Cutlip and Horsley. J. H. Maxey, of Tulsa, Okl. (Gibson, Maxey & Holleman, of Tulsa, Old., on the brief), for appellee Blakeney. Robert M. Rainey, of Oklahoma City, Okl. (W. F. Semple, of Tulsa, Old., and Rainey, Flynn, Green & Anderson, of Oklahoma City, Okl., on the brief), for Deep Rock- Oil Corporation, successor eo nomine to Shaffer Co. Before LEWIS and PHILLIPS, Circuit Judges, and JOHNSON, District Judge. LEWIS, Circuit Judge. On March 20, 1923, Tal Jones, plaintiff below, gave an oil and gas lease to Shaffer Oil & Refining Company, a Delaware corporation, on land in Seminole county, Oklahoma, described as follows: Lot Two (2) and Lot Three (3) less 20 acres for graveyard of Section 32, Township 8, Range 8, and containing 40.57 acres more or less. Oil was discovered by the lessee in September, 1924. In 1929 this suit was instituted by Jones in the state district court in said county, which was removed to the court below. His original petition' is not in the record. After removal he filed an amended petition containing four counts. In addition to jurisdictional facts it is alleged that plaintiff gave said lease reserving one-eighth of the mineral to be produced as royalty; that he was the owner of one-half of said royalty interest from the time oil was discovered in September, 1924, till March 5, 1925; that during that time large amounts of oil had been taken from said land; that the exact amount of accumulated oil runs were not ascertainable by him; that one-half of the royalty interest was his property; that he had not sold or transferred said interest in the oil runs from September 27, 1924, to March 5, 1925; that he did execute a quit claim deed to the land on March 5, 1925; that the original defendant, and Magnolia Petroleum Company, a foreign corporation, and B. B. Blakeney, the latter two being made defendants after the suit was removed,, had withheld his interests in the reserved royalties and converted it to their own use; that he was informed and believed that their withholding was because of purported transfers from him to Blakeney of his royalty interest, which transfer orders were forgeries and a scheme and trick to defraud him out of his property; that he had never received anything for said transfer orders, although he was the owner of half of the royalty interest reserved in said lease. He prayed judgment for the amount thereof. In a second count he prayed for an accounting to ascertain the amount of his interest claimed to have been withheld from him and that a receiver be appointed. In a third count he prayed damages in the sum of $5,000 for the withholding of his said royalty interest. In a fourth count he again alleged that the purported transfers of his interests in said withheld royalties were forgeries; that he had received no consideration therefor, and that the only consideration that had been received by him was the sum of $20,000 for a quit claim deed of date March 5, 1925, and asked judgment for cancellation of said purported transfer orders. The suit was then transferred to the equity side, and plaintiff was given time to recast his pleadings. He then filed an amended petition containing four counts, which are in substance the same as the four counts in his preceding petition. There were no material changes or additions. With leave of court he then filed another amended petition the first paragraph of which is this: Plaintiff “reiterates and realleges all of the material allegations contained in his original petition and amended petitions in as full and complete a manner as if set out verbatim. * * * ” He then alleges that he had seen the purported transfer orders directed to the two defendant companies, and they were forgeries; that he had been defrauded out of his property by means of fraud and collusion on the part of the defendants; that his knowledge of the fraud had been recently obtained; that at the time he executed the quit claim deed to the lahd covered by the lease he only received $20,000, and at that time there was $45,000 or more due the various royalty owners, and he was the owner of half thereof; that he never received any consideration for the purported transfer orders, which he never executed; and he prayed that the transfer orders and all other instruments tending to deprive him of his property be cancelled, and that he have such other and further relief as might seem equitable. By supplemental bill the plaintiff sought recovery not only of the royalties withheld from him up to March S, 1925, but half of the royalties accruing thereafter, and that title in him to the land leased be quieted as against the defendants. Plaintiff verified the facts stated in his pleadings on oath. The defendants by answers denied the allegations of the plaintiff’s petitions generally and in detail. In the answer of defendant Blakeney it is alleged that by a transaction between him and plaintiff on March 5, 1925, through others, he purchased from plaintiff the leased lands and impounded royalties in consideration of $20,000 paid by him to plaintiff; that at the time he made the purchase one Mary Perryman claimed to be the owner of the land and had instituted an action in the state district court for Seminole county for the purpose of recovering the same; that one or more other suits by other parties claiming ownership in the land had been instituted against plaintiff; that plaintiff represented that he was being harassed and annoyed by these claims and suits which prevented him from receiving his claimed half of the royalty interest; that he wished to convert his interest therein into cash and be rid of the vexatious litigation and annoyance that it caused him; that he so informed his attorneys at Wewoka of his intentions, and these representations were made to Blakeney through ■them. It appeared in evidence conclusively, we think, that plaintiff was trying to negotiate a sale of all-his interest to another party for the sum of $16,000. He so informed Cutlip and. Horsley, his attorneys at Wewoka. They undertook to convince him that he should not sell; they told him it was their opinion he would be successful in the litigation that had been instituted against him and in additional litigation that was threatened; that if he insisted on selling he should get more; that if he would wait they would make an effort to get him more than $16,-000; that his interest was worth more. They further testified that they had him bring his two sons to their office in their effort to persuade him not to sell. The sons came with the plaintiff, but the plaintiff in their presence insisted that he wanted to sell. The sons were not called by plaintiffs to deny this. Horsley went to Oklahoma City where he met Blakeney who , then had a small interest in the royalties withheld. After negotiations Blakeney agreed to pay plaintiff $20,000 for the land and his half interest in royalties, Blakeney to assume certain obligations of plaintiff to his attorneys. Cutlip prepared the necessary papers. He drew a contract between plaintiff and Blakeney setting forth the terms of sale. Plaintiff signed the contract, a quit claim deed conveying the land to Blakeney, and assignments to Blakeney of plaintiff’s interest in the royalties held in part by the Magnolia Petroleum Company and in part by the Shaffer Oil and Refining Company. These documents were acknowledged before a notary public by the plaintiff. Plaintiff had a written contract with Cutlip and Horsley by which he engaged them to defend pending and threatened suits attacking his title, and if they should be successful he was to give them a deed to one-fourth of the mineral rights in the land for their services. Blakeney assumed-plaintiff’s obligations to Cutlip and Horsley. After said documents were executed Horsley delivered to plaintiff Blakeney’s check for $20,000, went to the •bank with plaintiff where it was deposited to plaintiff’s credit, and with its proceeds plaintiff immediately purchased United States bonds. Mr. Cutlip testified that he dictated •the instruments just referred to in plaintiff’s presence. The evidence is convincing that no fraud or overreaching or deception was practiced on the plaintiff in the transaction with Blakeney. Blakeney had never met the plaintiff until after the transaction was closed through Horsley. The District Judge in his memorandum and findings of fact said: “There was no fraud or overreaching on the part of the defendant, B. B. Blakeney, nor was there any collusion between Cutlip and Horsley and Blakeney in the transaction.” He said there was not even a fair degree of suspicion. “Plaintiff evidently thought that, regardless of the advice of his attorneys, a net cash sale of $20,000.00 was worth more to him under the circumstances than continued worry and trouble over the defence of the various lawsuits pending and threatened. * * * ” The findings of a Chancellor are presumptively correct [Standard Oil Co. of Colo. v. Standard Oil Co. (C. C. A.) 72 F.(2d) 524, 527, and cases there cited], and our examination of the record convinces that he did not err as to the facts or law. A few words about plaintiff’s title. The land included in the lease had been allotted to James Perryman, a full blood Seminole Indian. Plaintiff claimed as Perry-man’s devisee. Perryman was supposed to have died testate. His will is not in the record, and there is no proof that it was ever proved and established in the court of probate jurisdiction. Impliedly it is conceded that it was not so established. His widow Mary is a full blood Creek Indian. In one of the suits collateral Seminole heirs to James Perryman claimed that he died before statehood; that because thereof his widow, being a full blood Creek Indian, was not his heir; and that the land descended to the nearest Seminole heirs. Oklahoma was admitted as a state November 16, 1907. James Perryman was not living at home at the time of his death. He • left surviving his wife Mary and one child Benjamin, who was born after the execution of the claimed will, and Benjamin died on or about February 1, 1909, leaving surviving him his mother Mary. Mary executed a deed conveying the land in controversy to Tal Jones on August 26, 1909, but the deed was not approved by the county judge, as the statutes required it should be to render it valid, until many years after its execution. Thereafter, July 24, 1915, Mary Perryman executed another deed to Tal Jones, properly approved, conveying the land less twenty acres occupied as Oakwood Cemetery. The grounds on which she, in her suit against plaintiff, repudiated her conveyances are not disclosed in this suit. Blakeney, after he purchased, settled all the litigation against Tal Jones involving title at a cost to him of about $7,000. Thereafter in 1925 Blakeney brought a suit against Mary Perryman and others in the state district court of Seminole county to quiet his title. Tal Jones was made party defendant to that suit, and he filed a disclaimer, signed by himself, to any interest in the property. In the decree in that case the court found and adjudged that Blakeney was the owner in fee of both of said lots except 4.04 acres that was included in an Indian allotment to one Betty Lena. That 4.04 acres lies across the south end of said Lot 3, and is a strip 165 feet in width. The District Court over objections permitted the city of Wewoka in Seminole county to intervene as a party on its petition stating that in 1909 it brought a condemnation suit against Tal Jones and others to condemn twenty acres of said Lot 3 for cemetery purposes; that by error the 4.04 acres allotted to Betty Lena was included as part of the twenty acres; that the error was caused by beginning the survey for the cemetery plot at the southwest corner of said Lot 3 instead of 165 feet north of said corner, and it asked the court below to reform and correct the decree of condemnation of the state court by excluding the Betty Lena 4.04 acres, and by including 4.04 acres on the north side of said condemned plot. Of course, a federal court has no jurisdiction to grant such relief. Folk v. Monsell (C. C. A.) 71 F.(2d) 816, 819. The trial court did not grant the relief sought. It should have dismissed the petition, in fact, refused intervention on the ground stated and also on the ground that it presented a controversy not germane to the suit pending. The decree dismissing plaintiffs bill of complaint, including all supplements and amendments thereto, with prejudice is affirmed. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. NIVENS v. HUDSPETH, Warden. No. 1865. Circuit Court of Appeals, Tenth Circuit. July 17, 1939. Elmer Brock, Jr., of Denver, Colo., for appellant. Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee. Before LEWIS, PLIILLIPS, and BRATTON, Circuit Judges. LEWIS, Circuit Judge. This is an appeal from an order denying a petition for writ of habeas corpus. On October 2, 1936, an indictment was returned against petitioner Nivens and James A. Lovvorn in the United States District Court for the Northern District of Texas containing four counts. The first three counts each charged them with passing counterfeited obligations of the United States, and the fourth count charged conspiracy to pass counterfeited obligations of the United States. Defendants were found guilty on all four counts, and were sentenced to serve a term of seven years on each of the first three counts and two years on the fourth count, sentences to run consecutively. Petitioner attacks the validity of the judgment and sentence on the ground that he was denied the right to have the assistance of counsel for his defense. It is alleged in the petition that petitioner requested that counsel be appointed by the court but no counsel was provided as required by the Constitution of the United States, Amendment 6, U.S.C.A.; that the court, upon request of petitioner, designated W. E. Martin, an attorney of Abilene, Texas, who was representing the codefendant, James Lovvorn, but said Martin refused to represent petitioner and at no time represented him in the process of the trial. Petitioner set forth in his petition a copy of an affidavit by W. E. Martin as follows: “This man (petitioner) was tried for the offense in connection with possessing and passing counterfeit money, October 14, 1936, at Abilene, jointly with one James Lovvorn. “I was retained by, and represented Lovvorn, but I did not represent Nivens and took no part in his defense. Nivens interrogated, for himself, the witnesses at the trial. I do not recall if Nivens made an argument to the jury in his own behalf, but it occurs to me that he did. “I made no argument in his behalf, except so far as a discussion of the evidence, some of which pertained to both defendants, was necessarily applicable to both defendants.” A copy of an affidavit by one W. J. Williams, a juror, is also set forth in the petition. He stated: “Defendant Lovvorn was represented by W. E. Martin, an attorney of Abilene. Nivens conducted his own defense, interrogated for himself, the witnesses. The attorney representing Lovvorn took no part in the defense of Nivens, and made no argument in Nivens’ behalf, except so far as his discussion of the evidence, some of which pertained to both defendants, was necessarily applicable to both defendants.” Three other affidavits were filed in this court by petitioner as exhibits to his brief, and they are not a part of the record. Two of the jurors state they did not hear petitioner request the court to appoint counsel for him. The third has no recollection as to that. Petitioner was represented by an attorney at the hearing in the court below on his petition for writ of habeas corpus. Certified copies of the indictment, the judgment and sentence, the commitment with return of the Marshal, and affidavits by the judge who tried the case, the United States Attorney and his assistant were received in evidence without objection. The United States Attorney for the Northern District of Texas stated in his affidavit that he participated in the trial of Nivens and Lovvorn’ on October 14, 1936, before Hon. T. Whitfield Davidson, United States District Judge, upon the indictment above described, which resulted in the conviction of both defendants on ail counts; that some few minutes before this case was called for-trial, he talked to the defendant, Claud Nivens, in his office in the federal building, Abilene, Texas. “Affiant asked him if he had counsel; he said he did not; he said he did not wish any counsel. Defendant stated he was guilty, but that his codefendant, James A. Lovvorn, was not. * * * The case was called a few minutes later and both Lovvorn and Nivens entered a plea of not guilty. The Court asked the defendant Nivens if he had counsel, and he said he had none; whereupon the Court appointed Mr. W. E. Martin, attorney of Abilene, who was representing the codefendant, James A. Lovvorn, and the defendant Nivens announced that-he did not want any counsel; that he would handle his ' own case. This defendant did conduct his own case and did a good job. He asked various questions and testified in his own behalf and in fact entered a plea of guilty when he got on the witness stand and attempted to assume all responsibility for his codefendant in an effort to acquit him. “ * * * His conduct in this case indicated that he is fairly well versed in court procedure with' reference to criminal cases. I was convinced that the defendant entered his plea of not guilty in order that he might take the witness stand and assume all responsibility in an effort to acquit his codefendant, as we have a rule in this district where a codefendánt enters a plea of guilty, he cannot testify on behalf of his codefendant. Nivens knew this, as well as Lovvorn and his counsel. This-defendant received a fair trial.” - The assistant United States Attorney stated in his affidavit that he was present in court when the case against Nivens and Lovvorn was called," and that he assisted in the trial; that at the time of arraignment the court was advised that Nivens was not represented by counsel; that the court stated he would appoint W. E. Martin as counsel for Nivens; that Nivens immediately informed the court that he did not desire the assistance of counsel, but that he would conduct his own defense; and that during the trial Nivens took the stand after being advised he did not have to testify. Judge Davidson in his affidavit stated he remembered trying the case of United States v. James A. Lovvorn and Claud Nivens; that Lovvorn was represented by counsel of his own selection, and that Nivens preferred to represent himself; that Nivens made it clear to the court that he had more faith in his ability to take care of his case than he would have in a lawyer appointed by the court, and that he waived counsel; that he remembered the case because Nivens predicated his entire defense upon the theory that the Government’s witnesses would not identify him, but they did identify him most positively; that he made it a rule to appoint counsel where he thinks a defendant is not capable of waiving counsel intelligently or where a defendant requests counsel; and that he will not permit a defendant to plead guilty where he suspects the defendant has been influenced by any person in reaching that decision. The validity of a judgment and sentence may be attacked in a habeas corpus proceeding on the ground that the accused was denied his constitutional right to have the assistance of counsel for his defense, but on collateral attack the judgment carries with it a presumption of regularity and may not be lightly set aside. The burden is upon petitioner to convince the court by a preponderance of the evidence that he did not competently and intelligently waive that right. Johnson v. Zerbst, 304 U.S. 4S8, 58 S.Ct. 1019, 82 L.Ed. 1461; Zahn v. Hudspeth, 10. Cir., 102 F.2d 759; , Buckner v. Hudspeth, 10 Cir., 105 F.2d 396, decided June 20, 1939. Petitioner alleged that no counsel was appointed to defend him as he requested, and that W. E. Martin, who represented Lovvorn, refused to represent petitioner although he was appointed by the court. It is significant that Mr. Martin’s affidavit set forth in the petition does not substantiate petitioner’s allegations, — he simply states that he represented Lovvorn and petitioner represented himself at their trial. The affidavit of juror W. J. Williams, also incorporated in the petition, is to the same effect. Mr. Martin would have special knowledge of the facts, if he had refused to-represent petitioner. On the other hand, it forcibly appears from the statements of the trial judge, the United States Attorney and. his assistant that the petitioner declined the assistance of counsel and intelligently waived his right thereto, and that he insisted upon representing himself. The court below did not err in determining that petitioner failed to sustain the burden of proof. The practice of making a preliminary inquiry to determine the propriety of issuing the writ of habeas corpus has been approved. Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Murdock v. Pollock, 8 Cir., 229 F. 392; Zahn v. Hudspeth, 10 Cir., 102 F.2d 759. The order denying the petition for the wirt affrimed Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. U. S. TERM LIMITS, INC., et al. v. THORNTON et al. No. 93-1456. Argued November 29, 1994 Decided May 22, 1995 Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion, post, p. 838. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined, post, p. 845. J. Winston Bryant, Attorney General of Arkansas, pro se, argued the cause for petitioner in No. 93-1828. With him on the briefs were Jeffrey A. Bell, Deputy Attorney General, Ann Purvis and David R. Raupp, Assistant Attorneys General, Griffin B. Bell, Paul J. Larkin, Jr., Richard F. Hatfield, and Cleta Deatherage Mitchell. John G. Kester argued the cause for petitioners in No. 93-1456. With him on the briefs was H. William Allen. Robert H. Bork, Theodore B. Olson, and Thomas G. Hungar filed briefs for Representative Jay Dickey et al., and Edward W. Warren filed briefs for the Republican Party of Arkansas et al., as respondents under this Court’s Rule 12.4. Louis R. Cohen argued the cause for respondents in both cases. With him on the brief for respondents in No. 93-1828 were W. Hardy Callcott, Peter B. Hutt II, and Elizabeth J. Robben. Henry Maurice Mitchell, Sherry P. Bartley, Rex E. Lee, Carter G. Phillips, Ronald S. Flagg, Mark D. Hop-son, Joseph R. Guerra, and Jeffrey T. Green filed a brief for respondent Thornton in No. 93-1456. Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorneys General Dellinger and Hunger, Deputy Solicitor General Bender, Paul R. Q. Wolf-son, and Douglas N. Letter. Together with No. 93-1828, Bryant, Attorney General of Arkansas v. Hill et al., also, on certiorari to the same court. Briefs of amici curiae urging reversal in both cases were filed for the State of Nebraska et al. by Don Stenberg, Attorney General of Nebraska, and L. Steven Grasz, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Gale A Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Robert A Marks of Hawaii, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Scott Harshbarger of Massachusetts, Joseph R Mazurek of Montana, Jeffrey R. Howard of New Hampshire, Lee Fisher of Ohio, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, and Joseph B. Meyer of Wyoming; for the State of Washington by Christine O. Gregoire, Attorney General, Jamas K. Pharris and William B. Collins, Senior Assistant Attorneys General, and Jeffrey T Even, Assistant Attorney General; for Citizens for Term Limits et al. by Ronald A Zumbrun, Anthony T. Caso, Deborah J. La Fetra, and John M. Groen; for the Citizens United Foundation by William J. Olson and John S. Miles; for Congressional Term Limits Coalition, Inc., by John C. Armor and Lowell D. Weeks; for the Mountain States Legal Foundation et al. by William Perry Pendley; for People’s Advocate, Inc., et al. by Jayna P. Karpinski; for the United States Justice Foundation by James V. Lacy; for Virginians for Term Limits et al. by Charles A Shanor, Zachary D. Fasman, Margaret H. Spurlin, and G. Stephen Parker; and for the Washington Legal Foundation et al. by Timothy E. Flanigan, Daniel J. Popeo, and Paul D. Kamenar. Briefs of amici curiae urging reversal in No. 93-1456 were filed for the Alaska Committee for a Citizen Congress et al. by Jeanette R. Burrage; for the Allied Educational Foundation by Bertram R. Gelfand and Jeffrey C. Dannenberg; and for Governor John Engler by Stephen J. Safranek. Briefs of amici curiae urging affirmance in both cases were filed for the American Civil Liberties Union et al. by Kevin J. Hamilton and Steven R. Shapiro; for the California Democratic Party by Daniel H. Lowenstein and Jonathan H. Steinberg; for the League of Women Voters of the United States et al. by Frederic C. Tausend and Herbert E. Wilgis III; and for Henry J. Hyde by Charles A Rothfeld. Justice Stevens delivered the opinion of the Court. The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, §2, cl. 2, which applies to the House of Representatives, provides: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” Article I, §3, cl. 3, which applies to the Senate, similarly provides: “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.” Today’s cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to the “fundamental principle of our representative democracy,” embodied in the Constitution, that “the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 547 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended. I At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a “Term Limitation Amendment,” its preamble stated: “The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials.” The limitations in Amendment 73 apply to three categories of elected officials. Section 1 provides that no elected official in the executive branch of the state government may serve more than two 4-year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2-year terms and no member of the Arkansas Senate may serve more than two 4-year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides: “(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas. “(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas.” Amendment 73 states that it is self-executing and shall apply to all persons seeking election after January 1, 1993. On November 13, 1992, respondent Bobbie Hill, on behalf of herself, similarly situated Arkansas “citizens, residents, taxpayers and registered voters,” and the League of Women Voters of Arkansas, filed a complaint in the Circuit Court for Pulaski County, Arkansas, seeking a declaratory judgment that §3 of Amendment 73 is “unconstitutional and void.” Her complaint named as defendants then-Governor Clinton, other state officers, the Republican Party of Arkansas, and the Democratic Party of Arkansas. The State of Arkansas, through its Attorney General, petitioner Winston Bryant, intervened as a party defendant in support of the amendment. Several proponents of the amendment also intervened, including petitioner U. S. Term Limits, Inc. On cross-motions for summary judgment, the Circuit Court held that §3 of Amendment 73 violated Article I of the Federal Constitution. With respect to that holding, in a 5-to-2 decision, the Arkansas Supreme Court affirmed. U S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S. W. 2d 349, 351 (1994). Writing for a plurality of three justices, Justice Robert L. Brown concluded that the congressional restrictions in Amendment 73 are unconstitutional because the States have no authority “to change, add to, or diminish” the requirements for congressional service enumerated in the Qualifications Clauses. Id., at 265, 872 S. W. 2d, at 356. He noted: “If there is one watchword for representation of the various states in Congress, it is uniformity. Federal legislators speak to national issues that affect the citizens of every state.... The uniformity in qualifications mandated in Article 1 provides the tenor and the fabric for representation in the Congress. Piecemeal restrictions by State would fly in the face of that order.” Ibid. Justice Brown’s plurality opinion also rejected the argument that Amendment 73 is “merely a ballot access amendment,” concluding that “[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service.” Id., at 265-266, 872 S. W. 2d, at 356-357. Justice Brown considered the possibilities that an excluded candidate might run for Congress as a write-in candidate or be appointed to fill a vacancy to be “glimmers of opportunity... [that] are faint indeed — so faint in our judgment that they cannot salvage Amendment 73 from constitutional attack.” Id., at 266, 872 S. W. 2d, at 357. In separate opinions, Justice Dudley and Justice Gerald P. Brown agreed that Amendment 73 violates the Federal Constitution. Two justices dissented from the federal constitutional holding. Justice Hays started from “the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary.” Id., at 281, 872 S. W. 2d, at 367. Because his examination of the text and history of the Qualifications Clauses convinced him that the Constitution contains no express or implicit restriction on the States’ ability to impose additional qualifications on candidates for Congress, Justice Hays concluded that § 3 is constitutional. Special Chief Justice Cracraft, drawing a distinction between a measure that “impose[s] an absolute bar on incumbent succession” and a measure that “merely makes it more difficult for an incumbent to be elected,” id., at 284, 872 S. W. 2d, at 368, concluded that Amendment 73 does not even implicate the Qualifications Clauses, and instead is merely a permissible ballot access restriction. The State of Arkansas, by its Attorney General, and the intervenors petitioned for writs of certiorari. Because of the importance of the issues, we granted both petitions and consolidated the cases for argument. See 512 U. S. 1218 (1994). We now affirm. II As the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members. Twenty-six years ago, in Powell v. McCormack, 395 U. S. 486 (1969), we reviewed the history and text of the Qualifications Clauses in a case involving an attempted exclusion of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl. 1, to judge the “Qualifications of its own Members” includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court, we held that it does not. Because of the obvious importance of the issue, the Court’s review of the history and meaning of the relevant constitutional text was especially thorough. We therefore begin our analysis today with a full statement of what we decided in that case. The Issue in Powell In November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, § 2, cl. 2. The committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278, excluding Powell from membership in the House, and declared his seat vacant. See 395 U. S., at 489-493. Powell and several voters of the district from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, §2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has no “authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.” 395 U. S., at 522 (emphasis in original); see also id., at 547. In reaching that conclusion, we undertook a detailed historical review to determine the intent of the Framers. Though recognizing that the Constitutional Convention debates themselves were inconclusive, see id., at 532, we determined that the “relevant historical materials” reveal that Congress has no power to alter the qualifications in the text of the Constitution, id., at 522. Powell’s Reliance on History We started our analysis in Powell by examining the British experience with qualifications for membership in Parliament, focusing in particular on the experience of John Wilkes. While serving as a member of Parliament, Wilkes had published an attack on a peace treaty with France. This literary endeavor earned Wilkes a conviction for seditious libel and a 22-month prison sentence. In addition, Parliament declared Wilkes ineligible for membership and ordered him expelled. Despite (or perhaps because of) these difficulties, Wilkes was reelected several times. Parliament, however, persisted in its refusal to seat him. After several years of Wilkes’ efforts, the House of Commons voted to expunge the resolutions that had expelled Wilkes and had declared him ineligible, labeling those prior actions “‘subversive of the rights of the whole body of electors of this kingdom.’” Id., at 528, quoting 22 Parliamentary History of England 1411 (1782) (Parl. Hist. Eng.). After reviewing Wilkes’ “long and bitter struggle for the right of the British electorate to be represented by men of their own choice,” 395 U. S., at 528, we concluded in Powell that “on the eve of the Constitutional Convention, English precedent stood for the proposition that ‘the law of the land had regulated the qualifications of members to serve in parliament’ and those qualifications were ‘not occasional but fixed.’” Ibid., quoting 16 Parl. Hist. Eng. 589, 590 (1769). Against this historical background, we viewed the Convention debates as manifesting the Framers’ intent that the qualifications in the Constitution be fixed and exclusive. We found particularly revealing the debate concerning a proposal made by the Committee of Detail that would have given Congress the power to add property qualifications. James Madison argued that such a power would vest “‘an improper & dangerous power in the Legislature,’ ” by which the Legislature “‘can by degrees subvert the Constitution.’” 395 U. S., at 533-534, quoting 2 Records of the Federal Convention of 1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand). Madison continued: “‘A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect.’ ” 395 U. S., at 534, quoting 2 Farrand 250. We expressly noted that the “parallel between Madison’s arguments and those made in Wilkes’ behalf is striking.” 395 U. S., at 534. The Framers further revealed their concerns about congressional abuse of power when Gouverneur Morris suggested modifying the proposal of the Committee of Detail to grant Congress unfettered power to add qualifications. We noted that Hugh Williamson “expressed concern that if a majority of the legislature should happen to be ‘composed of any particular description of men, of lawyers for example,... the future elections might be secured to their own body.’ ” Id., at 535, quoting 2 Farrand 250. We noted, too, that Madison emphasized the British Parliament’s attempts to regulate qualifications, and that he observed: “ ‘[T]he abuse they had made of it was a lesson worthy of our attention.’ ” 395 U. S., at 535, quoting 2 Farrand 250. We found significant that the Convention rejected both Morris’ modification and the Committee’s proposal. We also recognized in Powell that the post-Convention ratification debates confirmed that the Framers understood the qualifications in the Constitution to be fixed and unalterable by Congress. For example, we noted that in response to the antifederalist charge that the new Constitution favored the wealthy and well born, Alexander Hamilton wrote: “‘The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government.... The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.’” 395 U. S., at 539, quoting The Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (emphasis added) (hereinafter The Federalist). We thus attached special significance to “Hamilton’s express reliance on the immutability of the qualifications set forth in the Constitution.” 395 U. S., at 540. Moreover, we reviewed the debates at the state conventions and found that they “also demonstrate the Framers’ understanding that the qualifications for members of Congress had been fixed in the Constitution.” Ibid.; see, e. g., id., at 541, citing 3 Debates on the Adoption of the Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot’s Debates) (Wilson Carey Nicholas, Virginia). The exercise by Congress of its power to judge the qualifications of its Members further confirmed this understanding. We concluded that, during the first 100 years of its existence, “Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.” 395 U. S., at 542. As this elaborate summary reveals, our historical analysis in Powell was both detailed and persuasive. We thus conclude now, as we did in Powell, that history shows that, with respect to Congress, the Framers intended the Constitution to establish fixed qualifications. Powell’s Reliance on Democratic Principles In Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with “an examination of the basic principles of our democratic system.” Id., at 548. We noted that allowing Congress to impose additional qualifications would violate that “fundamental principle of our representative democracy... ‘that the people should choose whom they please to govern them.’” Id., at 547, quoting 2 Elliot’s Debates 257 (A. Hamilton, New York). Our opinion made clear that this broad principle incorporated at least two fundamental ideas. First, we emphasized the egalitarian concept that the opportunity to be elected was open to all. We noted in particular Madison’s statement in The Federalist that “ ‘[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.’ ” Powell, 395 U. S., at 540, n. 74, quoting The Federalist No. 52, at 326. Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it “violated democratic principles” by arguing: “ ‘It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence.’ ” 395 U. S., at 541, quoting 3 Elliot’s Debates 8. Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that “Robert Livingston... endorsed this same fundamental principle: ‘The people are the best judges who ought to represent.them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.’” 395 U. S., at 541, n. 76, quoting 2 Elliot’s Debates 292-293. Similarly, we observed that “[b]efore the New York convention..., Hamilton emphasized: ‘The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.’” 395 U. S., at 540-541, quoting 2 Elliot’s Debates 257. Quoting from the statement made in 1807 by the Chairman of the House Committee on Elections, we noted that “restrictions upon the people to choose their own representatives must be limited to those ‘absolutely necessary for the safety of the society.’” 395 U. S., at 543, quoting 17 Annals of Cong. 874 (1807). Thus, in Powell, we agreed with the sentiment expressed on. behalf of Wilkes’ admission to Parliament: “ ‘That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.’” 395 U. S., at 534, n. 65, quoting 16 Parl. Hist. Eng. 589-590 (1769). Powell thus establishes two important propositions: first, that the “relevant historical materials” compel the conclusion that, at least with respect to qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the “fundamental principle of our representative democracy... ‘that the people should choose whom they please to govern them.’” 395 U. S., at 547. Powell’s Holding Petitioners argue somewhat half-heartedly that the narrow holding in Powell, which involved the power of the House to exclude a Member pursuant to Art. I, § 5, does not control the more general question whether Congress has the power to add qualifications. Powell, however, is not susceptible to such a narrow reading. Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome. See, e. g., id., at 540 (noting “Framers’ understanding that the qualifications for members of Congress had been fixed in the Constitution”). Only two Terms ago we confirmed this understanding of Powell in Nixon v. United States, 506 U. S. 224 (1993). After noting that the three qualifications for membership specified in Art. I, § 2, are of “a precise, limited nature” and “unalterable by the legislature,” we explained: “Our conclusion in Powell was based on the fixed meaning of ‘[qualifications’ set forth in Art. I, § 2. The claim by the House that its power to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’ was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership.” Id., at 237. Unsurprisingly, the state courts and lower federal courts have similarly concluded that Powell conclusively resolved the issue whether Congress has the power to impose additional qualifications. See, e. g., Joyner v. Mofford, 706 F. 2d 1523, 1528 (CA9 1983) (“In Powell..., the Supreme Court accepted this restrictive view of the Qualifications Clause— at least as applied to Congress”); Michel v. Anderson, 14 F. 3d 623 (CADC 1994) (citing Nixon’s description of Powell’s holding); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 122 (1992) (citing Powell for the proposition that “[n]ot even Congress has the power to alter qualifications for these constitutional federal officers”). In sum, after examining Powell’s historical analysis and its articulation of the “basic principles of our democratic system,” we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are “fixed,” at least in the sense that they may not be supplemented by Congress. Ill Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications. Before addressing these arguments, we find it appropriate to take note of the striking unanimity among the courts that have considered the issue. None of the overwhelming array of briefs submitted by the parties and amici has called to our attention even a single case in which a state court or federal court has approved of a State’s addition of qualifications for a Member of Congress. To the contrary, an impressive number of courts have determined that States lack the authority to add qualifications. See, e. g., Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); Eckwall v. Stadelman, 146 Ore. 439, 446, 30 P. 2d 1037, 1040 (1934); Stockton v. McFarland, 56 Ariz. 138, 144, 106 P. 2d 328, 330 (1940); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948); Dillon v. Fiorina, 340 F. Supp. 729, 731 (N. M. 1972); Stack v. Adams, 315 F. Supp. 1295, 1297-1298 (ND Fla. 1970); Buckingham v. State, 42 Del. 405, 35 A. 2d 903, 905 (1944); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 123 (1992); Danielson v. Fitzsimmons, 232 Minn. 149, 151, 44 N. W. 2d 484, 486 (1950); In re Opinion of Judges, 79 S. D. 585, 587, 116 N. W. 2d 233, 234 (1962). Courts have struck down state-imposed qualifications in the form of term limits, see, e. g., Thorsted v. Gregoire, 841 F. Supp. 1068, 1081 (WD Wash. 1994); Stumpf v. Lau, 108 Nev., at 830, 839 P. 2d, at 123, district residency requirements, see, e. g., Hellmann v. Collier, 217 Md. 93, 100, 141 A. 2d 908, 911 (1958); Dillon v. Fiorina, 340 F. Supp., at 731; Exon v. Tiemann, 279 F. Supp. 609, 613 (Neb. 1968); State ex rel. Chavez v. Evans, 79 N. M. 578, 581, 446 P. 2d 445, 448 (1968) (per curiam), loyalty oath requirements, see, e. g., Shub v. Simpson, 196 Md. 177, 199, 76 A. 2d 332, 341, appeal dism’d, 340 U. S. 881 (1950); In re O’Connor, 173 Misc. 419, 421, 17 N. Y. S. 2d 758, 760 (Super. Ct. 1940), and restrictions on those convicted of felonies, see, e. g., Application of Ferguson, 57 Misc. 2d 1041, 1043, 294 N. Y. S. 2d 174, 176 (Super. Ct. 1968); Danielson v. Fitzsimmons, 232 Minn., at 151, 44 N. W. 2d, at 486; State ex rel. Eaton v. Schmahl, 140 Minn. 219, 220, 167 N. W. 481 (1918) (per curiam). Prior to Powell, the commentators were similarly unanimous. See, e. g., 1W. Blackstone, Commentaries, Appendix 213 (S. Tucker ed. 1803) (“[TJhese provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory”); 1 Story § 627 (each Member of Congress is “an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states”); 1 J. Kent, Commentaries on American Law 228, n. a (3d ed. 1836) (“[TJhe objections to the existence of any such power [on the part of the States to add qualifications are]... too palpable and weighty to admit of any discussion”); G. McCrary, American Law of Elections § 322 (4th ed. 1897) (“It is not competent for any State to add to or in any manner change the qualifications for a Federal office, as prescribed by the Constitution or laws of the United States”); T. Cooley, General Principles of Constitutional Law 268 (2d ed. 1891) (“The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state constitutions and laws can neither add to nor take away from them”); C. Burdick, Law of the American Constitution 160 (1922) (“It is clearly the intention of the Constitution that all persons not disqualified by the terms of that instrument should be eligible to the federal office of Representative”); id., at 165 (“It is as clear that States have no more right to add to the constitutional qualifications of Senators than they have to add to those for Representatives”); Warren 422 (“The elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications”). This impressive and uniform body of judicial decisions and learned commentary indicates that the obstacles confronting petitioners are formidable indeed. Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State’s reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications. The “plan of the convention” as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, “it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819). This classic statement by the Chief Justice endorsed Hamilton’s reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate “[a]n entire consolidation of the States into one complete national sovereignty,” but only a partial consolidation in which “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As we have frequently noted, “[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 549 (1985) (internal quotation marks and citation omitted) (emphasis added); see also New York v. United States, 505 U. S. 144, 155-156 (1992). Source of the Power Contrary to petitioners’ assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.... No state can say, that it has reserved, what it never possessed.” 1 Story §627. Justice Story’s position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). In McCulloch, the Court rejected the argument that the Constitution’s silence on the subject of state power to tax corporations chartered by Congress implies that the States have “reserved” power to tax such federal instrumentalities. As Chief Justice Marshall pointed out 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_exhaust	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 would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action?" 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 ex rel. Mitchell LINK and Karen Link, Petitioners-Appellants, v. Michael LANE, Director of the Illinois Department of Corrections, Respondent-Appellee. No. 86-1393. United States Court of Appeals, Seventh Circuit. Argued Nov. 4, 1986. Decided Feb. 18, 1987. Ellen R. Domph, Chicago, 111., for petitioners-appellants. Jack Donatelli, Office of 111., Atty. Gen., Chicago, 111., for respondent-appellee. Before BAUER, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges. BAUER, Chief Judge. Kenneth Glabe was murdered in a remote rural area in Illinois in 1971. Nine years later, a jury convicted Glabe’s ex-wife, Karen Glabe Link and her second husband, Mitchell Link, of the murder. The Links were both sentenced to 35-45 years imprisonment. The instant petition for habeas corpus relief raises the following issues: (1) whether the state court erred in admitting the testimony of Haig’s former girlfriend, Pelletiere; (2) whether the state court erred in admitting evidence of certain non-verbal reactions of Karen Link, and (3) whether trial and appellate counsel were ineffective. For the reasons which follow, we affirm the denial of the Links’ petition for habeas corpus. I. The linchpin of the state’s case against the Links was the testimony of Preston Haig who was hired by Mitchell Link to perform the murder. Haig testified that Mitchell Link was looking for someone to hire to kill his girlfriend’s husband. Haig agreed to do the job. Haig and Mitchell Link then planned the murder whereby Karen Glabe (Link) would feign illness while on a deserted road, while Haig would hide at the designated location prepared to knock Karen Glabe unconscious and murder her husband. Just prior to the murder, Haig told his girlfriend, Jeanine Pelletiere, that he was hired by two lovers to kill the husband of one of the lovers in a remote area. Pelletiere went to the States Attorney’s Office with the information. After the murder, Haig realized that Pelletiere had gone to the authorities and he left town. Haig was picked up in New Mexico several years later and waived extradition to Illinois. Haig pled guilty to the murder of Kenneth Glabe and was sentenced to 14-28 years incarceration in exchange for his plea and his truthful testimony at the Links’ trial. The Links were convicted and the Illinois Appellate Court affirmed. People v. Link, 100 Ill.App.3d 1000, 56 Ill.Dec. 394, 427 N.E.2d 589 (1981). The Links sought and were denied state post-conviction relief. THE CONVERSATION WITH PELLETIERE Haig testified on direct examination that he had discussed the murder plan, prior to its commission, with his girlfriend Jeanine Pelletiere. Pelletiere also testified to the conversation, corroborating Haig’s general testimony as to the particulars of the crime and the fact that it had been committed pursuant to “contract.” Haig and Pelletiere were allowed to testify to the conversation over the hearsay objection of defense counsel. The trial court ruled that the conversation was admissible as non-hearsay attributable to a co-conspirator. The Illinois Appellate Court disagreed, finding that the conversation was not admissible since it was not “in furtherance of the conspiracy.” People v. Link, 100 Ill.App.3d 1000, 1006, 56 Ill.Dec. 394, 398, 427 N.E.2d 589, 593 (1981). The appellate court affirmed the trial court’s ruling, however, on the alternate ground that the conversation could have been admitted as a prior consistent statement. The appellate court found that during the cross-examination of Haig, defense counsel implied that Haig had recently fabricated his testimony and that therefore, the conversation between Haig and Pelletiere was admissible as a prior consistent statement to rebut a charge of recent fabrication. Id. Petitioners do not challenge this ruling, except to the extent that the appellate court’s affirmance on other grounds violated their rights to due process under the circumstances of this case. Although an appellate court may affirm a trial court based on grounds not relied upon by the trial court (See, e.g., People v. Royse, 107 Ill.App.3d 326, 331, 63 Ill.Dec. 30, 35, 437 N.E.2d 679, 684 (1982), rev’d on other grounds, 99 Ill.2d 163, 75 Ill.Dec. 658, 457 N.E.2d 1217 (1983); Chicago Area Recycling Group v. Illinois Commerce Comm’n, 58 Ill.App.3d 769, 773, 16 Ill.Dec. 233, 237, 374 N.E.2d 1008, 1011 (1978)), petitioners claim that a denial of due process results when the basis of the appellate court’s reasoning would not exist but for the erroneous ruling of the trial court. Petitioners argue that they would not have alleged recent fabrication in cross-examining Haig if the trial court had not erroneously ruled that it would let the conversation in as co-conspirator’s statements. Petitioners’ due process claim therefore rests on the proposition that if the trial court had not ruled the conversation admissible as a co-conspirator’s statement, defense counsel would have cross-examined Haig more narrowly — or perhaps not at all. Petitioners assert that “[h]ad the trial judge correctly ruled that Haig’s conversations with Pelletiere were not statements of a co-conspirator in furtherance of a conspiracy, defense counsel clearly aware of the recent fabrication rule, certainly would not have asked any questions suggesting recent fabrication.” (Appellants’ Brief at 10.) We find this assertion implausible and not supported by the record. At the close of the trial defense counsel presented the following statement to the court concerning his cross-examination of Haig: The defense conducted their cross-examination based on [the court’s ruling that the conversation would be admissible as a co-conspirator’s statement] or that portion of evidentiary law which allows the introduction of prior consistent statements; therefore the witness Haig was never inquired of as to the fact that the sentence which he received was the minimum possible under the law at that time. He was never questioned with respect to the fact that the statement given in 1979 contains in his handwriting “This statement is the truth, to the best of my knowledge,” or “To the best of my knowledge this statement is true,” words to that effect. (Tr. 792-793) (emphasis added). Thus, defense counsel was well aware of the possibility that the conversation could come in as prior consistent statements and had structured his cross-examination of Haig to avoid the application of the recent fabrication rule to permit Pelletiere to testify as to the full conversation. The trial court ruled, however, that the cross examination had implied recent fabrication and this ruling is not challenged here. Moreover, on direct appeal, appellate defense counsel argued that Haig’s cross-examination did not create the inference of recent fabrication. Rather than demonstrate that counsel would have acted differently if not for the erroneous ruling, the record shows that defense counsel would have done nothing differently. Haig’s testimony convicted petitioners. The case against the Links turned on whether the jury would believe Haig’s story that Mitchell Link hired him to kill his girlfriend’s husband and that the plot required the complicity of Karen Link. It is inconceivable to us that the defense would not have suggested recent fabrication to attack Haig’s credibility. Petitioners do not allege a different defense tactic and we can think of none. While it is true that Haig testified to the conversation during his direct examination and before defense counsel had suggested recent fabrication, the evidence would have been presented to the jury in any case; the convoluted order of the testimony alone cannot support a claim that petitioners were denied due process of law. Therefore, we find no constitutional violation arising from the Illinois Appellate Court’s affirmance on other grounds. NON-VERBAL STATEMENTS OF KAREN LINK At trial, Lake County Sheriff’s Policeman Louis Harceg testified, without objection, that when he told Karen Glabe Link that Kenneth Glabe was alive, she was startled. Since Harceg knew at the time that Kenneth Glabe was in fact dead, Karen Link contends that his deliberate lie was designed to elicit an incriminating response and that the reaction was admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Similarly, petitioner Karen Link objects to the trial court’s admission of testimony that Karen Link showed no reaction when she was taken to the morgue just hours after the murder, and showed Kenneth Glabe’s uncleaned corpse. The district court found that petitioners had waived the arguments by failing to object to the testimony at trial. The failure to object at trial is a procedural default which precludes subsequent review unless the petitioner can show “cause” and “prejudice” for the default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner Karen Link contends that the district court erred in relying on defense counsel’s waiver of the objection at trial, because the Illinois Appellate Court addressed the merits of petitioner’s claim. A state may excuse a procedural default by addressing the claim on its merits. See, e.g., County Court of Ulster County v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979); United States ex rel. Merneigh v. Greer, 772 F.2d 322, 325-26 (7th Cir.1985). Here, however, both trial and appellate counsel for the defense failed to raise the issue, constituting a double procedural default. It was not until petitioners filed their state petition for post-conviction relief that the admission of Karen Glabe’s non-verbal statements was questioned. Then, as now, the merits of the contention were addressed only to determine whether Karen Glabe had waived her right to present such claims and whether she was denied effective assistance of counsel. The State did not, therefore, excuse the procedural default and petitioner must still show “cause” and “prejudice” for the failure to object. Petitioner cannot demonstrate prejudice from counsel’s failure to object unless there is a legally supportable argument for excluding the statements. Thus, for the limited purpose of determining whether petitioner can show prejudice from the failure to object at trial, we examine the merits of petitioner’s claim. Petitioner claims that testimony regarding her “startled” response on hearing that her husband was alive, and her lack of emotion upon seeing her husband’s corpse were introduced into evidence in violation of her Miranda rights. Miranda deals only with “the admissibility of statements obtained from an individual who is subjected to custodial police interrogation.” Id., 384 U.S. at 439, 86 S.Ct. at 1609. Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612; Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977). Coercive police activity is “a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, — U.S. —, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Just after the murder, Officer Harceg met Karen Link at Zion Hospital and engaged her in conversation. Karen Link was not under arrest at that point nor is there evidence that her freedom was restricted in any way. Similarly, there is no evidence in the record that Karen Link’s trip to the morgue was coerced in any way. Therefore no objection based on petitioner’s Miranda rights would have been sustained. Because petitioner’s argument on the merits is unsupportable, she cannot show prejudice resulting from counsel’s failure to raise the issue earlier. Her objection to the admission of the testimony is rejected. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner’s final contention is that trial and appellate counsel were ineffective. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To warrant reversal of their convictions, petitioners must show (1) that counsel’s representation fell below an objective standard of reasonableness and (2) that petitioners were prejudiced by trial counsel’s failure. Id. at 687-88, 104 S.Ct. at 2064-65. Petitioners allege four errors to support their claim of ineffective assistance of trial counsel. We will address each separately. First, petitioners allege that trial counsel was ineffective in not moving to recuse Judge McQueen. Petitioners claim that Supreme Court Rule 67 mandated recusal. The relevant portion of the rule provides that “[a] judge shall not participate in any case in which he has previously acted as counsel.” Ill.Ann.Stat. ch. 110A, para. 67(c) (Smith-Hurd 1985). While an assistant state’s attorney, Judge McQueen appeared before the grand jury investigating Karen and Mitchell Link. Judge McQueen had no independent recollection of having appeared before the grand jury. He had apparently assisted in the preparation of a memorandum which was inspected by trial counsel. Trial counsel determined that the memorandum was innocuous and that there was no need for Judge McQueen’s recusal; he therefore waived any objection to Judge McQueen presiding over the case. The memorandum in question has since been lost. Rule 67(c) does not allow waiver of recusal by counsel. If the judge acted “as counsel”, recusal is mandatory. In denying post-conviction relief, the Illinois Appellate Court found that petitioners had not shown that Judge McQueen acted as counsel. The federal district court agreed and rejected petitioners’ ineffective counsel claim based on recusal. Petitioners have presented no authority to support their position that Judge McQueen’s minor participatory role amounted to acting “as counsel” under the terms of Illinois Supreme Court Rule 67(c) and we have found none. Illinois courts have rejected the rule that recusal is mandatory “if the trial judge was in any way associated with the case.” People v. Lipa, 109 Ill.App.3d 610, 613, 65 Ill.Dec. 207, 209, 440 N.E.2d 1062, 1064 (1982); see also People v. Burnett, 73 Ill.App.3d 750, 754, 29 Ill.Dec. 678, 681, 392 N.E.2d 235, 238 (1979). Judge McQueen’s participation in the grand jury proceedings appears minimal. He disavowed any memory of the case. Trial counsel made adequate inquiry into the facts surrounding Judge McQueen’s prior participation in the case and determined not to pursue recusal. There is nothing in the record to support a determination that the lost memorandum was anything but innocuous. More importantly, petitioners can show no prejudice resulting from trial counsel’s failure to seek recusal. The Illinois Appellate Court addressed the issue and found that Judge McQueen had not acted as counsel. Had trial counsel doggedly pursued recusal the result would have been the same. Hence, we cannot find ineffective assistance of counsel based on trial counsel’s failure to move for recusal. Next, petitioners contend that trial counsel was deficient in not moving for a change of venue, in failing to move to have the jury sequestered and in failing to have the voir dire examinations transcribed. All of these errors are based on petitioners’ contention that trial publicity was so extensive as to cause the jurors to be biased against petitioners. To find that trial counsel was ineffective we would have to find that the facts then available would have caused a reasonable attorney to move for a change of venue, sequester the jury and transcribe the voir dire, and that the failure to do so prejudiced petitioners. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. The publicity surrounding the trial was not so extensive as to warrant a change of venue. Mere adverse pretrial publicity is not sufficient to show bias. People v. Gendron, 41 Ill.2d 351, 243 N.E.2d 208 (1968), cert. denied, 396 U.S. 889, 90 S.Ct. 179, 24 L.Ed.2d 164 (1969); People v. Knippenberg, 70 Ill.App.3d 496, 26 Ill.Dec. 805, 388 N.E.2d 806 (1979). Petitioners showed that eleven adverse newspaper articles were published in the area over a six-month period of time. This is not the extensive publicity which deprived the defendants of a fair trial in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), both heavily relied on by petitioners. Most destructive to petitioners’ claim is that the most recent pretrial article appeared a full eight months before trial. These facts would not lead a reasonable attorney to move for change of venue and petitioners have not shown that the newspaper articles actually biased any juror. Petitioners claim they are hamstrung in their efforts to show actual bias of the jurors because trial counsel never had the voir dire transcribed. Failure to transcribe a portion of the record is not, in itself, ineffective assistance of counsel in the absence of any showing that the transcription would have revealed some impropriety. As the district court noted, petitioners themselves were present during the voir dire but have not presented one specific allegation of a suspect response or question on which to base a belief that a single juror was biased. We simply cannot find that counsel should have moved to change venue or directed the transcription of the voir dire based on this record. Similarly, we cannot find that counsel was inadequate for failing to move to have the jury sequestered during trial. The trial court often admonished the jury to avoid reading newspaper articles or listening to radio reports regarding the trial. Petitioners have shown only that one newspaper story appeared each day for the duration of the trial. They have not shown that the court’s admonitions were inadequate or that any juror disregarded those admonitions. We therefore find no basis for concluding that trial counsel’s conduct fell below a minimum standard of competency. Petitioners also allege that their appellate counsel was ineffective for failing to raise (1) the improper admission of Karen Link’s non-verbal statements, (2) the recusal of Judge McQueen and (3) the ineffective assistance of trial counsel. Because we have not found any of these issues to be viable, we find no support for this claim. The judgment of the district court is Affirmed. . Petitioners’ inability to show prejudice from trial counsel’s failure to object similarly dooms her argument that trial counsel was ineffective in failing to object. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Petitioners contend that the district court should have held a hearing to determine the competency of counsel. This is not required when competency can be determined as a matter of law. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. Question: Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_bus	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 "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. Calvin Roderick CARMICHAEL, Plaintiff-Appellant, v. BIRMINGHAM SAW WORKS, Defendant-Appellee. No. 85-7665. United States Court of Appeals, Eleventh Circuit. April 13, 1987. Robert L. Wiggins, Gordon, Silberman, Wiggins & Childs, Birmingham, Ala., for plaintiff-appellant. James W. May, Gulf Shores, Ala., for defendant-appellee. Before HILL and HATCHETT, Circuit Judges, and THOMAS , Senior District Judge. Honorable Daniel H. Thomas, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation. PER CURIAM: In this Title VII employment discrimination case, we review the district court’s ruling on attorney’s fees. Finding that the district court failed to follow the mandate of this court in a prior appeal, we vacate the judgment and remand the case. Procedural History This is the second appeal arising out of a claim of racial discrimination filed by Calvin Roderick Carmichael against Birmingham Saw Works (Birmingham Saw). Carmichael, a black man, filed this action on February 14, 1979, alleging disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1976 and Supp. V. 1981). The district court rejected Carmichael’s claim of discrimination in hiring and promotions, but found that Birmingham Saw violated Title VII by starting him at a lower wage than that paid to white beginning employees. After a hearing, the district court awarded Carmichael $1,211.50, plus interest, in damages, and $5,400 in attorney’s fees. On appeal, we remanded for further proceedings on the hiring and promotion claims. Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984) (Carmichael I). We also concluded that remand was appropriate on the attorney’s fee issue because the district court failed to identify the hours it disallowed and failed to explain why it disallowed them. Carmichael I at 1139. After retrial, the district court ruled for Carmichael on the remanded claims and entered a judgment awarding him $20,-513.69 in backpay. Carmichael filed a motion for attorney’s fees and expenses, and the district court set the matter for hearing before a United States Magistrate. The court also entered an order requiring that Carmichael set forth an itemized statement of fees and expenses within thirty days, and requiring that Birmingham Saw raise any objections to Carmichael’s statement within twenty days. Pursuant to the order, Carmichael timely filed an itemized statement of fees and expenses, but Birmingham Saw did not file an objection. At the hearing, three lawyers testified that they had examined the hours Carmichael’s attorneys expended in the case and found them to be reasonable. Birmingham Saw did not dispute their testimony. On the basis of this evidence, the magistrate found: (1) that the time and labor required to handle the case was not an issue because Carmichael presented a detailed affidavit and Birmingham Saw did not respond; (2) that Carmichael’s attorneys were exceptionally skilled in Title VII practice, and this skill should be a factor in determining the hourly rate; (3) that the hourly rate from 1979 through 1981 was $75 per hour, from 1982 through July, 1984, $90 per hour, from July, 1984, through March 30, 1985, $100 per hour, and from March 30, 1985, to the present, $110 per hour; (4) that the fee was contingent; (5) that the base noncontingent fee should be enhanced due to delay; and (6) that excellent results were obtained. Based on these findings, the magistrate recommended an unenhanced lodestar amount of $25,834. The magistrate recommended that the lodestar amount be enhanced to $31,042.40 due to the contingency arrangement and delay. The magistrate filed his Report and Recommendation on August 20, 1985; it provided that objections had to be filed within ten days. No objection was filed. Notwithstanding Birmingham Saw’s failure to object to the magistrate’s report and recommendation, the district court reduced the recommended fee by 25-percent to $23,-282.25, and held that it found no basis for enhancing the award. Discussion On this appeal, Carmichael contends that the 25-percent reduction in compensable hours expended was improper because the district court failed to identify the hours disallowed and failed to explain why it disallowed them as this court mandated on the prior appeal. Carmichael also contends that the district court erred by refusing to enhance the award to account for delay. Birmingham Saw contends that the district court adequately explained its disallowance of hours and articulated legitimate reasons for refusing to enhance the award. A. Reduction in Compensable Hours Expended On the first appeal in this case, we vacated and remanded because we found that the district court failed to adequately explain how it evaluated the factors it was required to consider. In remanding the case to the district court for further proceedings, we noted that, without such explanations, the district court’s findings were impossible to review: The district court is of course empowered to disallow hours it finds excessive or unnecessary. But ‘[i]f the court finds the number of hours excessive, it should identify the hours disallowed and explain why it is disallowing them.’ Fitzpatrick v. Internal Revenue Service, 11 Cir. 1982, 665 F.2d 327, 332. Otherwise, we have no way of reviewing the decision. Johnson v. University College, 11 Cir. 1983, 706 F.2d 1205, 1207-08, cert. denied, 1983, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684. Carmichael at 1137. The district court acknowledged its understanding of our directions to identify the hours disallowed; it refused to do so because, in its view, such a “burden” was “impracticable.” After specifically identifying some “questionable” hours, the district court concluded that “a degree of ex-cessiveness permeates all the claimed hours.” Accordingly, the district court reduced the magistrate’s recommended fee award by 25-percent, stating that its action was based on “common sense and twenty-three years as a lawyer and five and a half years as a judge.” We find the district court’s “explanation” inadequate and its order insufficient; we are no more able to review the disallowance of attorney’s fees based on judicial intuition, than we are able to review an award based on nothing at all. Given the Fitzpatrick v. Internal Revenue Service, standard, we can seldom, if ever, countenance an across-the-board reduction as ordered by the district court in this case. It is difficult to understand why the district court insisted on reducing the award in this case without adequate explanation when Birmingham Saw never contested the award — even when explicitly offered the opportunity to do so. As we stated in King v. McCord, 707 F.2d 466, 468 (11th Cir.1983), “A trial judge cannot substitute his own judgment for uncontradicted evidence, without explanation and record support.” (Citing Marable v. Walker, 704 F.2d 1219 (11th Cir.1983) (“this court has consistently required district courts to conduct evidentiary hearings [citation omitted] and to enter specific findings of fact and conclusions of law in rendering fee awards where disputes cannot be otherwise resolved.”)) Thus, we are compelled to vacate and remand once again. On remand, the district court shall enter an order adopting the magistrate’s fee award recommendation. The appellant urges that we adjust the lodestar amount upward due to the delay in its payment. We decline to do so. REVERSED and REMANDED . The magistrate used the following matrix to arrive at the lodestar: . On the first appeal we remanded "reluctantly” because we felt Carmichael’s attorneys contributed to the district court’s deficiencies by failing to set forth a precise and explicit fee request. On remand, however, Carmichael's attorneys entered a detailed affidavit in support of attorney’s fees and meticulously itemized the hours expended. Thus, Carmichael, at least, has heeded our admonition to "produce a record of adequate detail to permit meaningful and efficient review.” Carmichael I at 1139. . The district court disagreed with the magistrate’s conclusion that Birmingham Saw did not contest the award. At the conclusion of the hearing, Birmingham Saw’s attorney stated: I would ask the court to temper your decision with reasonableness ... I have no idea that the court would award the total amount that Mr. Wiggins asks for because, as I say, I believe it’s outrageous____ I am sure the court understands the position of unsuccessful defendants in such cases as this where it is difficult and it is distasteful to contest an attorney’s fee application. In our view, however, Birmingham Saw cannot be said to have "contested" the award based on this general statement. Contesting in this context entails putting on evidence to rebut the claimed entitlement to compensation. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_issue_8	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. FEDERAL TRADE COMMISSION v. TRAVELERS HEALTH ASSOCIATION. No. 51. Argued December 10, 1959. Decided March 28, 1960. Charles H. Weston argued the cause for petitioner. With him on the brief were Acting Solicitor General Davis, Acting Assistant Attorney General Bicks, Daniel J. McCauley, Jr. and Alan B. Hobbes. C. C. Fraizer argued the cause and filed a brief for respondent. Clarence S. Beck, Attorney General of Nebraska, filed a brief, as amicus curiae, urging affirmance. The following States joined in this brief: Alabama, by MacDonald Gallion, Attorney General; Arkansas, by Bruce Bennett, Attorney General; California, by Stanley Mosk, Attorney General; Colorado, by Duke W. Dunbar, Attorney General; Florida, by Richard W. Ervin, Attorney General; Indiana, by Edwin K. Steers, Attorney General; Iowa, by Norman A. Erbe, Attorney General; Kansas, by John Anderson, Jr., Attorney General; Kentucky, by Jo M. Ferguson, Attorney General; Louisiana, by Jack P. F. Gremillion, Attorney General; Maine, by Frank A. Hancock, Attorney General; Maryland, by C. Ferdinand Sybert, Attorney General; Massachusetts, by Edward J. McCormack, Jr., Attorney General; Michigan, by Paul L. Adams, Attorney General; Nevada, by Roger D. Foley, Attorney General; New Hampshire, by Louis C. Wyman, Attorney General; New York, by Louis J. Lefkowitz, Attorney General; North Carolina, by Malcolm B. Sea-well, Attorney General; North Dakota, by Leslie Bur-gum, Attorney General; Ohio, by Mark McElroy, Attorney General; South Carolina, by Daniel R. McLeod, Attorney General; South Dakota, by Parnell J. Donohue, Attorney General; Tennessee, by George F. McCanless, Attorney General; Texas, by Will’ Wilson, Attorney General; Utah, by Walter L. Budge, Attorney General; Vermont, by Frederick M. Reed, Attorney General; and Virginia, by A. S. Harrison, Jr., Attorney General. Briefs of amici curiae urging affirmance were also filed by Grenville Beardsley, Attorney General of Illinois; and by Whitney North Seymour for the Health Insurance Association of America et al. Mr. Justice Stewart delivered the opinion of the Court. Section 2 (b) of the MeCarran-Ferguson Act provides that “[T]he Federal Trade Commission Act, . . . shall be applicable to the business of insurance to the extent that such business is not regulated by State law.” The State in which the respondent is incorporated prohibits unfair or decéptive practices in the insurance business there or “in any other state.” The question presented is whether the respondent’s interstate mail order insurance business is thereby “regulated by State law” so as to insulate its practices in commerce from the regulative authority of the Federal Trade Commission. The respondent, a Nebraska corporation, is engaged in the business of selling health insurance. Licensed only in the States of Nebraska and Virginia, the respondent sells no policies through agents, but from its office in Omaha transacts business by mail with residents of every State. It solicits business by mailing circular letters to prospective buyers recommended by existing policyholders. All business is carried on by direct mail from the Omaha office; it is from there that policies are issued, and there that premiums are paid and claims filed. A Nebraska statute provides: “No person shall engage in this state in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance. No person domiciled in or resident of this state shall engage in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance in any other state, territory, possession, province, country, or district.” The Court of Appeals set aside a cease-and-desist order of the Federal Trade Commission prohibiting the respondent from making certain statements and representations in its circular letters found by the Commission to be misleading and deceptive in violation of the Federal Trade Commission Act. 15 U. S. C. § 45. The court concluded that “[w]ith every activity of the [respondent], in the conduct of its business, subject to the supervision and control of the Director of Insurance of Nebraska, we think that the [respondent’s] practices in the solicitation of insurance by mail in Nebraska or elsewhere reasonably and realistically cannot be held to be unregulated by State law.” The court accordingly decided that the Commission was “without authority to regulate the practices of the [respondent] in soliciting insurance.” 262 F. 2d 241, 244. Judge Yogel dissented, stating his belief that it was “impractical and ineffective” to “force the citizens of other states to rely upon Nebraska’s regulation of the long distance advertising practices of the [respondent] in the promotion and sale by mail or otherwise of insurance outside the State of Nebraska.” It was his view that Nebraska’s regulation of deceptive practices “in any other state” is not “the kind of regulation by state law Congress had in mind” in enacting the McCarran-Ferguson Act. 262 F. 2d 241, 245. Certiorari was granted, 359 U. S. 988, to resolve an important question left undecided in Federal Trade Comm’n v. National Casualty Co., 357 U. S. 560. In that case the issue involved the effect of state laws regulating the advertising practices of insurance companies which were licensed to do business within the States and which were engaged in advertising programs requiring distribution of material by local agents. In those circumstances the Court found there was “no question but that the States possess ample means to regulate this advertising within their respective boundaries.” 357 U. S., at 564. It was held that § 2 (b) of the McCarran-Ferguson Act “withdrew from the Federal Trade Commission the authority to regulate respondents’ advertising practices in those States which are regulating those practices under their own laws.” 357 U. S., at 563. The Court expressed no view as to “the intent of Congress with regard to interstate insurance practices which the States cannot for constitutional reasons regulate effectively . . . .” 357 U. S., at 564. The question here is thus quite different from that presented in National Casualty. In this case the state regulation relied on to displace the federal law is not the protective legislation of the States whose citizens are the targets of the advertising practices in question. Rather, we are asked to hold that the McCarran-Ferguson Act operates to oust the Commission of jurisdiction by reason of a single State’s attempted regulation of its domiciliary’s extraterritorial activities. But we cannot believe that this kind of law of a single State takes from the residents of every other State the protection of the Federal Trade Commission Act. In our opinion the state regulation which Congress provided should operate to displace this federal law means regulation by the State in which the deception is practiced and has its impact. The McCarran-Ferguson Act was passed in 1945. Its basic purpose was to allay doubts, thought to have been raised by this Court’s decision of the previous year in United States v. South-Eastern Underwriters Assn., 322 U. S. 533, as to the continuing power of the States to tax and regulate the business of insurance. See Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 429-433; Maryland Casualty Co. v. Cushing, 347 U. S. 409, 413; Securities & Exchange Comm’n v. Variable Annuity Co., 359 U. S. 65, 99 (dissenting opinion). The original bills as passed by both the Senate and the House would have made the Federal Trade Commission Act completely inapplicable to the insurance business. S. 340, 79th Cong., 1st Sess., 91 Cong. Rec. 478-488, 1085, 1093-1094. During the debate in the House, however, several members objected to the provision exempting the business of insurance from this federal statute (91 Cong. Rec. 1027-1028, 1086, 1089, 1092-1093), and Representative Sum-ners, Chairman of the House Judiciary Committee, stated that in conference he would support an amendment which would make the Federal Trade Commission Act applicable to the same extent as the Sherman and Clayton Acts. 91 Cong. Rec. 1093. Thus it was that § 2 (b) in the form finally enacted first appeared as a recommendation of the Conference Committee of the two Houses. H. R. Conf. Rep. No. 213, 79th Cong., 1st Sess. Since the House accepted the Conference Report without debate, 91 Cong. Rec. 1396, the only discussion of § 2 (b) in its present form occurred in the Senate. Yet, from that somewhat limited debate, as well as the earlier debate in both Houses as to the effect of the Sherman and Clayton Acts, it is clear that Congress viewed state regulation of insurance solely in terms of regulation by the law of the State where occurred the activity sought to be regulated. There was no indication of any thought that a State could regulate activities carried on beyond its own borders. Thus the report on the original House bill stated: “It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. Louisiana (165 U. S. 578), St. Louis Cotton Compress Co. v. Arkansas (260 U. S. 346), and Connecticut General Insurance Co. v. Johnson (303 U. S. 77), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or domiciled therein covering risks within the State or to regulate such transactions in any way.” (H. R. Rep. No. 143, 79th Cong., 1st Sess. 3.) Significantly, when Senator McCarran presented to the Senate the bill agreed to in conference, he began by reading most of the foregoing quotation from the original House Report as part of his explanation of the bill. 91 Cong. Rec. 1442. The ensuing Senate debate centered around §2(b). The three Senate conferees, Senators McCarran, O’Mahoney, and Ferguson, repeatedly emphasized that the provision did not authorize state regulation of extraterritorial activities. See, e. g., 91 Cong. Rec. 1481, 1483, 1484. Typical is the following statement by Senator O’Mahoney: “When the moratorium period passes, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act come to life again in the field of interstate commerce, and in the field of interstate regulation. Nothing in the proposed law' would authorize a State to try to regulate for other States, or authorize any private group or association to regulate in the field of interstate commerce.” 91 Cong. Rec. 1483. Not only this specific legislative history, but also a basic motivating policy behind the legislative movement that culminated in the enactment of the McCarran-Ferguson Act serve to confirm the conclusion that when Congress provided that the Federal Trade Commission Act would be displaced to the extent that the insurance business was “regulated” by state law, it referred only to regulation by the State where the business activities have their operative force. One of the major arguments advanced by proponents of leaving regulation to the States was that the States were in close proximity to the people affected by the insurance business and, therefore, were in a better position to regulate that business than the Federal Government. See, e. g., 91 Cong. Rec. 1087; 90 Cong. Rec. 6532. Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 1362, H. R. 3269, H. R. 3270, 78th Cong., 1st Sess. 17, 37, 117, 238-239, 242-243, 244, 252. Such a purpose would hardly be served by delegating to any one State sole legislative and administrative control of the practices of an insurance business affecting the residents of every other State in the Union. This Court has referred before to the “unwisdom, unfairness and injustice of permitting policyholders to seek redress only in some distant state where the insurer is incorporated.” Travelers Health Assn. v. Virginia, 339 U. S. 643, 649. Because of our view as to the meaning of § 2 (b) of the McCarran-Ferguson Act, we do not need to consider the constitutional questions that might arise as to the applicability of the Nebraska statute to misrepresentations made to residents of other States. Compare Alaska Packers Assn. v. Industrial Accident Commission, 294 U. S. 532; Western Union Telegraph Co. v. Brown, 234 U. S. 542; Sligh v. Kirkwood, 237 U. S. 52. Suffice it to note that the impediments, contingencies, and doubts which constitutional limitations might create as to Nebraska’s power to regulate any given aspect of extraterritorial activity serve only to confirm the reading we have given to § 2 (b) of the Act. It follows that the judgment of the Court of Appeals must be vacated, and the case remanded to that court for further proceedings consistent with the views expressed in this opinion. Vacated and remanded. The here pertinent portions of the McCarran-Ferguson Act are as follows: “That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States. “Sec. 2. (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. “(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose, of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, . . . the Sherman Act, . . . the Clayton Act, and . . . the Federal Trade Commission Act, . . . shall be applicable to the business of insurance to the extent that such business is not regulated by State law. . . 59 Stat. 33, as amended, 61 Stat. 448. Section 44-1503 of Reissue Revised Statutes of Nebraska, 1943, as amended by the Emergency Act of May 14, 1957, Laws of Nebraska, 1957, c. 191, § 2. This provision is part of the Nebraska “Unfair Competition and Trade Practices” Act of 1947, as amended. (§§ 44-1501 to 44-1521, Reissue Revised Statutes of Nebraska, 1943, 1957 Cumulative Supplement, Laws of Nebraska, 1957, c. 191.) Other provisions of the Act empower the Director of Insurance (1) to prefer charges against any such insurer if he has reason to believe that it has, in Nebraska or elsewhere, engaged “in any unfair or deceptive act or practice in the conduct of such business,” and to give the insurer notice of a hearing on the charges (§44-1506); (2) to take evidence at the hearing (§ 44-1507); and (3) to issue a cease-and-desist order if he determines that the insurer has engaged in the wrongful acts and practices with which it is charged (§44-1509). This basic difference was effectively emphasized in Commissioner Gwynne’s separate opinion concurring in the Commission’s action in the present proceeding. He pointed out that he had dissented from the Commission’s assumption of jurisdiction in the American Hospital proceeding, where the “insurance company operated exclusively through agents in various states, in which it was duly licensed under the respective state laws,” where “every such state had adopted the Model Code, or equivalent legislation,” and where the “advertising practice complained of involved bundles of advertising matter mailed from the home office to the company’s agents in the several states and disseminated there by such agents.” 53 F. T. C. 548, 558-559. (Commissioner Gwynne’s view as to the Commission’s lack of jurisdiction in the American Hospital proceeding was ultimately upheld here in Federal Trade Comm’n v. National Casualty Co., 357 U. S. 560, which disposed of both the order against National Casualty Company and the order against American Hospital & Life Insurance Company.) In the present case, by contrast, Commissioner Gwynne pointed out that the respondent was making representations to induce sales of insurance in States where it was not licensed and had no agents. He concluded that “this type of law (that is, a law purporting to protect the people of another state from deceptive advertising) can hardly be said to be the type of law referred to in Section 2 (b) of the McCarran Act. Section 2 (b) makes the Federal Trade Commission Act applicable to the business of insurance to the extent that such business is not regulated by state law. I think this refers to the laws of the state whose citizens are being affected by the advertising and not to laws of some other state operating extra-territorially.” 53 F. T. C. 548, 563. Commissioner Gwynne, as a member of Congress, participated in the debates leading to the passage of the McCarran-Ferguson Act, 91 Cong. Rec. 1089, 1090. See also 90 Cong. Rec. 6534-6536. The respondent has argued in this Court that the Federal Trade Commission lacked jurisdiction because the respondent’s advertising practices are regulated not only by Nebraska, but also by “all other states” in which the respondent conducts its mail order business. To this the petitioner replies that (1) the respondent did not raise this argument before the Commission and, therefore, has waived it; (2) the statutes of the “other” States do not purport to apply to misrepresentations mailed to their residents by unlicensed, nonresident insurance companies having no local agents; and (3) even if these state statutes purported to be applicable to misrepresentations by such insurers, there still would not be regulation by state law within the meaning of the § 2 (b) proviso because the statutes could not be effectively enforced against the respondent. The Court of Appeals gave no consideration to the effect of “regulation” by any State other than Nebraska. In accord with accepted principles, we decline to consider these issues on the present record, leaving them “to be considered for what they are worth by the court below, if duly presented and relied upon Marconi Wireless Co. v. Simon, 246 U. S. 46, 57. See Tunstall v. Brotherhood, 323 U. S. 210, 214; United States v. Beach, 324 U. S. 193, 196; Federal Communications Comm’n v. WJR, 337 U. S. 265, 285. While the appeal in South-Eastern Underwriters was pending here, there had been abortive attempts in the Seventy-eighth Congress to immunize the business of insurance from the federal antitrust laws. See H. R. 3270, S. 1362, 78th Cong., 1st Sess.; H. R. Rep. No. 873, 78th Cong., 1st Sess.; 89 Cong. Rec. 7686, 10532, 10659-10664. Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. A. B. WILLIAMS, Appellant, v. CITY OF WICHITA, KANSAS, a municipal corporation; and Robert V. Smrha, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, Appellees. No. 6258. United States Court of Appeals Tenth Circuit. May 23, 1960. Kenneth G. Speir, Newton, Kan. (Vernon A. Stroberg, Herbert H. Size-more and Richard F. Hrdlicka, Newton, Kan., on the brief), for appellant. Richard E. Pringle, Asst. Atty. Gen., State of Kansas, and Warden L. Noe, Sp. Asst. Atty. Gen., State of Kansas (John Anderson, Jr., Atty. Gen., State of Kansas, on the brief), for appellee R. V. Smrha, Chief Engineer of Division of Water Resources, Kansas State Board of Agriculture. Robert B. Morton, Wichita, Kan. (Fred W. Aley, Wichita, Kan., on the brief), for appellee City of Wichita, Kan. Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge. BREITENSTEIN, Circuit Judge. This case is here for the second time. The first appeal involved action by the trial court in sustaining motions to dismiss the complaint. This court, on January 26, 1956, remanded the case with directions that “action upon such motions be held in suspense for a reasonable time to await determination in the state courts of important questions of state law involved herein.” On October 1, 1959, the trial court again examined the matter and held that: (1) more than a reasonable time had elapsed since the filing of the mandate; (2) the issues involved an interpretation of Kansas law which should be made by Kansas courts; and, (3) the plaintiff [appellant] had instituted suit in a Kansas court of appropriate jurisdiction to establish his water use rights which are the principal issue in this controversy. The court then dismissed the action without prejudice. Appellant-plaintiff Williams seeks a declaratory judgment that two water use permits issued by the Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture to the City of Wichita are void and for an injunction restraining action under such permits. The gravamen of the complaint is that Williams owns land overlying certain water beds from which Wichita, under the permits in question, withdraws and will continue to withdraw water to an extent that the value of his land will be diminished. The basic issue is whether Williams has a property right in such water of which he has been deprived by the withdrawals under the permits. There is no diversity of citizenship. Jurisdiction depends on 28 U.S.C. § 1331, which requires a substantial federal question. The complaint does not attack the constitutionality of the Kansas statute under which the permits were issued and does not allege that the issuance of the permits was in violation of that statute. The claim is that Williams has been unconstitutionally deprived of a property right. The determination of such claim involves the question as to whether, under Kansas law, a landowner has a property right in water which underlies the surface of his land. Prior to the enactment of the Kansas Water Appropriation Act of 1945, Kansas recognized the doctrine of riparian rights. This was changed by the 1945 law. A state may modify or reject the riparian doctrine and adopt the appropriation system but in so doing it must recognize valid and existing vested rights. The Kansas statute, as amended, provides that permits are subject to valid existing vested rights which are protected either by actions for damages or for injunction. We do not know, and are not advised, if in Kansas rights to underground waters are absolute on the theory that the owner of the land owns that below and above the surface, if they are correlative and subject to the rule of reasonable use, or if they are dependent upon appropriation and application to beneficial use. Such rights may or may not differ if they involve the waters of definite underground streams, percolating waters, or artesian waters. Rights to the use of underground waters depend upon state law and vary greatly. They should be determined by local law. For the federal courts to step in and determine these important questions in advance of authoritative action by Kansas would be unwise because of the possibility of provoking unseemly conflict between the two sovereignties. The determination of the constitutional questions asserted here is not necessary unless Williams has a property right in the underground water. This should be determined by the state processes without any impairment by federal action. These reasons are sufficient under Martin, Successor to Lawler, etc. v. Creasy, 360 U.S. 219, 224, 79 S.Ct. 1034, 3 L.Ed.2d 1186, and cases there cited, to support the lower court in abstaining from exercising jurisdiction in this declaratory judgment suit between citizens of the same state. The trial court followed the mandate of this court and waited for over three and one-half years for the parties to have a determination of the basic issues in the state courts which were and still are open to them. Further patience is not required. The judgment of dismissal without prejudice is affirmed. . Porter v. Bennison, 10 Cir., 180 F.2d 523, 525. See also Gully, State Tax Collector, etc., v. First National Bank in Meridian, 299 U.S. 109, 117, 57 S.Ct. 96, 81 L.Ed. 70, and Smith v. Kansas City Title & Trust Company, et al., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577. The reliance on the Declaratory Judgments Act, 28 U.S.C. § 2201, does not change this situation as that act applies only to cases within the jurisdiction of a federal court. . The constitutionality of the statute was upheld by a federal three-judge district court in Baumann v. Smrha, D.C., 145 F.Supp. 617, affirmed 352 U.S. 803, 77 S.Ct. 96, 1 L.Ed.2d 73. . Kan.G.S.1949, Ch. 82a, Art. 7. . E.g. State ex rel. Peterson v. Kansas State Board of Agriculture, 158 Kan. 603, 149 P.2d 604, 608. . See State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P.2d 440. . United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 702-704, 19 S.Ct. 770, 43 L.Ed. 1136; Baumann v. Smrha, supra, 145 F.Supp. at pages 624-625, and cases cited in footnotes 2 and 3. . See Kan.G.S.1957 Supp., Ch. 82a, Art. 7. Pertinent provisions are §§ 82a-712 to 82a-716, as amended. . Section 82a-716, as amended, reads in part: “If any appropriation, or the construction and operation of authorized diversion works results in an injury to any common-law claimant, such person shall be entitled to due compensation in a suitable action at law against the appropriator for damages proved for any property taken.” . See Hutchins, Selected Problems in the Law of Water Rights in the West, Misc. Pub. No. 418, United States Dept, of Agriculture, Chap. 4. A summary of state law governing ownership and use of underground waters appears at pp. 147-151. At p. 155, the statement is made that: “The principles governing ownership and use of percolating ground [underground] waters have been developed mainly by the courts.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_civproc2	15	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited. Albert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants, v. DIAMOND NATIONAL CORPORATION, a Delaware corporation, Appellee. No. 19526. United States Court of Appeals Ninth Circuit April 26, 1965. Clarence H. Pease, Sacramento, Cal., for appellants. Arthur R. Albrecht, Craig McAtee, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for appellee. Before CHAMBERS, HAMLEY and BROWNING, Circuit Judges. HAMLEY, Circuit Judge: On January 24,1963, Albert J. Firchau and others commenced this action against Diamond National Corporation (Diamond) to recover damages in the sum of $1,500,000 for breach of contract. The action was filed in the Superior Court of the State of California in and for the County of Tehama, and was removed to the federal district court because of diversity of citizenship. On motion of Diamond the complaint, in which one claim was asserted, was dismissed on October 17,1963. A first amended complaint, purporting to state two claims, was filed on November 21, 1963. The first claim was in general similar to that stated in the original complaint, and sought relief in the same amount. The second claim was stated in the alternative and sought damages in the sum of $1,297,500. On motion of Diamond, the district court also dismissed the first amended complaint on June 25, 1964. On July 21, 1964, plaintiffs filed a notice of appeal “ * * * from the Order dismissing the second claim as pleaded in the first amended complaint. * * * ” The court entered a final judgment dismissing the action on July 24, 1964. No further notice of appeal was filed. Diamond has moved to dismiss the appeal for lack of jurisdiction in this court. The company argues that the order of June 25,1964, dismissing the first amended complaint, is not an appealable order; that Firchau’s purported appeal therefrom is therefore ineffectual; and that no appeal was taken from the subsequently-entered judgment dismissing the action. An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643. The special circumstances under which this court will regard such an order as final, and therefore appealable, must be such as to make it clear that the district court determined that the action could not be saved by any amendment of the complaint. Marshall v. Sawyer, supra, at 643. Assuming such circumstances did not exist in this case, the question remains whether the notice of appeal, filed on July 21, 1964, may not be regarded as running against the subsequently-filed final judgment of dismissal. This court is extremely liberal in accepting as sufficient for the purposes of a notice of appeal informally drawn and improperly labeled documents. Poe v. Gladden, 9 Cir., 287 F.2d 249, 251; Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282. In this spirit, we regard the notice of appeal here in question as directed to the final judgment of dismissal, overlooking as a technical defect not affecting substantial rights, the premature filing of that notice. The Supreme Court of the United States similarly viewed a notice of appeal filed before entry of the final decision in a criminal proceeding. See Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. It did so in view of Rule 52(a), Federal Rules of Criminal Procedure, reading: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Since a substantially similar provision is contained in Rule 61, Federal Rules of Civil Procedure, we think the rationale of Lemke supports our view as expressed above. The motion to dismiss the appeal is denied. On the merits, Firchau questions only the dismissal of the second claim of the first amended complaint, making no issue of the dismissal of the first claim stated in that pleading. In his second claim Firchau alleged that he and Diamond, during the winter of 1960 to 1961, entered into an oral contract wherein Firchau agreed to cut and deliver to Diamond’s Red Bluff or other plants, forty-five thousand M board feet of logs for a minimum price of $22.75 per thousand. Firchau further alleged that, on or about April 1, 1961, Diamond anticipatorily breached that oral contract, to Firchau’s damage in the amount of $1,297,500. In dismissing this claim for failure to state a claim on which relief can be granted the district court held that the claim is barred by California Code of Civil Procedure § 339(1). That statute provides that an action upon a contract not founded upon an instrument in writing must be brought within two years after the accrual of the cause of action. According to the allegations of the first amended complaint, the cause of action on the second claim accrued on April 1, 1961. The district court held that the action upon that claim was not brought until November 21, 1963, when the first amended complaint was filed. Firchau argues here, however, as he did in the district court, that the second claim relates back to the date of the original complaint, and since he filed the latter pleading on January 24, 1963, which was less than two years after the accrual of the cause of action on the second claim, the California two-year statute of limitations does not bar that claim. Consideration of this argument requires us to compare the allegations contained in the original complaint with those set out in the second claim of the first amended complaint. See Sidebotham v. Robison, 9 Cir., 216 F.2d 816, 823. In the original complaint Firchau alleged that, in February, 1959, he and Diamond entered into an oral contract having a term of four years. This contract, Firchau alleged, pertained to timber operations on Diamond’s lands in Shasta and Tehama Counties, California, including logging, road construction, and the hauling of logs to Diamond’s plant at Red Bluff, California, and elsewhere. Under the terms of this so-called “Master Agreement,” plaintiff averred, he was to log forty-five thousand M board feet each year from forest areas then generally designated, but to be thereafter specifically designated. Under this agreement, Firchau alleged, he was to haul these forest products to Diamond’s plants and, during the first year he was to receive from twenty to twenty-two dollars per thousand net Scribner Decimal C scale for the logs, depending on the named area from which they were taken. Firchau further alleged in his original complaint that, under the master agreement: (1) Firchau would build logging roads in such areas and for such prices as would be determined by the parties from time to time; (2) the' price per thousand in successive years would be negotiated from a base price of twenty-two dollars per thousand depending upon variances in the cost of labor and parts, and the length of haul; (3) Firchau would purchase from Diamond certain equipment, payment to be made by deducting one dollar per thousand board feet for all deliveries made by Firchau under the master agreement; and (4) the actual areas to be logged from year to year would be in accordance with a described five-year logging program. Firchau also alleged in the original complaint that pursuant to the master agreement: (1) he and Diamond entered into a subordinate written agreement on February 17, 1959, covering logging and associated operations from April 1 to December 15, 1959 ; (2) pursuant to this subordinate written agreement, he cut, logged and delivered forty-seven thousand M board feet during the 1959 season; (3) he and Diamond entered into a substantially similar subordinate written agreement on February 8, 1960, covering logging and associated operations from March 1 to December 1, 1960; and (4) pursuant to this second subordinate written agreement, he cut, logged and delivered forty-nine thousand M board feet during the 1960 season. The original complaint (Paragraph XVI) then contains the critical allegations quoted in the margin. In the second claim of the first amended complaint, after incorporating by reference certain introductory paragraphs of the original complaint, Firchau stated his claim as follows: “That plaintiffs and defendant did during the winter of 1960-1961 enter into an oral contract wherein and whereby plaintiffs would cut, log and deliver to defendant’s Red Bluff or other plant, 45,000 M. board feet of logs for a minimum price of $22.75 per M. On or about April 1, 1961, defendant wrongfully and unlawfully anticipatorily breached said contract all to the damage of plaintiffs in the amount of $1,297,500.00. Plaintiffs have performed all covenants and conditions precedent required of them by said oral logging contract.” This being a diversity action arising under the laws of California, California Code of Civil Procedure § 339(1) providing that actions upon a contract not founded upon an instrument in writing must be brought within two years, controls. We need not decide whether California law also controls in determining whether, for the purposes of applying that statute, the second claim stated in the first amended complaint relates back to the original complaint. This is true since we would reach the same conclusion in this case whether or not California law applies. In California, as stated in Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 601, 15 Cal.Rptr. 817, 819, 364 P.2d 681, 683 the amended complaint would be deemed filed as of the date of the original complaint “ * * * provided recovery is sought in both pleadings on the same general set of facts.” And, under Rule 15(c), Federal Rules of Civil Procedure, such an amendment relates back to the date of the original pleading: “[w]henever the claim * * * asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading * * In holding that the second claim of the first amended complaint did not relate back, the district court recognized that Diamond’s alleged conduct of April, 1961, may have constituted a breach of both the master agreement as alleged in the original complaint and the oral agreement of 1960 to 1961 alleged in the second claim of the first amended complaint. But, the district court stated, the second claim arises out of an entirely new and different contract than was set forth in the original complaint. Accordingly, the court concluded, there was nothing in the original complaint which would place defendant on notice of such a contract. Firchau argues that the second claim of the first amended complaint pleads a contract implied in fact arising out of conduct of the parties referred to in the original complaint. Accordingly, he urges, the second claim is but an alternative count which relates back to the initial pleading. The main thrust of the original complaint is that Diamond breached an oral master agreement to enter into a subordinate cutting and hauling contract for the 1961 and 1962 seasons. In the course of stating that claim, however, facts are alleged which, considered together, provide considerable foundation for a claim that by reason of the course of conduct of the parties in the winter of 1960 to 1961 and prior thereto, a contract is to be implied in fact covering the 1961 season. These alleged facts concern the purchase by Firchau of Diamond’s equipment on a payment rate requiring three logging seasons, and the conduct of Diamond and Firchau leading into the 1961 season, as set out in the first few lines of Paragraph XVI, quoted in note 3. A contract implied in fact covering the 1961 season would not necessarily have been inconsistent with what we have referred to as the main thrust of the original complaint. It therefore appears to us that if the second claim of the first amended complaint states a claim on a contract implied in fact, covering the 1961 season, arising out of the conduct of the parties, it has sufficient foundation in the facts alleged in the initial pleading to require application of the doctrine of relation back. Diamond argues, however, that the second claim does not plead a contract implied in fact, but an express oral contract. We agree. A contract implied in fact is not expressed in words but is implied from the promisor’s conduct. California Civil Code § 1621, Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947, 959; Iusi v. Chase, 169 Cal.App.2d 83, 337 P.2d 79, 82. An oral contract, on the other hand, is one in which the promisor’s undertaking is expressed in words, such words not being reduced to writing. See Treadwell v. Nickel, 194 Cal. 243, 228 P. 25, 33. See also, Rogers v. American President Lines, Ltd., 9 Cir., 291 F.2d 740, 742. The first claim of the first amended complaint contains substantially the same facts pertaining to the conduct of the parties as the original complaint. As before noted, Firchau does not contest the dismissal of that claim. His second claim in the first amended complaint, however, makes no reference to the facts alleged in the original complaint which we have held provide a considerable foundation for a claim based on a contract implied in fact. It is based expressly and exclusively upon an alleged “oral contract” entered into during the winter of 1960 to 1961. It is unnecessary for us to determine whether an oral contract of the kind alleged in Firchau’s second claim, relates back to the original complaint, because he indicates he does not want an opportunity to prove that kind of contract. We have held, however, that a claim based on an implied contract arising from the conduct of the parties would relate back. Firchau believes he can prove such a claim. Under these circumstances we think it appropriate to afford him an opportunity to present to the district court the question of whether he may further amend his complaint to set out such a claim. Therefore, adapting the technique followed by this court in Evans v. Carroll & Co., 9 Cir., 259 F.2d 577, 579, the judgment is reversed as to Firehau’s second claim, and the cause is remanded for the purpose of further proceedings. This will enable Firchau, if he so desires, to move for leave to amend his pleadings to present a claim based on a contract implied in fact arising from the conduct of the parties for which there is a substantial foundation in the allegations of the original complaint. In the exercise of its discretion in acting upon such a motion the district court may, if it grants the motion, prescribe as a condition reasonable terms compensating appellee for any loss or expense occasioned by Firchau’s failure to file adequate pleadings in the first instance. In the event no such motion is made, or is for good cause denied, final judgment for Diamond may be entered. Because of the special circumstances of this case Diamond, as appellee, will recover its costs on this appeal notwithstanding the fact that the judgment is reversed, as to Firchau’s second claim. . See, also, United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405; Hoiness v. United States, 335 U.S. 297, 300, 69 S.Ct. 70, 93 L.Ed. 16. . Firchau alleged that at the time the first subordinate written agreement was negotiated Diamond advised him that the logging phase of the master agreement would have to be specifically written from year to year pursuant to the master agreement because: “1) Defendant could not then project a precise area of logging operations for more than a year in advance although defendant had tentative annual areas designated on its said master program maps, and “2) Defendant couldn’t fix the price per M. to be paid quite so far in advance because of labor and parts costs and haul variances, and “3) A specifically written logging contract would be developed from year to year pursuant to said Master Agreement, and “4) That plaintiffs did not need a longer term written logging contract in view of the fact they were going to have a three (3) year equipment purchase contract.” . “That from the conclusion of logging operations at the end of the said 1960 cutting season until on or about the 1st day of April 1961, plaintiffs, in reliance upon the covenants of said Master Agreement on the part of defendant and upon the conduct of defendant which in no way indicated any doubt or question to plaintiffs but that plaintiffs would be allowed to perform said Master Agreement during the 1961 cutting season, made all their winter plans and necessary preparations for the continued operation pursuant to said Master Agreement for the cutting season of 1961; that thereafter and on or about the 1st day of April 1961, plaintiffs were first summarily notified by defendant that defendant did not propose to enter into any further annual logging and hauling contracts pursuant to said Master Agreement or otherwise with plaintiffs and that if plaintiffs desired to do any logging or hauling operation for defendant during the year of 1961, they must submit a bid therefor, competitive to the entire industry. Plaintiffs necessarily, and under protest, submitted such a bid on the 11th day of April 1961. * * * That thereafter and on the 28th day of April 1961, defendant did, in writing, reject plaintiffs’ bid by letter executed by said ROY D. BERRIDGE. * * * “That by adopting said bid procedure over plaintiffs’ objection and rejecting the bid of plaintiffs, defendant, without cause or provocation did wilfully, unlawfully, maliciously and oppressively breach said Master Agreement resulting in unmitigated hardship upon plaintiffs and each of them. That plaintiffs performed nil the covenants and conditions precedent required by and of them to be performed by said Master Agreement at the time of the said breach thereof by defendant.” . In Austin, at page 819 of 15 Cal.Rptr., at page 683 of 364 P.2d, the court noted that “ * * * subdivision (c) of Rule 15 of the Federal Rules of Civil Procedure, * * * adopts the modern rule * ^ . Contrary to Diamond’s view, the oral master agreement, as pleaded in the original complaint, did not require that the subordinate annual contracts be in writing. That contract, alleged to have been entered into “ * * * during or about the first week in February, 1959 * * * ” required only that the areas to be logged “ * * * would be specifically designated by defendant. * * Firchau would build logging roads in such areas and for such prices “ * * * as would be determined by parties hereto from time to time. * * and the price in successive years after 1959 would “ * * * be negotiated. * * * ” It is true that, as alleged in the original complaint, the parties subsequently entered into written subordinate contracts for the 1959 and 1960 season “ * * * pursuant to said Master Agreement.” But that pleading does not on its face establish that oral subordinate contracts would not have been sufficient compliance with the Master Agreement. According to the initial pleading, at the time the first written subordinate contract was negotiated, Diamond advised Firchau that “[a] specifically written logging contract would be developed from year to year pursuant to said Master Agreement. * * * ” However, Diamond’s willingness to manifest the annual arrangements by a writing, or even its demand that they be so manifested, does not establish that the Master Agreement so required. In his original complaint Firchau alleged that, on April 1, 1961, Diamond notified Firchau that Diamond “ * * * did not propose to enter into any further annual logging and hauling contracts pursuant to said Master Agreement. * * * ” But this does not necessarily establish that the parties had not already entered into a contract implied in fact covering the 1961 cutting season. It may only mean that Diamond erroneously assumed that, under the master agreement, it would be bound only if the arrangement for that year was reduced to writing. . These allegations had to do with the purchase by Firchau of Diamond’s equipment on a payment rate requiring three logging seasons, and the conduct of Diamond and Firchau leading into the 1961 season. Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_typeiss	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. LEA v. UNITED STATES. No. 11736. Circuit Court of Appeals, Fifth Circuit. Feb. 15, 1947. Rehearing Denied March 17, 1947. Edwin H. Grace, of New Orleans, La., for appellant. Herbert W. Christenberry, U. S. Atty., and N.E. Simoneaux and Robert Weinstein, Asst. U. S. Attys., all of New Orleans, La., for appellee. Before HOLMES, McCORD, and WALLER, Circuit Judges. WALLER, Circuit Judge. When his demurrer to an indictment, brought under Section 100, Title 18 U.S. C.A., was overruled, the defendant pleaded nolo contendere, was adjudged guilty, and received the sentence of the Court. He now appeals, assigning as error the overruling of the demurrer. An indictment should state every material fact necessary to inform the defendant of the nature of the charge against him so that he would be able successfully to interpose a plea of former jeopardy against any other prosecution for this same offense. The indictment here alleges: That the defendant did unlawfully, feloniously, and fraudulently embezzle and convert to his own use certain monies of the United States; that said monies were the proceeds of the sale of certain United States War Savings Bonds, which sales were made by the United Theatres, Incorporated; that the United Theatres, Incorporated, were duly authorized to act as issuing agent for the sale of said bonds; that the defendant came into lawful possession of said monies as an agent and employee of said United Theatres, Incorporated. Thus the ownership of the money, the source from whence it came, the lawful possession of the money by the defendant, as an agent, or employee, of the United Theatres, Incorporated, and the felonious conversion of the money by the defendant to his own use, were alleged. We think: That the allegation that “the defendant having then and there come into the lawful possession of said monies • as an agent and employee of the said United Theatres, Incorporated,” should be taken in connection with the other allegations in the indictment and', so considered, it is an allegation of fact; that the facts alleged are sufficient to show that when the defendant, as an agent or employee, came into the lawful possession of said money, his possession was in trust; that the indictment is amply sufficient to sustain a plea of former jeopardy to any other indictment for the same offense, and that no omission therein hampered the defendant in preparing his defense. Sec. 556, Title 18 U.S.C.A., is as follows: “No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” Sec. 391, Title 28 U.S.C.A., commands that we “shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” The defendant, by his plea of-nolo con-tendere, admits the truth of the facts appropriately alleged in the indictment, and we think the facts alleged are sufficient to charge him with the crime of embezzling monies of the United States as defined in the statute under which the indictment here was brought. The judgment of the Court below is affirmed. The indictment alleged that the defendant “did unlawfully, feloniously and fraudulently embezzle and convert to his own use certain, monies and property of the monies and property of the United States of America, to-wit, the sum of 818,333.64, a further description of which is unknown to yonr Grand Jurors, the said sum of $38,133.64, being the proceeds of sales of certain United States War Savings Bonds, Series E, made by United Theatres, Incorporated during the period aforesaid, the said United Theatres, Incorporated being then and there duly authorized and qualified to act as issuing agent for the sale of said United states War Savings Bonds, Series E, and the said defendant having then and there come into the lawful possession of said monies as an agent and employee of the said United Theatres, Incorporated; * * *” “§ 100. (Criminal Code, Section 47.) Embezzling public moneys or other property. Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of tho moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.” In Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 295, 40 L.Ed. 422, the crime of embezzlement was defined as “the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” Cf. Wilson v. United States, 5 Cir., 158 F.2d 659. 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_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. REDDING & COMPANY, INC. v. RUSSWINE CONSTRUCTION CORPORATION, Appellant. No. 22593. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 3, 1971. Decided March 28, 1972. See also 135 U.S.App.D.C. 153, 417 F.2d 721. Mr. Louis P. Robbins, Washington, D. C. , with whom Mr. Arnold L. Yochelson, Washington, D. C., was on the brief, for appellant. Mr. Mark P. Friedlander, Washington, D. C., for appellee. Mr. Mark P. Friedlander, Jr., Washington, D. C., was on the brief for appellee. Before McGOWAN and TAMM, Circuit Judges, and A. SHERMAN CHRISTENSEN, U. S. Senior District Judge for the District of Utah. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). CHRISTENSEN, Senior District Judge: This appeal in a suit to foreclose a mechanic’s lien involves the propriety of a summary money judgment against a defendant who had failed to. comply with an interim order of the district court and whose pleadings had been stricken and default entered, and the effect of subsequent determination among the remaining defendants that the amount secured by the lien was substantially less than the money judgment theretofore entered against the defaulted defendant. Some unravelling of the procedural tangle out of which this problem emerges seems necessary. On or about September 2, 1965, the appellee, Redding & Company, Inc., hereinafter Redding, filed notice of intention to hold a mechanic’s lien against an office building in northwest Washington. Appellant, The Russwine Construction Corporation, hereinafter Russwine, had been the prime contractor, Redding its subcontractor. Thereafter, Redding timely filed a complaint against the owners of the fee, the owners of a 99-year leasehold interest, certain trustees under deeds of trust, and Russwine, seeking enforcement of its lien. Whether the complaint also sought personal judgment against Russwine as the prime contractor is disputed. During the course of preliminary proceedings the district court recognized that Russwine had drawn down money from the construction lender through false representations that its prime contract was 100% completed. Russwine was ordered by the court to deposit the sum of $24,699.80 into the registry to await further action. This Russwine failed to do; instead it perfected an interlocutory appeal to this court and also filed here a petition for a writ of mandamus or in the alternative a writ of prohibition. The appeal was dismissed and the petition denied by this court. In a memorandum it was noted that the money ordered deposited was obtained through misrepresentation, that this itself was a ground for refusal of a writ and that in any event it was within the district court's jurisdiction to enter such an order. Upon Russwine’s continued failure to comply, Redding filed a motion to strike Russwine’s pleadings and to enter judgment for itself. The district court on January 31, 1968, ordered that Russwine’s answer be stricken, that its counterclaim be dismissed, and that its default be entered. Several months later Redding renewed its motion for judgment on the pleadings or for summary judgment. By order dated June 28, 1968, such summary judgment, in the absence of any issue between the parties on the record in view of the stricken pleadings, was granted for the amount claimed in the complaint, $62,184.70, with interest and costs (without reference to the claimed lien against the property). This judgment was certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and the district court further ordered that execution be stayed upon filing of a supersedeas bond. Russwine furnished no bond but filed in this court a timely petition for leave to appeal from the interlocutory order claiming that the impropriety of entering and enforcing a personal judgment by default prior to final adjudication of all lien claims warranted interlocutory review. The petition was denied. In September, 1968, Redding instituted attachment proceedings to satisfy its judgment against Russwine. The latter again petitioned this court for the issuance of a writ of mandamus or prohibition. Such petition was denied by order dated October 18, 1968, which observed that “no judgment has yet been entered in this case upon which execution may be made. . . . ” In the meantime, Russwine had filed in the district court a motion for stay of execution on the judgment pending disposition of the petition for writ of mandamus or prohibition which was held under advisement by the district court until this court ruled. The district court subsequently denied the motion for stay. Russwine filed a motion for reconsideration of this denial and expressly requested the court below to consider the language, quoted in the margin, from the October 18, 1968, order of this court. Alternatively, appellant requested the district court to certify its order denying a stay under Rule 52(b) (sic). The motion was opposed by Redding and summarily denied by the district court without argument or opinion, whereupon this appeal and a petition for mandamus with particular reference to the question of the stay were filed. The present appeal will be treated as being from a final order involving the validity of the summary judgment despite the record indication that it was directed primarily, if not exclusively, to the refusal of the district court to stay execution which has now become moot. The case against the other defendants, including the owner of the 99-year leasehold interest, went forward for trial. Findings of fact and conclusions of law were made by the trial court and a mechanic’s lien recognized, subject to a determination of amounts by an auditor consistent with the findings of the trial court. Prior to hearing by the auditor, a consent judgment was entered by the court on May 1, 1970, fixing the amount of Redding’s mechanic’s lien against the 99-year leasehold interest at $33,000. This amount according to appellee’s brief has been paid to it. Redding also has conceded that Russwine is entitled to credit for this payment as against the judgment under review. The issues of the case between the other parties having been decided and the much agitated questions of execution having become moot according to its concession during oral argument, Russwine now stands upon the single contention that the order of the district court granting summary money judgment against it was invalid. Particularly it is argued that judgment was improperly entered on default before the complete adjudication of the lien action, and that recovery against it in any event should be limited to the amount finally determined as a lien against the interests of the other defendants. Reliance is placed primarily upon Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872). Whether the doctrine of Frow upon its facts would have continuing validity despite the intervention of the Rules of Civil Procedure and related modern procedural concepts need not be explored here. That action and the case at bar are essentially different in nature and posture. Redding’s claim against Russ-wine was ex-contractu and went beyond the foreclosure of lien interests as against the other parties. The liability of Russwine was not dependent upon final adjudication of those claimed lien interests. While with respect to the lien foreclosure aspects of a suit to foreclose a mechanic’s lien the D.C.Code contemplates the possibility of deficiency judgments against those primarily liable, the action as one in equity does not compel initial recourse to the property nor establish such recourse in the first instance as part of any exclusive remedy against a general contractor on the part of a subcontractor. Accordingly, we reject appellant’s argument that the doctrine of Frow precluded entry of judgment against it prior to the final determination of the case against the other defendants. We also find no merit in appellant’s related contention that since the suit was one to foreclose a lien against real property no judgment could lawfully be entered against any party except for a deficiency after foreclosure. We hold that the personal judgment against Russwine, being supported contrary to Russwine’s contention by the allegations of the complaint, not being dependent upon the security or extent of any lien, being premised upon a clear violation of a significant court order and the entry of an unquestioned default, being within the court’s jurisdiction, and not being arbitrary or capricious under the circumstances, was and is valid. The fact that the subsequent judgment foreclosing Redding’s lien against the owners of the leasehold interest was in a lesser amount did not automatically reopen or invalidate Red-ding’s judgment against Russwine, any more than did the fact that no lien at all was recognized in the final judgment as against the owner of the fee. The remaining parties in agreeing to the final consent judgment could have taken cognizance of the summary judgment against the prime contract despite the failure of Judge Holtzoff to “affirm it.” Its effect upon any give and take of negotiations may not be known. But the fact remains that the summary judgment against Russwine is not necessarily inconsistent with the consent judgment; the latter simply determined in last analysis what part of the obligation theretofore adjudged against the prime contractor Redding was secured by a lien on real property as against other parties. Russwine in its brief says: “A mere recital of the aspects previously before this Court reflects a welter of confusion. What began as an orderly suit to foreclose a mechanic’s lien has become a legal monster.” If, indeed, a procedural monster has been created this was accomplished largely through appellant’s numerous futile actions attempting to sustain with impunity' its intransigent refusal to comply with the lower court’s deposit order. Yet not a Frankenstein but equity as well as procedural essentials have turned against appellant. Affirmed. . No. 21,564, Russwine Construction Corp. v. Redding & Co., Inc. (D.C.Cir. filed Jan. 9, 1968). . No. 21,593, Russwine Construction Corporation v, Leonard P. Walsh, U.S. Judge for the District of Columbia — Redding and Company, Inc., intervenor (D.C.Cir. filed Jan. 19, 1968). . No. 21,564 & No. 21,593, United States Court of Appeals for the District of Columbia Circuit, Memorandum, April 18, 1968 (unpublished). . No. Misc. 3306, Russwine Construction Corporation v. Redding & Company, Inc. (D.C.Cir. Aug. 19, 1968). . No. 22,301, Russwine Construction Corporation v. Edward M. Curran, Chief Judge, United States District Court for the District of Columbia (D.C.Cir. filed Sept. 19, 1968). . “[T]lie District Court’s order does not contain an express determination under Fed.R.Civ.P. 52(b) that there is no just reason for delay or an express direction for the entry of judgment; and it appearing that all parties including the judge below treated the order as an interlocutory order for purposes of review by this Court. . . . Ordered by the Court that the aforesaid petition be denied without prejudice to a direct appeal from a final judgment raising the issues presented to this court by this petition.” . An obvious typographical error, as the reference should have been, and was no doubt intended to be, to Rule 54(b). . No. 22,584, Russwine Construction Corporation v. Curran, Chief Judge. . The only notice of appeal in the record before us refers to “the order dated the 7th day of November, 1968, denying defendant’s motion to stay execution of judgment previously entered” and to “defendant’s motion for reconsideration of the aforesaid order.” At that time final judgment had not been entered on the lien claim against the other defendants and presumably the appellant assumed that in its appeal from the denial of the stay it could raise the claimed invalidity of the judgment itself. Since this problem of appellate jurisdiction rvas not raised by appellee nor noted by us until after argument here, and because the apparent intent of these proceedings has been to test the validity of the summary judgment, we feel constrained to rule upon the merits of this claim. . In its brief appellant argued that assuming arguendo the summary judgment to have been valid, appellee was precluded from executing thereupon unless and until the requirements of Rule 54(b) Fed.R. Civ.P., or 16 D.C.Code § 501 (1967) were met. In view of the consent judgment entered against the other parties, appellant at the oral argument stated that this latter contention would not be pressed, reliance being based wholly upon its position that the summary judgment was invalid. . In connection with Judge Holtzoff’s findings filed May 21, 1969, it is recited : “It appearing to the Court that a judgment was heretofore entered on the 28th day of June, 1968, in this case in favor of the plaintiff against the defendant Russwine Construction Corporation, in the sum of $62,184.70 with interest to July 27, 1965 and costs of the action. .” But a provision “affirming” this judgment was stricken out by Judge Holtzoff. Judge Holtzoff’s order continued : “That the plaintiff is entitled to the sum of $24,441.70 with interest from July 27, 1965 for work and labor . and said plaintiff is entitled to enforce its mechanic’s lien for said sum subject to further adjustments as provided hereafter against the 99-year leasehold interest of defendants Russell P. Wine, Bernard S. Glassmann and Robert B. Weiss.” It was further adjudged that the plaintiff was also entitled to enforce its mechanic’s lien on said premises for specified extras, less various adjustments by reason of the claimed inadequacy of the contractors’ performance. And, it was ordered that the defendants Russell P. Wine, Bernard S. Glassmann and Robert B. Weiss, should take nothing on various counterclaims they had interposed. Relief against the owner of the fee was denied. . Frow involved a bill in equity to restrain defendants from claiming title to certain lands because of an alleged fraudulent conspiracy. It was there held that a final decree on the merits could not be made separately against one of several defendants upon a joint charge against all where the case was still pending as to the others: “The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. . He [the defaulted party] can adduce no evidence; he cannot be heard at the final hearing. But if the suit should be decided against the complaint on the merits, the bill will be dismissed as to all the defendants alike. . . . If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.” 82 U.S. at 554. . Section 38-122 of the District of Columbia Code provides: “In any suit brought to enforce a lien by virtue of the provisions aforesaid, if the proceeds of the property affected thereby shall be insufficient to satisfy such a lien, a personal judgment for the deficiency may be given in favor of the lien or against the owner of the premises or the original contractor, as the case may be, whichever contracted with him for the labor or materials furnished by him, provided such person be a party to the suit and shall have been personally served with process therein.” . Section 38-110: “The proceeding to enforce the lien hereby given shall be a bill in equity . . . If such suit be brought by any person entitled, other than the principal contractor, the latter shall be made a party defendant, as well as all other persons who may have filed notices of liens, as aforesaid. . . . ” . Enforcement of a mechanic’s lien is not the exclusive remedy in regard to the obligation which such lien secures. The enforcement of the lien is a cumulative remedy provided by statute, and an incidental accompaniment of the contract, and may be pursued in connection with ordinary remedies. 53 Am.Jur.2d, Mechanic’s Liens § 340, 864-65 (1970). As observed by this court in another connection when the parties were before us on Russwine’s application for a writ: “Mechanic’s liens are purely creatures of statute, not existing at common law. But the fact that they are rights unknown to the common law does not require that courts, in dealing with them, lay aside traditional powers and functions. . . . ‘[A] remedy is not exclusive merely because it is statutory’ [citing authority]. A court exercising its equity jurisdiction, may assure that a plaintiff’s remedy is complete, practical and efficient.” No. 21,564 and No. 21,593, United States Court of Appeals for the District of Columbia Circuit, Memorandum, April 19, 1968 (unpublished) supra. See also FTC v. Millers’ Nat’l. Fed’n., 57 App.D.C. 360, 23 F.2d 968, cert. denied, 274 U.S. 743, 47 S.Ct. 588, 71 L.Ed. 1321 (1927). . Various jurisdictions expressly provide by statute that with reference to the foreclosure of mortgages there can be but one form of action, which contemplates recourse to the security before any personal judgment can be entered. 55 Am.Jur.2d, Mortgages § 538, 519 (1971). There is no such provision limiting the foreclosure of mechanics’ liens in this jurisdiction and we decline to follow cases constructing an analogous rule as to mechanics’ liens. . It is true that the complaint below was denominated “Complaint to Enforce Mechanics’s Lien” and it was recited that the jurisdiction of the court was founded on Title 38, § 110, District of Columbia Code. But the court will look to the substance of the allegations of the complaint to determine the scope of the action. Plaintiff’s complaint alleged inter alia that pursuant to the provisions of the construction subcontract, plaintiff performed all the concrete work (including labor and material) in accordance with the plans and specifications; that for these services there was due and owing to the plaintiff the sum of $192,999.80; that Russwine paid plaintiff $168,300; and that a balance of $24,699.80 was still unpaid to plaintiff on the construction subcontract. In addition plaintiff alleged that it had incurred certain extra expenses not provided for under the terms of the original contract. It was alleged in substance that $37,484.90 was the fair and reasonable value of this extra labor and material and was then due and owing to the plaintiff from the defendant Russ-wine. . Appellant states in its brief: “For purposes of this appeal Russwine is not disputing the Court’s order striking its pleadings and entering default against it. . Cf. Hartford Acc. & Indem. Co. v. A.B.C. Cleaning Contractors, Inc., 121 U.S.App.D.C. 300, 350 F.2d 430 (1965). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_usc1sect	113	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". WILLIAMSON v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. WILLIAMSON. Nos. 7578, 7615. Circuit Court of Appeals, Sixth Circuit. Dec. 15, 1938. Murray Seasongood, of Cincinnati, Ohio (Murray Seasongood, Harry Stickney, and Paxton & Seasongood, all of Cincinnati, Ohio, on the brief), for petitioner Williamson. Berryman Green, of Washington, D. C. (James W. Morris, Sewall Key, J. Louis Monarch, and Louise Foster, all of Washington, D. C., on the brief), for the Commissioner. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. • ALLEN, Circuit Judge. These appeals involve the same facts, and were consolidated for hearing and decision. In No. 7578 the taxpayer seeks to review the order of the Board of Tax Appeals sustaining a determination of deficiencies and adjusting the amounts thereof to $11,639.90 and $4,425.02 for the taxable years 1932 and 1933 respectively. 34 B.T.A. 668. In No. 7615 the Commissioner attacks the same order upon the ground that the deficiencies determined should have been $12,323.69 and $4,596.90 respectively. The controversy arises out of the sale of certain stocks inherited' by the taxpayer from her husband, A. W. Williamson, who died intestate on March 28, 1931, leaving her his sole heir at law. The facts are stipulated. At the time of decedent’s death he owned 3,094 shares of common stock of the American Rolling Mill Company, and 5,932% shares of common stock of the Columbia Gas & Electric Corporation. On that date these stocks had a fair market value of $29.50 and $41 per share respectively. Two administrators, one of them being the Fifth-Third Union Trust Company of Cincinnati, were appointed and qualified. The market value of. the stocks decreased rapidly, and prior to October 31, 1931, the taxpayer demanded that the administrators sell sufficient assets to pay the expenses of administration and taxes, which amounted to approximately $90,000. The administrators did not comply with this demand. If these stocks had been sold within three months of the date of the administrators’ qualification, as authorized under § 10697 of the General Code of Ohio, the prices obtained for the American Rolling Mill Company stock would have varied from $32.37% per share to $15.12% per share, and for the Columbia' Gas & Electric Corporation stock from $39.37% to $20.62% per share. In June, 1932, when the market value of these particular stocks was much lower, the administrators notified the taxpayer that they would sell sufficient assets to pay the debts and taxes. On June 18, 1932, the administrators contracted with the taxpayer that the Fifth-Third Union Trust Company would lend the taxpayer sufficient funds to pay the debts, taxes and all charges outstanding against the estate, and the taxpayer agreed to execute and deliver notes in the amount of the loan, payable to the order of the Trust Company, to pledge as security therefor all the stocks of the estate, and to relinquish her right of action against the administrators for the shrinkage in the estate. The contract was fully performed. On June 28, 1932, the probate court of Hamilton County, Ohio, entered an order directing that the property of the estate be distributed in kind to the person entitled .thereto according to law. The stocks were actually transferred to the taxpayer on July 11 and July 14, 1932. At that time the common stock of the American Rolling Mill Company and of the Columbia Gas & Electric Company had a fair market value of $4.37% and $6.62% per share respectively. The taxpayer, during the taxable years 1932 and 1933, made sales of part of this stock at a price greater than the above fair market values existing on the date when she received the stock. The sales were made pursuant to the contract with the administrators. In her income tax return, the taxpayer reported losses on these sales, calculating that the difference between the amount she received and the fair market value of the shares at the time of decedent’s death constituted loss to her under the statute. The Commissioner computed gain based upon the difference between the amounts realized and the fair market value of the shares on the date of the order of distribution, June 28, 1932. The Board of Tax Appeals computed the gain, using July 11 and July 14, 1932, as the basic dates. The deficiencies were determined under § 113 (a) (5) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 198, 26 U.S.C. A. § 113 note, which reads as follows: “(a) The basis of property shall be the cost of such property: except that— * * ❖ “(5) If personal property was acquired by specific bequest, or if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair market value of the property at the time of the death of the decedent. If the property was acquired by the decedent’s estate from the decedent, the basis in the hands of the estate shall be the fair market value of the property at the time of the death of the decedent. In all other cases if the property was acquired either by will or by intestacy, the basis shall be the fair market value of the property at the time of the distribution to the taxpayer. * * * ” The principal questions are (1) Does § 113 (a) (5) apply in this case, and if applicable, should the taxpayer use as cost basis the fair market value of the stock at time of distribution to her, or the fair market value at the date of her husband’s death? (2) Does the provision in the statute that the cost basis of the stock shall be the fair market value at the time of distribution to the taxpayer violate the Constitution of the United States? Upon the first question, it is the taxpayer’s contention that the stocks sold were obtained for value and not by intestacy, and that hence § 113 (a) (5) does not apply. She alleges that in assuming liability for the debts of the estate, agreeing to pledge the stocks of the estate, and releasing her cause of action against the administrators, she gave valuable consideration for the stocks. Conceding the hardship arising from the fact that the administrators failed to sell these stocks at a time when a better price could have been realized, and later notified the taxpayer that the stocks would be sold at a time when they were greatly depressed in market value, this does not change the legal situation. In order to sustain her proposition that § 113 (a) (5) does not control, the taxpayer contends that the stocks were in effect sold to her by the administrators. But while value was given for the loan, this transaction had none of the earmarks of a sale. The taxpayer’s receipt of the stocks was in no way dependent upon her loan or pledge. The Board of Tax Appeals found that the stocks were acquired by intestacy, and there is no evidence to support any other conclusion. In the alternative, the taxpayer alleges that if § 113 (a) (S) controls, the stocks in question were acquired by the decedent’s estate from the decedent, and that within the purview of the second sentence of the section, the basis thereof is the fair market value at the time of decedent’s death. But this contention has no merit. The taxpayer acquired these stocks through a distribution in kind. The estate did not acquire them. Cf. Commissioner v. Matheson, 5 Cir., 82 F.2d 380, 381. Hence the property was at no time “acquired by the decedent’s estate from the decedent,” and the third sentence of the section controls. The basis is the value of the property at the time of distribution to the taxpayer. The decision must also be affirmed upon the question of constitutionality. Since Congress has the plenary power of taxation, it may determine the basic date for figuring gain or loss. Whether it be the date of purchase of stocks by a donor (Taft v. Bowers, 278 U.S. 470, 49 S.Ct. 199, 73 L.Ed. 460, 64 A.L.R. 362), or the time of acquisition (Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457), or the time of actual distribution to the taxpayer, as in the present statute (Haskell v. Commissioner, 3 Cir., 78 F.2d 869), does not affect the validity of the measure. The classifications established in § 113 (a) (5) are reasonable and non-discriminatory, and the statute is clearly constitutional. The Board of Tax Appeals decided that the taxpayer was entitled to have her gain taxed as capital net gain under § 101 (c) (8) of the Revenue Act of 1932, 26 U.S.C.A. § 101 note, finding that the stock had been held by her more than two years. McFeely v. Commissioner, 296 U.S. 102, 56 S.Ct. 54, 80 L.Ed. 83, 101 A.L.R. 304. The taxpayer urges that this decision, if affirmed, requires reversal of the main case, for if she held the stock more than two years, she acquired title long prior to the time of distribution. But the Supreme Court has disposed of this contention in McFeely v. Commissioner, stating that § 101 (c) (8) and § 113 (a) (5) “are not inconsistent, and'that each should be read as affecting the subject to which alone it applies.” [Page 59.] The taxpayer’s basic contention is that she suffered a loss in the sale of these stocks. Undoubtedly the securities were sold at less than their market value at the time of her husband’s death. But the fundamental fallacy of the taxpayer’s position is that while at her husband’s death she had a right to receive these stocks, she had invested nothing in them, and they did not become her property' until the actual distribution. Goodrich v. Edwards, 255 U.S. 527, 41 S.Ct. 390, 65 L.Ed. 758, in which the taxpayer acquired stock by purchase, is therefore not in point. In the instant case, between the date of distribution and the dates of sale there was a substantial increase in value, and the taxpayer gained by the sales, although she did not receive as much as she would have if the stocks had sold at the market price of March 28, 1931. Since it is not the value of the property acquired by her which is taxed, but the gain received in the sale, § 22 (b) of the Revenue Act of 1932, 26 U.S.C.A. § 22 (b) has no bearing. In No. 7615 the Commissioner contends that the Board of Tax Appeals erred in its decision that distribution under § 113 (a) (5) occurs upon the date of actual transfer of the securities to the taxpayer, rather than upon the date when the order of distribution is entered by the probate court. We think that the Board of Tax> Appeals was correct in its decision upon this point. Its determination (34 B.T.A. 924) that the date of the actual receipt of the stocks is the basis instead of the date of the order of distribution is in accord with the words of § 113 (a) (5), which expressly states that the basis shall be the fair market value of the property “at the time of the distribution to the taxpayer.” The court order 'is the authority which underlies and precedes the distribution, and the time of actual distribution is not necessarily the same as the time of the entering of the order. Since distribution is the apportionment by a court of the personal property or the proceeds of an intestate’s estate among those entitled to it according to the state statutes of distribution, ' and since the federal statute in general terms fixes the time of distribution as the basic date, Congress evidently contemplated that the time of distribution should be that which is recognized by state law. Under Ohio law, the probate court does not through its order effect a distribution of property. The only valid order of distribution which the probate court is authorized to enter is general. The probate court has no power to designate the distributees. Swearingen v. Morris, 14 Ohio St. 424, 432; Cox, Adm’r, v. John, 32 Ohio St. 532; Armstrong v. Grandin, 39 Ohio St. 368. In First National Bank of Cadiz v. Beebe, 62 Ohio St. 41, 56 N.E. 485, the opinion stated [page 487]: “But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the probate court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made.” To the same effect is Henry v. Doyle, 82 Ohio St. 113, 91 N.E. 990, 137 Am.St.Rep. 769. The order of the probate court of Hamilton County, therefore, did not bring about a segregation of the shares of stock, and did not, within the meaning of the statute, result in a distribution. The decision is affirmed. The same basic date as that established in the statute considered in Brewster v. Gage, supra, namely, the time of ae- ■ quisition, controlled the decision in Security Trust Co. v. Commissioner, 6 Cir., 65 F.2d 877. 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_appel1_8_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant. UNITED STATES of America, Appellee, v. 883.89 ACRES OF LAND, MORE OR LESS, Situate IN SEBASTIAN COUNTY, STATE OF ARKANSAS, Peerless Coal Company, et al., and Unknown Owners, Appellants. No. 20465. United States Court of Appeals, Eighth Circuit. May 13, 1971. Rehearing Denied June 28, 1971. Jerry Lee Canfield, Fort Smith, Ark., Daily, West, Core & Coffman, Fort Smith, Ark., by Thomas A. Daily, Fort Smith, Ark., for appellant. John D. Helm, Atty., Dept, of Justice, Washington, D. C., Walter Kiechel, Jr., Acting Asst. Atty. Gen., Bethel B. Larey, U. S. Atty., Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., George R. Hyde, Atty., Dept, of Justice, Washington, D. C., for appellee. Before MEHAFFY and HEANEY, Circuit Judges, and MEREDITH, Chief District Judge. MEREDITH, Chief District Judge. This is an appeal by the landowner from a judgment in a condemnation proceeding tried before the district judge without a jury. The opinion of the court below is reported in United States v. 883.89 Acres of Land, Etc., Sebastian Co., Ark., 314 F.Supp. 238 (1970). The opinion accurately sets out the facts, the testimony, and the reasons for the court’s conclusions. We affirm the judgment of the district court. The estate taken was for a term of years beginning July 1, 1967, and ending June 30, 1968, extendible on thirty days notice for yearly periods thereafter, at the election of the United States, until June 30, 1972. The United States has exercised these options at the appropriate intervals and is currently in its fourth consecutive year of possession. The leases in question cover two tracts of land: one containing 40.59 acres of land, located approximately three-quarters of a mile north of Greenwood, Arkansas; the larger tract contains 843.3 acres of land, located approximately twelve miles southeast of Fort Smith, Arkansas, and four miles east of Greenwood, Arkansas. Both tracts of land, prior to this proceeding, had been used as pasture land. The tracts consisted of scrub timber and open land grown up with brush. There were no improvements of any value on the land. The appellant-landowner does not own the mineral rights to the property in question, only the surface rights. The purpose of the taking was for use by a military training camp; the smaller tract was used as a rifle range and the larger tract as an artillery range. The trial court entered a judgment for the landowner fixing the fair rental value of the property at $2,400 per year, or $12,000 for the entire period, with interest at the rate of six percent per an-num from the due date of the rentals until paid. The landowner complains that the trial court erred in adopting the testimony of the experts for the Government, because they failed to include any value for the renewal options; that the trial court erred in failing to compensate the landowner for damages inflicted by artillery shells upon the property; that the trial court erred in failing to adopt the theory of compensation advanced by the landowner and its experts. The landowner contended that just compensation was: 1967-1968, $7,071; 1968-1969, $7,495; 1969-1970, $8,909; 1970-1971, $9,386; 1971-1972, $9,864; Total $42,725. The first question this Court must answer is whether or not the district court’s award of just compensation is supported by substantial evidence. Rule 52(a), Federal Rules of Civil Procedure, provides: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The Supreme Court in McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954), said: “In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure * *. A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed,’ United States v. Oregon [State] Medical Society, 343 U.S. 326, 339 [72 S.Ct. 690, 96 L.Ed. 978] ; United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 92 L.Ed. 746].” This Court has followed basically the same principle in condemnation cases when it said in Evans v. United States, 326 F.2d 827, 829 (1964); quoting another Eighth Circuit case, Love v. United States, 141 F.2d 981, 982 (1944): “Clearly the verdict was within the scope of the testimony. It can not be said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial. It is the law in the federal courts that verdicts based upon substantial evidence are conclusive of the facts on appeal. Under these circumstances we know of no rule which would authorize this court to hold that the verdict is inadequate and to reverse the judgment for that reason.” This Court, in United States v. 3,698.63 Acres of Land, Etc., North Dakota, 416 F.2d 65, 69 (1969), said: “We do not exercise a fact-finders prerogative of balancing the evidence.” The evidence adduced below consisted of six comparable tracts of leased land in the immediate vicinity of the land in question, where the rentals ranged from $1.75 to $4.00 per acre for open pasture land and twenty-five cents per acre for woodland. Applying these figures to the tracts in condemnation, the court arrived at its judgment. The comparable tracts had been rented from year to year with an oral lease and had been renewed each year, but the oral lease did not contain an option provision. The landowner’s testimony consisted of experts who arrived at the fair market value of the tracts in question and then applied the going interest rate in the area to the fair market value as a reasonable rate of return, then added six percent each year based on the national land values estimate of increase in the values of land. The experts for the landowner used this method based on their experience in the renting of commercial property. In their testimony they did not cite any pasture lands that were rented in this fashion. It was also their opinion that the Government’s comparable sales were not proper for the reason that the oral leases contained no option provisions. An owner of land sought to be condemned is entitled to the market value fairly determined. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943). The experts for the landowners testified that some real estate developments were beginning to be made in the area and for that reason these lands should be considered as commercial property. But, as the Court said in United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 275, 276, 63 S.Ct. 1047, 1053, 87 L.Ed. 1390 (1943): “But in order for that special adaptability to be considered there must be a reasonable probability of the lands in question being combined with other tracts for that purpose in the reasonably near future. Olson v. United States, 292 U.S. 246, 255, [54 S.Ct. 704, 78 L.Ed. 1236]. In absence of such a showing, the chance of their being united for that special use is regarded ‘as too remote and speculative to have any legitimate effect upon the valuation.’ McGovern v. New York, 229 U.S. 363 at 372, [33 S.Ct. 876, 57 L.Ed. 1228].” In the instant ease, such testimony was too speculative to be considered. The weight of the substantive evidence about the land in question shows that its highest and best use is for pasture land. The comparable sales of other leaseholds in the immediate area were adequate and substantial evidence of the market value of this leasehold. There was no substantial evidence in the record that these options had any value. The landowner has the burden of proof as to value. United States ex rel. T.V.A. v. Powelson, supra; Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); Welch v. Tennessee Valley Authority, 108 F.2d 95 (6th Cir. 1939), cert. denied 309 U.S. 688, 60 S.Ct. 889, 84 L.Ed. 1030 (1940). As set out in Onego Corp. v. United States, 295 F.2d 461, 463 (10th Cir. 1961), the general rule of which there is no dispute is that it is fundamental in the law that “The value with which we are concerned is fair market value. That was what the Government was required to pay when it condemned these leases. Fair market value has been defined as that price which a willing purchaser would pay and a willing seller would accept under ordinary circumstances. The best evidence of such value is like and comparable sales within a reasonable time preceding the condemnation.” As stated by the court in Olson v. United States, supra, at 255, 54 S.Ct. at 708: “Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined.” See also United States v. State of South Dakota Game, Fish & Park Dept., 329 F.2d 665 (8th Cir. 1964), cert. denied 379 U.S. 900, 85 S.Ct. 187, 13 L.Ed.2d 175 (1964). In the instant case the testimony of the experts for the landowner, in arriving at value was, at best, conjecture, speculation, or unwarranted assumption and as such has no probative value. See 6816.5 Acres of Land, Etc., Rio Arriba Co., N. M. v. United States, 411 F.2d 834 (10th Cir. 1969); People of Puerto Rico v. United States, 132 F.2d 220 (1st Cir. 1942), cert. denied 319 U.S. 752, 63 S.Ct. 1165, 87 L.Ed. 1706 (1943). A review of the record clearly shows that the trial court committed ho error in determining the fair market value of the leaseholds. The judgment is amply supported by the evidence. The trial court did not err in failing to adopt the theory of the landowner as to the failure of the trial court to award any damages for diminution of value to the leasehold caused by its use as an artillery range. This question is premature, since the Government still occupies the land. See United States v. Gila River Pima-Maricopa Indian Community, 391 F.2d 53 (9th Cir. 1968); Flood v. United States, 274 F.2d 483 (9th Cir. 1960), cert. denied 363 U.S. 805, 80 S.Ct. 1239, 4 L.Ed.2d 1148 (1960). Judgment affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant? A. Indian Tribes B. Foreign Government C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY) D. International Organizations E. Other F. Not ascertained Answer:
songer_respond1_3_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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. AMERICAN PETROLEUM INSTITUTE, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent, American Petroleum Institute and 15 of its member companies, Chemical Manufacturers Association, The St. Louis Regional Commerce & Growth Association, Natural Resources Defense Council, et al., The State of Oklahoma, E.I. Du Pont De Nemours & Co., Intervenors. E.I. Du PONT De NEMOURS AND COMPANY, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. AMERICAN PETROLEUM INSTITUTE, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, and Douglas M. Costle, Administrator. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. The NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. Douglas M. COSTLE, Administrator, and Environmental Protection Agency, Respondent. The CONNECTICUT LUNG ASSOCIATION, INC., Petitioner, v. Douglas M. COSTLE, Administrator of the U. S. Environmental Protection Agency, Respondent. SIERRA CLUB, Petitioner, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent. COMMONWEALTH of VIRGINIA, ex rel. The STATE AIR POLLUTION CONTROL BOARD, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondent. CITY OF HOUSTON, Texas, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondent. Nos. 79-1104, 79-1201, 79-1222, 79-1290, 79-1335, 79-1359, 79-1362, 79-1356, 79-1365 and 79-1367. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 26, 1980. Decided Sept. 3, 1981. Certiorari Denied March 22,1982. See 102 S.Ct. 1737. Edward W. Warren, Washington, D. C., with whom Robert F. Van Voorhees, John S. Hahn, Stark Ritchie and David T. Deal, Washington, D. C., were on the brief, for American Petroleum Institute petitioner in Nos. 79-1104 and 79-1222 and intervenor in Nos. 79-1335, 79-1356 and 79-1362. Roger L. Chaffe, Asst. Atty. Gen., Richmond, Va., for Com. of Virginia, etc., petitioner in No. 79-1365. Frederick S. Fisher and James E. Ryan, Jr., Richmond, Va., also entered appearances for Com. of Virginia, etc., petitioner in No. 79-1365. Courtenay Ellis, Washington, D. C., with whom David A. Donohoe, Washington, D. C., was on the brief, for City of Houston, Texas, petitioner in No. 79-1367. Daniel Joseph, Washington, D. C., also entered an appearance for City of Houston, Texas, petitioner in No. 79-1367. Richard Ayres, Washington, D. C., with whom David D. Doniger, Washington, D. C., was on the brief, for Natural Resources Defense Council, Inc., et al., petitioner in Nos. 79-1335, and 79-1362 and intervenor in No. 79-1104. John H. Pickering, Andrew T. A. MacDonald and Edmund B. Frost, Washington, D. C., were on the brief, for Chemical Manufacturers Association petitioner in Nos. 79-1290 and 79-1359 and intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. David R. Johnson and John Stephen Lawrence, Jr., Washington, D. C., also entered appearances for Chemical Manufacturers Association, petitioner in Nos. 79-1290 and 79-1359 and intervenors in Nos. 79-1335, 79-1356 and 79-1362. Joseph J. Brecher, Oakland, Cal., was on the brief, for Sierra Club, petitioner in No. 79-1356. Peter J. Herzberg, Washington, D. C., also entered an appearance for Sierra Club, petitioner in No. 79-1356. Patrick K. O’Hare, Atty., Environmental Protection Agency and Patrick J. Cafferty, Jr., Atty. Dept, of Justice, Washington, D. C., with whom Angus Macbeth, Acting Asst. Atty. Gen., Donald W. Stever, Atty., Dept, of Justice and Gerald K. Gleason, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., were on the brief, for respondents. Jeffrey O. Cerar, Atty., Environmental Protection Agency, Washington, D. C., also entered an appearance for respondent, Environmental Protection Agency. Christopher S. Bond and Charles A. Blackman, Jefferson City, Mo., were on the brief, for the St. Louis Regional Commerce and Growth Ass’n, intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. Charles S. Rogers, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, Okl., also entered an appearance for State of Oklahoma, etc., intervenor in No. 79-1104. Robert R. Bonczek, Washington, D. C., Carl B. Everett, and Bernard J. Reilly, Wilmington, Del., also entered appearances for E. I. DuPont DeNemours and Company petitioner in No. 79-1201 and intervenor in Nos. 79-1104, 79-1335, 79-1356 and 79-1362. Before ROBB, WALD and MIKVA, Circuit Judges. Opinion for the Court filed by Circuit Judge ROBB. Opinion dissenting in part filed by Circuit Judge WALD. ROBB, Circuit Judge: The petitions for review consolidated in this ease challenge the primary and secondary national ambient air quality standards for ozone promulgated by the Environmental Protection Agency (EPA) under the Clean Air Act, as amended. 42 U.S.C. §§ 7401 et seq. (Supp. Ill 1979). EPÁ established both the primary and secondary standards for ozone at 0.12 parts per million (ppm) in final regulations published on February 8, 1979. 44 Fed.Reg. 8202. Petitioners American Petroleum Institute (API), et al, the City of Houston, and the Commonwealth of Virginia contend that the Administrator of EPA erred by establishing too stringent standards. Petitioner National Resources Defense Council (NRDC), et al., argues that the Administrator erred by establishing standards that are too lenient. Various petitioners raise procedural challenges, and certain petitioners challenge regulations which implement the standards. We uphold the ozone standards because they are proper under the Act and such procedural errors as did occur do not require invalidation of the final standards. I. The standards challenged in this case establish restrictions on permissible levels of ozone. As with other photochemical oxidants, ozone is not emitted directly into the air, but is produced by complex chemical reactions between organic compounds (precursors) and nitrogen oxides in the presence of sunlight. Oxidant precursors are organic compounds which can occur naturally but are in large measure man-made. Sources of precursors include automobile emissions of hydrocarbons, chemical plant emissions, and gasoline vapors. Photochemical oxidant concentrations can also exist where ozone from the stratosphere intrudes into the lower atmosphere or where naturally occurring nitrogen oxides react with hydrocarbons produced by vegetation. Although ozone is but one of many photochemical oxidants, total oxidant pollution has been measured by reference to the ozone level in the air since 1971. Ozone is the primary cause of the ill effects associated with smog, of which it usually comprises 65-100%. At certain concentration levels, ozone irritates the respiratory system and causes coughing, wheezing, chest tightness, and headaches. Due to its irritating nature, ozone can aggravate asthma, bronchitis, and emphysema. Some studies indicate that chronic exposure to fairly low levels of ozone may reduce resistance to infection and alter blood chemistry or chro-mosone structure. Ozone can destroy vegetation, reduce crop yield, and damage exposed materials by causing cracking, fading, and weathering. The goal of the Clean Air Act is to protect the public health and welfare by improving the quality of the nation’s air. 42 U.S.C. § 7401(b). Improved air quality is accomplished by the establishment of national ambient air quality standards (NAAQS) and by implementation thereof through state programs to control local sources of pollution. 42 U.S.C. § 7410. The Act directs the Administrator to establish two types of NAAQS. Primary ambient air quality standards are “standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409(b)(1). Secondary standards “specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in 'the ambient air.” 42 U.S.C. § 7409(b)(2). State control programs must provide for the attainment of primary standards “as expeditiously as practicable but... in no case later than three years from the date of approval of such plan...” 42 U.S.C. § 7410(a)(2)(A)(i). State programs that implement secondary standards must specify a “reasonable time at which such secondary standard will be attained”. 42 U.S.C. § 7410(a)(2)(A)(ii). Thus, the ozone standards at issue in this case must be implemented through state plans within three years for the primary standard and within a reasonable time for the secondary standards. Lead Industries Ass’n v. EPA, 647 F.2d 1130 at 1137 (D.C.Cir.1980) cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980). EPA promulgated primary and secondary standards for photochemical oxidants (i.e., ozone) in 1971. Both standards were established at an 0.08 ppm hourly average not to be exceeded more than once a year. 36 Fed.Reg. 8187 (1971). The method used to determine compliance with the 1971 standards measured only ozone. 43 Fed.Reg. 26967 (1978). In 1976 EPA began to revise the 1971 standards and in April 1977 requested data and information relevant to the revision. 42 Fed.Reg. 20493 (1977). As part of the revision, EPA established a working group within the Criteria and Special Studies Office of its Office of Research and Development to develop a “criteria document”. A criteria document “accurately reflect[s] the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.” 42 U.S.C. § 7408(a)(2); see 42 U.S.C. § 7409(a). In the early stages of preparing the ozone criteria document EPA retained a panel of expert environmental consultants (the Shy Panel) and sought their opinions on the ozone concentration levels at which adverse health effects might be experienced. The Shy Panel concluded that “short term exposures to ozone in the range of 0.15 to 0.25 ppm may impair mechanical function of the lung, and may induce respiratory and related symptoms in sensitive segments of the population”. (J.A. 270) The panel recommended that the primary standard remain at 0.08 ppm. (J.A. 277) The panel’s recommendations and conclusions were included in the draft criteria document. In 1974 the Administrator of the EPA established a Science Advisory Board (SAB) to assist in establishing NAAQS, among other functions. During the revision of the ozone standards Congress passed the Environmental Research, Development, and Demonstration Authorization Act of 1978, Pub.L. 95-155, 91 Stat. 1260 (1978) (ERD-DAA), which requires the Administrator to submit to the SAB any “proposed criteria document, standard, limitation, or regulation, together with relevant scientific and technical information in the possession of the [EPA]... on which the proposed action is based.” 42 U.S.C. § 4365(e). During the revision of the ozone standard the SAB reviewed two full drafts and a third draft of the summary chapter of the ozone criteria document and offered comments on its content. After examining the summary of the third draft, six of the eleven SAB members voted to approve the criteria document, with reservations and recommended changes. Two members rejected the document, and three members offered no judgment. The parties dispute the effect of this “approval” under the Clean Air Act. Neither the final criteria document nor the final ozone standards were made available to the SAB for comment. As a further aid to the Administrator in establishing the ozone standards, EPA conducted a “risk assessment study”. This study combined medical opinions as to the necessary ozone levels for creation of certain adverse health effects (e.g., aggravation of emphysema) with predictions as to peak ozone levels in a five-year period. (J.A. 561-73) The study attempted to pre-diet the probability of creating certain health problems under various possible standards. The Shy Panel relied on the results of this study in recommending that the primary standard remain at 0.08 ppm. Although the risk assessment study results were summarized in the preamble to the final regulations, 44 Fed.Reg. 8216 (1979), the Administrator acknowledged that the method used in arriving at the results was not completely reliable. 44 Fed.Reg. 8210-11 (1979). The parties dispute whether the results of the risk assessment study played a significant role in the establishment of the ozone standards. On June 22,1978 EPA published the proposed primary and secondary standards for ozone. 48 Fed.Reg. 26962. The proposed primary standard was raised to 0.10 ppm, while the proposed secondary standard remained at 0.08 ppm. EPA also proposed a revision in the measuring standard (the one-exceedance-per-year attainment measure) by substitution of a new standard. Under the old standard, as long as the 0.08 ppm standard was not exceeded more than once a year, the standard was met. The new measuring standard is met when “the expected number of hour[s] per calendar year with concentrations above 0.10 ppm is less than or equal to one [over a three year period]”. 43 Fed.Reg. 26968 (1978). In setting the proposed primary standard at 0.10 ppm the Administrator relied on studies showing adverse health effects at ozone concentrations of 0.15 to 0.35 ppm. 43 Fed. Reg. 26966 (1978). He also relied on medical opinions and some of the conclusions of the risk assessment study. Id. at 26966-67. The proposed secondary standard was based on predictions as to the effects of certain ozone concentrations on crop yields due to leaf damage. 43 Fed.Reg. 26969 (1978). After publication of the proposed standards, EPA conducted four public hearings on the standards and received numerous comments. Various governmental agencies commented on the proposed standards, including the Departments of Interior, Energy, and Transportation, the United States Public Health Service, the Virginia Air Pollution Control Board, and various White House officials. 44 Fed.Reg. 8206-07 (1979). Some of these comments occurred after the official comment period closed and are the subject of dispute in this case. In February 1979 EPA published final primary and secondary standards for ozone, raising both to 0.12 ppm. 44 Fed.Reg. 8202. The Administrator determined that “the most probable level for adverse health effects in sensitive persons, as well as in healthier (less sensitive) persons who are exercising vigorously, falls in the range of 0.15 to 0.25 ppm.” 44 Fed.Reg. 8216 (1979). He based his conclusion on the criteria document, the comments submitted on the proposed standards, the report of the Shy Panel, and medical opinions collected during the risk assessment study. 44 Fed.Reg. 8215-16 (1979). The Administrator also concluded that the 0.12 ppm standard provides an adequate margin of safety. 44 Fed.Reg. 8216-17 (1979). He raised the proposed secondary standard based on a determination that average daily maximum ozone concentrations of 0.12 ppm would not harm crop yields. 44 Fed.Reg. 8217-18 (1979). Finally, in addition to establishing ozone standards, EPA published four models for determining the amount of hydrocarbon reduction necessary to meet the standards. 44 Fed.Reg. 8234 (1979). No petitions for reconsideration of the standards were filed with EPA. Petitions for review pursuant to 42 U.S.C. § 7607(b)(1) followed. II. ISSUES PRESENTED BY THE PETITIONS The petitions for review present both substantive and procedural challenges to the primary and secondary ozone standards promulgated by EPA. Some petitioners contend that the standards are irrational and unsupported by the record. Other petitioners argue that the standards do not contain an adequate margin of safety, are too stringent given naturally occurring ozone levels, and are not economically feasible. It is also argued that the measurement standards and control strategies promulgated by EPA are unreasonable and unsupported by the record. As to the procedural allegations, it is argued that the Administrator erred in his use of the Science Advisory Board, the Shy Panel, and the risk assessment study. Various petitioners contend that certain items excluded from the record should have been included, while other petitioners argue that some material was untimely inserted in the record. After discussing the standard of review which governs petitions for review under the Clean Air Act, we address each significant argument in turn. III. STANDARD OF REVIEW Section 807 of the Clean Air Act provides, in relevant part: sf¡ sf: sf: % % (b)(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard... may be filed only in the United States Court of Appeals for the District of Columbia. * # * * sfc * (d)(1) This subsection applies to— (A) the promulgation or revision of any national ambient air quality standard under section 7409 of this title. Hs # ;}s >k Hi s}: (9) In the case of review of any action of the Administrator to which this subsection applies, the court may reverse any such action found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (D) without observance of procedure required by law, if (i) such failure to observe such procedure is arbitrary or capricious, (ii) the requirement of... [a timely objection] has been met, and (iii) [the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made].... sjc sk Sji 4! Sf! # 42 U.S.C. § 7607. These provisions of the Act assign this court a restricted role in reviewing air quality standards. Lead Industries Ass’n, Inc. v. EPA, supra, 647 F.2d at 1147. The Administrator’s construction of the Act will be upheld if it is reasonable, id. at 1147-1148, and though it is our duty to undertake a “searching and careful” inquiry into the facts, our view of the evidence “is not designed to enable us to second-guess the agency’s expert decisionmaker.” Id. at 1145-1146. Reversal for procedural defaults under the Act will be rare because the court must first find that the Administrator was arbitrary or capricious, that he overruled a relevant and timely objection on the point in question, and that the errors were so significant that the challenged rule would likely have been different without the error. 42 U.S.C. § 7607(d)(9)(D); Sierra Club v. Costle, 657 F.2d 298 at 391-392, 396 (D.C.Cir.1981). IV. SUBSTANTIVE CHALLENGES TO THE OZONE STANDARDS Petitioner American Petroleum Institute contends that the primary ozone standard is not rational because, it alleges, no adverse health effects have been proven below 0.25 ppm with two hours exposure. (Br. for API at 31-44) API also argues that EPA must consider whether the 0.12 ppm standard is attainable and whether the anticipated costs of meeting that standard are justified when compared with the results to be achieved. Id. at 51-68. Petitioner Houston contends that the ozone standards are arbitrary and capricious because natural ozone levels and other physical phenomena in the Houston area prevent it from meeting the standards. (Br. for Houston at 4-22) Houston argues that the standards are also arbitrary and capricious because the control strategies promulgated by EPA will not reduce ozone levels. Id. at 22-26. Petitioner Commonwealth of Virginia contends that EPA acted arbitrarily and capriciously in retaining the single hour averaging test for measuring compliance with the ozone standards. Virginia argues that the method chosen is not supported by logic or medical evidence, is costly, and will have no demonstrable beneficial effect on air quality. (Br. for Virginia at 3-13) Petitioner Natural Resources Defense Council contends that the Administrator misinterpreted the Act in adopting standards for ozone alone and thus rescinding existing standards for other photochemical oxidants. (Br. for NRDC at 35-44) NRDC also argues that the Administrator failed to establish an adequate margin of safety in the primary ozone standard. Id. at 44-66. API’s argument that the Administrator erred in not considering attainability and cost justifications for the ozone standards was specifically rejected in the Lead Industries ease, 647 F.2d supra at 1148. We stated there that under section 109 of the Act “the Administrator may not consider economic and technological feasibility in setting air quality standards... [because] of a deliberate decision by Congress to subordinate such concerns to the achievement of health goals.” Lead Industries, supra at 1149. In a lengthy analysis of the Act and its legislative history we concluded that the “technology-forcing” requirements of the Act were expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible. Lead Industries, supra at 1149-1150. API’s other argument is that the standards are not supported by substantial evidence. We reject this argument because the record is replete with support for the final standards. The studies discussed in the criteria document constitute a rational basis for the finding that adverse health effects occur at ozone levels of 0.15 to 0.25 ppm for sensitive individuals. We need not find that each study discussed in the criteria document is accurate and reliable. The proper function of the court is not to weigh the evidence anew and make technical judgments; our role is limited to determining if the Administrator made a rational judgment. We find that the Administrator’s conclusion that normal body functions are “disrupted” at low ozone levels, 44 Fed.Reg. 8213 (1979), is supported by the studies of DeLucia and Adams (effects at 0.15 to 0.30 ppm) (J.A. Ex. 1 at 9-18), Hazucha (effects at 0.25) (J.A. Ex. 1 at 1-15), Wayne (effects at 0.15) (J.A. Ex. 1 at 10-57), Herman (effects at 0.15 to 0.39) (J.A. Ex. 1 at 1-22-23), among others indicated in the record. The court finds no reason to hold that the Administrator abused his discretion in crediting the various studies relied on, even given the acknowledged uncertainties in some of the conclusions. The Administrator noted that “a clear threshold of adverse health effects cannot be identified with certainty for ozone.” 44 Fed.Reg. 8213 (1979). Because the Administrator acknowledged the uncertainty of his task and made a rational judgment, we cannot second-guess his conclusion. Lead Industries, supra, at 1145-1146; See Motor & Equipment Manufacturers Ass’n v. EPA, 201 U.S.App.D.C. 109, 119-20, 627 F.2d 1095, 1105-06 (1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980); Hercules, Inc. v. EPA, 194 U.S.App.D.C. 172, 598 F.2d 91 (1978). Houston’s argument that because natural factors make attainment impossible the Administrator acted arbitrarily and capriciously in setting the primary ozone standard at an “unattainable” level is addressed in part by our analysis of API’s attainability argument. Attainability and technological feasibility are not relevant considerations in the promulgation of national ambient air quality standards. Lead Industries, supra, 647 F.2d at 1148-1149. Further, the agency need not tailor national regulations to fit each region or locale. NRDC v. EPA, 656 F.2d 768 at 785 (D.C.Cir. 1981). We also note that compliance extensions are available in some cases, 42 U.S.C. § 7502(a)(2) (Supp. Ill 1979), and that Congress is aware that some regions are having difficulty in meeting the national standards. See 42 U.S.C. § 7501 et seq. (Supp. Ill 1979) (Part D of Title I, setting special requirements for states which have not met standards). Houston also contends that EPA’s strategies for deducing ozone concentrations rely on a faulty premise: that ozone is caused in part by high concentrations of hydrocarbons in the air. In arguing this point Houston relies on a study which allegedly establishes that reduction of hydrocarbon levels will not reduce ozone levels. The study in question was considered by EPA and rejected on several grounds which undercut the reliability of its conclusions. 44 Fed.Reg. 8235 (1979). Because control of ozone by reduction of hydrocarbon levels is an established methodology (J.A. Ex. 1 at 1-2,1-3) and because Houston’s record evidence in rebuttal is sparse, we cannot find that the Administrator is wrong on this issue. Petitioner Commonwealth of Virginia challenges the method which EPA selected to measure compliance with the primary standard. The method chosen by EPA measures the highest average ozone level in any one hour to determine compliance. 44 Fed.Reg. 8217-18 (1979). Virginia argues that it would be better to use a daily average ozone level to measure exposure. We find that the Administrator’s selection of the maximum hourly average method is reasonable because it is calculated to measure the maximum exposure, which has been found to be a relevant factor in determining the likely consequences of ozone exposure. Petitioner National Resources Defense Counsel argues that the Administrator has abdicated responsibility for regulation of photochemical oxidants other than ozone by relabeling the regulations here at issue. In 1971 when the first air quality standards were promulgated, the title of the regulation was “National primary and secondary ambient air quality standards for photochemical oxidants”. 36 Fed.Reg. 8187 (1971). The title was somewhat misleading because the 1971 standards applied only to ozone, which was the sole photochemical oxidant measured for compliance. 43 Fed. Reg. 26967 (1978). The new standards challenged in this case expressly apply only to ozone and do not attempt to establish permissible levels for other photochemical oxidants. 43 Fed.Reg. 26985 (1978). Despite NRDC’s characterization of the Administrator’s action, it appears that EPA has not abandoned its statutory responsibility to regulate pollutants which “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1)(A) (Supp. Ill 1979). Rather, the Administrator has chosen to regulate the photochemical oxidant (ozone) that, in his judgment presents a predictable danger. (J.A. Ex. 1 at 1-31) The setting of the ozone standard is not the only action taken by the agency with regard to photochemical oxidants; research concerning the less well known oxidants continues. 44 Fed.Reg. 8204 (1979). The Administrator’s approach to photochemical oxidants is reasonable, given the uncertain information concerning the class as a whole. NRDC also argues that the Administrator failed to establish an adequate margin of safety in the primary standard. As required by the statute, the Administrator promulgated air quality standards that are calculated to “protect individuals who are particularly sensitive to the effects of pollution.” Lead Industries, supra, 647 F.2d at 1153. In setting margins of safety the Administrator need not regulate only the known dangers to health, but may “err” on the side of overprotection by setting a fully adequate margin of safety. See Environmental Defense Fund v. EPA, 194 U.S.App. D.C. 143, 161-62, 598 F.2d 62, 80-81 (1978). Of course the Administrator's conclusions must be supported by the record, and he may not engage in sheer guesswork. Where the Administrator bases his conclusion as to an adequate margin of safety on a reasoned analysis and evidence of risk, the court will not reverse. NRDC argues that the Administrator erred in setting a primary standard that does not protect sensitive individuals against easily predicted risks. In so arguing NRDC essentially ignores the mixed results of the medical studies evident in the record, choosing instead to rely only on the studies that favor its position. The Administrator, however, was required to take into account all the relevant studies revealed in the record. Because he did so in a rational manner we will not overrule his judgment as to the margin of safety. The Administrator concluded that the medical evidence “suggest[ed] the real possibility of significant human adverse health effects below 0.15 ppm. Consequently... [he] determined that a standard of 0.12 ppm is necessary and is sufficiently prudent unless and until further studies demonstrate reason to doubt that it adequately protect public health”. 44 Fed.Reg. 8217 (1979). Having determined that the “probable level for adverse effects in sensitive persons is in the range of 0.15-0.25 ppm”, 44 Fed.Reg. 8216 (1979), the Administrator considered the evidence in the record that related to less predictable risks of ozone exposure, a relevant consideration in setting margins of safety. The Administrator considered the lack of medical evidence concerning especially sensitive persons, the possibility that ozone and other pollutants might combine to create cumulative effects, the significance of long-term exposure to otherwise safe ozone levels, inconclusive studies indicating very low ozone damage thresholds, and uncertainties arising from meterological and calibration errors in measurements. Id. The Administrator also indicated that the results of the risk assessment study, described at page 4, supra, did not support any safety margin above 0.12 ppm. 44 Fed. Reg. 8217 (1979). Given the nature of the task assigned to the Administrator, which is to make an informed judgment based on available evidence, we find that the Administrator’s selection of a margin of safety is rational. See Lead Industries, supra, 647 F.2d at 1162. V. PROCEDURAL CHALLENGES Petitioners allege numerous procedural errors: EPA’s relationship with the Science Advisory Board (SAB) and Advisory Panel on Health Effects of Photochemical Oxidants (Shy Panel), post-comment period contacts between EPA and the White House, exclusion of documents from the record, and last-minute additions to the record by EPA. Under the procedural provisions of the Clean Air Act, 42 U.S.C. § 7607(d), we may invalidate the ozone standard because of procedural error only if (1) the agency’s failure to observe procedural requirements was arbitrary and capricious, (2) an objection was raised during the comment period, or, where the grounds for such an objection arose after the comment period and the objection is of “central relevance to the outcome of the rule,” the objection was raised on a petition for reconsideration before the agency, and (3) “the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” 42 U.S.C. § 7607(d)(7) & (8). As we noted in Sierra Club v. Costle, supra, 657 F.2d at 391-392, “[t]he essential message of so rigorous a standard is that Congress was concerned that EPA’s rulemaking not be casually overturned for procedural reasons, and we of course must respect that judgment.” 1. Science Advisory Board (SAB) API and Houston contend that in promulgating the ozone standards EPA violated section 8(e) of ERDDAA, 42 U.S.C. § 4365(e) (Supp. Ill 1979) by failing to obtain approval of the criteria document from the SAB and to submit the proposed standards to the SAB for review. Section 8(e) provides, in relevant part, that (e)(1) The Administrator, at the time any-proposed criteria document, standard, limitation, or regulation under the Clean Air Act... is provided to any other Federal agency for formal review and comment, shall make available to the [Science Advisory] Board such proposed criteria document, standard, limitation, or regulation, together with relev^t scientific and technical information.... (2) The Board may make available to the Administrator, within the time specified by the Administrator, its advice and comments on the adequacy of the scientific and technical basis of the proposed.criteria document, standard, limitation, or regulation, together with any pertinent information in the Board’s possession. (Emphasis supplied) The language of the statute indicates that making a proposed criteria document and standard available to the SAB for comment is mandatory but that SAB approval is not required before proceeding to the final stage of rulemaking. This interpretation is supported by the Conference Report underlying this provision of the ERDDAA, which states in pertinent part that The Science Advisory Board is intended to be advisory only. The Administrator will still have the responsibility for making the decisions required of him by law. The reviews and comments of the Board are to be provided to the Administrator for his use.... H.R.Rep.No. 95-722, 95th Cong., 1st Sess. 16 (1977), U.S.Code Cong. & Admin.News 1977, pp. 3283, 3295. While “the intent of [the statutory] language is to insure that the Board is able to comment in a well-informed manner on any regulation that it so desires”, “it should not be mandatory that they comment on all proposed regulations.... ” Id at 17 and 16, U.S.Code Cong. & Admin.News 1977, p. 3296. In short, the EPA was required under ERD-DAA to submit the criteria document and standard to the SAB for comment, but it was not obligated to obtain SAB approval of either before promulgation of a final standard. The parties do not dispute that EPA submitted two drafts of the criteria document to the SAB and that substantial revisions were requested by the Board. The SAB agreed to east ballots indicating approval or disapproval Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_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. Ralph W. SMITH, Plaintiff-Appellant, v. SOUTH SIDE LOAN COMPANY, Defendant-Appellee. No. 76-2108. United States Court of Appeals, Fifth Circuit. Feb. 6, 1978. Robert E. Steele, Jr., Macon, Ga., for plaintiff-appellant. W. Carl Reynolds, Macon, Ga., D. Lake Rumsey, Jr., Atlanta, Ga., for defendant-ap-pellee. Before BROWN, Chief Judge, THORN-BERRY and MORGAN, Circuit Judges. PER CURIAM: Plaintiff Ralph Smith filed an action in the United States District Court for the Middle District of Georgia charging a violation of the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. The district court in a bench trial, ruled in favor of the defendant. Plaintiff filed an appeal, but before this appeal was heard, plaintiff reached a settlement with defendant in which he agreed to drop the suit against defendant in exchange for defendant renewing his loan. Plaintiff accordingly directed his attorney, Robert Steele, Jr., to stop all proceedings, including this appeal, against the defendant. The attorney, however, refused to do this and submitted a brief, as well as appearing at oral argument. He contended that on the merits the district court’s judgment conflicts with applicable Fifth Circuit precedent and should be reversed. Defendant argues that plaintiff’s attorney is not a party to the suit and, therefore, has no standing to proceed with this action. The attorney contends, however, that he had a contingent fee agreement with his client and that this potential attorney’s fee, payable if he wins on the merits on appeal, provides him with a recognizable interest in the case sufficient to accord him standing. We agree with defendant that Mr. Steele is not a party to this case and, thus, has no standing to continue this suit. In Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Supreme Court articulated a two-pronged test to determine standing. Thus, a person asserting standing must show (1) that the challenged action has caused him injury in fact and (2) that if injury in fact is shown, that interest sought to be protected by the petitioner is within the zone of interests to be protected by the relevant statute. 397 U.S. at 152-53, 90 S.Ct. at 829-830, 25 L.Ed.2d at 187-88. See also Korioth v. Brisco, 523 F.2d 1271 (5th Cir. 1975); Persner v. Eastern Air Lines, Inc., 453 F.2d 916 (5th Cir. 1974). Clearly, an attorney’s interest in recovering a contingent fee is not within the zone of interests protected by the Truth-in-Lending statute. Also, while 15 U.S.C. § 1640(a)(2) does allow a court to award attorney’s fees to a successful party, such an award is the right of the party suing not the attorney representing him. Therefore, this provision does not accord the attorney a “party” status. We are sympathetic to Mr. Steele’s plight. That is, he prepared his client’s case for trial and had a good chance of obtaining a reversal of the district judge’s order on an appeal of the case on its merits. Yet, through no fault of his own, his client, upon the entreaty of the defendant foolishly circumvented his own counsel and negotiated a settlement with the defendant. Yet, while we disapprove of the defendant’s questionable conduct in this ease and of the plaintiff’s failure to consult his counsel before he entered into a settlement, we are nevertheless compelled to dismiss the appeal because Mr. Steele has no standing in the case. DISMISSED. The extent of the participation of defendant’s counsel in this transaction is unclear. 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_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. PRICE v. JOHNSTON, WARDEN. No. 111. Argued December 16, 1947. Decided May 24, 1948. Joseph L. Rank, Jr. argued the cause for petitioner. With him on the brief was Irving J. Levy. Frederick Bernays Wiener argued the cause for respondent. With him on the brief were Solicitor General Perl-man, Assistant Attorney General Quinn, Robert S. Erdahl and Beatrice Rosenberg. Wayne M. Collins filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. Mr. Justice Murphy delivered the opinion of the Court. The writ of habeas corpus has played a great role in the history of human freedom. It has been the judicial method of lifting undue restraints upon personal liberty. But in recent years the increased use of this writ, especially in federal courts, has created many procedural problems which are not easy of solution. This case involves some of those problems. Because of the importance of the writ and the necessity that it not lose its effectiveness in a procedural morass, we have deemed it wise to deal with this case at length and to set forth fully and explicitly the answers to the matters at issue. In 1938, petitioner was convicted in a federal district court in Michigan under a four-count indictment charging violations of the federal bank robbery statute. He was sentenced to imprisonment for 65 years and was committed to the United States Penitentiary at Alcatraz, California. His efforts to prosecute an appeal from his conviction proved futile. Since his confinement at Alcatraz, petitioner has made four separate applications for writs of habeas corpus in the United States District Court for the Northern District of California. The instant proceeding involves the fourth of these applications. Inasmuch as the problems in this case can best be understood in light of the issues raised in the earlier proceedings, it becomes necessary to examine the various applications in some detail. 1. The first application was prepared and filed in 1940 by petitioner, who is not a lawyer. He sought release mainly on the grounds that certain evidence used against him at the trial had been obtained in violation of the Fourth Amendment and that the trial judge had improperly refused to disqualify himself upon the filing of an affidavit of prejudice. It is important to note that this application did not allege that the conviction resulted from the prosecution’s knowing use of false testimony. The District Court issued an order to show cause, a return was made, and the petitioner then filed a traverse in the form of a “Motion to overrule Respondent’s return and issue writ.” This motion likewise failed to aver the knowing use of false testimony. But it did call the court's attention to “two different statements” made at the trial by the prosecution’s chief witness, Fred T. Donner, and to the “methods... used to obtain” this change in testimony. There was no indication given as to what those “methods” were. Donner’s testimony at the trial was attached as an exhibit, testimony which revealed that Donner had gone to the office of the District Attorney and talked to him and his assistant during the interval between the allegedly conflicting statements. The District Court then appointed counsel for petitioner at his request. Several months later, when the matter came on for determination, the court entered an order denying the application for a writ of habeas corpus and dismissing the petition. No hearing was held, the order being entered solely on the basis of the pleadings. And no findings of fact or conclusions of law were made. Nor was an opinion written. Petitioner thereafter proceeded pro se. Among his various legal maneuvers, he moved for a rehearing. He stated, as grounds for the motion, that the court erred in refusing to allow him to appear and testify personally before entering the order and that the court-appointed attorney “blocked your petitioner from filing an amended petition to include additional points so that they could be reviewed on appeal.” This motion was denied. Petitioner prepared his own appeal to the Circuit Court of Appeals. Among the points upon which he stated he intended to rely was the claim that he had been denied “a fair and impartial trial” by Donner’s change in testimony after talking with the District Attorney. But the Circuit Court of Appeals, in affirming the District Court’s disposition of the habeas corpus petition, made no reference to this point; its opinion was devoted exclusively to the matters raised in the original petition. Price v. Johnston, 125 F. 2d 806. Included in the numerous claims in his attempt to secure a writ of certiorari in this Court was the reiteration that Donner’s change in testimony deprived him of a fair and impartial trial. According to his written argument, “if this was not perjured it was base contradictory evidence for after this witness had completed all his evidence he was then taken into the private chambers of the United States Attorney... and there was instructed as to what to say, for he came from said office and was recalled to the stand at this second setting he rebutted all his prior testimony. This must be either classed as a conspiracy forcing a witness to change his testimony either of which surely would not be giving the appellant the fair and impartial trial to which he is entitled.” The Government’s memorandum in opposition dealt with this contention in a footnote. It was there said that petitioner’s claim “is refuted by the excerpt from the transcript of the proceedings at the trial introduced as part of petitioner’s pleadings.... The witness did not rebut his prior testimony but merely supplemented it with a few more details and he affirmatively stated that his discussion with the prosecutor did not assist him in his subsequent testimony.” This Court denied the petition for a writ of cer-tiorari. Price v. Johnston, 316 U. S. 677; rehearing denied, 316 U. S. 712. 2. In 1942, several months after the foregoing action by this Court, petitioner prepared and filed in the District Court a second petition for a writ of habeas corpus. In this petition he sought release on the same grounds set forth in his first petition as well as on two principal additional grounds. The two new claims were that petitioner’s counsel had been absent from the courtroom dur-. ing an important part of the trial and that petitioner had not had counsel at the preliminary hearing before the United States Commissioner. The petition, as amended, contained no allegation that false testimony had been knowingly used at the trial; nor did it refer in any way to Donner’s allegedly inconsistent testimony. Moreover, no mention of such matters was made by petitioner in his testimony at the hearing on the writ of habeas corpus. The District Court, at the close of the hearing, discharged the writ. Its findings of fact and conclusions of law were subsequently entered and were silent as to any question relating to the knowing use of false testimony. The District Court’s action was affirmed on appeal, the opinion of the Circuit Court of Appeals being devoted to the matters decided by the District Court. Price v. Johnston, 144 F. 2d 260. This Court then denied a petition for certiorari, a petition which presented no issues differing from those raised in the lower courts. Price v. Johnston, 323 U. S. 789; rehearing denied, 323 U. S. 819. 3. Petitioner’s third petition for a writ of habeas corpus was denied by the District Court on August 22, 1945. This denial was based on the ground that the issues raised were known to petitioner when he filed the earlier petitions, making the third petition an abusive use of the writ of habeas corpus. Price v. Johnston, 61 F. Supp. 995. Leave to appeal was denied. It is not evident, however, what the issues were that petitioner did raise in this proceeding. 4. On January 2, 1946, petitioner filed his fourth application for a writ of habeas corpus. He alleged that he had been denied a fair and impartial trial in that, on the trial for bank robbery, the jury was confused by the presentation of evidence to show perjury before a notary public, that the court was not justified in imposing a general sentence on the four counts of the indictment, and that the fourth count did not allege an offense. After an order to show cause was issued, petitioner amended his petition to allege “That the government knowingly employed false testimony on the trial, to obtain the conviction.” The respondent warden, through the United States Attorney, thereupon filed his return to the order to show cause. This return did not deny the allegation that the Government knowingly employed false testimony at the trial. Nor did it question the sufficiency of the allegation or the absence of supporting facts. It simply incorporated by reference the entire record in the three prior habeas corpus proceedings and asked that the fourth petition be' denied on the basis of the District Court’s opinion denying the third application. Petitioner’s traverse stated that the earlier petitions did not contain some of the points presented in the fourth petition. It repeated the allegations in the original petition, though it merely incorporated by reference the allegation of the amended petition that the prosecutor knowingly used false testimony. The District Court denied the fourth petition without a hearing and without opinion. It is difficult to discover from such action the precise basis of the District Court’s dismissal of the allegation in question. But because of the nature of the warden’s return, we suspect that the court thought that the matter was known to petitioner at the time of filing the first petition and should have been urged at that time. There is nothing whatever to indicate that the dismissal stemmed from the court’s belief that the allegation was insufficient on its face or that it was obviously without merit. On appeal, a panel of the Ninth Circuit Court of Appeals ordered up the original files in petitioner’s three previous applications and directed that petitioner be brought before the court for the argument of his appeal. After the argument, the submission of the cause was set aside and the case was assigned for hearing before the court en banc. Petitioner then moved the court en banc for an order directing his appearance for the reargument. This motion was denied on January 6, 1947. In its written opinion, a majority of the court held that circuit courts of appeals are without power to order the production of a prisoner for the argument of his appeal in person. One judge expressed the view that the court had such power, but concurred in the denial of the motion as a matter of discretion. Two judges dissented, stating that there was power to grant the requested relief; but they did not reach the question of the propriety of exercising that power in this case. 159 F. 2d 234. The appeal was then considered on the merits on briefs filed by petitioner and respondent and on oral argument by an Assistant United States Attorney. Petitioner was unrepresented at the oral argument. On May 5, 1947, the order of the District Court denying the fourth petition without a hearing was affirmed, two judges dissenting in separate opinions. 161 F. 2d 705. The majority opinion of the Circuit Court of Appeals pointed out that, by amending his fourth petition to allege “that the government knowingly employed false testimony on the trial, to obtain conviction,” petitioner had interposed a wholly new ground for discharge. But the specific circumstances of this claim had not been developed in the District Court. The opinion accordingly treated the allegation as though it had incorporated petitioner’s explanatory statement in his appellate brief that the United States Attorney, in the course of the trial, “did take the one and only witness, Donner, that testified that there had been a crime committed, from the witness stand after he had testified that he could not see any guns or pistols during the robbery, to the district attorney’s office, and talked about the evidence and put the witness Donner back on the witness stand to testify that he did see the pistols, and described them, when he could not do so at first.” So construing the allegation, the court then said: “The records in these several proceedings disclose that throughout his trial appellant was represented by counsel of his own choosing. And since he was himself present at all times he could hardly have been unaware of the described incident or of its implications, nor does he make any such claim. On the face of his showing it is apparent he knew as much about the misconduct at the time it is said to have occurred as he knows now. Yet no reason or excuse is attempted to be advanced for his failure to set it up in one or the other of his prior petitions.” 161 F. 2d at 706-707. And it was further stated that “Where there have been repeated petitions with an apparent husbanding of grounds the onus may properly be cast on the applicant of satisfying the court that an abusive use is not being made of the writ.” Id., at 707. Since petitioner had given no valid excuse for failing to present earlier the allegation in question, the conclusion was reached that the District Court did not abuse its discretion in denying the fourth petition without a hearing. Reference was made in this respect to Salinger v. Loisel, 265 U. S. 224, and Wong Doo v. United States, 265 U. S. 239. We issued a writ of certiorari to review the important issues thus raised in the two opinions of the Circuit Court of Appeals. And on petitioner’s motion, we appointed a member of the bar of this Court to serve as his counsel before us. I. We hold that power is resident in a circuit court of appeals to command that a prisoner be brought before it so that he may argue his own appeal in a case involving his life or liberty. That power, which may be exercised at the sound discretion of the court, grows out of the portion of § 262 of the Judicial Code, 28 U. S. C. § 377, which provides that “The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” An order requiring the presence of a prisoner before a circuit court of appeals to argue his own appeal is one in the nature of a writ of habeas corpus. As such, it clearly falls within the scope of § 262. Basic to the power of a circuit court of appeals to issue a writ of habeas corpus under that section, of course, is the pendency of a proceeding of an appellate nature to which the contemplated writ is auxiliary. Whitney v. Dick, 202 U. S. 132. The writ cannot be issued by that court as an independent and original proceeding; it can only issue where it may be necessary to the complete exercise of an appellate jurisdiction already existing. Since the occasion for demanding the presence of a prisoner at an oral argument would arise only where there was an appeal already pending before the court, a writ compelling his presence satisfies this basic requirement of § 262. Moreover, a writ of habeas corpus of this nature can on occasion be “necessary” for the exercise of appellate jurisdiction so as to be authorized by § 262. We have refused to interpret that section to mean that a circuit court of appeals can issue a habeas corpus writ only if “necessary” in the sense that the court could not otherwise physically discharge its appellate duties. Adams v. United States ex rel. McCann, 317 U. S. 269, 273. Rather, § 262 has been read so that the writ may be issued where its use is calculated, in the sound judgment of the circuit court of appeals, to achieve the ends of justice entrusted to it. In other words, the writ is available in those exceptional cases “where, because of special circumstances, its use as an aid to an appeal over which the court has jurisdiction may fairly be said to be reasonably necessary in the interest of justice.” Id., at 274. Exceptional situations may arise where a circuit court of appeals might fairly conclude that oral argument by a prisoner in person is “reasonably necessary in the interest of justice.” True, an appeal can always be submitted on written briefs. But oral argument, while not indispensable, is frequently if not usually desired by the parties. And there are occasions when a court deems it essential that oral argument be had; indeed, a court order or request to that effect may be necessary where the parties have previously indicated a willingness to forego the privilege. In such situations where oral argument is slated to take place, fairness and orderly appellate procedure demand that both parties be accorded an equal opportunity to participate in the argument either through counsel or in person. The difficulty, of course, arises when one of the parties is a prisoner who has no lawyer and who desires that none be appointed to represent him, being of the belief that the case is of such a nature that only he himself can adequately discuss the facts and issues. Since ordinarily the court cannot designate counsel for the prisoner without his consent, an arrangement that is made for his presence and participation at the oral argument can be said to be “reasonably necessary in the interest of justice.” Otherwise the court loses the benefits of listening to his contentions, hearing only the arguments of government counsel. Conceivably, the prisoner’s case might be unduly prejudiced by such a one-sided debate. That the argument orally advanced by the prisoner may in fact be less than enlightening to the court does not detract from the fairness or the justness of giving him the opportunity to appear and argue. Thus if a circuit court of appeals is satisfied in other respects that the prisoner should be produced at the argument, a writ designed to effectuate that production is plainly “necessary” within the contemplation of § 262. It remains to be seen whether a writ of habeas corpus for the purpose under consideration is “agreeable to the usages and principles of law,” as that phrase is used in § 262. At common law there were several variants of the writ of habeas corpus. See 3 Blackstone’s Commentaries *129-132; Ex parte Bollman, 4 Cranch 75, 97-98. None of them, however, seems to have been devised for the particular purpose of producing a prisoner to argue his own appeal. Nor does it appear that the courts of England have used or developed the habeas corpus writ for this purpose. However, we do not conceive that a circuit court of appeals, in issuing a writ of habeas corpus under § 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of “law,” a term which is unlimited by the common law or the English law. And since “law” is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the habeas corpus writ authorized by § 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence. In short, we do not read § 262 as an ossification of the practice and procedure of more than a century and a half ago. Rather it is a legislatively approved source of procedural instruments designed to achieve “the rational ends of law.” Adams v. United States ex rel. McCann, supra, 273. We accordingly look to the usages and principles which have attached themselves to the writ of habeas corpus down through the years to the present time. The historic and great usage of the writ, regardless of its particular form, is to produce the body of a person before a court for whatever purpose might be essential to the proper disposition of a cause. The most important result of such usage has been to afford a swift and imperative remedy in all cases of illegal restraint upon personal liberty. With that usage, a writ for the purpose under consideration is entirely agreeable and consistent. To order the production of a prisoner before an appellate court to argue his own appeal in a case in which he alleges that he is illegally imprisoned is to perform an act which is intimately and necessarily related to the presentation of the merits of the prisoner’s complaint, a presentation which is essential if relief from the allegedly illegal imprisonment is to be secured. Such production, as we have seen, may in some circumstances be essential to the proper disposition of the case on appeal. Where that is the case, a writ in the nature of habeas corpus to achieve that production is agreeable to the usages of law. Moreover, the principle has developed that the writ of habeas corpus should be left sufficiently elastic so that a court may, in the exercise of its proper jurisdiction, deal effectively with any and all forms of illegal restraint. The rigidity which is appropriate to ordinary jurisdictional doctrines has not been applied to this writ. The fluidity of the writ is especially desirable in the setting of a statute where Congress has given circuit courts of appeals the power to issue the writ in aid of their appellate jurisdiction wherever “reasonably necessary in the interest of justice.” The ordinary forms and purposes of the writ may often have little relation to the necessities of the appellate jurisdiction of those courts. Justice may on occasion require the use of a variation or a modification of an established writ. It thus becomes essential not to limit appellate courts to the ordinary forms and purposes of legal process. Congress has said as much by the very breadth of its language in § 262. It follows that we should not write in limitations which Congress did not see fit to make. Formulation of the limitations of § 262 which do exist must await the necessities of appellate jurisdiction in particular cases. It is enough for the present to note that where those necessities are such as to require the presence of a prisoner to argue his own appeal, the issuance of a writ of habeas corpus for that purpose is “agreeable to the usages and principles of law” so as to be sanctioned by § 262. Only in that way can we give substance in this case to our previous statement that “dry formalism should not sterilize procedural resources which Congress has made available to the federal courts.” Adams v. United States ex rel. McCann, supra, 274. We therefore conclude that circuit courts of appeals do have the power under § 262 of the Judicial Code to issue an order in the nature of a writ of habeas corpus commanding that a prisoner be brought to the courtroom to argue his own appeal. That power has heretofore been assumed. Schwab v. Berggren, 143 U. S. 442, 449; and see Goldsmith v. Sanford, 132 F. 2d 126, 127; Donnelly v. State, 26 N. J. Law 463, 472, affirmed, 26 N. J. Law 601. We now translate that assumption into an explicit holding. In so deciding, however, we emphasize that the power of a circuit court of appeals to issue such a writ is discretionary. And this discretion is to be exercised with the best interests of both the prisoner and the government in mind. If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument, and that his presence in the courtroom may be secured without undue inconvenience or danger, the court would be justified in issuing the writ. But if any of those factors were found to be negative, the court might well decline to order the prisoner to be produced. Section 262, in other words, does not justify an indiscriminate opening of the prison gates to allow all those who so desire to argue their own appeals. The discretionary nature of the power in question grows out of the fact that a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. Schwab v. Berggren, supra. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution, see Hopt v. Utah, 110 U. S. 574, and Snyder v. Massachusetts, 291 U. S. 97, and to his recognized privilege of conducting his own defense at the trial. Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U. S. C. § 394, to parties in all the courts of the United States to “plead and manage their own causes personally.” To the extent that this section permits parties to conduct their own oral arguments before appellate courts, it must be modified in its application to prisoners. Oral argument on appeal is not an essential ingredient of due process and it may be circumscribed as to prisoners where reasonable necessity so dictates. A prisoner’s right to participate in oral argument on appeal is accordingly to be determined by the exercise of the discretionary power of the circuit court of appeals under § 262. The court below erred in holding that no such power existed. But since the case must go back to the District Court for further proceedings, it is unnecessary here to remand the case to the Circuit Court of Appeals to exercise the discretionary power which rightfully belongs to it. II. We hold that petitioner’s fourth petition for a writ of habeas corpus, alleging the knowing use of false testimony to obtain his conviction, was improperly dismissed by the District Court. The Government argues before us that the allegation in question, as presented to the District Court, is a mere allegation of law unsupported by reference to any specific facts. As such, the allegation is said to be fatally deficient and to warrant summary denial. Reference is made in this respect to Cuddy, Petitioner, 131 U. S. 280, 286; Kohl v. Lehlback, 160 U. S. 293, 299; United States v. Ju Toy, 198 U. S. 253, 261; Collins v. McDonald, 258 U. S. 416, 420-421; Hodge v. Huff, 78 U. S. App. D. C. 329, 331, 140 F. 2d 686, 688; and Long v. Benson, 140 F. 2d 195, 196. But this proposition was apparently not presented to or passed upon by the District Court; nor was it determined by the Circuit Court of Appeals. The sole complaint made by the Government in the lower courts, and the main one raised before us, relates to petitioner’s alleged abuse of the writ of habeas corpus. A consideration of that factor is preliminary as well as collateral to a decision as to the sufficiency or merits of the allegation itself. We accordingly address ourselves solely to the alleged abuse of the writ, leaving the Government free to press its objections to the adequacy of the allegation after the proceedings are renewed before the District Court. The Circuit Court of Appeals, as we have noted, treated the bare allegation of the knowing use of false testimony as having incorporated the explanatory statement in petitioner’s appellate brief. Whether such an expanded allegation states a sufficiently specific violation of due process within the meaning of Mooney v. Holohan, 294 U. S. 103, is a question which we need not now answer. Nor is it necessary here to decide the propriety of treating a statement in an appellate brief as an amplification of an allegation in the trial court, a practice to which the Government makes objection. But in dealing with the alleged abuse of the writ of habeas corpus, we find it undenied that the explanatory statement illuminates the allegation made in the District Court. The statement makes clear the incident to which petitioner had reference when he alleged the knowing use of false testimony. In other words, the essence of petitioner’s charge is that the prosecution brought undue pressure to bear on the Government’s chief witness, Donner, to change his testimony and that this altered testimony was knowingly used to obtain petitioner’s conviction. Cf. Pyle v. Kansas, 317 U. S. 213, 215-216. The issue now is whether petitioner has so abused the writ of habeas corpus as to bar a consideration of this allegation, whether it be general or specific in form or whether it be supported or unsupported by factual references. From the facts which we have previously detailed it is evident that this allegation was not properly raised prior to the amendment of the fourth petition. None of the three prior petitions had made this point. In the first proceeding, it is true, petitioner’s traverse to the warden’s return called the court’s attention to the differing statements allegedly made by Donner and claimed that certain undefined “methods” had been used to obtain the change in testimony. Petitioner was apparently trying to raise the due process issue formulated in Mooney v. Holohan, supra. But his effort was without success..A mere claim that a witness gave inconsistent testimony is not enough to charge the prosecution’s knowing use of false testimony; it may well be that the witness’ subsequent statements were true, in which event the claim of inconsistency is not a constitutional objection. Since this due process issue was not properly raised, we cannot assume that the District Court’s action in dismissing the first petition on the pleadings was a determination against petitioner on the merits of the issue. Further elaboration of the Donner incident was made by petitioner in the course of seeking review of the District Court’s action on the first petition. Both in the Circuit Court of Appeals and in this Court he claimed that he had been denied a fair and impartial trial by Donner’s alleged shift in testimony; and in this Court he stated that there had been a conspiracy to force Donner to change his story. It is noteworthy that the Government did not see fit to deny or controvert petitioner’s claim until the case reached this Court. We need not decide whether the due process issue was properly raised in the review proceedings, inasmuch as petitioner’s failure to make a proper allegation in that respect in the District Court foreclosed any determination of the matter. And as we have noted, the second and third petitions for habeas corpus were completely silent as to this due process issue. There has thus been no proper occasion prior to the fourth proceeding for a hearing and determination by the District Court as to the allegation that the prosecution knowingly used false testimony to obtain a conviction. That fact renders inapplicable Salinger v. Loisel, 265 U. S. 224, upon which reliance was placed by the Circuit Court of Appeals. It was there held that, while habeas corpus proceedings are free from the res judicata principle, a prior refusal to discharge the prisoner is not without bearing or weight when a later habeas corpus application raising the same issues is considered. But here the three prior applications did not raise the issue now under consideration and the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition. Waley v. Johnston, 316 U. S. 101. Likewise irrelevant to the instant proceeding is Wong Doo v. United States, 265 U. S. 239. In that case, the petitioner set forth two grounds for discharge in his first petition. At the hearing, he offered no proof in support of the second ground. The.petition was dismissed on the theory that the first ground was not good in law. A subsequent habeas corpus petition relied entirely on the second ground alleged in the first petition. This Court held that the petitioner had had full opportunity to offer proof as to the second point at the hearing on the first petition, proof which was accessible at all times. If he was intending to rely on that ground, good faith required that he produce his proof at the first hearing. “To reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus. No reason for not presenting the proof at the outset is offered.” 265 U. S. at 241. The Wong Doo case thus involved a situation where one has properly raised an issue in an earlier petition, has received a full opportunity at a hearing to present evidence on the point, and has refused to avail oneself of that opportunity. The distinguishing features in the instant case are obvious. There is one factor in this case that might be thought to justify the dismissal of the fourth petition as an abusive use of the habeas corpus writ. That factor is that petitioner had prior knowledge of the Donner incident which forms the basis, at least in part, of the due process allegation now being made. The record in the first proceeding shows that petitioner’s own lawyer elicited the information from Donner that he had talked with the prosecuting lawyers during the interlude between the allegedly conflicting statements. And petitioner made reference to that information during the course of the first habeas corpus proceeding in the manner heretofore described. Petitioner now utilizes that same information in alleging that the prosecution made a knowing use of false testimony. In the first place, however, we cannot assume that petitioner has acquired no new or additional information since the time of the trial or the first habeas corpus proceeding that might indicate fraudulent conduct on the part of the prosecuting attorneys. As Judge Denman stated in his dissenting opinion below, 161 F. 2d at 708-709: “The gravamen of the misconduct charged is not the fact that the witness changed his testimony but that the prosecuting attorney knowingly caused the witness to give the false testimony. All the accused and his attorney knew at the trial was that the single prosecuting witness changed his testimony. Obviously this in itself does not warrant a charge of fraud. That it was fraudulently done by persuasion of the prosecuting attorney could only have been learned after conviction and after the convicted man was in the penitentiary.” Whether petitioner does or does not have any new information is a matter unrevealed by anything before us or before the Circuit Court of Appeals. It is a matter which should be determined in the first instance by the District Court. And it is one on which petitioner is entitled to be heard either at a hearing or through an amendment or elaboration of his pleadings. Appellate courts cannot make factual determinations which may be decisive of vital rights where the crucial facts have not been developed. Cf. Kennedy v. Silas Mason Co., 334 U. S. 249. In the second place, even if it is found that petitioner did have prior knowledge of all the facts concerning the allegation in question, it does not necessarily follow that the fourth petition should be dismissed without further opportunity to amend the pleadings or without holding a hearing. If called upon, petitioner may be able to present adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay. The primary purpose of a habeas corpus proceeding is to make certain that a man is not unjustly imprisoned. And if for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief. Moreover, we do not believe that the burden was on the petitioner of affirmatively alleging in the first instance that he had acquired new information or that he had adequate reasons for not raising sooner the issue of the knowing use of false testimony. It was enough if he presented an allegation and supporting facts which, if borne out by proof, would entitle him to relief. Prisoners are often unlearned in the law and unfamiliar with the complicated rules of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession. Especially is this true in a case like this where the imposition of those standards would have a retroactive and prejudicial effect on the prisoner’s inartistically drawn petition. Cf. Holiday v. Johnston, 313 U. S. 342, 350; Pyle v. Kansas, supra, 216; Tomkins v. Missouri, 323 U. S Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". The PROCTER & GAMBLE COMPANY, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Nos. 91-1515, 91-1557. United States Court of Appeals, Sixth Circuit. Argued March 17, 1992. Decided April 20, 1992. Padric K. O’Brien, William Sanford Corey (Briefed), Sutherland, Asbill & Brennan, Washington, D.C., Burgess L. Doan (Briefed), Cohen, Todd, Kite & Stanford, Newport, Ky., J.D. Fleming, Jr. (Argued), Sutherland, Asbill & Brennan, Atlanta, Ga., for petitioner-appellee. Abraham N.M. Shashy, Jr., Chief Counsel, John T. Lyons, I.R.S., Office of Chief Counsel, Gary R. Allen, Acting Chief (Briefed), Jonathan S. Cohen, Teresa McLaughlin (Argued), U.S. Dept, of Justice, Appellate Section Tax Div., Howard A. Berger, I.R.S., Washington, D.C., for respondent-appellant. Before: KENNEDY and BATCHELDER, Circuit Judges; and TAYLOR, District Judge. The Honorable Anna Diggs Taylor, United States District Judge for the Eastern District of Michigan, sitting by designation. KENNEDY, Circuit Judge. The Commissioner of Internal Revenue appeals the decision of the Tax Court holding that allocation of income to Procter & Gamble (P & G) from a wholly-owned subsidiary under Internal Revenue Code § 482 was unwarranted. For the reasons to follow, we AFFIRM the Tax Court. I. P & G is an Ohio corporation engaged in the business of manufacturing and marketing consumer and industrial products. P & G operates through domestic and foreign subsidiaries and affiliates. P & G owned all the stock of Procter & Gamble A.G. (AG), a Swiss corporation. AG was engaged in marketing P & G’s products, generally in countries in which P & G did not have a marketing subsidiary or affiliate. P & G and AG were parties to a License and Service Agreement, known as a package fee agreement, under which AG paid royalties to P & G for the nonexclusive use by AG and its subsidiaries of P & G’s patents, trademarks, tradenames, knowledge, research and assistance in manufacturing, general administration, finance, buying, marketing and distribution. The royalties payable to P & G were based primarily on the net sales of P & G’s products by AG and its subsidiaries. AG entered into agreements similar to package fee agreements with its subsidiaries. In 1967, P & G made preparations to organize a wholly-owned subsidiary in Spain to manufacture and sell its products in that country. Spanish laws in effect at that time closely regulated foreign investment in Spanish companies. The Spanish Law of Monetary Crimes of November 24, 1938, in effect through 1979, regulated payments from Spanish entities to residents of foreign countries. This law required governmental authorization prior to payment of pesetas to residents of foreign countries. Making such payments without governmental authorization constituted a crime. Decree 16/1959 provided that if investment of foreign capital in a Spanish company was deemed economically preferential to Spain, a Spanish company could transfer in pesetas “the benefits obtained by the foreign capital.” P & G requested authorization to organize P & G España S.A. (España) and to own, either directly or through a wholly-owned subsidiary, 100 percent of the capital stock of España. P & G stated that its 100 percent ownership of España would allow España immediate access to additional foreign investment, and that P & G was in the best position to bear the risk associated with the mass production of consumer products. P & G also indicated that 100 percent ownership would allow P & G to preserve the confidentiality of its technology. As part of its application, P & G estimated annual requirements for pesetas for the first five years of España’s existence. Among the items listed was an annual amount of 7,425,000 pesetas for royalty and technical assistance payments. Under Spanish regulations, prior authorization of the Spanish Council of Ministers was required in. order for foreign ownership of the capital of a Spanish corporation to exceed fifty percent. The Spanish government approved P & G’s application for 100 percent ownership in España by a letter dated January 27, 1968. The letter expressly stated that Es-paña could not, however, pay any amounts for royalties or technical assistance. For reasons that are unclear in the record, it was determined that AG, rather than P & G, would hold 100 percent interest in Espa-ña. From 1969 through 1979, España filed several applications with the Spanish government seeking to increase its capital from the amount originally approved. The first such application was approved in 1970. The letter granting the increase in capital again stated that España “will not pay any amount whatsoever in the concept of fees, patents, royalties and/or technical assistance to the investing firm or to any of its affiliates, unless with the approval of the Administration.” All future applications for capital increases that were approved contained the same prohibition. In 1973, the Spanish government issued Decree 2343/1973, which governed technology agreements between Spanish entities and foreign entities. In order to obtain permission to transfer currency abroad under a technology agreement, the agreement had to be recorded with the Spanish Ministry of Industry. Under the rules for recording technology agreements, when a foreign entity assigning the technology held more than 50 percent of the Spanish entity’s capital, a request for registration of a technology agreement was to be looked upon unfavorably. In cases where foreign investment in the Spanish entity was less than 50 percent, authorization for payment of royalties could be obtained. In 1976, the Spanish government issued Decree 3099/1976, which was designed to promote foreign investment. Foreign investment greater than 50 percent of capital in Spánish entities was generally permitted, but was conditioned upon the Spanish company making no payments to the foreign investor, its subsidiaries or its affiliates for the transfer of technology. España did not pay a package fee for royalties or technology to AG during the years at issue. España received permission on three occasions to pay P & G for specific engineering services contracts. The Spanish Foreign Investments Office clarified that payment for these contracts was not within the general prohibition against royalties and technical assistance payments. España never sought formal relief from the Spanish government from the prohibition against package fees. In 1985, consistent with its membership in the European Economic Community, in Decree 1042/1985 Spain liberalized its system of authorization of foreign investment. In light of these changes, España filed an application for removal of the prohibition against royalty payments. This application was approved, as was España’s application to pay package fees retroactive to July 1, 1987. España first paid a dividend to AG during the fiscal year ended June 30, 1987. The Commissioner determined that a royalty of two percent of España’s net sales should be allocated to AG as royalty payments under section 482 for 1978 and 1979 in order to reflect AG’s income. The Commissioner increased AG’s income by $1,232,653 in 1978 and by $1,795,005 in 1979 and issued P & G a notice of deficiency. P & G filed a petition in the Tax Court seeking review of the deficiencies. The Tax Court held that the Commissioner’s allocation of income was unwarranted and that there was no deficiency. The court concluded that allocation of income under section 482 was not proper in this case because Spanish law, and not any control exercised by P & G, prohibited España from making royalty payments. II. This Court applies a de novo standard of review to legal conclusions made by the Tax Court. Smith v. Commissioner, 987 F.2d 1089, 1096 (6th Cir.1991). III. P & G argues that the Tax Court correctly determined that the Commissioner was not authorized to allocate royalty income to it under section 482. At all times relevant to this action, section 482 provided: In any case of two or more organizations, trades, or businesses ... owned or controlled directly or indirectly by the same interests, the Secretary may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any such organizations, trades, or businesses. The purpose of section 482 is “to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer.” Treas.Reg. § 1.482 — 1(b)(1). It is P & G’s position that section 482 requires that any distortion of income of a controlled party result from the existence and exercise of control. P & G argues that where governing law, and not the controlling party or interests, causes a distortion of income, section 482 is unavailable to allocate income. P & G argues that the regulations promulgated under section 482 and the Supreme Court’s decision in Commissioner v. First Security Bank, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972), support this position. The term “controlled” is defined in Treas.Reg. § 1.482-l(a)(3) to include: any kind of control, direct or indirect.... It is the reality of the control which is decisive, not its form or the mode of its exercise. Treas.Reg. § 1.482-l(b)(l) states the level of control that is presumed to justify making a section 482 allocation: The interests controlling a group of controlled taxpayers are assumed to have complete power to cause each controlled taxpayer so to conduct its affairs that its transactions and accounting records truly reflect the taxable income from the property and business of each of the controlled taxpayers. Further, Treas.Reg. § 1.482-l(c) states: Transactions between one controlled taxpayer and another will be subjected to special scrutiny to ascertain whether the common control is being used to reduce, avoid, or escape taxes. The foregoing regulations recognize that in order for the Commissioner to have authority to make a section 482 allocation, a distortion in a controlled taxpayer’s income must be caused by the exercise of such control. In the present case there is no evidence that P & G or AG used its control over España to manipulate or shift income. Indeed, the Tax Court held that the failure of España to make royalty payments was a result of the prohibition against royalty payments under Spanish law and was not due to the exercise of control by P & G. The Spanish prohibition is expressly found in the letter approving España’s organization and in the letters permitting capital increases for España. In addition, Decrees 2343/1973 and 3099/1976 made it clear that payments for transfers of technology from Spanish entities to controlling foreign entities would be restricted. The Supreme Court held in First Security that the Commissioner is authorized to allocate income under section 482 only where a controlling interest has complete power to shift income among its subsidiaries and has exercised that power. In First Security, two related banks offered credit life insurance to their customers. The banks were prohibited by federal law from acting as insurance agents and receiving premiums, and they referred customers to an unrelated insurance company to purchase this insurance. The insurance company retained 15 percent of the premiums for actuarial and accounting services, and transferred 85 percent of the premiums through a reinsurance agreement to an insurance company affiliated with the banks. The insurance affiliate reported the entire amount it received as reinsurance premiums as its income. The Commissioner determined that 40 percent of the affiliate’s income was allocable to the banks as compensation for originating and processing the insurance. The Supreme Court set aside the Commissioner’s allocation. The Court found that the holding company that controlled the banks and the insurance affiliate did not have the power to shift income among its subsidiaries unless it operated in violation of federal banking law. The Court stated that the “complete power” referred to in Treas.Reg. § 1.482-1(b)(1) does not include the power to force a subsidiary to violate the law. So here, P & G did not have the power to shift income between España and its other interests unless it violated Spanish law. The payment or non-payment of royalties in no way depended on P & G’s control of the various entities. The same result — no royalties— would exist in the case of unrelated entities. The Commissioner argues that First Security is not controlling in this case because the Supreme Court’s analysis is limited to instances in which allocation under section 482 is contrary to federal law. We are not persuaded. The Supreme Court focused on whether the controlling interests utilized their control to distort income. We see no reason to alter this analysis because foreign law, as opposed to federal law, prevented payment of royalties. The purpose of section 482 is to prevent artificial shifting of income between related taxpayers. Because Spanish law prohibited royalty payments, P & G could not exercise the control that section 482 contemplates, and allocation under section 482 is inappropriate. That foreign law is involved may require a heightened scrutiny to be sure the taxpayer is not responsible for the restriction on payment. But that is not suggested in the case of the Spanish law here which was in effect long before España was created. The Commissioner argues that P & G could have paid, under Decree 16/1959, an annual “dividend.” The Commissioner argues that P & G has not shown that a dividend would have been forbidden under Spanish law, and asserts that the Commissioner would have treated such a dividend as a royalty for United States tax purposes. Assuming that España had profits from which it could pay a dividend under Spanish law, we find that P & G had no such obligation. A taxpayer need not arrange its affairs so as to maximize taxes as long as a transaction has a legitimate business purpose. Salyersville National Bank v. United States, 613 F.2d 650, 653 (6th Cir.1980). We firmly disagree with the Commissioner’s suggestion that P & G should purposely evade Spanish law by making royalty payments under the guise of calling the payments something else. Furthermore, the record reflects that Espa-ña did not have distributable earnings from which to pay dividends. P & G’s federal income tax returns indicate that España had accumulated deficits during the years at issue and would be unable to distribute dividends. The Commissioner argues that the Tax Court erred by refusing to apply Treas.Reg. § 1.482-l(b)(6), the “blocked income” regulation. Treas.Reg. § 1.482-1(b)(6) provides in pertinent part: If payment or reimbursement for the sale, exchange, or use of property, the rendition of services, or the advance of other consideration among members of a group of controlled entities was prevented, or would have been prevented, at the time of the transaction because of currency or other restrictions imposed under the laws of any foreign country, any distributions, apportionments, or allocations which may be made under section 482 with respect to such transactions may be treated as deferrable income. This regulation recognizes the problem posed by restrictions placed on payments in a foreign currency. Income allocated under section 482 may be deferred if payments have been blocked by currency or other restrictions under the laws of a foreign country. The Tax Court determined that because section 482 did not apply to the present case, the regulations promulgated under section 482 likewise did not apply. The Commissioner argues that this regulation is designed to remedy the situation presented in this case. We disagree. Treas.Reg. § 1.482-l(b)(6) contemplates the situation where a temporary restriction under foreign law prevents payments, and defers the allocation of income until such time as the payments are no longer restricted. This case does not present a situation in which payments to P & G were temporarily restricted; rather, Spanish law prohibited payment of royalties altogether. This prohibition cannot be viewed as temporary because it was ultimately repealed in 1987. At the time in question, there was no reason for P & G to believe that the Spanish government would lift this ban; therefore, the payments that España was prohibited by law from making cannot be viewed as temporarily blocked payments. The Commissioner also argues that the prohibition on royalty payments was temporary and that P & G could have deferred royalty payments under this regulation and then at some future time P & G could have liquidated España and taken its capital out of Spain. Upon liquidation, the Commissioner argues, the temporary prohibition on payment of pesetas would end. We find this argument to be meritless because P & G need not organize its subsidiaries in such a way as to maximize its tax liabilities. There is no question that P & G may legally structure its affairs in its own best interest. Salyersville, 613 F.2d at 653. We agree with the Tax Court that Treas.Reg. § 1.482-l(b)(6) does not apply to this case. IV. Accordingly, the decision of the Tax Court that allocation of income under section 482 is inappropriate is AFFIRMED. . These allocations to AG resulted in increases in P & G’s taxable Subpart F income under I.R.C. § 951(a)(1)(A). 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_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". GOVERNMENT SERVICES, Inc. v. DISTRICT OF COLUMBIA. Nos. 10676, 10677, 10678. United States Court of Appeals District of Columbia Circuit. Argued April 17, 1951. Decided April 26, 1951. John W. Cross, Washington, D. C., with whom Cary McN. Euwer and John B. Huff-aker, Washington, D. C., were on the brief, for petitioner. Harry L. Walker, Asst. Corporation Counsel, Washington, D. C., for the District of Columbia, with whom Vernon E. West, Corporation Counsel, Chester H. Gray, Principal Asst. Corporation Counsel,, and George C. Updegraff, Asst. Corporation Counsel, all of Washington, D. C., were on. the brief, for respondent. Before CLARK, WILBUR K. MILLER and PROCTOR, Circuit Judges. PER CURIAM. Petitioner is a corporation which operates cafeterias in Federal Government buildings and recreation facilities in federal parks. It claims exemption from taxation by the District of Columbia government, on the ground that it is an exclusively charitable organization. Specifically, in these cases, it claims exemption from franchise, motor vehicle, and personal property taxes. Petitioner is not a Government-owned or -operated organization. It is non-profit in the sense that none of its earnings can inure to the benefit of any single private individual. The question is whether it is also exclusively charitable in its operations. This corporation makes profits in that its receipts are in excess of its costs. From these net earnings it has made contributions to various charities and has paid over large sums to the Federal Government. It has an accumulated earned surplus of about $1,-500,000 largely invested in equipment. Its operations are extensive and apparently expanding. It sells meals and recreation services at moderate prices, compared to commercial levels, and its facilities, being, with the cooperative approval of the Government, located in Government buildings, .are extremely convenient for the use of Government employees. These two features — moderate prices and convenient locations — for the benefit of Government employees are the objectives of its existence. Undoubtedly these are highly laudable objectives. The trustees, or directors, operate the organization from a high sense of service to their fellow employees. But neither as a matter of philosophy nor as a matter of language can the organization or its operation be held to be charitable in the sense in which tax statutes grant exemptions from taxation. Petitioner urges upon us the sweeping phrases of court opinions referring to charity and charitable in various senses. Generally they relate to charitable purposes in trusts, and the quotations are of ancient and honorable origin, going back into the days of Elizabeth. This court once said, in a tax case, that the great weight of opinion seems to be that a charitable trust “may be applied to almost anything that tends to promote the well-doing and well-being of social man.” And the court, in the same case, used the expression “a desire to advance the common weal” as a test for charity. Petitioner presents quotations that the term “charitable” includes “all the kindly inclinations which men ought to bear toward each other, and which prompt them to promote the general welfare”; and urges upon us that the underlying basis for tax exemptions has been that charitable institutions lessen the burdens of government. But these laudable and highly respectable declarations cannot be translated into definitions of tax exemption by a mere application of their phrases. For example, the street car company at the seat of government obviously “lessens the burdens of government”, in that if it did not exist the government would have to transport government workers from their homes to their places of duty; but we suppose that no one would argue that the transit company is a charitable organization. Surely bookstores, radio stations, and newspapers are operated for the public weal in a sense; but they are certainly not charities. These cafeterias no more reduce the burdens of government than do any of the several moderate-price cafeterias in the District of Columbia, also serving Government employees. They are not more in the public weal than is a cut-rate store, or a public utility, or a newspaper. The Federal Government has long since defined “charitable” for the purpose of its tax statutes as comprising, in general, organizations for the relief of the poor. The Board of Tax Appeals thought that general principle appropriate and applicable here. We too think so. As a matter of tax philosophy petitioner’s contention cannot be sustained. Admittedly it makes profits, and admittedly those profits can go to no single private person. They are claimed to be for one of two dispositions, either to supply the means for making more profits or for presentation to the Federal Government. In ultimate analysis, obviously they must be for the latter disposition. So the simple question is whether the Federal Government has a right to these profits exclusive of any charge upon them for the benefit of the District government. The profits arise from the sale of meals and recreation services to residents of the District. The District government furnishes those residents with police, fire, school, highway, welfare, recreation, library, and numerous other municipal facilities. Profits accumulated from the sale of meals and recreation facilities at moderate prices to these people seem to us to be not only non-exempt but to be an ideal subject of taxation for municipal purposes. If a general and public-spirited operation saves these residents some of the costs of their living, why should not the irreducible net earnings (otherwise to be presented to the Federal Government) be used in part to bear the burdens of municipal government services? Upon what basis can it reasonably be contended that such accumulations should go to-the Federal Government free of municipal charges ? It is said that not the source but the-destination of the funds is the criterion. These funds are destined either for use to-acquire more equipment for use in the sale-of more meals, etc., or for presentation to-the Federal Government. Neither purpose-is “charitable” in a tax-exemption sense, in our view. We have referred specifically to taxes levied upon the profits of petitioner, i. e.,. the franchise tax. The same considerations apply to its claims for exemption from taxes upon its motor vehicles and its tangible personal property. Petitioner also claims, as an alternative, exemption as a civil league operated exclusively for the promotion of social welfare, under another exempting clause of the statute. Meals at moderate prices and at convenient locations are undoubtedly highly desirable, just as such facilities for the purchase of clothes, drugs and groceries would be, but to supply them is not “social welfare” in the tax-exemption sense. We agree with the Board of Tax Appeals, and its decisions are Affirmed. . Pennsylvania Co. for Insurance on Lives, Etc. v. Helvering, 1933, 62 App.D.C. 254, 256, 66 P.2d 284, 286. . 62 App.D.C. at page 258, 66 F.2d at page 288. . Hamburger v. Cornell University, 1923, 204 App.Div. 664, 199 N.Y.S. 369, 372. . U. S. Treas. Reg. 65, art. 517 (1924); and all subsequent Regs. . 61 Stat. 334 (1947), D.C.Code § 47-1554(f) (1940) (Supp. VII). Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_origin	D	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. VON SEGERLUND et al. v. DYSART et al. No. 10339. Circuit Court of Appeals, Ninth Circuit. Aug. 30, 1943. Rupert B. Turnbull and L. H. Phillips, both of Los Angeles, Cal., for appellants. Hiram E. Casey and S. Bernard Wager, both of Los Angeles, Cal., for appellee. Before WILBUR, GARRECHT, and HEALY, Circuit Judges. GARRECHT, Circuit Judge. ' The pivotal question herein is whether or not, in a case where a judgment creating a lien on only the real property of an alleged insolvent was obtained prior to the four-month period immediately preceding the filing of an involuntary petition in bankruptcy, a levy on the debtor’s personal property made within the four-month period created a lien the permitting of which constituted an act of bankruptcy. On March 22, 1937, a judgment in favor of Mary T. Christensen and against Stella Dysart, the appellee, was docketed in the office of the county clerk of McKinley County, New Mexico, and thereupon became a lien upon the appellee’s real property in that county. On August 25, 1938, a judgment in favor óf E. H. Youngblood against the appellee was filed in the same county. On September 8, 1937, and on December 13, 1939, writs of execution were served under the Christensen judgment by levying upon the appellee’s personal property. On July 5, 1941, July 29, 1941, and October 17, 1941, petitions to have the appellee declared a bankrupt were filed by about forty unsecured creditors, who are the appellants herein. On July 7, 1941, by virtue of an alias writ issued under the Christensen judgment on May 5, 1941, and a levy thereunder made on June 6, 1941, personal property of the appellee was sold by the sheriff of McKinley County, New Mexico. It was the permitting of this execution, levy and sale, which occurred within the statutory four-month period, that appellants contend constituted the act of bankruptcy. In the court below, the appellants offered in evidence authenticated copies of the judgments, executions, notices of sale, sheriff’s returns of sale, and other proceedings in the Christensen and Youngblood cases, supra. An objection on behalf of the appellee to the introduction of the Christensen exhibit was sustained. The Youngblood exhibit was admitted for the sole purpose of showing that at the date the Youngblood judgment was secured the appellee was the owner, of real property that stood in her name in McKinley County, New Mexico. The appellants then made an offer of proof to show that each of the petitioning creditors had provable claims against the appellee; that those claims aggregated more than $500; that on the dates on which the three petitions in involuntary bankruptcy were filed, during the respective four-month periods immediately prior thereto, and on the dates of the alleged acts of bankruptcy, the appellee was insolvent. These offers of proof were denied. The court ruled that even if insolvency were proved, there would be lacking the other two elements essential to establish the act of bankruptcy alleged — the existence of a lien and the failure to discharge it. The foregoing rulings are alleged to constitute error, and upon that contention the present appeal is bottomed. A connected case, involving the same alleged bankrupt, some of the same petitioning creditors, and the same Christensen and Youngblood judgments, has already been before this court. Dysart v. Von Segerlund et al., 118 F.2d 482, decided March 22, 1941. We there held that, though there was evidence that the alleged bankrupt permitted an execution to be issued on November 21, 1939, and to be levied on her property on December 13, 1939, there was no evidence that the lien thus obtained, if any, was not vacated within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of the property, as required by the Bankruptcy Act. Since the date of that decision, however, another act of bankruptcy, as we have seen, is alleged to have been committed. The provision of the Bankruptcy Act pertinent to this case is 11 U.S.C.A. § 21, sub. a(3), which reads as follows: “§ 21. Acts of bankruptcy “a. Acts of bankruptcy by a person shall consist of his having * * * (3) suffered or permitted, while insolvent, any creditor to obtain a lien upon any of his property through legal proceedings and not having vacated or discharged such lien within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of such property.” The appellants contend that the levy of execution on personal property of the alleged bankrupt on June 6, 1941, followed by the sale of that property on July 7, 1941, created a lien thereon within four months preceding the filing of the creditors’ petitions, which lien was not discharged by the debtor. The appellee, on the other hand, asserts that when a judgment has become a hen and four months are permitted to elapse, the right to claim that a lien has been secured under that judgment within the meaning of § 21 (a) (3) has been “exhausted”. A judgment lien as it exists in the United States is a creature of statute, and in the absence of statute does not give rise to a lien until an execution is delivered to the sheriff. 34 C.J. 568, 569, § 870. “Except in the few jurisdictions where a judgment does not of itself bind land, a judgment attaches as a lien without the use of any process, except as to property which is not commonly subject to the lien of a judgment, but can be made so by the levy of an execution, as trust property or personalty * * * ” Id., pp. 584, 585, § 892. “The lien [of a judgment] does not attach to personal property except where a statute so provides.” Id., pp. 587, 588, § 898. See also 31 Am.Jur., Judgments, § 308, p. 23. A levy on the property of a judgment debtor ordinarily gives the execution creditor a lien thereon. 33 C.J.S., Executions, p. 289, § 123; 1 Collier on Bankruptcy (Fourteenth Edition), § 3.308, p. 449. Liens obtained by a levy on personal property do not usually require the aid of equity for their enforcement. The foregoing principles are found incorporated in the statutes and jurisprudence of most states. The statutes of New Mexico seem to follow the general law relating to judgment liens and levy liens, although in some respects in that state both the statutory enactments and the jurisprudence on the subject are somewhat meager. It was stipulated by counsel, however, that, under the laws of New Mexico as they existed at the time the judgment was docketed, such docketing created a lien on the real property of the judgment debtor. This stipulation is apparently based upon § 76-110 of the New Mexico Statutes Annotated of 1929, which reads as follows: “Any money judgment rendered in the supreme or district court shall be docketed by the clerk of the court in a book kept for the purpose, and shall be a lien on the real estate of the judgment debtor from the date of the filing of a transcript of the docket of such judgment in such book in the office of the county clerk of the county in which such real estate is situate.” From the foregoing section it is clear — and counsel for the appellee so concede — that in New Mexico a judgment is not “an automatic lien on personal property”. Neither the statutes of New Mexico nor the record herein are quite so specific regarding the lien created on personal property as the result of a levy under a writ of execution. Both sides, however, assume that in New Mexico the general law is followed, and that a levy does create a lien on personalty. Counsel for the appellee contend, however, that permitting the procurement of the lien so created, which came into existence more than four months after the creation of the “original” lien on the real property of the judgment debtor, cannot constitute an act of bankruptcy. Be that as it may, regardless of any stipulation or avowals in the record, this court may take judicial notice of the statutes of New Mexico, as interpreted by its highest court. Lamar v. Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 29 L.Ed 94; Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455. Independent research has convinced us that New Mexico follows the general law regarding the creation of a lien on personalty as the result of a levy under a writ of execution. Section 21-213 of the New Mexico Statutes Annotated of 1941 reads as follows: “The lien of the levy upon the property shall continue until the debt is paid, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient, if not, then out of any other property of the debtor, subject to execution.” [Italics our own.] The foregoing section has' been carried over verbatim from the 1929 code, supra, vdiere it appeared as § 46-122, under the heading of “Alias writ”. And it was under an “alias writ” that the levy of June 6, 1941, was made. An examination of the entire chapter in which the foregoing section appears makes it clear that the “property” referred to therein means personalty as well as realty. It is equally clear that each levy creates a new lien upon the property affected by it. We are thus brought to a consideration of the final and crucial question in this case; namely, is a lien thus created by a levy upon personal property during the four months’ period preceding the filing of a petition in involuntary bankruptcy, under a judgment that itself created a lien upon the debtor’s real property more than four months prior to such filing, the kind of lien that is denounced in § 21 (a) (3) ? At the outset, it is well to recall the three elements that go to make the act of bankruptcy condemned by the clause in question. In the oft-quoted case of Citizens Banking Co. v. Ravenna Nat. Bank, 234 U.S. 360, 364, 365, 34 S.Ct. 806, 808, 58 L.Ed. 1352, those elements are thus stated: “Looking at the terms of this provision, it is manifest that the act of bankruptcy which it defines consists of three elements. The first is the insolvency of the debtor; the second is suffering or permitting a creditor to obtain a preference through legal proceedings; that is, to acquire a lien upon the property of. the debtor by means of a judgment, attachment, execution or kindred proceeding, the enforcement of which will enable the creditor to collect a greater percentage of his claim than other creditors of the same class; and the third is the failure of the debtor to vacate or discharge the lien and resulting preference five days before a sale or final disposition of any property affected. Only through the combination of the three elements is the act of bankruptcy committed. Insolvency alone does not suffice, nor is it enough that it be coupled with suffering or permitting a creditor to obtain a preference by legal proceedings. The third element must also be present, else there is no act of bankruptcy within the meaning of this provision.” [Italics our own] See also In re D. F. Herlehy Co. D.C., 247 E. 369, 373, 374. While the clause under discussion has been amended since the decision in the Ravenna Bank case, supra, for the purposes of the instant case the language used in that decision is apposite. It will be observed that it is the creation,, the obtaining, the acquisition of a lien within the statutory period that must not be permitted. The' continuation of a lien that was created more than four months before the filing of the petition is not denounced. In Globe Bank & Trust Co. v. Martin, 236 U.S. 288, 299, 35 S.Ct. 377, 381, 59 L.Ed. 583, the court said: “The difference, having the provisions of the act in view, between the beginning of a proceeding to assert liens that existed more than four months before the filing of the petition in bankruptcy, and the attempt to create them by attachment and other proceedings within four months, has been recognized in decisions of this court.” [Italics our own] The importance of the time of creation of a lien in determining whether or not the permitting of it is condemned by the statute was well emphasized by Judge Lowell in Re Blair, D.C., 108 F. 529, 530: “Under some circumstances, all liens obtained through legal proceedings are avoided, in whatever part of the suit or by whatever form of proceeding they are created. If the lien is created by the levy, then the lien of the levy is avoided; if created by the judgment, then the lien of the judgment is avoided; if created by the attachment, then the lien of the attachment is avoided; but, if the lien created by the attachment is saved, that lien may be enforced by appropriate proceedings, even though such proceedings include a judgment and levy made within the limited time.” [Italics our own] The decision in Re Blair was cited with approval in the leading cases of Metcalf v. Bárker, 187 U.S. 165, 174, 23 S.Ct. 67, 47 L.Ed. 122, and Straton v. New, 283 U.S. 318, note page 326, 51 S.Ct. 465, note page 468, 75 L.Ed. 1060. See also 1 Remington on Bankruptcy (Fourth Edition), § 150.70, p. 242, et seq.; id., 1942 Supplement, § 150 and note, pp. 68-69; id., Vol. 4, § 1889, p. 930. Counsel have not cited any decision that is squarely in point. The books, however, are not entirely barren of precedents. Perhaps the most lucid statement of the rule that we regard as controlling in this case is to be found in Re Bailey, D.C., 144 F. 214, 215. In that case Judge Wolverton, of the United States District Court of Oregon, used the following language: “A judgment itself does not necessarily constitute a lien upon any property, unless made so by statute. Usually, as it respects personal property, it only becomes a lien by virtue of an execution and a levy thereunder. From the time of the levy, the lien is deemed to attach, and not before. Collier on Bankruptcy (4th Ed.) p. 419. It can make no difference, therefore, in this case, that the judgment was obtained long prior to the filing of the petition in bankruptcy. The levy was made some time prior to August 1, 1903, and less than four months preceding the filing of such petition.” ■ Thirty years after the decision in Re Bailey was handed down, it was cited with approval on this same point by the United States Circuit Court of Appeals for the Second Circuit. In Adler v. Greenfield, 83 F.2d 955, 956, the court said: “It makes no difference that the judgment was obtained more than four months prior to the filing of the petition in bankruptcy. The judgment alone gives no lien against the debtor’s personal property until the execution against it is delivered to the proper officer to be executed. New York Civil Practice Act, § 679. Here the property was transferred to the bankrupt, within the meaning of the statute, and since the levy and sale were made within the four months preceding the bankruptcy, it was voidable by the trustee. [Cases cited]”. Again, in Nogi v. Greenwood, D.C., 1 F.Supp. 60, 62, we find the following language: “A judgment is not a lien on personal property of the debtor; it is only the enforcement of such judgment that can possibly create a preference. The mere entry of judgment cannot.” And in a more recent case we find the same principle thus succinctly stated: “In the case of judgments, judgment creditors obtain no lien against personal property until execution and levy.” In re Richenell Fabric Mfg. Co., Inc., D.C., 31 F.Supp. 645, 647. The date of the levy fixes the date when the lien is created. So in the instant case, Mrs. Christensen obtained no lien on the appellee’s personal property affected by the levy of June 6, 1941, until a deputy sheriff of McKinley County actually levied execution upon that property, as reported by him in his amended return of execution. The judgment that the creditor had obtained in 1937 operated automatically as a lien only upon the real property of the appellee. As far as the specific personal property in question is concerned, a judgment lien was not dormant, not quiescent, not in a state of suspended animation: it simply did not exist. The very language of § 21 (a) (3) shows that it contemplates the possibility of the creation of a lien on part of the property of a debtor, while the rest of his estate, both real and personal, may remain unencumbered. The debtor, while insolvent, is forbidden to permit any creditor to obtain a lien upon “any” of his property, without discharging “such” lien at least five days before the date set for the sale of “such” property. 1 Collier on Bankruptcy, Fourteenth Edition, § 3.310, p. 454. Lest the foregoing paragraph be thought to state a truism, it should be remembered that the appellee insists that once a lien is “obtained upon any property of the debtor through legal proceedings * * * wherein the judgment has become a lien”, and the four-month period has expired, “then the right to have the procurement of a lien upon such judgment as an act of bankruptcy has been exhausted.” Counsel cite no authorities supporting this theory of “exhaustion”. Perhaps this statement in the brief embodies the fallacy upon which, as we think, the appellee’s argument is based. One cannot “exhaust” what has never existed. Until the levy of June 6, 1941, there never was imposed upon the appellee’s personal property any lien whatsoever resulting either directly or indirectly from the Christensen judgment. Counsel for the appellee devote one-third of their brief to a quotation from this court’s opinion in the case of Northwestern Pulp & Paper Co. v. Finish Luth B. Concern, 51 F.2d 340, 342-345. That opinion has been widely cited in the books, and we are in complete accord with the conclusions arrived at therein. The facts in the Northwestern Pulp case, however, were quite different from those that now confront us. The following excerpts from that opinion, which the appellee seems to have overlooked, make clear at once the essential difference between the two cases: “The preference complained of is alleged to be that the respondent allowed Thomas and Meservy, one of its creditors * * * to secure a judgment by default in the circuit court of Multnomah county, Ore.; allowed said creditor to secure an execution on the judgment on all of the respondent’s timber lands. * * * “In the amended petition, however, the creditors attempted to set forth an additional act of bankruptcy. They alleged, in substance, that the respondent suffered judgment to be entered against it in favor of the Pacific Coast Credit Association on September 21, 1929; that said judgment was entered on the docket of the circuit court of Clatsop county * * ; and that a sale under execution out of said court was had. * * “It will be seen that both judgments against the alleged bankrupt were docketed and therefore, according to the law of Oregon, became valid liens, long before the four-month period had commenced to nm. Section 2-1601, Oregon Laws, 1930 Compilation.” [Italics our own.] 51 F.2d at pages 341, 342. There is no suggestion in that case that any personalty was seized in the executions, there levied. In fact, the record is affirmatively otherwise. The opinion itself, as we have seen, states that the first execution was on timber lands; and the transcript in that case discloses that the amended petition alleged that, in the Pacific Coast Credit Association litigation, the respondent “permitted execution to issue out of said circuit court and a large amount of real property, to wit, more than A50 acres,, to be sold under said execution,” etc. Thus we see at once that the case most relied ttpon by the appellee does not apply to the situation here presented. It is interesting to note that the learned judge below at first adopted a view of law which was in accord with our conclusions herein, and that counsel for the appellee agreed with him. This can be gleaned from the following colloquy: “The Court. Under your theory automatically when her judgment was secured it became a lien upon her real property. “Mr. Casey. Yes. “The Court. All right. But if it did not become a lien on her personal property, the mere fact that the lien was impressed on her real property would not destroy or would not be the starting point for the rights as to a lien on personal property which could not arise until a levy later on. “Mr. Casey. I agree with you there.” [Italics our own.] But counsel proceeded “to go a step further” and to attempt to construe the legal philosophy upon which the clause in question is based. Since we have already fully set forth the appellee’s contentions, it is-not necessary to summarize them further. Suffice it to say, we believe that at that point counsel fell into error, and carried, the learned judge with him. Accordingly, we hold that the court below should have accepted the appellants’ offer of proof, and should have permitted them to introduce evidence tending to show that, within the statutory four-month period, the appellee, while insolvent, permitted a judgment creditor to levy upon her personal property and failed to discharge the lien thus acquired within thirty days from the date thereof or at least five days before the date of sale. The judgment is reversed and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion. Reversed and remanded. At random, we may mention: California (C.C.P.1931, § 674; C.C. § 3057; Johnson v. Gorham, 6 Cal. 195, 65 Am.Dec. 501; Balzano v. Traeger, 93 Cal.App. 640, 643, 644, 270 P. 249; 11 Cal.Jur. § 24, p. 69, and 15 Cal.Jur. § 235, pp. 217-218); Florida (Claude D. Reese, Inc., v. United States, 5 Cir., 75 F.2d 9); Michigan (3 Compiled Laws 1929, § 14541 and annotation thereto); New York (In re New Lots Sash & Door Corporation, D.C., 3 F.Supp. 570; Elkay Reflector Corporation v. Savory, Inc., 2 Cir., 57 F.2d 161, 162; New York Civil Practice Act, § 679); Oregon (Code of 1930, § 2-1601). 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:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. SPAZIANO v. FLORIDA No. 83-5596. Argued April 17, 1984 Decided July 2, 1984 Blackmun, J., delivered the opinion of the Court, in which Burgee, C. J., and Powell and O’Connor, JJ., joined; in all but a portion of page 456 in Part II of which White and Rehnquist, JJ., joined; and in Part II of which Brennan, Marshall, and Stevens, JJ., joined. White, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, J., joined, post, p. 467. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, post, p. 467. Craig S. Barnard argued the cause for petitioner. With him on the brief were Richard L. Jorandby, Richard H. Burr III, and Richard B. Greene. Mark C. Menser, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Jim Smith, Attorney General. Ramsey Clark, Richard W. Ervin, and Thomas A. Horkan, Jr., filed a brief pro se as amici curiae. Justice Blackmun delivered the opinion of the Court. This case presents questions regarding the administration of Florida’s capital sentencing statute. In particular, petitioner challenges the trial court’s failure to instruct the jury on lesser included offenses of capital murder. He also challenges the court’s imposition of a sentence of death when the jury had recommended life. We conclude that on the facts of this case, it was not error for the trial judge to refuse to give the lesser included offense instruction and that there is no constitutional requirement that the jury’s recommendation of life be final. We also reject petitioner’s argument that, as applied in this case, the Florida standards for overriding a jury’s sentencing recommendation are so broad and vague as to violate the constitutional requirement of reliability in capital sentencing. I Petitioner Joseph Robert Spaziano was indicted and tried for first-degree murder. The indictment was brought two years and one month after the alleged offense. Under the Florida statute of limitations in effect at the time of the alleged offense, August 1973, the limitations period for noncapital offenses was two years. Fla. Stat. §932.465(2) (1973). There was no statute of limitations for capital offenses, such as first-degree murder. §932.465(1). The primary evidence against petitioner was given by a witness who testified that petitioner had taken him to a garbage dump in Seminole County, Fla., where petitioner had pointed out the remains of two women he claimed to have tortured and murdered. Petitioner challenged the sufficiency of the witness’ recall and perception because of a substantial drug habit. The witness testified that he had not taken drugs on the day of the visit to the garbage dump, and he had been able to direct the police to the site. See Spaziano v. State, 393 So. 2d 1119, 1120 (Fla. 1981). At the close of the evidence, the trial court informed petitioner that it would instruct the jury on the lesser included, noncapital offenses of attempted first-degree murder, second-degree murder, third-degree murder, and manslaughter, if petitioner would waive the statute of limitations as to those offenses. Tr. 751-755. Petitioner refused to waive the statute. The court accordingly instructed the jury solely on capital murder. The jury deliberated somewhat more than six hours. It reported itself deadlocked, and the trial court gave an additional instruction, encouraging the jurors to resolve their differences and come to a common conclusion. Shortly thereafter, the jury returned a verdict of guilty of first-degree murder. The trial court then convened a sentencing hearing before the same jury. Arguments were heard from both sides and evidence offered on aggravating and mitigating circumstances. A majority of the jury recommended life imprisonment. In Florida, the jury’s sentencing recommendation in a capital case is only advisory. The trial court is to conduct its own weighing of the aggravating and mitigating circumstances and, “[notwithstanding the recommendation of a majority of the jury,” is to enter a sentence of life imprisonment or death; in the latter case, specified written findings are required. Fla. Stat. §921.141(3) (1983). The trial court concluded that, “notwithstanding the recommendation of the jury,... sufficient aggravating circumstances existed to justify and authorize a death sentence^]... the mitigating circumstances were insufficient to outweigh such aggravating circumstances and... a sentence of death should be imposed in this case.” App. 14. The two aggravating circumstances found by the court were that the homicide was especially heinous and atrocious and that the defendant had been convicted previously of felonies involving the use or threat of violence to the person. The trial court found no mitigating circumstance “except, perhaps, the age [28] of the defendant.” Id., at 14-15. On appeal, the Supreme Court of Florida affirmed the conviction but reversed the death sentence. Spaziano v. State, 393 So. 2d 1119 (1981). In deciding whether to impose the death sentence, the trial judge had considered a confidential portion of the presentence investigation report that contained information about petitioner’s previous felony convictions as well as other charges for which petitioner had not been convicted. Neither party had received a copy of that confidential portion. Relying on Gardner v. Florida, 430 U. S. 349 (1977), the court concluded that it was error for the trial judge to rely on the confidential information in the presentence investigation report without first disclosing the information to petitioner and giving him an opportunity to present evidence in response. In a memorandum of supplemental authority, petitioner also urged that Beck v. Alabama, 447 U. S. 625 (1980), required reversal of his conviction because of the trial court’s failure to instruct the jury on the lesser included offenses absent a waiver of the statute of limitations on those offenses. The Supreme Court found Beck inapposite. Beck concerned an express statutory prohibition on instructions for lesser included offenses. The court found nothing in Beck requiring that the jury determine the guilt or innocence of lesser included offenses for which the defendant could not be convicted and adjudicated guilty. This Court denied certiorari. 454 U. S. 1037 (1981). On remand, the trial court ordered a new presentence investigation report and scheduled a hearing to allow petitioner to present evidence in response to the report. At the hearing, petitioner offered no evidence. The State presented evidence that petitioner had been convicted previously of forcible carnal knowledge and aggravated battery. Although the State had attempted to introduce evidence of the prior conviction in petitioner’s initial sentencing hearing before the jury, the trial judge had excluded the evidence on the ground that the conviction was then on appeal. By the time of the Gardner rehearing, the conviction was final and the trial judge agreed that it was a proper consideration. Accordingly, he relied on that conviction in finding the aggravating circumstance that the defendant had been convicted previously of a felony involving the use of violence to the person. The judge also reaffirmed his conclusion that the crime was especially heinous, atrocious, and cruel. He sentenced petitioner to death. App. 25. The Supreme Court of Florida affirmed. 433 So. 2d 508 (1983). It rejected petitioner’s argument that the trial court erred in allowing the State to introduce evidence of a previous conviction not considered in the original sentencing phase. The court noted that the information was in the original presentence investigation report. The only reason it was not considered was that the trial court mistakenly thought that under Florida law it could not be considered, since the conviction was then on appeal. The Supreme Court also found no constitutional infirmity in the procedure whereby the judge is allowed to override the jury’s recommendation of life. The court found no double jeopardy problem with the procedure, because the jury’s function is only advisory. The court added its understanding that allowing the jury’s recommendation to be binding would violate the requirements of Furman v. Georgia, 408 U. S. 238 (1972). Finally, the court found that in this case the evidence suggesting that the death sentence be imposed over the jury’s recommendation of life “meets the clear and convincing test to allow override of the jury’s recommendation in accordance with... Tedder v. State, 322 So. 2d 908 (Fla. 1975).” 433 So. 2d, at 511. One judge dissented, finding “no compelling reason” to override the jury’s recommendation of life. Id., at 512. We granted certiorari, 464 U. S. 1038 (1984), and we now affirm. II We turn first to the trial court’s refusal to give an instruction on lesser included offenses. In Beck v. Alabama, supra, the Court recognized the risk of an unwarranted conviction that is created when the jury is deprived of the “third option” of convicting the defendant of a lesser included offense. Id., at 637. See also Keeble v. United States, 412 U. S. 205, 212-213 (1973). We concluded that “[s]uch a risk cannot be tolerated in a case in which the defendant’s life is at stake” and that “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a State] is constitutionally prohibited from withdrawing that option from the jury in a capital case.” 447 U. S., at 637-638. The issue here is whether the defendant is entitled to the benefit of both the lesser included offense instruction and an expired period of limitations on those offenses. Petitioner urges that he should not be required to waive a substantive right — to a statute of limitations defense — in order to receive a constitutionally fair trial. Beck made clear that in a capital trial, a lesser included offense instruction is a necessary element of a constitutionally fair trial. Thus, petitioner claims, he is entitled to the benefit of the Beck rule regardless of whether the statute of limitations prevents him from actually being punished on a lesser included offense. We, of course, have no quarrel with petitioner’s general premise that a criminal defendant may not be required to waive a substantive right as a condition for receiving an otherwise constitutionally fair trial. We do not agree that the premise fairly applies to petitioner’s situation. Petitioner would have us divorce the Beck rule from the reasoning on which it was based. The element the Court in Beck found essential to a fair trial was not simply a lesser included offense instruction in the abstract, but the enhanced rationality and reliability the existence of the instruction introduced into the jury’s deliberations. Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process. Beck does not require that result. The Court in Beck recognized that the jury’s role in the criminal process is essentially unreviewable and not always rational. The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. In Beck, the Court found that risk unacceptable and inconsistent with the reliability this Court has demanded in capital proceedings. Id., at 643. The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence. Id., at 638-643. Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, would simply introduce another type of distortion into the factfinding process. We reaffirm our commitment to the demands of reliability in decisions involving death and to the defendant’s right to the benefit of a lesser included offense instruction that may reduce the risk of unwarranted capital convictions. But we are unwilling to close our eyes to the social cost of petitioner’s proposed rule. Beck does not require that the jury be tricked into believing that it has a choice of crimes for which to find the defendant guilty, if in reality there is no choice. Such a rule not only would undermine the public’s confidence in the criminal justice system, but it also would do a serious disservice to the goal of rationality on which the Beck rule is based. If the jury is not to be tricked into thinking that there is a range of offenses for which the defendant may be held accountable, then the question is whether Beck requires that a lesser included offense instruction be given, with the defendant being forced to waive the expired statute of limitations on those offenses, or whether the defendant should be given a choice between having the benefit of the lesser included offense instruction or asserting the statute of limitations on the lesser included offenses. We think the better option is that the defendant be given the choice. As the Court in Beck recognized, the rule regarding a lesser included offense instruction originally developed as an aid to the prosecution. If the State failed to produce sufficient evidence to prove the crime charged, it might still persuade the jury that the defendant was guilty of something. Id., at 633. See also 3 C. Wright, Federal Practice and Procedure §515, p. 20, n. 2 (2d ed. 1982). Although the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murder that he will want to take his chances with the jury. If so, we see little reason to require him not only to waive his statute of limitations defense, but also to give the State what he perceives as an advantage — an opportunity to convict him of a lesser offense if it fails to persuade the jury that he is guilty of capital murder. In this case, petitioner was given a choice whether to waive the statute of limitations on the lesser offenses included in capital murder. He knowingly chose not to do so. Under those circumstances, it was not error for the trial judge to refuse to instruct the jury on the lesser included offenses. Ill Petitioner’s second challenge concerns the trial judge’s imposition of a sentence of death after the jury had recommended life imprisonment. Petitioner urges that allowing a judge to override a jury’s recommendation of life violates the Eighth Amendment’s proscription against “cruel and unusual punishments.” Because the jury’s verdict of life should be final, petitioner argues, the practice also violates the Fifth Amendment’s Double Jeopardy Clause made applicable to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U. S. 784, 793-796 (1969). Finally, drawing on this Court’s recognition of the value of the jury’s role, particularly in a capital proceeding, petitioner urges that the practice violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Petitioner points out that we need not decide whether jury sentencing in all capital cases is required; this case presents only the question whether, given a jury verdict of life, the judge may override that verdict and impose death. As counsel acknowledged at oral argument, however, his fundamental premise is that the capital sentencing decision is one that, in all cases, should be made by a jury. Tr. of Oral Arg. 16-17. We therefore address that fundamental premise. Before doing so, however, it is useful to clarify what is not at issue here. Petitioner does not urge that capital sentencing is so much like a trial on guilt or innocence that it is controlled by the Court’s decision in Duncan v. Louisiana, 391 U. S. 145 (1968). In Duncan, the Court found that the right to jury trial guaranteed by the Sixth Amendment is so “ ‘basic in our system of jurisprudence,’” id., at 149, quoting In re Oliver, 333 U. S. 257, 273 (1948), that it is also protected against state action by the Fourteenth Amendment. This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U. S. 430, 444 (1981). Because the “‘embarrassment, expense and ordeal’... faced by a defendant at the penalty phase of a... capital murder trial... are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial,” the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id., at 445, quoting Green v. United States, 355 U. S. 184, 187 (1957); Arizona v. Rumsey, 467 U. S. 203 (1984). The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment’s guarantee of a jury trial. The Court’s concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. 451 U. S., at 445. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer’s decision for life is final. Arizona v. Rumsey, supra. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding — a determination of the appropriate punishment to be imposed on an individual. See Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality opinion), citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937), and Williams v. New York, 337 U. S. 241, 247-249 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue. Nor does petitioner urge that this Court’s recognition of the “qualitative difference” of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U. S., at 238, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U. S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Since then, the Court has emphasized its pursuit of the “twin objectives” of “measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U. S. 104, 110-111 (1982). If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Zant v. Stephens, 462 U. S. 862, 873-880 (1983); Furman v. Georgia, 408 U. S., at 294 (Brennan, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra. Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U. S., at 190-195 (joint opinion), there certainly is nothingin the safeguards necessitated by the Court’s recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury. Petitioner’s primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital sentencing decisions and that a jury’s decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, “the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Id., at 184. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community’s response must be death. If the answer is no, that decision should be final. Petitioner’s argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and noncapital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for non-capital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg v. Georgia, 428 U. S., at 186 (joint opinion). Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration in a capital sentencing proceeding. Id., at 183, n. 28; Jurek v. Texas, 428 U. S. 262 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge. Second, even accepting petitioner’s premise that the retributive purpose behind the death penalty is the element that sets the penalty apart,'it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community’s voice can be expressed. This Court’s decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e. g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U. S., at 302-303; Zant v. Stephens, 462 U. S., at 879-880. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the “community’s voice” is not given free rein. The community’s voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U. S., at 183-184 (joint opinion); Furman v. Georgia, 408 U. S., at 394-395 (Burger, C. J., dissenting); id., at 452-454 (Powell, J., dissenting). We do not denigrate the significance of the jury’s role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U. S., at 181 (joint opinion); Williams v. Florida, 399 U. S. 78, 100 (1970); Duncan v. Louisiana, 391 U. S., at 156; Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968). The point is simply that the purpose of the death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life- or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury’s recommendation of life. The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment” is violated by a challenged practice. See Enmund v. Florida, 458 U. S. 782, 797 (1982); Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 U. S. 939 (1983); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision. IV Our determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner’s double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge’s exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury. V Petitioner’s final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury’s recommendation of life. See Tedder v. State, 322 So. 2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury’s role. See Richardson v. State, 437 So. 2d 1091, 1095 (Fla. 1983); Miller v. State, 332 So. 2d 65 (Fla. 1976). Our responsibility, however, is not to second-guess the deference accorded the jury’s recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory. We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence is based. Fla. Stat. §921.141(3) (1983). The Florida Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. §921.141(4). As Justice Stevens noted in Barclay, there is no evidence that the Florida Supreme Court has failed in its responsibility to perform meaningful appellate review of each death sentence, either in cases in which both the jury and the trial court have concluded that death is the appropriate penalty or in cases when the jury has recommended life and the trial court has overridden the jury’s recommendation and sentenced the defendant to death. See Barclay v. Florida, 463 U. S., at 971-972, and n. 23 (opinion concurring in judgment). In this case, the trial judge based his decision on the presence of two statutory aggravating circumstances. The first, that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, §921.141(5), was based on evidence not available to the advisory jury but, under Florida law, was properly considered by the trial judge. See White v. State, 403 So. 2d 331, 339-340 (1981). Petitioner’s prior conviction was for rape and aggravated battery. The trial judge also found that the murder in this case was heinous, atrocious, and cruel. The witness who accompanied petitioner to the dump site where the victim’s body was found testified that the body was covered with blood and that there were cuts on the breasts, stomach, and chest. The witness also testified that petitioner had recounted his torture of the victim while she was still living. The trial judge found no mitigating circumstances. The Florida Supreme Court reviewed petitioner’s sentence and concluded that the death penalty was properly imposed under state law. It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court. See Barclay v. Florida, 463 U. S., at 968 (Stevens, J., concurring in judgment). Whether or not “reasonable people” could differ over the result here, we see nothing irrational or arbitrary about the imposition of the death penalty in this case. The judgment of the Supreme Court of Florida is affirmed. It is so ordered. Under the current Florida statute, there is no limitation period on capital and life felonies. There are, however, a 4-year limitation period on first-degree felonies, and a 3-year limit on prosecutions for all other felonies. Fla. Stat. §775.15 (1983). Under Florida law, the statute of limitations in effect at the time of the alleged offense governs. Florida ex rel. Manucy v. Wadsworth, 293 So. 2d 345, 347 (Fla. 1974). The court instructed the jury as follows: “Ladies and gentlemen, it is your duty to agree upon a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride or opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply for the purpose of terminating a case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and that this case may be disposed of.” Tr. 817-818. This instruction is commonly referred to as an Allen or “hammer” charge. See Allen v. United States, 164 U. S. 492 (1896). By agreement of the parties, the jury was not polled. Sentencing Tr. 28-29 (Jan. 26, 1976). The Florida capital sentencing statute in effect at the time of petitioner’s trial, January 1976, is not identical to that currently in effect. In 1976, the statute directed the sentencer to determine whether statutory aggravating circumstances were outweighed by statutory mitigating circumstances. See 1972 Fla. Laws, ch. 72-724. The current statute directs the sentencer to determine whether statutory aggravating circumstances are outweighed by any mitigating circumstances. §§ 921.141(2)(b), (3)(b) (1983), as amended by 1979 Fla. Laws, ch. 79-353. There is no suggestion in this case that either the jury or the trial judge was precluded from considering any nonstatutory mitigating evidence. Cf. Barclay v. Florida, 463 U. S. 939, 947, n. 2 (1983) (Stevens, J., concurring in judgment). We note that although the Court has not specifically addressed the question presented here, it has assumed that if a defendant is constitutionally entitled to a lesser included offense instruction, the trial court has authority to convict him of the lesser included offense. See Keeble v. United States, 412 U. S. 205 (1973); id., at 215-217 (Stewart, J., dissenting on the ground that the Court’s decision improperly conferred jurisdiction in the federal district court over crimes not enumerated in the Major Crimes Act, 18 U. S. C. §§ 1153, 3242). There is no doubt about petitioner’s understanding of the implications of his refusal to waive the statute of limitations. The following colloquy occurred in open court: “THE COURT: Do you understand that while the statute of limitations has run on the Court submitting to the jury lesser included verdicts representing the charges of second-degree murder and third-degree murder, manslaughter, that you who has the benefit of the statute of limitations can waive that benefit and, of course — and then have the Court submit the ease to the jury on the first-degree, second-degree, third-degree and manslaughter. “If you don’t waive the statute of limitations, then the Court would submit to the jury only on the one charge, the main charge, which is murder in the first degree, and the sentencing alternatives are as [defense counsel] stated them. Do you understand that? “MR. SPAZIANO: Yes, your Honor. “THE COURT: Are you sure? “MR. SPAZIANO: I understand what I’m waiving. I was brought here on first-degree murder, and I figure if I’m guilty of this, I should be killed.” Tr. 753-754. Because the death sentence is unique in its severity and in its irrevocability, Gregg v. Georgia, 428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U. S. 238, 286-291 (1972) (Brennan, J., concurring), the Court has carefully scrutinized the States’ capital sentencing schemes to minimize the risk that the penalty will be imposed in error or in an arbitrary and capricious manner. There must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death. Zant v. Stephens, 462 U. S. 862, 876-877 (1983); Enmund v. Florida, 458 U. S. 782, 788-789 (1982); Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980); Gardner v. Florida, 430 U. S. 349, 360-361 (1977) (plurality opinion); Proffitt v. Florida, 428 U. S. 242, 254-260 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U. S., at 196-207; Furman v. Georgia, supra. At the same time, the Court has insisted that the sentencing decision be based on the facts and circumstances of the individual and his crime. Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U. S., at 110-112; Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Gregg 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). RANCOURT v. PANCO RUBBER CO. No. 2815. Circuit Court of Appeals, First Circuit. Nov. 10, 1933. Harry Dexter Peek, of Providence, R. I:„ for appellant. Burton W. Caxy, of Boston, Mass. (Melvin R. Jennéy and Eish, Hildreth, Cary & Jenney, all of Boston, Mass., on the brief).. for appellee. Before WILSON and ANDERSON, Circuit Judges, and McLELLAN, District Judge.. WILSON, Circuit Judge. This is an appeal from a decree of the Massachusetts District Court holding that the-plaintiff was estopped to claim infringement of a reissue patent by a prior judgment of the District Court hp-lding the original patent issued on the same invention was invalid, and' also that the reissue patent was invalid by reason of the delay in applying therefor. The litigation between these parties over-the original patent was begun by bill in equity filed November 18, 1925, praying for an injunction restraining the defendant from making, using, or vending tap splitting machines embodying the invention of the plaintiff asset forth in its letters patent, No. 1,514,100,. issued November 4, 1924. To the complaint the defendant answered in January, 1926, denying that it had infringed the plaintiff’s patent, and asserting that the plaintiff’s patent was invalid as involving no advance over the prior art. It is unnecessary for the purpose of the issues before this court to describe the plaintiff’s alleged invention more fully than to say that it involves a machine for splitting the shank of a rubber or composition tap sufficiently to permit the insertion of a fabric of such toughness and consistency as to prevent the nails, essential to fasten the tap to the shoe at the shank, from pulling out through the bending of the shoe at the shank in walking. This was accomplished in the plaintiff’s machine by means of a rotary knife, the tap being fed past the knife by pairs of rolls, one pair of which is longer than the others, and extending over the cutting knife, holds the tap firmly in place until the rotary knife enters the shank of the „tap, the other rolls extending no farther than the uncut part of the tap, but sufficiently to hold the tap in place after the knife was once inserted in the shank of the tap. The alleged infringing machine of the defendant apparently accomplished the same result of feeding the tap past the knife by means of a belt instead of rolls. The original bill was heard on bill, answers, and proof on November 2 and 3,1927, and the District Court found that the original patent was invalid as containing no patentable invention. Judgment was entered dismissing the bill on November 21, 1927. No appeal was taken from this judgment, but after a lapse of nearly eight months the plaintiff applied for a reissue of his patent, which was granted October 30, 1928, No. 17,122. On February 15, 1929, the plaintiff brought the bill in equity now pending, alleging an infringement of the reissue patent No. 17,122. The cause was heard on the record in the original suit and the reissue parent, and on May 16, 1930, the District Court handed down an opinion, holding that as the reissue patent must be for the same invention as the original patent, which had already been held invalid, the issue as to the validity of the reissue patent was res judicata. On appeal to this court the decree of the District Court was reversed on the ground that the present bill was based, in part, on new claims in the reissue patent, and the doctrine of res judicata did not apply, as the issues under the reissue patent were not the same a** under the original bill. 46 F.(2d) 625. This court remanded the case to the District Court for further consideration on its merits to determine whether the machine described in the specifications and claims of the reissue patent was the same as the machine described in the original patent, and held that if the District Court on further consideration should find that the invention described in the reissue patent was the same as that described in the original patent, the judgment in the prior suit that the machine did not involve a patentable invention would constitute an estoppel and conclude the plaintiff as to that issue in this suit. This cause was set down for hearing in the District Court, and an opinion was handed down on July 7,1932, dismissing the bill with costs. 5 F. Supp. 185. The District Court found, first, that the combination of the several parts of the machine constituting the invention described in the reissue patent was the same as that described in the original patent, and held that the judgment in the prior suit, which was not appealed from, estopped the plaintiff from again raising the issue of its patentability in this suit. The District Court also considered the case from the standpoint of whether the issues in the present suit were different from those in the prior action on the ground that the new claims added in the reissue patent were broader than those contained in the original patent, and held that they were broader — which, however, the plaintiff strenuously denies — but further held that, since the application for the reissue patent was not made for three years and eight months after the granting of the original patent, it is invalid, and dismissed the bill on both grounds. Since the plaintiff contends that the claims in the reissue patent are no broader than those in the original patent, and that the drawings and specifications in the reissue patent describe exactly the same machine as the original patent, we think the District Court need have gone no farther than to dismiss the bill on the ground that the plaintiff! is estopped by the judgment in the former suit from prevailing in this suit. The plaintiff elected to accept the judgment of the District Court in the former suit that his machine involved no patentable invention. Clearly a reissue patent for the same machine involving the same invention cannot avail the plaintiff in a new suit. Assuming that the new claims are broader than those in the first patent, we think the District Court committed no error in dismissing the bill on the ground that there was too long delay in applying for the reissue patent. Under the ordinary rule a reissue patent with broader claims will not be granted after two years from the date of the granting of the original patent, Miller v. Brass Co., 104 U. S. 350, 26 L. Ed. 783; .Mahn v. Harwood, 112 U. S. 354, 5 S. Ct. 174, 6 S. Ct. 451, 28 L. Ed. 665, unless a reasonable excuse can be shown for the delay. Wollensak v. Sargent, 151 U. S. 221,14 S. Ct. 291, 38 L. Ed. 137; Topliff v; Topliff et al., 145 U. S. 156, 12 S. Ct. 825, 36 L. Ed. 658; Webster Co. v. Splitdorf Co., 264 U. S. 463, 466, 469, 471, 44 S. Ct. 342, 68 L. Ed. 792. The plaintiff cites the fact, as excusing his delay, that during three years of that period he was engaged in supporting his original patent in the court and could not withdraw his original patent without abandoning his suit, and also cites in support of his contention, Gross v. Norris (D. C.) 18 F.(2d) 418, whieh was affirmed in (C. C. A.) 26 F.(2d) 898, without considering this issue. The plaintiff had previously appealed to the Circuit Court of Appeals in the ease of Gross v. Frank, and after a decision in that court (293 F. 702) had proceeded within six weeks to apply for a reissue patr ent. The District Court held, in Gross v. Norris, supra (18 F.(2d) 418), that a delay of over two years was thus satisfactorily explained. In the present ease the plaintiff was advised that the patentability of his invention as described in his original patent was denied by the defendant’s answer to his prior suit in January, 1926, and he not only did not appeal from the judgment of the District Court, holding that his original patent contained no patentable invention, but slept on his rights for eight months more before making application for a reissue patent. Assuming, as the District Court found, that claim 2 and three new claims of the reissue patent are broader than the claims of the original patent, we think the defendant may fairly claim to have acquired intervening rights as to the use of the so-called Donnelly machines, which it began to use even before the machine of the plaintiff was placed on the market, and which it has continued to use after the plaintiff’s machine was held by the District Court in the prior suit not to involve 'a patentable invention, and after the plaintiff had abandoned his rights under his original patent by failing to appeal from the decision. It is suggested that Donnelly made his machine after seeing the plaintiff’s and copied the principles of it, and, therefore, is not in this court with clean hands; but this is only an inference from the omission of a date from Donnelly’s first drawing that some of the officials and employees went to see the Ban court machine some time in the summer of 1923. To the contrary is the direct testimony of Donnelly and the evidence of some of the officials and employees of the defendant, that the defendant for some time prior to the time when the plaintiff began working on his machine — whieh he did while in the defendant’s employ and withput advising the defendant of what he was doing — had expended considerable sums in an effort to obtain a satisfactory “tap-splitting” machine. The District Court could have as well found from the evidence that the plaintiff got his idea of his invention from discussions which he overheard while in the defendant’s employ. In any event, the District Court in this suit held that he did not show a reasonable excuse for not applying for his reissue patent within the two year period, or promptly after his original patent was declared invalid. What was a reasonable time within which to apply for a reissue, or what constituted a rea- - sonable excuse for not applying within the two year period, was a question of fact for the sitting justice. We do not find that his finding on this point was clearly wrong. The decree of the District Court is affirmed, with costs. Orally. 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_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". JONES v. WATERMAN S. S. CORPORATION (READING CO., Third Party Defendant). Nos. 8930, 8945. Circuit Cburt of Appeals, Third Circuit Argued Nov. 20, 1945. Decided May 28, 1946. McLAUGHLIN, Circuit Judge, dissenting in part. Abraham E. Freedman, of Philadelphia, Pa. (Freedman, Landy & Lorry, all of Philadelphia, Pa., on the brief), for appellant David E. Jones. George M. Brodhead, of Philadelphia, Pa. (Rawle & Henderson and Joseph W. Henderson, all of Philadelphia, Pa., on the brief), for appellant Waterman Steamship Co. Henry R. Heebner and Wm. Clarke Mason, both of Philadelphia, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., on the brief), for appellee. Before BIGGS, McLAUGHLIN and O’CONNELL, Circuit Judges. BIGGS, Circuit Judge. The plaintiff, David E. Jones, a seaman employed by the defendant and third-party plaintiff, Waterman Steamship Corporation, brought suit against his employer in a civil action to recover maintenance and cure and wages. Jones had left his ship, the S.S. “Beauregard”, on shore leave and was proceeding across the pier toward the street when all the lights on the pier were extinguished. As a result of the darkness he fell into an open ditch along a railway siding owned and operated by the third-party defendant, Reading Company, and sustained injuries which incapacitated him for some months. Waterman impleaded Reading Company as a third-party defendant for reasons set out hereinafter. The suit at bar, Civil Action No. 1481 in the District Court, was instituted by Jones on the same day that he brought a civil action against Reading Company in the court below, Civil Action No. 1480, to recover damages for his injuries and expenses in connection therewith. No. 1480 was tried to a jury and a verdict was returned for the plaintiff in the amount of $2,387.50. Thereafter, the court granted a motion made by Reading for a new trial. See Jones v. Reading Company, D.C., 45 F.Supp. 566. Jones then settled his case with Reading for the sum of $750 and executed a general release in the latter’s favor. The release was in the usual form and released and discharged Reading from all claims and demands whatsoever which Jones had against Reading “by reason of any matter, cause or thing whatsoever * * * and particularly, * * * by reason of injuries and losses sustained as a result of * * * ” the fall “to recover for which I brought suit in the U. S. District Court for the Eastern District of Pennsylvania against Reading Company, in Civil Action No. 1480, * * During the pendency of No. 1481 Waterman filed a motion to dismiss the action against it on the ground that a ship owner was not liable for maintenance and cure for an injury occurring on a pier. The motion was granted by the court below but the judgment was reversed by this court. See 3 Cir., 130 F.2d 797. Our decision was affirmed. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. After remand Waterman filed an answer setting out the release which Jones had executed to Reading and impleaded Reading asserting that Waterman is entitled to indemnity from Reading for any sum which Jones may recover against Waterman. The case went to trial. Jones introduced as evidence the testimony received in No. 1480. Other evidence was also received which need not be detailed here. It is enough to state that certain testimony was given by Jones respecting his inability to work following his medical discharge and that shipping articles of the “Beauregard” were introduced in evidence as was the release to Reading. In No. 1480 Jones sought to recover both compensation and consequential damages, the latter including, as the evidence shows, substantially all the items recoverable by Jones as maintenance and cure and wages. The court below in the instant case concluded that “To permit the plaintiff to successfully prosecute [the action at bar] would be to enable him to obtain two satisfactions for the one injury by resort to two different causes of action.” 60 F.Supp. 30, 32. Judgment was entered in favor of Waterman and against Jones. Judgment also was entered in favor of Reading as third-party defendant and against Waterman as third-party plaintiff on the theory enunciated in The Federal No. 2, 2 Cir., 21 F.2d 313. Both Jones and Waterman have appealed at our Nos. 8930 and 8945, respectively. If a seaman falls sick or is injured and must be removed or is kept from his vessel he is entitled to maintenance and cure as well as to his wages. Smith v. Lylces Brothers-Ripley S.S. Co., 5 Cir., 105 F.2d 604, 605. Wages, even if they include “keep”, must be restricted to the term of employment as specified by the shipping articles while the duty to provide maintenance and cure lasts as long as the seaman’s need continues. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L.Ed. 993; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535. Jones has a cause of action against Waterman for maintenance and cure and for his wages as set out in his complaint in the suit at bar. This is an action ex contractu. Jones may maintain it by reason of the obligations and duties imposed on Waterman by the shipping articles and by virtue of his status as a member of the crew of the “Beauregard”. Jones also had a cause of action against Reading sounding in tort and arising ex delicto by reason of Reading’s alleged failure properly to maintain its right-of-way. Jones was careful to restrict his complaint in the case at bar to a claim for “wages to the end of the articles and maintenance and cure for the period of his disability * * * He does not seek to recover damages from Waterman. The distinction between the right to maintenance and cure and wages and the right to damages is made clear by the Supreme Court in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220, wherein Mr. Justice Sanford stated, “In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence ; and these two rights are consistent and cumulative.” See also Aguilar v. Standard Oil Co., supra, 318 U.S. at pages 730, 731, 63 S.Ct. 930, 87 L.Ed. 1107. Jones could not have recovered maintenance and cure and wages from Reading, nor may he recover damages from Waterman. It follows that Waterman and Reading were not joint tortfeasors. In fact, Waterman committed no tort. It is not alleged that it did. Under no theory of law can Jones’ release to Reading release Waterman. It is unnecessary therefore to discuss the Pennsylvania law of release of joint tortfeasors or to compare it with the federal law. Cf. Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 and McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253. Jones has settled his cause of action against Reading but he is free to assert and to recover on his ex contractu cause of action against Waterman. He would be free to do this even if he had obtained a judgment against Reading and had executed it. The circumstances are somewhat analogous to those which would be presented if a person insured against personal liability were injured by an automobile driven by an alleged tortfeasor. He has sued the tortfeasor who drove the automobile which hit him and recovered a verdict. This has been set aside and he, thereafter, makes a settlement with the alleged tortfeasor. He then seeks to collect a sum of money which he alleges is due to him under his insurance policy because of his injuries. The insurance carrier says, “You have made a settlement with and have received money from the tortfeasor, the amount of your claim against us has been satisfied.by that settlement or at the least your recovery against us must be reduced pro tanto.” This contention in substance was dealt with by the court in Dempsey v. Baltimore & O. R. Co., D.C., 219 F. 619 and was refuted. See also Sprinkle v. Davis, 111 F. 2d 925, 128 A.L.R. 1101 and Clune v. Ris-tine, 10 Cir., 94 F. 745. The position taken by Waterman as to Jones is untenable. In the suit at No. 1480 there was a certain confusion evinced by counsel for both parties as to the nature of the damages which Jones was entitled to prove and this confusion seems to have been carried over into the suit at bar. As we have indicated at an earlier point in this opinion, a seaman is entitled to wages only to the end of the period of time covered by the shipping articles, whereas he is entitled to maintenance and cure as long as he shall have need of them. Two sets of shipping articles were introduced in evidence. We are concerned with only one, those signed by Jones on January 6, 1941, and which were in effect on January 16, 1941, the day of the accident. It has been stipulated by the parties that these shipping articles were “closed out” on February 5, 1941. But the articles state, inter alia, that the seamen should make one or more voyages on the “Beauregard” as the master might direct “for a term of time not exceeding twenty-four calendar months.” We entertain no doubt in the light of such decisions as MCarron v. Dominion Atlantic Railway Company, D.C., 134 F. 762, and Enochasson v. Freeport Sulphur Co., D.C., 7 F.2d 674, that Waterman’s obligation to pay Jones’ wages endured as long as the period for which he claims maintenance and cure. Since this was the fact the District Court at No. 1480 could not have permitted Jones to recover from Reading damages based upon maintenance and cure and wages. Jones was entitled to recover in the suit at No. 1480 only compensatory damages including an amount to be awarded for pain and suffering. Since Jones was not entitled to recover damages for maintenance and cure and wages in the suit at No. 1480, all other considerations aside, these elements may not be deemed to have been included in the settlement of the suit at No. 1480. We come now to the final phase of the case at bar. The question presented by it may be summed up as follows: May Waterman recover from Reading any sum which it may be required to pay to Jones for maintenance and cure and wages? In other words, if Waterman pays Jones, is Waterman entitled to indemnity from Reading if it be found that Reading negligently caused Jones’ injuries? The third party complaint filed by Waterman does not allege specifically that Reading was negligent or that Jones was injured by reason of Reading’s negligence. It does aver, however, that Reading was in charge of the premises through which Jones walked as an invitee and that when the lights on the pier were extinguished Jones fell into the railroad “ditch” sustaining the injuries which he recites in his complaint. The evidence in No. 1480 was introduced by a stipulation into the case at bar. The court below in the case at bar made no findings of fact or conclusions of law as to Reading s negligence, if any, since it relied on The Federal No. 2, supra. It is suggested by counsel for Jones that this court “as in an action in admiralty” may make findings of fact and conclusions of law. We may not do this. The suit at bar is not in admiralty though Jones’ rights against Waterman are governed by the general maritime law. It is a civil suit and is to be conducted in the court below according to the Rules of Civil Procedure. 28 U.S. C.A. following section 723c. Since it was tried to the court and not to a jury, findings of fact and conclusions of law must be made by the court b'elow as required by Rule 52. For the purpose of expediting the cause we will assume, arguendo, that Jones’ injuries were caused by Reading’s negligence and will endeavor to state the applicable principles of law governing the third-party action. Whether Waterman may maintain its action against Reading in the present suit depends in part on whether the cause of action set out in the third-party complaint can be fitted into the frame of Rule 14(a). The answer to this question turns in large part on the construction, of the word “claim” as used in the rule. We think it would be difficult to employ a more inclusive term, and, as is stated in Moore’s Federal Practice, Vol. 1, at p. 742, “ * * * it is reasonably certain that Federal Rule 14 sought the same general objectives as * * * Admiralty Rule [56].” Admiralty Rule 56, 28 U.S.C.A. following section 723, is very broad and, if the suit at bar were in admiralty, would permit the defendant to maintain the third-party complaint under the assumption of proof which we have made. Moore states also at p. 740, that “The general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.” If Waterman will have a claim which it can assert against Reading because compelled to pay Jones money which, absent Reading’s negligence in relation to Jones, it would not have to pay, Waterman may assert that claim in the suit at bar by way of its third-party complaint. The primary question therefore is whether or not Waterman has a cause of action which it can assert against Reading if Waterman is compelled to pay Jones. We think that Waterman has such a cause of action if it can prove that Reading’s negligence was the cause of Jones’ injuries. If Waterman can recover from Reading it can do so because a cause of action arises under the law of Pennsylvania where the operative facts occurred. and No Pennsylvania case in point has been cited to us and we can find none. The right is one of an employer to recover indemnity for sums of money which he has been compelled to pay to a servant who has been injured by the tortious act of another. This is not the right of an employer to recover against a tortfeasor for an act which has deprived him of the services of a servant but resembles the latter. It is desirable to state some of the precedents of the general law to the end that our reasons for allowing recovery to Waterman under the assumptions hereinbefore stated may be made plain. At common law an employer could maintain an action against a tortfeasor to recover damages on account of loss of services which he sustained by reason of an injury to his employee. This cause of action included damages measured by the loss of the employee’s services. See 35 American Jurisprudence, Master and Servant, § 530, and the authorities cited therein, and 18 R.C.L., 542, § 58. As to servants infra moenia, some cases held that the master could recover only his out-of-pocket expense due to being deprived of the services. This rule of law persisted to a rather late date in New York. See Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145. These rights in substance were those of indemnification. Some of the early cases permitted indemnification against an intentional tortfeasor and denied it as to a merely negligent tortfeasor. The Supreme Judicial Court of Massachusetts did not make such a distinction in Ames v. Union Railway, 1875, 117 Mass. 541, 19 Am.Rep. 426, but permitted a master to recover for the loss of apprentice’s services, the latter having been injured due to negligent operation of the railway. See Coal Land Development Co. v. Chidister, 86 W.Va. 561, 103 S.E. 923. The American courts seem to have made no distinction between loss of services caused by intentional wrongdoing, such as assault and battery, and those in which the loss of services resulted from mere negligence. See Voss v. Howard, Fed.Cas. No. 17,013. The case of Cain v. Vollmer, 19 Idaho 163, 112 P. 686, 32 L.R.A. N.S., 38, seems typical. In this case a jockey was injured by a dog, negligently permitted to wander at large by its master. The employer of the jockey sued to recover the value of the prizes which the jockey might have won had he been able to ride. The damages, however, were held to be too speculative to permit recovery. The Supreme Court of Idaho, however, clearly found that a cause of action existed. Compare Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S.E. 529, 2 L.R.A. 843, 12 Am.St.Rep. 328. A case which denies the master’s right to recovery is Chelsea Moving & Trucking Co. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477. The Supreme Judicial Court of Massachusetts distinguished Ames v. Union Railway, supra, on the ground that the employee in the Ames case was an apprentice and the relationship between master and apprentice was different from that of an ordinary employer and employee, which was purely contractual. The Chelsea Moving & Trucking Co. case is the only decision among the early cases which we have found (though doubtless there are others in the deeps of the law) which holds that an employer cannot recover indemnity for the loss of his employee’s services, whether the loss was caused by intentional wrongdoing or negligence. The English law may have gone off in the direction of permitting recovery only if there had been intentional tortious interference with the employer and employee relationship. Lum-ley v. Gye, 2 El. & Bl. 216, may be said to look in that direction. But the general law in the United States upon this subject seems settled. This is not to say, however, that the employer or master may necessarily recover the sums expended by him out of his own pocket to cure the servant or employee or to maintain him during the illness resulting from an accident. It would seem to follow, however, as a matter of logic that if the master by virtue of his contract of employment with the servant is compelled to maintain and cure his servant during the latter’s illness the master should be permitted to recover these sums from the wrongdoer as part of the remedy afforded him in his cause of action against the wrongdoer. There are a number of cases arising under the general maritime law where such recovery or indemnification was permitted. In Mystic Terminal Co. v. Thibeault, 1 Cir., 108 F.2d 813, the operator of a car float towed by a tug was held liable for injuries sustained by the mate of the tug when he stepped through the rotted roof of the car float. It was held that the mate was on the roof for a business purpose and that it was the intention of the parties to include within the contract of towage and implied warranty of a safe place to work. In New York & Porto Rico S.S. Co. of New York v. Lee’s Lighters, D.C.E.D.N.Y., 48 F.2d 372, the court held that the steamship company was entitled to indemnity for money paid by it in satisfaction of a judgment obtained against it, plus expenses, arising out of an injury to a stevedore, employed by the steamship company, the accident arising out of the unseaworthiness of a lighter operated by the lighterage company. It was held that there was an implied warranty of seaworthiness in the lighter under the lighterage contract. This case should be viewed in the light of the recent decision of the Supreme Court in Seas Shipping Co., Inc., v. Sieracki, 66 S. Ct. 872. In The No. 34, 2 Cir., 25 F.2d 602, a stevedoring company whose employee was injured by a defective ladder fastened to the side of a lighter and who had recovered a judgment against his employer in the state court, was held to be entitled to indemnification from the owner of the lighter. Again, it was ruled that there was an implied warranty of a safe place to work as an incident of the stevedoring contract. See also The Lewis Luckenbach, 2 Cir.., 207 F. 66. In this case a stevedore had been injured due to a defect in the ship’s machinery. The stevedore sued the owner and the charterer and settled with both. The charterer sued the owner for indemnity and recovered. See also Rederii v. Jarka Corporation, .D.C.S.D.Me., 26 F. Supp. 304. In this case an employee of a stevedoring company was injured in the hull of a vessel under circumstances possibly entitling him to compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. He sued the vessel and made a compromise settlement. The owner of the vessel brought a libel in personam against the stevedoring company for indemnity. It was held that the owner of the vessel had a cause of action. The Federal No. 2, supra, is the only decision which we have been able to find which militates against this view. We will discuss that decision at a later point in this opinion. If the principles of the majority of the decisions cited in the foregoing paragraph are sound it would follow that indemnity or recovery over may be had against a pier owner, or one holding under him, by a ship for sums expended by it for the maintenance and cure of one of its seamen injured because the pier was not maintained in a condition fit for the business purpose for which it was intended. The duty to maintain the pier, or a railroad track running upon it, in a safe condition for the benefit of seamen leaving a ship moored to the pier is a warranty implicit in the contract between the pier owner and the ship and in the contract or arrangement between the pier owner and the railroad whose tracks run upon the pier. But putting this tortious spelling out of contractual obligations and implied warranties aside, it is clear that Reading had a duty so to maintain its tracks on the pier that a seaman leaving the “Beauregard” would not be injured if he exercised due care. Under this concept Reading’s obligation sounds in tort and not in contract but is none the less binding upon it for that reason. Chief Justice Holmes took this position in Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781, 86 Am.St.Rep. 478, declaring that although the cause of action of the injured employee against the third party sounded in tort and the obligations and duties of the employer and the employee sounded in contract, the right of the employer to indemnity against the tortfeasor who had injured the employee was not impaired. We come finally to such Pennsylvania cases as there are. There is no doubt that under the Pennsylvania law an employer has a right to recover against a tortfeasor for an act deliberately intended to deprive him of the services of his servant. Such a right was recognized by the early Pennsylvania decisions dealing with labor relations. We believe that the law of Pennsylvania follows the general law and will permit the employer to recover from a negligent tortfeasor for the value of the services of his injured employee, though we can find no decision directly in point upon this question. It is the law of Pennsylvania that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons. See Orth v. Consumers’ Gas Co., 280 Pa. 118, 124 A. 296, and Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473, 164 A. 89. Here the duty imposed upon the corporations primarily liable sounds in tort and grows directly out of the failure to maintain premises properly. The Pennsylvania labor relations cases and the two decisions last cited throw some light on the problem of law presented. Moreover, it must be borne in mind that the obligation of Waterman in the instant case grows out of the maritime law. Waterman cannot escape the burden of Jones’ maintenance and cure and it could not escape the loss of his services. Each element of the loss rose out of Reading’s tort, assuming Reading to have been negligent. We think that under these circumstances the law of Pennsylvania will permit Waterman to recover not only for the loss of Jones’ services but for the sums which it will be compelled to expend for his maintenance and cure. In so holding we are not unmindful of the decision of the Circuit Court of Appeals for the Second Circuit in The Federal No. 2 which held to the contrary under circumstances analogous to those at bar. The substance of that Court’s ruling appears in 21 F.2d at page 314, where, after reference to a “social condition” which permits a father to recover for the loss of the services of a child or a husband for those of his wife, states, “But this social condition does not exist in the relationship of a seaman and his employer. It is a contract obligation, which [the employer] must perform, that imposes this responsibility, even though it be a special damage he suffers from a tortious act. The cause of the responsibility is the contract; the tort is the remote occasion.” In Seas Shipping Co., Inc. v. Sieracki, Mr. Justice Rutledge makes it plain that the obligations of the ship to its seamen do not rest solely in contract ; that a seaman is in effect a ward of the admiralty and that the relationship between owner and seaman, master and seaman, and ship and seaman is in essence a “consensual relationship”. We are of the opinion that the relationship of the ship owner to the seaman is more closely analogous to that of father and child than to that of an employer to a mere employee. We prefer to impose a higher degree of dignity upon the ship-seaman relationship, awarding to it a status or a “social condition” in excess of that given under the ruling in The Federal No. 2. Compare Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, 282, 283, where an employer was not permitted to recover indemnity against the tortfeasor who had injured his employee. It should be pointed out that in the cited case the relationship was merely that of employer and employee. The status of the ship to its seaman bears comparison to that of a soldier in the United States Army to the United States. In United States v. Standard Oil Co., D.C. S.D.Cal., 60 F.Supp. 807, the United States sued the Standard Oil Company for indemnity for the money expended by it to cure an enlisted man of the United States Army who had been struck by the defendant’s truck and for the soldier’s wages during the period of his incapacity. The court permitted the recovery of both items. While the status of an enlisted man in the armed forces of the United States may be described as statutory and the obligation of the ship to grant maintenance and cure to the injured seaman arises under the admiralty law as embodied in decisions, the principle of liability so clearly enunciated in the cited case should be applicable under the facts of the case at bar. While the courts of the Commonwealth of Pennsylvania have not applied the maxim “Ubi jus, ibi remedi-um”, they have been apt in indemnifying injured employers and we conclude that it is no very great innovation to permit Waterman to recover from Reading for maintenance and cure to be paid by it to Jones, if Reading’s negligence is found to be the cause of Jones’ injuries. It is clear that the release executed by Jones to Reading will not avail Reading in the third-party action for the right of Waterman against Reading is not a derivative right through Jones but is a separate and distinct cause of action which will vest in Waterman when it is ascertained what sum of money is due from Waterman to Jones. Cf. United States v. Standard Oil Co., supra. The judgment against Jones and in favor of Waterman will be reversed. The judgment in favor of Reading and against Waterman will be reversed. The cause will be remanded with the direction to proceed in accordance with this opinion. AVkile there was no express waiver of jury trial, the original plaintiff having requested trial by jury on April 17, 1941, as provided by Rule 38(b) and the third party plaintiff haying made no such request, it is apparent from the transcript of the proceedings in the court below on June 5, 1944, the day of the trial, that all the pai'ties waived all rights to trial by jury. See that portion of Rule 14(a) which provides that a defendant may “serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff’s claim against him.” The dividing line between Admiralty and the common law is set out in Bee. 128 and 128a of Benedict on Admiralty, Knauth’s 6th Ed. Contrast the English and American Rules. See the authorities cited to Knauth’s text. Under the decisions of the American courts there is no doubt that Waterman’s cause of action does not lie within the purview of the maritime law. It will be observed that the third-party complaint alleges diversity of citizenship and jurisdictional amount and that tlie rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 must be applied. The action by husband or parent for loss of services of wife or child is closely analogous. See the Restatement, Torts, Section 703. It will be noted that the husband or parent is entitled to recover reasonable expenses incurred in treating the illness or injury. See h. Damages, under Section 703 of the Restatement. The recovery of such items may be had because the husband or parent is himself legally liable for them. It is stated as follows in 39 C.J., Master and Servant, § 1604, “A master may maintain an action for all injuries to his servants because of the negligent or wilful acts of third persons wMch result in damage to the master through loss of services; and the rule has been applied where loss of services resulted from an assault and battery upon the servant, or by reason of his false imprisonment, from the negligent shooting of the servant, or from negligently driving or transporting him, or from his being bitten by defendant’s dog.” See the authorities cited to the text, some of which have been referred to in this opinion. The fact that a husband or father, suing for loss of services of wife or child, may recover for medical expenses supplies a helpful analogy. See note 5 supra. See O’Neil v. Behanna, 182 Pa. 236, 37 A. 843, 38 L.R.A. 382, 61 Am.St.Rep. 702; Jefferson & Indiana Coal Co. v. Marks, 287 Pa. 171, 134 A. 430, 47 A. L.R. 745; Flaccus v. Smith, 199 Pa. 128, 48 A. 894, 54 L.R.A. 640, 85 Am. St.Rep. 779; Kraemer Hosiery Co. v. American Federation of Full Fashioned Hosiery Workers, 305 Pa. 206, 157 A. 588. Cf. Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, cited by Reading. As to the general common law on this subject see 18 R.C.L. p. 542, § 58, and the authority cited to the text. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. Alfred S. CALABRESE and John M. Delzoppo, Defendants-Appellants. No. 19316. United States Court of Appeals Sixth Circuit. Jan. 15, 1970. Certiorari Denied April 6, 1970. See 90 S.Ct. 1259. Phillip A. Barragate, Cleveland, Ohio, for appellants, Barragate & Barragate, Cleveland, Ohio, on brief. Robert W. Jones, Cleveland, Ohio, for appellee, Robert B. Krupansky, U. S. Atty., Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, on brief. Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges. PHILLIPS, Chief Judge. Defendants appeal from their convictions under 18 U.S.C. § 2113(a) (d) for armed robbery of a branch office of the Society National Bank of Cleveland, Ohio. Two issues are raised by defendants on this appeal: (1) Whether the District Court improperly restricted defense counsel in the use of alleged Jencks Act statements in the cross-examination of government witnesses to the extent of depriving defendants of a fair trial; and (2) whether defendants were deprived of a fair trial by comments from the bench, interruptions by the District Judge and by his examination of witnesses during the course of the trial. Although not directly raised by defendants, this Court further has considered the threshold question of whether there is sufficient evidence in the record to sustain the jury’s verdict of guilty. In order to pass upon this issue, the entire transcript of the trial has been read and the exhibits have been examined. 1) Sufficiency of the Evidence A jury verdict must be sustained if, taking the view of the evidence most favorable to the government, there is sufficient evidence to support it. Glasser v. United States, 315 U.S. 60, 81, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Shipp, 359 F.2d 185, 188 (6th Cir.). At the outset we note that the first trial of this case ended with the jury unable to agree as to the guilt or innocence of the defendants. Hence we have scrutinized the evidence in the present case with an extra degree of care. On the trial, which extended over a period of almost two weeks, the government introduced twelve witnesses in its case in chief and one witness in rebuttal. The defense presented seven witnesses. Defense counsel stipulated that a robbery had occurred and that some $27,000 was taken. Mr. Williams, the bank custodian, testifying as a government witness, stated that on the day in question three men entered the Euclid-Green branch bank wearing stocking masks over their heads and faces. The first one to enter, Williams related, proceeded to the counter and vaulted over it. The second man stood near the counter, while the third kept bank personnel and customers under guard. He further testified that the first robber wore a long sleeved plaid flannel shirt, blue trousers and black shoes. He identified the shirt by saying, “I would swear this is the shirt that the fellow had on that came in here.” The shirt was government exhibit 17. He also gave a general description of the two other men and identified several items, including shoes, hats and trousers, as being the type worn by the robbers. He also identified photographs of the robbery in progress taken by cameras activated by the alarm switch. He made an identification of one of the defendants as having a prominent nose like the one he observed protruding underneath the stocking mask worn by the robber who jumped over the counter. The third government witness, a bank secretary, Mrs. Jamison, gave testimony which generally corroborated Mr. Williams. She agreed that the first robber wore dark trousers, but remembered them as being green. Further she recalled that this robber had a sharp profile with a protruding nose. Three other bank employee witnesses provided generally corroborative testimony. The first government witness had testified that shortly after the robbery was under way one of the bank employees activated the alarm system which set in motion a signaling process which included a signal to the police department. She testified that the robbery was in progress for about one minute from approximately 10:30 or 10:35 a. m. Officer Lloyd provided a major link in the chain of evidence connecting these defendants with the robbery. Lloyd testified that he was a police officer employed by the City of East Cleveland and was on duty the morning of the robbery. He related that about 10:30 a. m. he received over his police radio a broadcast to the effect that a robbery had occurred at the Euclid-Green branch bank, located on Euclid Avenue. According to his testimony the broadcast was a “standby call” and he proceeded slowly up Euclid Avenue in the direction of the bank, driving an unmarked detective cruiser. At that point he heard a second broadcast which told the direction the robbers were believed to be traveling and he turned in that direction onto Belvoir Boulevard. This was away from the general direction of the bank. Officer Lloyd testified that he was wearing civilian clothes and was not wearing a hat. As the officer proceeded along Belvoir at about twenty miles per hour in light traffic he said he noticed another car approaching him and that as it passed he recognized one of the occupants as the defendant John Delzoppo. As the car proceeded away from him he watched it in his rear view mirror and observed a “bundle” thrown from the passenger side of the automobile. He immediately turned around and drove back to the spot where the “bundle” had fallen and observed that it was clothing. He continued in pursuit of the automobile, overtook it in a short distance and stopped it, arresting the driver, Alfred Calabrese, and the passenger, John Del-zoppo, on suspicion of robbery. Other officers arrived at the scene to assist. Officer Lloyd then returned to pick up the “bundle,” and according to his testimony, the “bundle” consisted of a pair of trousers and a shirt. The shirt was identified by the officer as government exhibit 17. Other testimony by government witnesses was inconclusive but was not inconsistent with the evidence implicating the defendants. Agent Jennett of the FBI testified that hair found in certain stockings discovered near the scene of the bank did not match samples of hair furnished to him as having come from the defendants. The defendants did not take the stand in their own behalf. Through other witnesses they introduced testimony which tended to contradict government testimony: that certain of the items of clothes in evidence were too large to have been worn by either of the defendants; that the defendants were arrested at a place they could not have reached in the time that had elapsed after the robbery; that neither defendant was ever connected with the getaway car; that the loot was never recovered; and that no weapons or other contraband were shown to have been connected with the defendants. The government rebuttal witness testified that on the basis of tests that he conducted, defendants would have had time to have disposed of the loot, changed clothes and driven to the point where they were arrested after the robbery. Some of the evidence introduced by defendants tended to exculpate them. Part of the defense evidence was not necessarily inconsistent with the charges. We conclude that the defense evidence would not have prevented a finding of guilty beyond a reasonable doubt, determination of credibility being the province of the jury. We cannot say, on this record, that there is not sufficient evidence to support the verdict. 2) The Jencks Act Question Defendants claim that certain statements made by government witnesses to FBI agents regarding the events of the robbery are within the Jencks Act, 18 U.S.C. § 3500. The trial court ultimately concluded, pursuant to a government admission, that the statements were within the scope of the Jencks Act. We assume for purposes of this opinion that these are Jencks Act statements. Defendants further claim that the trial court unduly restricted the cross-examination of the government witnesses through use of these statements. We have found no case delineating with precision the permissible way to cross examine witnesses through the use of Jencks Act statements. It was said by the Supreme Court that: “The statute governs the production of documents; it does not purport to affect or modify the rules of evidence regarding admissibility and use of statements once produced.” Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217,1225, 3 L.Ed.2d 1287. One of the main purposes of the Act is to permit defense counsel to use the statements for impeachment purposes. Palermo v. United States, supra; United States v. Wenzel, 311 F.2d 164, 171 (4th Cir.). The statute does not attempt, however, to set out rules governing the conduct of trials. We see no reason to conclude that Congress by this statute intended to restrict the trial judge’s management of the courtroom, or to invade the functions of the District Judge with respect to the examination of witnesses and the manner of impeachment. It obviously would have been futile for Congress to have undertaken to anticipate the many courtroom situations in which this problem could arise. Therefore, the Supreme Court’s observation as to another question under the act is applicable here. “Final decision * * must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge * * Palermo v. United States, supra, 360 U.S. 343, 353, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287. Rigid rules cannot provide a practical solution to the problem at hand. On an examination of the record we determine whether all cross-examination was forbidden, and, if not, whether the opportunity which remained permitted or would have permitted the full development of evidence and an adequate exposure of inconsistencies. Where there was otherwise no abuse of discretion or prejudice, if a fair opportunity to cross-examine and impeach remained, the District Court’s determination must stand. See Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Howard v. United States, 128 U.S.App.D.C. 336, 389 F.2d 287, 292; Foster v. United States, 282 F.2d 222, 224 (10th Cir.); Robles v. United States, 279 F.2d 401, 405 (9th Cir.), cert. denied, 365 U.S. 836, 81 S.Ct. 750, 5 L.Ed.2d 745. The record shows that the statements in question were furnished by the government to defense counsel well in advance of the examination of the witnesses sought to be cross-examined. The record further discloses that, even before the District Court ruled that the statements were within the scope of the Jencks Act, cross-examination and impeachment were not prevented. The District Court merely disapproved of the method that was being employed by defense counsel. The following colloquy took place between the Court and defense counsel: “MR. PHILLIP C. BARRAGATE: No, your Honor; I assumed that they were given to us in accordance with the law under the Jenks [sic] Act. And if they were not given to us for that purpose, I would like to have the Court’s ruling on that question, because I want to clearly understand this Court * * *. If the Court is going to tell me that I cannot use these statements in cross examination, I assure your Honor that I will take my exceptions for the record but I will not use those statements under any circumstances. “THE COURT: I am not saying that, Mr. Barragate, that you cannot — • the information that is contained in those statements is available to you. All right? You may use that information as best you can with regard to the conduct of your case, but you cannot cross examine a witness with that statement as though this was a statement she gave under the Jenks [sic] Act. “Now, the Court sees nothing wrong or improper, if there are variances between what you read in that statement and what the witness is saying from the stand, the Court sees nothing improper with your asking the witness, ‘Did you state to Agent So-and-so of the FBI that the first bank robber wore gray trousers?’ There is nothing wrong with that, but I do see something wrong with your holding it up and reading it as though that were her statement, because until you put the agent on, this witness already having denied or having admitted of no knowledge with regard to the statement you are reading from, she certainly cannot be cross examined with regard to it. “MR. PHILLIP C. BARRAGATE: For the sake of clarity, so I understand the Court and so that I do not offend the Court, may I ask a witness who has made a statement, first, whether or not she talked to the agent and, secondly— “THE COURT: Oh, sure. “MR. PHILLIP C. BARRAGATE: • — if she talked to the agent, in the course of the conversation did she say thus and so to the agent? That is all I have been doing all the time, that is all I am trying to do, so that if she denies it or doesn't recall it, we call in the agent and say, ‘Did you investigate this matter? Did you talk to this witness ? Did this witness say thus and so to you or not?’ “That is all I am trying to get, and I don’t want to use it for any other purpose except that. Now, if it is all right with the Court that we do that, that is what I will do. And if the Court doesn’t want us to do that, let me assure your Honor that I am not going to do it.” The initial ruling of the District Court came at a point on the third day of the trial when the bank employee witnesses were testifying. This was on Thursday, October 3. The next session was held on the following Monday. Before the first witness was called on this day it was stated that the government had admitted that the statements in controversy were within the Jencks Act. The Court made an offer to defense counsel to recall any of the witnesses for further cross-examination in light of the court’s ruling that, pursuant to the government’s admission, the statements would be regarded as Jencks Act statements. Furthermore, the statements themselves were introduced into evidence as joint exhibits. At this time it appeared that defense counsel would recall some witnesses. Counsel informed the Court as follows: “MR. PHILLIP C. BARRAGATE: Your Honor, before we get to that particular stipulation, I want to say to your Honor that, with respect to recalling certain witnesses now that we do have the statements in evidence, we will let your Honor know some time before the day is out which of the witnesses we would like to recall.” On Tuesday counsel stated that he did not desire to take the opportunity to recall because he felt that further cross-examination would not remove the prejudice already created. He moved for a mistrial. Although denying the motion, the Court prepared and gave a comprehensive instruction to the jury as to the matters defense counsel has raised concerning the confusion about the statements. Although the District Court initially limited to some extent the use of the statements on cross-examination, we hold on a review of the entire record that the limitation was not so severe as to constitute an abuse of discretion. This is not a case where cross-examination was forbidden or terminated. The type of questions to be asked and the manner of asking them is the gravamen of the controversy. These matters are those peculiarly within the trial court’s sound discretion and his broad province to control courtroom conduct. Foster v. United States, supra; Robles v. United States, supra; Roseman v. United States, 364 F.2d 18, 27, 22 A.L.R.3d 1308 (9th Cir.), cert. denied, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789. See also, Darby v. United States, 283 F.2d 896 (10th Cir.). It has not been shown that any substantial rights of defendants were prejudiced. Even if some prejudice might have occurred at the time of the initial ruling by the District Court, we think the subsequent opportunity presented by the District Judge to recall and cross-examine the witnesses after the ruling as to the Jencks Act character of the statements, in conjunction with the Court’s instruction to the jury, was all that was necessary under the facts of this case. 3) Comments, Interruptions and Questioning of Witnesses by District Judge The record discloses that on a number of occasions the District Judge interrupted attorneys for both parties in the course of direct examination or cross-examination and interrogated witnesses from the bench. This Court previously has expressed the view that this “is not to be commended as a desirable practice.” United States v. Lewis, 338 F.2d 137, 141 (6th Cir.), cert. denied, 380 U.S. 978, 85 S.Ct. 1342, 14 L.Ed.2d 272. In United States v. Carabbia, 381 F.2d 133, 139 (6th Cir.), cert. denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 602, this Court, speaking through Judge Cecil, said: “We do not look with favor on extensive examination of witnesses by the trial judge in a jury trial.” We do not find, however, that the interruptions and questioning by the District Judge, or his comments from the bench in the present case, “take him outside the limits of permissibility as outlined in Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321.” United States v. Vida, 370 F.2d 759, 768 (6th Cir.), cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630. The District Judge explicitly instructed the jury that no inferences were to be drawn by his questions or comments. We conclude that the interruptions, comments and questioning of witnesses, although regrettable, did not deprive defendants of a fair trial, viewing the record in its entirety. Affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. GOODYEAR ATOMIC CORP. v. MILLER et al. No. 86-1172. Argued January 19, 1988 Decided May 23, 1988 Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Blackmun, Stevens, and Scalia, JJ., joined. White, J., filed a dissenting opinion, in which O’Connor, J., joined, -post, p. 186. Kennedy, J., took no part in the consideration or decision of the case. Robert E. Tait argued the cause and filed «briefs for appellant. Thomas W. Merrill argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Richard G. Ta-ranto, and Leonard Schaitman. Stewart R. Jaffy argued the cause for appellees. With him on the brief for appellee Miller were Michael H. Gottes-man, David M. Silberman, and Laurence Gold. Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Helen M. Ninos, Dennis L. Hufstader, and Jeffery W. Clark, Assistant Attorneys General, filed a brief for appellee Industrial Commission of Ohio. Briefs of amici curiae urging affirmance were filed for the National Conference of State Legislatures et al. by Benha-Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch; and for the Oil, Chemical, and Atomic Workers International Union by Donald J. Mares and John W. McKendree. Justice Marshall delivered the opinion of the Court. The issue presented in this case is whether the Supremacy Clause bars the State of Ohio from subjecting a private contractor operating a federally owned nuclear production facility to a state-law workers’ compensation provision that provides an increased award for injuries resulting from an employer’s violation of a state safety regulation. I — i This case arises from an accident involving a worker at the Portsmouth Gaseous Diffusion Plant, a nuclear production facility located near Piketon, Ohio. The plant is owned by the United States, but at all times relevant to this action it was operated by a private company, appellant Goodyear Atomic Corporation, under contract with the Department of Energy (DOE). On July 30, 1980, appellee Esto Miller, a maintenance mechanic employed by Goodyear at the Portsmouth plant, fell from a scaffold while performing routine maintenance work and fractured his left ankle. His fall apparently was caused when his glove caught on a bolt protruding from the guardrail of the scaffolding. Miller applied to the Ohio Industrial Commission for an award under the State’s workers’ compensation program, for which Goodyear pays premiums to cover its Portsmouth employees. He received about $9,000 in workers’ compensation. After returning to work, Miller filed an application for an additional award on the ground that his injury had resulted from Goodyear’s violation of a state safety requirement. Miller alleged that his fall was caused by Goodyear’s failure to comply with Ohio Admin. Code §4121:1-5-03(D)(2) (1987), which provides that “[e]xposed surfaces [on scaffolds] shall be free from sharp edges, burrs or other projecting parts.” The Ohio Constitution provides that when an injury is caused by an employer’s failure to comply with a specific state safety requirement, the Industrial Commission shall provide an additional award of 15% to 50% of the benefits already received. Ohio Const., Art. II, § 35. The state insurance fund recoups these additional payments by increasing the premium paid by the employer. Ibid. The Ohio Industrial Commission denied Miller’s claim for a supplemental award. The Commission held that “the [Ohio] Codes of Specific Safety Requirements . . . may not be applied to the Portsmouth Gaseous Diffusion Plant under the doctrine of federal preemption.” Claim No. 80-19975 (Mar. 8, 1983), App. 18. Miller filed a mandamus action in the Ohio Court of Appeals, seeking an order directing the Industrial Commission to consider his application. The court held that “[u]ntil it is clear that the federal government has preempted the field of safety regulation for safety hazards unrelated to radiation, . . . state specific safety regulations that give rise to an award for violation thereof are equally applicable to an entity that contracts with the federal government for operation of a nuclear power facility owned exclusively by the federal government.” No. 84AP-208 (July 25, 1985), App. 17. The court therefore ordered the Industrial Commission to consider Miller’s claim that he was due an additional award because his injury was caused by a violation of a state safety regulation. A divided Ohio Supreme Court affirmed the decision of the Court of Appeals. State ex rel. Miller v. Ohio Industrial Comm’n, 26 Ohio St. 3d 110, 497 N. E. 2d 76 (1986) (per curiam). Relying on the federal pre-emption analysis of Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), the court held that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. §2011 et seq. (1982 ed. and Supp. IV), did not pre-empt Ohio from applying workers’ compensation safety requirements unrelated to radiation hazards to nuclear facilities. 26 Ohio St. 3d, at 111-112, 497 N. E. 2d, at 77-78. In dissent, Justice Wright agreed with Goodyear’s separate claim, not addressed by the majority, that in the absence of clearly expressed authorization from Congress, the Supremacy Clause barred the application of the state workers’ compensation safety requirements to a federally owned facility. Justice Wright argued that Congress had not provided the necessary clear authorization to justify the application of the Ohio workers’ compensation scheme. Id., at 112-115, 497 N. E. 2d, at 78-80. We noted probable jurisdiction of Goodyear’s appeal, 483 U. S. 1004 (1987), and now affirm the judgment of the Ohio Supreme Court on different reasoning. r-H l-H Although neither party contests our appellate jurisdiction over this case, we must independently determine as a threshold matter that we have jurisdiction. See Brown Shoe Co. v. United States, 370 U. S. 294, 305-306 (1962). Title 28 U. S. C. § 1257(2) gives this Court appellate jurisdiction over final judgments by the highest court of a State where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity. “[A] state statute is sustained within the meaning of § 1257(2) when a state court holds it applicable to a particular set of facts as against the contention that such application is invalid on federal grounds.” Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441 (1979). In this case, the additional-award provision of Ohio’s workers’ compensation statute, as applied to the Portsmouth facility, was drawn in question on the ground that it violated the Supremacy Clause, and the Ohio Supreme Court upheld the statute’s application. The more difficult question is whether the judgment is “final” within the meaning of 28 U. S. C. § 1257(2), even though further proceedings are anticipated before the Ohio Industrial Commission. The judgment of the Ohio Supreme Court requires that the Industrial Commission consider appellee’s claim that his injury was caused by a failure to comply with a state safety regulation. In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), we recognized four situations in which this Court views a judgment as final under § 1257(2) although further state proceedings are contemplated. In the fourth category are cases “where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.” Id., at 482-483. We believe the present case falls within this fourth category. The federal question whether the additional workers’ compensation award is barred by federal law has been finally determined by the Ohio Supreme Court, and a reversal of the Ohio Supreme Court’s holding would preclude any further proceedings. In addition, even if appellant prevails before the Industrial Commission on nonfederal grounds, for example, if the Commission determines that there was no violation of the state safety regulation, the unreviewed decision of the Ohio Supreme Court might seriously erode federal policy in the area of nuclear production. The federal pre-emption analysis of the Ohio court sanctions direct state regulation of nonradiological hazards at the Portsmouth facility, the only nuclear facility producing nuclear fuel for the Navy’s nuclear fleet. Moreover, the decision has important implications for the regulation of federally owned nuclear production facilities in other States. Following our “pragmatic approach” to the question of finality, Cox Broadcasting Corp. v. Cohn, supra, at 486, we therefore conclude that the Ohio decision on the federal issue is a final judgment for purposes of 28 U. S. C. § 1257(2). H-i I — I It is well settled that the activities of federal installations are shielded by the Supremacy Clause from direct state regulation unless Congress provides “clear and unambiguous” authorization for such regulation. EPA v. State Water Resources Control Board, 426 U. S. 200, 211 (1976); accord, Hancock v. Train, 426 U. S. 167, 178-179 (1976); Mayo v. United States, 319 U. S. 441, 445 (1943). As an initial matter, therefore, we consider whether the federally owned Portsmouth facility is likewise shielded from direct state regulation even though the facility is operated by a private party under contract with the United States. We believe this question was answered in Hancock v. Train, 426 U. S., at 168, in which we faced the issue whether a State could enforce its pollution emission limitations against “federally owned or operated installations” by requiring that such installations obtain a state permit. One of the facilities at issue in Hancock was the Paducah Gaseous Diffusion Plant, which, like the Portsmouth facility, is a federally owned nuclear production facility operated by a private contractor. Id., at 174, n. 23. Nuclear production facilities such as the Paducah and Portsmouth plants are authorized by statute to carry out a federal mission, with federal property, under federal control. The Court struck down the permit requirement in Hancock, reasoning that without clear congressional authorization, “‘the federal function must be left free’ of [state] regulation.” Id., at 179, quoting Mayo v. United States, supra, at 447. Hancock thus establishes that a federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation. In this case, however, we are not presented with a direct state regulation of the operation of the Portsmouth facility. Rather, the case involves the imposition of a supplemental award of workers’ compensation, chargeable against Goodyear, for an injury caused by Goodyear’s failure to comply with a state safety regulation. Appellant and the Solicitor General argue that the application of the Ohio additional award provision is nonetheless tantamount to a regulation of the Portsmouth facility and is thus invalid under the Supremacy Clause. We need not decide this issue, however, for we conclude that even if the provision is sufficiently akin to direct regulation of the Portsmouth facility to be potentially barred by the Supremacy Clause, ch. 822, 49 Stat. 1938, 40 U. S. C. §290, provides the requisite clear congressional authorization for the application of the provision to workers at the Portsmouth facility. Section 290 provides in relevant part: “Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen’s compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within whose exterior boundaries such place may be.” Both appellant and the Solicitor General concede that the initial workers’ compensation award received by respondent Miller is authorized by § 290. They contend, however, that § 290 does not authorize the supplemental award provided in Ohio’s workers’ compensation law when an employer violates a specific state safety regulation. At bottom, appellant and the Solicitor General argue that the phrase “workmen’s compensation laws” in §290, which is not defined, was not intended to include the additional-award provision in Ohio’s workers’ compensation law. Appellant claims that in the absence of a precise definition, we should infer that Congress envisioned the typical workers’ compensation Act, under which workers are automatically entitled to certain benefits when they suffer a work-related injury, without regard to the employer’s fault. A State’s authority to enforce its workers’ compensation laws under § 290, appellant continues, should be limited to such standard awards. We do not believe appellant’s construction of § 290 can be squared with the statute’s language and history. Section 290 provides that a state authority charged with enforcing “workmen’s compensation laws,” which in Ohio is the Industrial Commission, “shall have the.power and authority to apply such laws” to federal premises “in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State.” This language places no express limitation on the type of workers’ compensation scheme that is authorized. On its face, §290 compels the same workers’ compensation award for an employee injured at a federally owned facility as the employee would receive if working for a wholly private facility. In addition, at the time of the passage of § 290 in 1936, workers’ compensation laws provided a wide variety of compensation schemes that do not fit neatly within appellant’s view of the “typical” scheme. At least 15 States provided remedies in addition to basic workers’ compensation awards when an employee was injured because of specified kinds of employer misconduct. Eight of these States, including Ohio, provided supplemental awards when the employer violated a specific safety regulation. We generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts. See Director, OWCP v. Perini North River Associates, 459 U. S. 297, 319-320 (1983). In the absence of affirmative evidence in the language or history of the statute, we are unwilling to assume that Congress was ignorant of the substantial number of States providing additional workers’ compensation awards when a state safety regulation was violated by the employer. Indeed, Congress appears to have recognized the diversity of workers’ compensation schemes when it provided that workers’ compensation would be awarded to workers on federal premises “in the same way and to the same extent” as provided by state law. The meaning of “workmen’s compensation laws” in §290, of course, is not infinitely elastic. We need not address the outer boundaries of that term in this case, however, because we believe it is clear that Congress intended Ohio’s law and others of its ilk, which were solidly entrenched at the time of the enactment of § 290, to apply to federal facilities “to the same extent” that they apply to private facilities within the State. The only evidence in the legislative history of §290 that appellant and the Solicitor General muster in support of their position is that Congress rejected a proposal that would have authorized States to apply state safety and insurance laws directly to federal projects. See S. Rep. No. 2294, 74th Cong., 2d Sess., 2 (1936). But Congress’ reluctance to allow direct state regulation of federal projects says little about whether Congress was likewise concerned with the incidental regulatory effects arising from the enforcement of a workers’ compensation law, like Ohio’s, that provides an additional award when the injury is caused by the breach of a safety regulation. The effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision. Appellant may choose to disregard Ohio safety regulations and simply pay an additional workers’ compensation award if an employee’s injury is caused by a safety violation. We believe Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not. Cf. Silkwood v. Kerr-McGee Corp., 464 U. S., at 266 (Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empted). Because the permission of incidental regulation is consistent with the preclusion of direct regulation, the legislative history relied on by appellant and the Solicitor General does not undermine the plain language of § 290. We conclude that the additional award provision of Ohio’s workers’ compensation law is unambiguously authorized by §290 and therefore does not run afoul of the Supremacy Clause. Accordingly, the judgment of the Ohio Supreme Court is affirmed. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. The Ohio Supreme Court in this case failed to consider the fundamental distinction between state regulation of private facilities and state regulation of federal facilities. When dealing with state regulation of private facilities, analysis under the Supremacy Clause centers on whether Congress has taken affirmative action to pre-empt the state regulation in question. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 712-713 (1985). On the other hand, because the Supremacy Clause immunizes the activities of the Federal Government from state interference, Mayo v. United States, 319 U. S. 441, 445 (1943), direct state regulation of federal facilities is allowed only to the extent that Congress has clearly authorized such regulation. With certain limited exceptions, the DOE, as agent of the United States, is the exclusive owner of all nuclear production facilities. See 42 U. S. C. § 2061(a); see also Department of Energy Organization Act, 91 Stat. 577, 42 U. S. C. § 7151(a) (transferring responsibility to DOE from the Energy Research and Development Administration). The DOE is authorized to contract with private parties to operate its facilities, but these private contractors are subject to the direction and supervision of the DOE. See 42 U. S. C. §2061(b); H. R. Rep. No. 2181, 83d Cong., 2d Sess., 14 (1954) (“In connection with its own production facilities, . . . the Commission is permitted to have the actual operation carried on by other persons under contract to it and under its direction and control”). This federal control over the production of nuclear material is an important aspect of federal nuclear energy policy. See 42 U. S. C. § 2013(c). Appellees and amici argue that Hancock should be read as applying only to situations in which the state regulation may act to prohibit the operation of the federally owned facility. Although Hancock involved a state regulation requiring an operating permit, the central issue presented was the power of the State to enforce its emissions regulations. See Hancock v. Train, 426 U. S., at 181. Under the Supremacy Clause, we discern no important difference between the authority to order compliance with state regulations and the authority to require a permit prior to operating a facility. In both settings the State is claiming the authority to dictate the manner in which the federal function is carried out. Although the language and history of § 290 indicate that it is addressed to federal enclaves, areas over which the United States has assumed exclusive jurisdiction under U. S. Const., Art. I, §8, cl. 17, see S. Rep. No. 2294, 74th Cong., 2d Sess. (1936), both appellant and the Solicitor General concede, and we agree, that it authorizes the application of workers’ compensation laws to federal facilities like the Portsmouth plant that are not federal enclaves. There is no doubt that the supplemental award provision is an integral part of the Ohio workers’ compensation statute. The provision was enacted in 1923 as an amendment to the existing workers’ compensation scheme. The amendment abolished the right to bring an action at law when the employer failed to comply with specific safety requirements and substituted the additional percentage award in the event of such a failure. State ex rel. Bailey v. Krise, 18 Ohio St. 2d 191, 195-197, 249 N. E. 2d 55, 58-59 (1969). See 1925 Ariz. Sess. Laws, ch. 83, § 65 (option to sue if injury from employer’s “wilful misconduct”); 1917 Cal. Stats., ch. 586, § 6(b) (50% increase in compensation, not to exceed $2,500, if injury caused by serious and willful misconduct of employer); 1916 Ky. Acts, ch. 33, §§ 3, 29 (option to sue for intentional injury and 15% increase for intentional failure to comply with statute); 1911 Mass. Acts, ch. 751, pt. 2, § 3 (100% increase if injury caused by employer’s serious and willful misconduct); 1925 Mo. Laws, § 3 (15% increase for failure to comply with any statute); 1929 N. M. Laws, ch. 113, § 7 (50% increase if employer fails to provide safety devices required by law); 1929 N. C. Sess. Laws, ch. 120, § 13 (10% increase for willful failure to comply with any statutory requirement); Ohio Const., Art. 2, § 35 (15% to 50% increase for violation of specific safety requirement); 1921 Ore. Laws, ch. 311, § 6 (option to sue for intentional injury by employer); 1936 S. C. Acts, No. 610, § 13 (10% increase for willful failure to comply with statute); 1917 Tex. Gen. Laws, ch. 103, § 5 (option to sue for “willful act or omission” or “gross negligence” of employer); 1921 Utah Laws, eh. 67, § 1 (15% increase for willful failure to comply with any statute); 1911 Wash. Laws, ch. 74, § 6 (option to sue for intentional injury); 1913 W. Va. Acts, ch. 10, §28 (option to sue for intentional injury); 1915 Wis. Laws, ch. 378, § l{h) (15% increase for violation of statute); see also 2A A. Larson, Law of Workmen’s Compensation §69.10 (1987). See 1916 Ky. Acts, ch. 33, § 29; 1925 Mo. Laws § 3; 1929 N. M. Laws, ch. 113, § 7; 1929 N. C. Sess. Laws, ch. 120, § 13; Ohio Const., Art. II, §35; 1936 S. C. Acts, No. 610, § 13; 1921 Utah Laws, ch. 67, § 1; 1915 Wis. Laws, ch. 378, § 1 (h). For the present versions of these laws, see Ky. Rev. Stat. §342.165 (1983); Mo. Rev. Stat. §287.120(4) (1986); N. M. Stat. Ann. §52-1-10(B) (1978); N. C. Gen. Stat. §97-12 (1985); Ohio Const., Art. II, §35; S. C. Code §42-9-70 (1976); Utah Code Ann. §35-1-12 (1953); Wis. Stat. § 102.57 (1985-1986). Prior to enacting § 290, Congress had authorized recovery of damages under state tort law by persons injured or killed on federal enclaves. See ch. 15, 45 Stat. 54, 16 U. S. C. § 457. Thus, at the time § 290 was enacted, Congress already had evinced a willingness to have state law exert incidental regulatory pressures on federal facilities. Appellant also argues that the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq. (1982 ed. and Supp. IV), and the DOE’s health and safety regulations promulgated under the 1954 Act, pre-empt the award of additional compensation based on state health and safety regulations. Nothing in the 1954 Act, however, expresses an intent to repeal § 290 as applied to nuclear production facilities, nor can we read the 1954 Act as implicitly repealing § 290 because the two are not inconsistent. Section 290 is therefore as effective an authorization to apply state workers’ compensation laws after the passage of the 1954 Act as before. 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_appel1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Bernard HIATT, Appellant, v. Emil A. SCHLECHT, E. B. Weber, Norman L. Buckner, Robert J. Caley, Carl M. Halvorson, Eric Hoffman, J. M. Steinmuller, Jr., and Ralph Pierson, as Trustees for the Oregon-Washington Carpenters-Employers Health and Welfare Trust Fund and as Trustees for the Oregon-Washington Carpenters-Employers Pension Trust Fund, Appellees. No. 21825. United States Court of Appeals Ninth Circuit. Aug. 13, 1968. Henry Camarot (argued), Sanders, Lively, Camarot & Wiswall, Springfield, Or., for appellant. Paul T. Bailey (argued), Bailey, Swink & Haas, Portland, Or., for ap-pellees. Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT, District Judge. Hon. James A. von der Heydt, United States District Judge, Anchorage, Alaska, sitting by designation. OPINION VON DER HEYDT, District Judge: This is an appeal from a judgment entered by the District Court for plaintiffs. Plaintiffs, appellees herein, are trustees of the Oregon-Washington Carpenters-Employers Pension, and Health and Welfare, Funds. They filed a complaint seeking specific performance of certain trust agreements which they alleged were incorporated by reference into a labor agreement signed by defendant. Defendant, appellant herein, is a small building contractor. He contends, inter alia, that the District Court did not have jurisdiction because he is neither “in commerce” nor engaged in an “industry affecting commerce” as required by Section 301 of the Labor Management Relations Act. We consider here only the issue of the District Court’s jurisdiction. In support of his contention that the District Court lacked jurisdiction, appellant urges that he purchased all of his supplies and performed all of his contracts during the period in question in Oregon, and did no work for any company engaged in interstate commerce. The record notably lacks adequate evidence on behalf of appellees in support of the District Court’s jurisdictional requirement. We find this evidence to be insufficient. We glean from the record in this regard only that the plumbing fixtures which appellant used in 1963, 1964, and 1965 were manufactured outside Oregon, that cost of these items totalled, for both labor and materials, some $5,600 to $8,000 for the years in question, and that appellant’s annual gross income averaged about $150,000. The District Court determined that it had jurisdiction. The terms “in commerce” or “industry affecting commerce” are broadly defined. Many authorities require a direct purchase of materials from another state, usually in comparatively substantial quantities, to find jurisdiction. The size of a particular business or the actual dollar value of commerce conducted alone is not determinative of the question. The record establishes the following with regard to appellant’s activities: He did not 1) construct outside Oregon; 2) subcontract with contractors engaged in business outside Oregon; 3) purchase materials or supplies from persons outside Oregon; 4) contract with subcontractors outside Oregon; 5) do any business with any firm or company in any other states; 6) work on any federal, state, or political subdivision projects; 7) ever work on any defense projects; 8) perform work on a facility directly utilized for the purpose of interstate commerce. This manifest lack of interstate contact, considered with the significant insufficiency of appellees’ affirmative evidence upon the jurisdictional question, distinguishes this case from those relied upon by appellees. Clearly, the evidence is insufficient to establish that appellant engaged in interstate commerce or in industry affecting commerce. We find the District Court lacked jurisdiction. . Because of this conclusion, it is unnecessary to reach the remaining issues raised by this appeal. Reversed and remanded with instructions to the District Court to vacate judgment and dismiss appellees’ complaint for want of jurisdiction. . 29 U.S.C. § 185(a) (1964). . There was actually no evidence as to this, but the District Court took judicial notice of the ‘fact.’ In the light of our conclusion, we need not discuss the propriety of its having done so. . The record suggests that the electric fixtures which appellant used may also be included in this computation. . See, e.g., Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); NLRB v. Inglewood Park Cemetery Ass’n, 355 F.2d 448 (9th Cir.), cert, denied, First Congregational Church of Los Angeles v. NLRB, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966). . Plumbers and Steamfitters Union, Local No. 598 v. Dillion, 255 F.2d 820 (9th Cir. 1958). . NLRB v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014 (1939). . NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L.Ed. 1284 (1951) (over $55,-000 worth of raw materials purchased outside state; products shipped out of state); Plumbers & Steamfitters Union, Local 598 v. Dillion, note 5 supra (subcontractor on Atomic Energy Commission project site; pipe unloaded from interstate railroad car); NLRB v. Reed, 206 F.2d 184 (9th Cir. 1953) (over $50,000 worth of business for public utilities and related establishments). See also, NLRB v. Inglewood Park Cemetery Ass’n, note 4 supra, where materials were purchased directly from out of state; Safeway Stores, Inc. v. FTC, 366 F.2d 795 (9th Cir. 1966), cert, denied, 386 U.S. 932, 87 S.Ct. 954, 17 L.Ed.2d 805 (1967), where direct interstate sales were involved, and Wirtz v. Intravaia, 375 F.2d 62 (9th Cir. 1967), where there was construction work done on highways and airport runways used by interstate transporters. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_r_bus	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 "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. DIRECTOPLATE CORPORATION v. DONALDSON LITHOGRAPHING CO. No. 5630. Circuit Court of Appeals, Sixth Circuit. Oct. 9, 1931. Before MOORMAN, HICKS, and HIGKENLOOPER, Circuit Judges. PER CURIAM. Upon petition for rehearing it is insisted that the court misread the drawings in evidence and erred in holding that, in defendant’s device, “the negative is carried by clamps upon the inner and under portion of the outer frame and the inner frame is used solely for the purpose of hermetically sealing the negative within the outer frame.” 51 F.(2d) 199, 201. A model of defendant’s frame is now presented, and from this it appears that the court did make the error suggested. It follows that the portion of the opinion above quoted should he modified to conform to the fact, which is, that the negative is carried by clamps upon the inner frame to which it is hermetically sealed by pressure and a rubber strip; and the inner frame is then firmly attached tó the outer frame, before use, by pairs of set screws, the opening between the inner and outer frames being sealed by a vertical curtain of flexible rubber cloth. The foregoing correction in no way requires a different conclusion than that heretofore reached. The two frames of the defendant’s device must still be considered as operatively and functionally integral, and the manner of operation of the device as substantially different from that of the patent (Koppe, No. 1,396,962). The petition for a rehearing is denied. 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:

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